Opinion
37715.
DECIDED SEPTEMBER 9, 1959. REHEARING DENIED OCTOBER 8, 1959.
Action on insurance policy. Burke Superior Court. Before Judge Anderson. March 11, 1959.
Hull, Willingham, Towill Norman, W. Hale Barrett, Lewis Lewis, Preston B. Lewis, for plaintiff in error.
H. Cliff Hatcher, contra.
1. Where the pleadings and evidence form issues of fact, which might be resolved in one party's favor, the opposite party is not entitled to a judgment notwithstanding the verdict, nor the grant of a new trial on the ground that the verdict is not supported by the evidence.
2. The opinion of an expert witness may be given in response to a hypothetical question based on facts placed in evidence either by the testimony of other witnesses or by competent evidence of any nature.
3. A ground of a motion for new trial that complains of an excerpt from the judge's charge must in order to show error assign a valid reason why the charge is incorrect.
4. Where a party desires that the consideration of evidence be limited to the purpose for which it is admitted, a written request that he so instruct the jury should be presented to the judge.
DECIDED SEPTEMBER 9, 1959 — REHEARING DENIED OCTOBER 8, 1959.
Mrs. Jennie Hickman filed suit in the Superior Court of Burke County seeking to recover $3,000 from Mutual Benefit Health Accident Association of Omaha on a policy issued on the life of her husband, Walter A. Hickman.
The petition, as amended, alleged that on October 13, 1957, Walter A. Hickman was seriously injured while driving his pick-up truck over his farm, when the left front wheel accidently plunged into a deep stump hole, the accident throwing him violently into the steering wheel and throwing his head violently against the windshield, from which injury he died 15 minutes later.
The plaintiff attached to her petition a copy of an insurance policy issued by the defendant, the first paragraph or "insuring clause" reading as follows: "Mutual Benefit Health Accident Association, Omaha (herein called association) does hereby insure Walter A. Hickman (herein called the insured) of City of Girard, State of Georgia, against loss of life, limb, sight or time, resulting directly and independently of all other causes, from bodily injuries sustained during any term of this policy through purely accidental means. . ." Part A of the insurance policy under "Accident Indemnities — Specific Losses" provides: "If the insured shall sustain bodily injuries as described in the insuring clause, which injuries shall, independently and exclusively of disease and all other causes, continuously and wholly disable the insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the association will pay for loss of life $3,000.
The only other clauses which are pertinent to the facts as they are alleged and as they developed at the trial are Standard Provision 8 and Additional Provision (b), which read as follows: "Standard Provision 8 — The association shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law. Additional Provision (b) Strict compliance on the part of the insured and beneficiary with all the provisions and agreements of this policy, and the application signed by the insured, is a condition precedent to recovery and any failure in this respect shall forfeit to the association all right to any indemnity, and the insured shall as a condition precedent to recovery hereunder furnish the association every thirty days with a report in writing from his physician stating the condition of the insured and the probable duration of the disability."
The defendant filed its answer admitting that the insurance policy was in force and the premiums had been paid, but denying that the death of Walter A. Hickman was an event insured against and defending on the ground that the plaintiff had not performed all the conditions of the contract of insurance, but on the contrary had refused and still refused to allow the defendant the opportunity to make an autopsy on the body of Walter A. Hickman, although the contract of insurance contains a condition precedent giving to the defendant such a right.
The defendant also filed both general and special demurrers to the petition, which demurrers were not renewed after the petition was amended and which are not insisted on in this court.
On the trial it developed that Mr. Hickman was a policy holder of the defendant in good standing at the time of his death. The evidence revealed that Mr. Hickman left his home in Girard, Georgia, at about 5 p. m., on Sunday October 13, 1957, apparently feeling well, to visit his nearby farm in a pickup truck. There was evidence that there was on the farm a hole where a stump had been removed, which hole was several feet in diameter and two and one-half or three feet deep. The left front wheel of Hickman's truck was found in the hole with the left side of the vehicle's chassis resting on the ground.
Mr. Hickman was next seen by Ruby Carter, a daughter of a tenant who lived in a house on Mr. Hickman's farm about 300 yards from the place where the pickup truck was stuck. She testified that Mr. Hickman walked up to the door of her mother's house and called. He said that he had become stuck in a stump hole and asked for a shovel. He then asked Ruby Carter if she would go to another tenant house which was nearby and ask the "boys" who were there to come and get him out of the stump hole, which she did.
Mr. Hickman did not borrow the shovel but sat down on a cedar tree root to await the arrival of help. Nettie Carter, Ruby Carter's mother, returning home, found Mr. Hickman sitting in front of her house. He told her that his truck was stuck in a stump hole and that he had sent Ruby for help. Nettie Carter looked toward the house to which Ruby had been sent and said, "Here they come in now, coming in with their lights on." Nettie Carter testified that Mr. Hickman arose and walked around the tree as if to look to see the approaching help "and when he walked around a little piece, he set down and when he set down he laid down . . . and my sister called him but he didn't answer." When Mr. Hickman didn't answer, the boys were sent for help and it was discovered that Mr. Hickman was dead. It was estimated that Mr. Hickman died about 15 minutes after arriving at the Carter house.
Mrs. Jennie Hickman testified in part: "I am the widow of Walter A. Hickman. Walter had an insurance policy with the Mutual Benefit Health Accident Association, policy No. 50-A-5911. Walter carried this policy at the time of his death. He was in good standing with this policy at the time. He had an accident on his farm on Sunday afternoon about 5 o'clock. He seemed perfectly well, when he left home. He made no complaint whatever. As far as I could tell and as far as his looks and attitude, he was perfectly all right when he left home. I reported this accident to the insurance company and they sent me a letter dated October 24, 1957, and some forms to fill out in regard to it. I filled out those forms and carried out their instructions. On November 18, 1957, I mailed the filled out forms back by registered mail. After they got those forms and made an investigation, they wrote me another letter dated February 26, 1958, refusing payment."
Ralph E. Crowe testified in substance: "I am a mortician, my address is Fletcher Funeral Home, Millen, Georgia. I handled the body of Walter A. Hickman when he died and embalmed his body. I found that there was a little hemorrhage at the mouth, not so profuse, but some, and the usual amount of blood in the vessels and a lot in the stomach. I am pretty well experienced in handling bodies, but I am not a doctor. I have been an undertaker for about 23 years. I wouldn't say what was the cause of Mr. Hickman's death, because I really don't know. I am not a doctor and there could have been several different reasons for his death, either hemorrhage or could have been from a blow or it could have been from ruptured blood vessels or several causes, or heart attack. I have prepared bodies of persons who died in bed of heart attacks and have discovered blood in the mouth and nose of such bodies. As a rule, you don't, but you do in some cases."
Dr. J. M. Byne, Jr., gave the following evidence: "I am a practicing physician in Waynesboro and have been practicing there for 30 years. I graduated from the University of Georgia." In reply to the question as to whether the described accident could have caused the insured's death, the witness replied: "I cannot answer without knowing how fast the truck was going and I must have some idea of the force with which the man was thrown against the steering wheel. In answering the hypothetical question, I would have to know if the car slowly fell into the hole or how much force was the man struck with to cause the ultimate outcome of the case. I think that would have to be in your hypothetical question. You only say a truck went into a hole. I would feel that it would be drawing a conclusion — I couldn't draw a conclusion on those facts. The depth of the hole, it doesn't seem to me would affect the hypothetical question. It would be the force with which the man fell. If he had an exceptionally large abdomen, of course, the inner thoracic pressure within his lungs would certainly be increased if he was hit with a great force because a force against the abdomen increases the pressure into the chest itself, but I think to say `went into a hole' is not enough. I have to know, to express an opinion, you certainly would have to know the amount of force." In answer to the question "Suppose the man was driving 15 to 20 miles an hour, what could be the outcome of that?" he testified: "What it could be, yes, because a man could go into a hole with no apparent damage to himself at all and yet we do know that very trivial amounts of injury could produce a fatal outcome, and if this man, if the force was such that it ruptured a vessel inside of his abdomen or inside his chest, a man could begin at that point with a ruptured blood vessel, begin to bleed and could bleed to death. There could be any number of reflex mechanisms that could be set up to cause a complete standstill of his heart. I think that would be on a sudden death basis rather than some interval of time elapsing after that. If the force was sufficient, you could rupture a vessel from falling into a hole. That is the point. You said `a car went into a hole' without stating the speed of the car. Of course, at a slow speed an automobile if it is suddenly stopped can do a considerable amount of damage under certain circumstances. There is a possibility that where the front left wheel fell with force into the stump hole suddenly, it then could produce death by injury to the stomach. . . All that I can say is that certainly would indicate some rupture of the vessel. If he found free blood within the peritoneal-abdominal cavity, that would certainly mean a ruptured vessel of some kind or would have to be a ruptured liver or some other place to give blood into the abdominal cavity. It comes again to the question of the amount of force. One person's head may be struck against something and he not have any bad effects and another person's head may be struck against it with apparently the same amount of force and he may suffer severe concussion. I think these things you mention are possible but I still think when you are dealing with this, you would have to deal with the amount of force. I don't think you could say that a lick on the abdomen would mean anything because if you hit your abdomen with your hand, that is still a lick but when you start talking about a nonpenetrating would upon the abdomen, I think it is purely hypothetical as to the amount of force will produce a given injury. Now, a penetrating wound is a different thing because you know what it penetrates. A sudden heavy blow when his stomach hit the steering wheel, when the car fell into the stump hole, I don't think would likely cause death but probably it could produce death if the blow was of such force as to rupture a vessel and cause internal bleeding . . . If a man was hit and the man dies, there would certainly have to be within our mind a correlation between the two. In that case I would have to say, you would have to say that the accident certainly helped to at least precipitate and cause death. I could not say in my opinion that the accident caused his death directly and independently of all other causes, exclusive of disease, that the accident caused his death directly and independently of all other causes. You would have to have an autopsy to prove the absolute cause of death. You couldn't sit here and make any valid conclusion. No, sir, I would draw it purely from a hypothetical standpoint that a man injured in the type of injury that he had and died within a very short period of time thereafter, until proven otherwise there would have to be some connection between the trauma he received and the death. Now, as to what was the cause of his death, I couldn't say nor could I say the manner in which he died nor what he died from. In my opinion the best and only accurate method in discovering the cause of his death would be an autopsy."
Dr. W. W. Hillis, Jr., testified: "I treated Walter Hickman. The first time that I saw him was in June 1955. That was more of a routine office visit. He was at that time extremely overweight. He had some high hypertension and also was having angina pectoris or heart pain. At that time he told me he was taking nitroglycerine for this and I advised him to lose as much weight as he could and continue with his heart medicine, nitroglycerine. The next time I saw Mr. Hickman as a patient was in July of this past year, 1957. At that time he was still having pain in his chest and angina and he also was having some heart failure at that time. I believe he had lost some weight, not nearly enough, but he had lost some. `Heart failure' is not a true term. Your heart certainly isn't failing. It would be failing to beat efficiently, sufficiently to properly circulate the blood and, as a result, you almost get stagnation in your blood tissues and in his case particularly in the lungs. More or less serum or water would seep out of the blood vessel into the lung as a result of the stagnation. His health at that time was precarious or poor. He had a serious heart sickness. I examined his body, but I did not examine him again while he was still alive. I was home the night or afternoon he died. They called me. I believe his sister was the lady who called me, said she thought he was dead but she wanted to make sure, so I immediately went over there and I picked her up in Girard and we had to detour to get where the patient was and he was in the hearse at that time. I examined him and, of course, he was dead on arrival and apparently had been so for some time. At the time he was somewhat cyanotic, had the appearance of a bluish discoloration and there was some rather pink-colored fluid running out of his mouth and nostrils. These signs are quite consistent with dying with a heart attack. You can't say they are all present but they are found quite often. From his past history as a patient and the history as given me of his last moments, on the way from Girard to his body, and then from the examination itself, I had the impression that he had died because of an acute coronary occlusion, as the immediate cause of death. Of course, on the death certificate you can't put the relative findings. Of course, he had high blood pressure, also he had some congestive heart failure, but for some reason you can't put congestive heart failure on your death certificate as the cause of death. I haven't had any reason to change my opinion." In answer to the question: "Assume that a man 57 years old, weighing 240 pounds, 5 feet 10 inches, suffering from hypertension and congestive heart failure and obesity, were to suffer a blow to the abdomen and then walk 300 yards, in your opinion would it be reasonable to assume that the accident did not cause his death?" Dr. Hillis, Jr. testified: "I think you could assume that it was not the sole cause of it. Of course, it depends on how high the blood pressure was, how much heart failure he had, what type of blow, or how hard it was, and certainly if his pressure was high enough, had enough heart failure, if he had any kind of thrombosis, it would contribute to his death. A person like Mr. Hickman who had his history and was his age and he was suffering from these heart conditions would be likely to suffer a sudden failure. He would be the type of person who might drop dead at any time." On cross-examination Dr. Hillis, Jr., testified: "It is possible that a man in that condition could have lived for years without having died if it hadn't been for this accident. I think the accident could certainly have contributed to the death. I should explain that when you sign a death certificate, you have got to put the actual cause and not the contributing cause of death. There is no way around it. You have got to do it. When I examined him, I didn't know that he had been in an accident and that the truck in which he was riding, the front wheel, had fallen in a stump hole. Had I known that this truck had fallen into this stump hole, knowing it and knowing his condition, I would have immediately called the coroner and would have no longer had anything to do with the case. If there is free blood in the stomach outside of the blood vessels, I would say that that showed that there was an injury to a blood vessel or to his stomach. If free blood was found in his stomach that contributed to his death. . . The only absolute way of determining the cause of death is to perform an autopsy in any death. In my opinion, an autopsy performed six months following the date of death would be of value in determining the cause of death."
At the conclusion of the evidence the defendant moved for a directed verdict. The motion was denied. The jury returned a verdict in the plaintiff's favor. The defendant made a motion for new trial on the usual general grounds and later amended the motion by adding special grounds. The trial court denied the amended motion for new trial. The defendant moved for a judgment in its favor notwithstanding the verdict, which motion was denied.
The defendant's bill of exceptions assigns the denying of its amended motion and the denial of its motion for judgment notwithstanding the verdict as error.
For convenience the plaintiff in error is referred to in this opinion as the defendant, and, the defendant in error as the plaintiff, the parties having occupied those positions in the trial court.
1. The only general grounds of the motion for new trial insisted on in this court and the motion for judgment notwithstanding the verdict raise the single question as to whether the verdict was supported by some evidence.
The motion for new trial assigns as the reason for the insufficiency of the evidence to support the verdict, that the evidence failed to show that the insured came by his death through purely accidental cause "independently and exclusively" of all other causes. The ground points out the provision of the policy that confines its coverage to death caused solely in that manner.
The defendant's argument in support of the motion for judgment notwithstanding the verdict raised the question as to whether a verdict in the plaintiff's favor was authorized because the plaintiff refused, after her husband, who was the insured, had been buried for six months and about five months after notice of his death had been given the insurer, to allow his body to be exhumed that an autopsy might be performed. The defendant points to the stipulation of the policy sued upon that "The association shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law."
If the defendant is right as to either of these contentions the verdict was not supported by evidence and should be set aside, and, if as the defendant insists, the evidence demanded a finding that the plaintiff failed, without valid cause, to comply with the terms of the policy in reference to the autopsy, the motion for judgment notwithstanding the verdict should have been granted.
If on the other hand the evidence made an issue that could be legally submitted to the jury as to the plaintiff's right to refuse the defendant's request to perform an autopsy on the insured, and, if there was any evidence that the insured came to his death through purely accidental means independently and exclusively of all other causes, the trial judge did not err in denying the motion for new trial or in denying the motion for judgment notwithstanding the verdict.
It is vigorously insisted that the plaintiff is not entitled to recover because she did not comply with the policy of insurance on which her cause is predicated. It is an elementary principle of law that one who stands on a contract must abide by its terms. As a matter of course the principle is applicable to insurance contracts as well as to all other contracts. Thus the question before this court is whether the refusal of the plaintiff to have her husband exhumed and permit an autopsy, as a matter of law, constituted a violation of the policy provision to which reference has been made, or whether that issue was one of fact for solution by the jury.
Pretermitting discussion as to whether the policy provision relative to the autopsy had been waived, we further consider the question as to whether in the absence of waiver the refusal on the plaintiff's part to permit the autopsy was an absolute bar to her right of recovery.
Where, as here, circumstances and their consequences must be considered in passing on the question as to whether the plaintiff's refusal to allow the disinterment and autopsy was in violation of the terms of the policy, and reasonable men might reach a different conclusion from the consideration of the same facts, the question is one for the jury.
This view is supported by ample authority, and particularly by the majority opinion of Order of United Commercial Travelers of America v. Moore, 134 F.2d 558 (4) (5). The case considered the same question as here presented in the light of the law of this State. In the opinion it is held: "(4) Whether insurer's request to perform autopsy permitted by accident certificate is made within a reasonable time is for the court to decide if it is made either so promptly or so tardily after death that reasonable minds could not fairly differ on the question, otherwise it is for the jury to decide.
"(5) Where accident certificate conferred on insurer right to perform an autopsy under penalty of forfeiture of all rights thereunder, but 65 days elapsed between date notice of death was received by insurer and date autopsy was requested and 56 days intervened between time insurer inquired into facts surrounding insured's death and date that leave to conduct autopsy was demanded and there was no evidence to explain the delay, evidence sustained jury's determination that request was not made within a `reasonable time.'"
The demand for the autopsy was, according to the undisputed testimony of the plaintiff made about six months after the insured's death, which the record shows was about 47 days after the defendant had written a letter to the plaintiff denying liability of her claim for the insured's death, and more than a month after the suit was filed.
The defendant's denial of the liability at the time the plaintiff's claim of loss was presented to it was a waiver of the right to demand an autopsy. Gulf Life Ins. Co. v. Matthews, 66 Ga. App. 162, 166 ( 17 S.E.2d 247); Central Manufacturers Mut. Ins. Co. v. Graham, 24 Ga. App. 199 (3) ( 99 S.E. 434); Gilley v. Glens Falls Ins. Co., 81 Ga. App. 71, 72 (2) ( 58 S.E.2d 218).
The evidence showed the insured was apparently well when he left home on the afternoon of his demise; thereafter, out on his farm, the left wheel of his truck fell into a stump hole about two and one-half or three feet deep, so that the left front part of the vehicle's chassis was resting on the ground; within about 15 minutes the insured died; the mortician testified that he found a quantity of blood in the insured's abdominal cavity. A physician testified: "All that I can say is that certainly would indicate some rupture of the vessel. If he found free blood within the peritoneal-abdominal cavity, that would certainly mean a ruptured vessel of some kind or would have to be a ruptured liver or some other place to give blood into the abdominal cavity. It comes again to the question of the amount of force. One person's head may be struck against something and he not have any bad effects and another person's head may be struck against it with apparently the same amount of force and he may suffer severe concussion. I think these things you mention are possible but I still think when you are dealing with this, you would have to deal with the amount of force. I don't think you could say that a lick on the abdomen would mean anything because if you hit your abdomen with your hand, that is still a lick, but when you start to talking about a non-penetrating wound upon the abdomen, I think it is purely hypothetical as to the amount of force will produce a given injury. Now, a penetrating wound is a different thing because you know what it penetrates. A sudden blow when his stomach hit the steering wheel, when the car fell into the stump hole, I don't think would likely cause death, but probably it could produce death if the blow was of such a force as to rupture a vessel and cause internal bleeding."
Another doctor testified: "If there is free blood in the stomach outside of the blood vessels, I would say that that showed that there was an injury to a blood vessel or to his stomach. If free blood was found in his stomach by the undertaker in drawing blood from the man or cleaning out his stomach, I would say there was an injury to his stomach that contributed to his death."
It is the province of the jury to examine, weigh, and consider each witness's testimony and from a consideration of the evidence as a whole, together with such reasonable inferences as may be drawn therefrom, to make a verdict in conformity with what it regards to be the preponderance of the evidence. It is elementary that the jury may believe a part, and not accept another part of the same witness's testimony, whether he be an expert or nonexpert witness.
In the case sub judice the jury was not bound by the opinions expressed by the doctors, that the accident did no more than contribute to the insured's death. This is true because the doctors frankly admitted that they did not know what caused the insured's death.
We have reached the conclusion that the verdict was supported by some evidence, and that for neither reason assigned in the general ground of the motion for new trial insisted on here nor the motion for judgment notwithstanding the verdict was a judgment demanded in the defendant's favor.
2. The fourth ground of the motion for new trial relates that a hypothetical question was propounded to Dr. J. M. Byne, Jr., a plaintiff's witness. The question was: "Doctor, I want to ask you some hypothetical questions in regard to this case. If the left front wheel of a pickup truck fell in a deep hole while being driven by a man with a big stomach, a big man, threw his stomach into and against the steering wheel with a sudden and violent force and the man got out of the truck and walked to a home a short distance from the truck, sat down on a stump root of a tree and about 15 minutes later got up, then plunked down and died immediately — could it be that the falling into the hole, the left front wheel of the truck, and hitting of the man's stomach violently and with force against the steering wheel, could it have been the immediate and proximate cause of his death?" The doctor made a rather involved answer to the question and stated that he could not answer the question intelligently without knowing the speed of the insured's truck when its wheel went into the stump hole.
Plaintiff's counsel added to the question the sentence: "Suppose the man was driving 15 or 20 miles an hour, what could be the outcome of that?" The doctor then testified: "What it could be, yes, because a man could go into a hole with no apparent damage to himself at all and yet we do know that very trivial amounts of injury could produce a fatal outcome and if this man, if the force was such force that it ruptured a vessel inside of his abdomen or inside his chest, a man could begin at that point with a ruptured blood vessel, begin to bleed and could bleed to death. There could be any number of reflex mechanisms that could be set up to cause a complete standstill of his heart. I think that would be on a sudden death basis rather than some interval of time lapsing after that. If the force was sufficient, you could rupture a vessel from falling into a hole. That is the point. You said `a car went into a hole' without stating the speed of the car. Of course, at a slow speed an automobile if it is suddenly stopped can do considerable amount of damage under certain circumstances. There is a possibility that where the front wheel fell with force into the stump hole suddenly, it then could produce death by injury to the stomach."
The objection interposed to the testimony was: "The hypothetical question and the answer thereto was inadmissible because the question was based upon facts, specifically, the facts regarding the speed of the truck, not placed in evidence by other witnesses."
Code § 38-1710 provides: "The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses."
In Ellis v. Southern Ry. Co., 89 Ga. App. 407 ( 79 S.E.2d 541) a headnote written by the author of this opinion reads: "A witness should not be permitted to give his opinion on facts stated in a hypothetical question, which facts have not been testified to by other witnesses in the case prior to the asking of such hypothetical question." A similar expression is found in Bryant v. State, 197 Ga. 641, 652 ( 30 S.E.2d 259). In the Bryant case, as in the Ellis case, no evidence had been introduced to establish the basic facts upon which the hypothetical question propounded to the witness and the witness's answers were predicated.
The true rule expressed in Flanagan v. State, 106 Ga. 109 ( 32 S.E. 80) is that, "An expert on insanity, as was the witness of whose evidence complaint is here made, may give an opinion based upon his own examination of a person, upon his observation of that person, or upon any state of facts, supported by some evidence in the case, which he assumes as true."
The view that an expert witness's opinion may be predicated upon facts placed in evidence by the testimony of other witnesses or by any other legal means is supported by Elliott v. Georgia Power Co., 58 Ga. App. 151, 155 ( 197 S.E. 914), Freeman v. State, 190 Ga. 335, 337 ( 9 S.E.2d 236), and Atlantic B. Ry. Co. v. Johnson, 127 Ga. 392, 393 ( 56 S.E. 482, 11 L.R.A. (NS) 1119).
It is apparent that the objection was not broad enough to invoke a ruling of the court as to whether there was evidence in the record on which the hypothetical question could be properly based.
The objection to the doctor's testimony was not valid for another reason. The doctor did not, according to his own answer, accept the statement as to the speed of the deceased's truck as the predicate for his opinion, but on the contrary testified: "If the force was such force that it ruptured a vessel inside of his abdomen or inside his chest, a man could begin at that point with a ruptured blood vessel, begin to bleed and could bleed to death. There could be any number of reflex mechanisms that could be set up to cause a complete standstill of his heart. I think that would be on a sudden death basis rather than some interval of time elapsing after that. If the force was sufficient, you could rupture a vessel from falling into a hole. That is the point. You said `a car went into a hole' without stating the speed of the car. Of course, at a slow speed an automobile if it is suddenly stopped can do a considerable amount of damage under certain circumstances. There is a possibility that where the front left wheel fell with force into the stump hole suddenly, it then could produce death by injury to the stomach."
The ground does not show error.
3. Ground 5 of the amended motion for new trial complains that the trial court erred in charging the jury: "Gentlemen of the jury, the proximate cause of an injury is such an act that a person of ordinary caution or prudence would have foreseen that some injury might result therefrom but not necessarily the one that did result therefrom.
"Gentlemen of the jury, the burden is on the beneficiary in this case to show by a preponderance of the evidence that the insurance company is liable under its policy, that is, the plaintiff must show that the death of Walter A. Hickman was covered by the terms of the policy. The test of liability of the defendant insurance company may be stated as follows: Did the condition of the insured in having, at the time of his death, a heart disease contribute to his death in whole or in part, directly or indirectly. If it did so contribute, the defendant in this case would not be liable and your verdict should be in favor of the defendant. On the other hand, if you should find that the alleged accident was the proximate cause of the death of the insured, then you would be authorized to find for the plaintiff in the amount stipulated in the policy of insurance."
There are several exceptions to the charge: "(a) It was confusing to the jury. (b) It was misleading to the jury. (c) It was erroneous and not sound as an abstract principle of law. (d) It was also erroneous for the reason that the question of the proximate cause of the death of the insured was not the question presented by the insurance policy sued upon; and, it was insufficient, under the terms of said policy, that an accident was the proximate cause of the death of the insured. (e) It was also erroneous in that it authorized the jury to find in favor of the plaintiff without any evidence that the death of the insured, Walter A. Hickman, resulted directly and independently of all other causes from bodily injuries sustained through purely accidental means, as is required by the policy of insurance sued upon."
The exception that the charge was misleading and confusing which did not point out the reason for either position is not explicit enough. West Lumber Co. v. Schnuck, 85 Ga. App. 385 ( 69 S.E.2d 577); Roberts v. State, 88 Ga. App. 767 ( 77 S.E.2d 825).
The exception (c) that the charge is incorrect and erroneous as an abstract principle of law raises only the question as to whether it is, standing alone, a sound pronouncement of law. Tucker v. State, 25 Ga. App. 196 (1) ( 102 S.E. 880); Bankers Health c. Ins. Co. v. Givens, 43 Ga. App. 43 ( 157 S.E. 906); White v. State, 141 Ga. 526 (1a) ( 81 S.E. 440). Unless the criticised charge is incorrect on its face, the court is not privileged to peruse the record to learn whether it is adjusted to the issue framed upon the pleading and evidence. Anderson v. Southern Ry. Co., 107 Ga. 500, 501 (4) ( 33 S.E. 644). The charge here dealt with was a correct abstract statement of law.
Exception (d) raises no question for consideration, because the ground in which it is contained fails to set forth literally or in substance or to designate the pages of the record where it may be found, the pleadings and evidence, necessary to a clear understanding of the exception. Hence, as to exception (d) the ground fails to comply with the requirements of Code (Ann.) § 6-901. Ready-Mix Concrete Co. v. Rape, 98 Ga. App. 503 (6) ( 106 S.E.2d 429); Western Fire Ins. Co. v. Peeples, 98 Ga. App. 365 (3) ( 106 S.E.2d 91).
Exception (e) is subject to, and rendered incomplete, because the ground does not set forth literally or in substance or designate by record page number, the clause of the policy of insurance therein referred to, or the pleadings and evidence necessary to enable this court to pass upon the merits of the exception.
Consideration of the pleadings and evidence that form the issue as to the cause of the insured's death is necessary in passing on the merits of the exception, because they may have narrowed the issue to the question as to whether his death resulted solely from a heart trouble or the accidental injury alleged in the petition. In that event the charge would not be error. As a matter of fact, we observed in considering other grounds that the pleadings and proof made that exact issue. There was nothing in the record that indicated that the insured died from any other cause, than as the plaintiff contended, the accident, or as the defendant contended, a heart condition that may have aggravated the injurious effect of the jury.
It was not necessary that the judge quote the language of the policy in submitting the question to the jury, so long as his charge plainly limited the plaintiff's right of recovery to the coverage of the policy.
4. Ground 6 complains of the admission into evidence of a certain letter written by the plaintiff to the defendant. The objection interposed to the letter consists of separate statements of counsel. They were: "We have no objection except this letter of November 18th from Mrs. Hickman to the Mutual Benefit Health Accident Association. We are willing to let that be introduced in evidence to show that notice was given but it still would be self-serving declarations on the part of the insured and we object to it on that ground. We object to it on the ground that it contains self-serving declarations. We admit that notice but we are not willing to admit the truth of the facts that are alleged in there."
It will be noticed that the objection was of a dual nature, being at once a qualified objection and motion that the court limit the purpose for which the letter might be considered by the jury. However, we will consider these statements as an objection to the admission of the letter, since there is no exception to the failure of the judge to limit the purpose for which the letter would be considered. The objection admits that the letter was admissible as evidence that the plaintiff's claim was given to the defendant. "It is never error to overrule an objection to evidence if it is admissible for any purpose. If it is desired to limit the effect of the evidence, the court should be requested to charge that the evidence is admitted for a special purpose and its effect limited to that purpose." Hotel Dempsey Co. v. Miller, 81 Ga. App. 233, 234 (4) ( 58 S.E.2d 475).
"Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. Fidelity Deposit Co. v. Nisbet, 119 Ga. 316 ( 46 S.E. 444)." Renfroe v. State, 54 Ga. App. 215 (2) ( 187 S.E. 623).
"The failure of the court, in the absence of a written request, to limit the application of evidence admissible for any purpose is not error." Jackson v. State, 204 Ga. 47 (3) ( 48 S.E.2d 864). A similar holding is found in Swanson v. Hodges, 96 Ga. App. 540 (1) ( 101 S.E.2d 212).
The ground does not show error.
Judgment affirmed. Nichols, J., concurs. Felton, C. J., concurs specifically.
I concur in the judgment but I cannot concur in all the reasons given for certain rulings in the majority opinion.
1. As to the refusal by the plaintiff to consent to an autopsy on her husband, in my opinion where, as here, there is no opportunity to request an autopsy before burial, the only thing which can determine whether the time within which the request was made was a reasonable time is the question of how much light a delayed autopsy would throw upon the cause of death. I do not think that the wounding of the feelings or sensibilities of the family would cut any figure in the determination of what was a reasonable time because the feelings and sensibilities of the family would be wounded, most likely, regardless of when the autopsy occurred. I agree with Judge Sibley's dissent in the Moore case, supra, under the peculiar facts of that case. Where, as in this case, the insurance company waited six months to request an autopsy, before the rights of the beneficiary are forfeited for refusal of such request, it is incumbent on the insurance company to show that the delayed autopsy would have thrown a considerable degree of light on the cause of death, and I do not think that a mere showing that a delayed autopsy would have been of "some" value in ascertaining the cause of death is sufficient to justify a forfeiture of the policy rights. In the Moore case the damage was to bones. In this case the damage allegedly was to more fragile parts of the body and it is very questionable whether an autopsy six months after burial would reveal much information as to the cause of death. In addition, I do not agree that the insurance company waived its right to demand an autopsy by a denial of liability after proof of loss, and I do not think that cases cited in the majority opinion are authority for the fact that the right to demand an autopsy was waived.
2. The court charged the jury as follows: "Gentlemen of the jury, the proximate cause of an injury is such an act that a person of ordinary caution or prudence would have foreseen that some injury might result therefrom but not necessarily the one that did result therefrom." In my opinion the charge is error as a definition of proximate cause. The definition is a definition of negligence, but I do not believe that the jury was confused or misled by this charge under the facts and circumstances and in view of the remainder of the charge.
ON MOTION FOR REHEARING.
In the case of Fidelity-Phenix Fire Ins. Co. v. Berry, 79 Ga. App. 179 ( 53 S.E.2d 126) it is held: "Where in an action on a fire-insurance policy the declaration alleges compliance with the terms of the policy as to the filing of a claim, which was prerequisite to the filing of the action on the policy, it was error for the court to direct a verdict for the plaintiff when there was no evidence as to such compliance with the terms of the policy. This is true even if there was evidence as to a waiver of such compliance, in the absence of an amendment to the petition setting forth such waiver." A similar holding is Neese v. Milwaukee Mechanics' Ins. Co., 84 Ga. App. 473 ( 66 S.E.2d 172).
But in the instant case testimony was introduced that the defendant made an absolute and unequivocal denial of liability, before requesting that an autopsy be made on the body of the insured. No objection was made to the evidence. In National Life c. Ins. Co. v. Lain, 51 Ga. App. 58 (3) 59, 60 ( 179 S.E. 751) is the holding: "Where evidence is admitted without objection, although there be no allegation in the declaration authorizing it, the court may properly charge the jury as to its legal effect, and where a party permits evidence to go to the jury without objection, and the jury find on such evidence, the losing party is not entitled to a new trial on the ground that the evidence does not correspond with the declaration, if the declaration could, by amendment, have been made to cover the evidence. Georgia Railroad v. Lawrence, 74 Ga. 534; Central Ry. Co. v. Attaway, 90 Ga. 656-659. `Although the pleadings may not present the whole issue, yet if it be fully made by the evidence without objection, it is too late, after verdict for the losing party, to make that the ground of a motion for a new trial.' Howard v. Barrett, 52 Ga. 15. See also Seabrook v. Brady, 47 Ga. 651, 659; Savannah, Fla. Western Ry. Co. v. Barber, 71 Ga. 644, 648; Savannah c. Ry. v. Grogan, 117 Ga. 461 ( 43 S.E. 701); Haiman v. Moses, 39 Ga. 708; Field v. Martin, 49 Ga. 268, 271; M. E. Church v. Dudley Co., 137 Ga. 68 (6), 69 ( 72 S.E. 480); Artope v. Goodall, 53 Ga. 318, 323. These rulings are based upon the principles that if objection were made to the testimony upon the ground that it was not authorized by the pleadings, the pleadings might have been so amended as to authorize the introduction of the testimony. Gainesville N.W. R. Co. v. Galloway, 17 Ga. App. 702 (4) ( 87 S.E. 1093); Columbia Fire Insurance Co. v. Tatum, 46 Ga. App. 475 (4) ( 167 S.E. 911). In the instant case (a suit on a policy of life-insurance) the plaintiff pleaded that all the premiums due under the terms of the policy had been paid in full, and she did not plead a waiver by the insurance company of such terms. On the trial the evidence failed to show payment of the premiums as alleged but it did disclose such a course of dealing by the insurance company, in respect to receiving the premiums after they were due, as authorized the jury to find that the provisions of the policy requiring the payment of premiums within a specified time had been waived by the company; and the evidence showing such a waiver was admitted without objection."
Irvin v. Locke, 200 Ga. 675, 679 ( 38 S.E.2d 289) contains the pronouncement: "It thus appears from the evidence of the agent making the alleged tender, when taken in its entirety, that is, on both direct and cross-examination, that the tender was, while originally unconditional and as such rejected, ultimately made conditional, in that the vendor was required to execute the deed called for by the bond. There was, therefore, under the decisions last cited, a variance between the allegata in the petition and the probata adduced on the trial; and the evidence, thus varying from the allegata of the petition, could have been objected to as failing to conform. However, this was not done, and the evidence was admitted without objection. Had the evidence been objected to, the plaintiff, without adding a new and distinct cause of action, could have amended her petition, by alleging that upon the outright tender being made, the defendant refused it unless an additional $1000 was added thereto. Since the law does not require vain and useless procedure, a refusal by the obligor to accept the original outright tender in accordance with the contract, without an additional $1000 being added thereto, dispensed with any necessity of making same; and this is true although the plaintiff might have subsequently made an additional tender coupled with the condition that the defendant would execute the deed, which the defendant refused to do for the reason given that an additional $1000 was required. Ansley v. Hightower, 120 Ga. 719 (4) ( 48 S.E. 197). Under the circumstances, the failure of the defendant to object to the testimony dispensed with the necessity of amending her petition by setting forth the absence of a necessity for tendering, and the case stands as if the petition had been amended accordingly. Napier v. Strong, 19 Ga. App. 401 (2) ( 91 S.E. 579); Ocean Steamship Co. v. Williams, 69 Ga. 251 (4a); Steed v. Rees, 192 Ga. 20, 24 (2) ( 14 S.E.2d 474); Taylor v. Taylor, 195 Ga. 711, 721 (11) ( 25 S.E.2d 506); Grice v. Grice, 197 Ga. 686, 699 ( 30 S.E.2d 183)."
In Taylor v. Taylor, 195 Ga. 711, 721 ( 25 S.E.2d 506) the holding is the same as in National Life c. Ins. Co. v. Lain, 51 Ga. App. 58, supra; indeed the language of the case is almost identical. Recognition has been uniformly accorded the principle throughout Georgia's judicial history. Harrison v. Young, 9 Ga. 359 (7). So in our opinion not only was it a question for the jury as to whether the plaintiff complied with the policy provision as to the autopsy, but we are also of the opinion that there was sufficient evidence to support a finding that the defendant waived the clause of the policy to which we have referred by previously denying liability under the policy.
Judgment adhered to.