290 Mass. 149 | Mass. | 1935
The plaintiff, a man forty years old, held two policies of life insurance issued by the defendant, under which he became entitled to an annuity if, prior to attaining the age of sixty years, he should “become totally and permanently disabled, as the result of bodily injury or disease.” He was hurt in an automobile accident on April 12, 1932. There was evidence that as a result he was totally and permanently disabled. Rezendes v. Prudential Ins. Co. 285 Mass. 505. The jury returned a verdict for the plaintiff. The defendant brings the case here upon an exception to the charge.
Medical experts called by the plaintiff testified that in their opinion his symptoms of disease were genuine and not simulated, and that he was not malingering. Medical experts for the defendant testified that certain specified symptoms of disease which he showed could be simulated, and in their opinion were simulated. This evidence went in without objection. The judge dealt with this matter in a supplemental charge, as follows: “Whether the plaintiff
This case does not present the question whether a medical expert can be asked or allowed to characterize a party by using the word malingerer, with all its implications of moral turpitude. Brown v. Third Avenue Railroad, 19 Misc. (N. Y.) 504, 507. What was disputed among the experts was, whether certain symptoms were simulated. The jury were told, in substance, to disregard the opinions of medical experts on that question, and to decide it solely on evidence of the observations and perceptions of the witnesses through their senses. The opinions were competent, and ought not to have been excluded. Medical science and experience make possible a judgment as to whether symptoms such as were described are real, imaginary or feigned, that would not be possible to a layman witnessing the medical examination, much less to a lay jury hearing from witnesses what was said and done. Van House v. Canadian Northern Railway, 155 Minn. 57, 61, 62; S. C. 28 Am. L. R. 357. State v. Hayden, 51 Vt. 296, 306. People v. Koerner, 154 N. Y. 355, 363, 364, 378. Burrowes v. Skibbe, 146 Ore. 123. See also Barber v. Merriam, 11 Allen, 322, 325; Dooley v. Bos
Exceptions sustained.