48 Ga. App. 742 | Ga. Ct. App. | 1934
Lead Opinion
"We consider it necessary to elaborate upon the second headnote only. The plaintiff brought suit upon a policy of life insurance (in which she was named as beneficiary) issued to her husband. The policy was for the sum of $2500, but it contained the following provision: “If there further be received at said home office due proof that such death resulted directly from bodily injury received after the date of issue of this policy, independently and exclusively of all other causes, and that such bodily injury was effected solely through external, violent, and accidental means, and that such death occurred within sixty days after the date of such bodily injury, [the insurer] promises to pay to said beneficiary, instead of the face amount of this policy, five thousand dollars (double the face amount of this policy, herein called double indemnity); provided, however, that this double indemnity shall not be payable . if such death resulted, directly or indirectly, from bodily or mental infirmity or disease of any sort.” In due time after the death of the insured the company paid to the beneficiary the sum due under the face amount ($2500) of the policy, without prejudice to her claim for double indemnity, and without prejudice to the right of the company to dispute the claim.
On the trial the plaintiff introduced considerable circumstantial evidence tending to show that the insured, a few days before his death, received a bodily injury in an automobile accident which aggravated a hernia from which he had suffered for several years. In view of the allegations of the petition and the provisions of the policy of insurance, the burden was on the plaintiff to show by a preponderance of the evidence that her husband had the automobile accident, that he was injured bodily therein, and that his death resulted directly, and independently of all other causes, from that injury.
From the evidence it appeared that there was no eye-witness to the alleged automobile accident. In addition to the circumstantial evidence the plaintiff introduced as a witness Dr. Griffin, the physician of the insured, who testified that when he examined the insured on the day after the alleged accident, the insured “said he had a shake-up in a Ford car.” The defendant objected to this testimony, upon the following grounds: (a) “that any statement
Since this is an action for double indemnity on an insurance policy because of death by accident, the fact of the happening of an accident is of vital importance in the case. The evidence discloses that the insured, a traveling salesman for the Eome Stove Works, of Eome, Georgia, left his home in Valdosta, Georgia, on a Monday morning to be gone until the following Saturday. He went first to Marianna, Florida, and from there he was to go to Dothan, Alabama. He was driving a model A Ford coupé which had been used some six or seven months. It was in good condition and unscarred when he left Valdosta. He returned to Valdosta on the next Thursday afternoon, and appeared to be suffering intensely, and was unable to carry his suitcase up the stairs at his house. His automobile had mud and dirt on its body, and its right front fender was bent. A witness testified, that on the 22& of April, which was a Wednesday, some three miles from Dothan, Alabama, he saw a comparatively new model A Ford coupé in the ditch beside the road, and two men helping another man into another car and driving off with him; that from an inspection of a photograph-of the deceased he thought that it was the same man he saw being carried away on April 22; and that he found in the abandoned Ford coupé certain letters and pamphlets from a stove concern in Eome, Georgia, and directed to a man named Davis. The testimony of a clerk of the Hand Trading Company in Pelham, Georgia, that on the Thursday morning the deceased called on the company and seemed to be suffering greatly, and had to sit down on a stove while attempting to sell an order to the company, was admitted in evidence. While the court admitted the testimony of Dr. Griffin as to the statement
In view of the evidence introduced on the part of the plaintiff with reference to the accident, and the charge of the court, we can not see how this statement, if objectionable, was so injurious as to require a new trial. We think, however, that the statement was admissible as a matter of necessity, and to show the basis of the testimony or the reasons for the expert evidence of the doctor in reference to the cause of the death of the insured. It will be noted that all the cases cited by counsel for the plaintiff in error from the Georgia decisions can be distinguished from this case by reason of the fact that where a party himself is accessible to the court, any evidence as to his sayings which are not a part of the res gestae are excluded because the witness himself may be produced to testify before the jury. A different rule has been applied where the witness whose hearsay statements it is sought to introduce is incompetent to testify or inaccessible to the court. “Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. • The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity.” Civil Code (1910), § 5762. Hearsay evidence may become original evidence when admitted as a fact to explain conduct and ascertain motive. Civil Code (1910), § 5763. Prior to the act of 1866, now embodied in section 5858 of the Civil Code of 1910, a party could not testify in his own behalf. As was pointed out by Chief Justice Bleckley in the case of Atlanta Street R. Co. v. Walker, 93 Ga. 462
The decision in East Tenn., Va. & Ga. Ry. Co. v. Maloy, 77 Ga. 237 (2 S. E. 941), is not in point, for there certain statements were held inadmissible as dying declarations in a civil ease, they not being part of the res gestae. No necessity was apparent in that case to show a variation of the hearsay rule, and no such point was raised as the one being here discussed. In McNabb v. Lockhart, 18 Ga. 495, the 9th headnote is as follows: “Where, from the nature of the case, other evidence was not to be obtained, and there would be a failure of justice without the oath of the party, ought he not be allowed to testify ? Quere.” In the opinion it was said: “That nothing a man says or does can be given in evidence to support his own cause is a good general rule. It has, however, like all other general rules, exceptions; otherwise, better without the general rule. In Sampley v. Scott (24 Miss. Rep. 528), the court say: 'It is cer
In Omberg v. U. S. Mutual Asso., 101 Ky. 303, 309 (40 S. W. 909, 72 Am. St. R. 413), we find the following: “We are of the opinion, also, that the declaration of the patient to his attending physician, to the effect that the injury was the result of a bite, was competent. A narrative of the events attending the mishap would not be competent, but the patient may tell what the injury is, if he knows. He is suffering, and is seeking relief. To get it he must tell the truth. Any other course would mislead his physician, and might result disastrously. He knows whether he has bruised the inflamed parts, or whether he has been bitten by an insect. Such statements are part of the description of the wound, and inseparable from the patient’s complaint with respect thereto. The case of Dabbert v. Insurance Co., 2 Cin. Super. Ct., 98, is directly in point. This case is reported by Mr. Bigelow in Vol. 4, p. 366, of his Life and Accident Insurance Eeports, and the court (Judge Alonzo Taft) holds that Hn an action for loss under a policy against death by accident, a statement made by a decedent to his physician, upon which the physician forms his opinion and makes a prescription, is competent evidence to prove what was the actual cause of his illness and death, although the symptoms are such as might be produced either by disease or by the accident.’ In that case the insured became suddenly sick, and to his physician attributed his sickness to an injury to his back and side by a fall received when no one was present. The learned judge said: Tam satisfied that there is a tendency in the decisions of the present time to enlarge the range of testimony, especially when it is necessary to avoid a failure of justice. The statements of the history of his case, made to his physician by his
The McNabb case, supra, was no doubt largely instrumental in the enactment of the rule now codified in section 5858 of the Civil Code (1910). Substantial justice often demands a liberal rather than a strict construction of a rule of evidence, and we feel that under the facts and circumstances of this case the trial court did not err in allowing the attending physician to testify as to the sources of his information, and the grounds and reasons, in other words the history of the case, on which he, as an expert, based his testimony as to the cause of the death of the insured. In Travelers Ins. Co. v. Hunter, 30 Tex. Civ. App. 489 (70 S. W. 798), it was held that a failure of the insured to mention the accident to his physician will not create a presumption that there was no accident. It can thus be seen that it can be and has been urged that a patient’s failure to represent to his physician the cause of his injury is a presumption against the fact of there being an accident. There is quoted in plaintiff’s brief a recent decision of Judge Sibley, in passing on this same accident in another suit, against another company. He said: “We much doubt there being sufficient proof to show that any physical injury was received in an automobile accident. No witness so testified. The deceased made no such claim to his wife or physician(Italics ours.) If inferences are to be drawn from the fact that the deceased made no such claim or statement to his wife or physician as to the cause of the injury so as to
In view of the foregoing ruling in favor of the defendant in error, it is unnecessary to consider the assignments of error in the cross-bill of exceptions.
Judgment affirmed on the main bill of exceptions; cross-bill dismissed.
Dissenting Opinion
dissenting. In my opinion the obviously hearsay evidence of Dr. Griffin as to the statement of the insured that he was shaken up in a Ford car was inadmissible, and, under all the facts of the case, its admission was prejudicial to the defendant and should require another hearing of the case. See, in this connection, East Tenn., Va. & Ga. R. Co. v. Maloy, 77 Ga. 237 (2) (supra); Boston & Albany R. Co. v. O’Reilly, 158 U. S. 334, 337 (15 Sup. Ct. 830, 39 L. ed. 1006). It is true that there are some eases in other jurisdictions where contrary rulings have been made, but those rulings are not in accord with the decisions of the Supreme Court of this State, the Supreme Court of the Dnited States, and the courts of last resort of many of our sister States. Furthermore, I do not think that the error in admitting the evidence of Dr. Griffin was cured by the instruction of the court to the jury that they should consider the evidence only for the purpose of explaining the physician’s conduct in examining the insured and advising and performing an operation upon him, since, under the facts of
If another trial could be had with this illegal and prejudicial evidence eliminated, another jury could more intelligently and fairly pass upon the issues of this case.
