This is a suit by Edrell Nelson, as administratrix, etc., claiming for the death of her husband, Columbus Nelson, under a policy of group insurance issued by the defendant. Judgment was rendered for plaintiff and defendant appeals.
The policy insured against loss of life "as the result of bodily injury due to external, violent and accidental means," and further provided that the coverage should not include "any loss caused directly or indirectly, wholly or partly by: (a) Bodily or mental infirmity, ptomaines, bacterial infections (except pyogenic infections which occur simultaneously with or through a cut or wound sustained through accidental means), any other kind of disease, or hernia in any form."
The assignments of error relate to the failure of the court to give the general affirmative
It was said in First Nat. Bank of Birmingham v. Equitable Life Assur. Soc., 225 Ala. 586, 144 So. 451, 453, where the court was considering a policy with a special clause similar to the one in this case:
As to the disease or infirmity which must be shown in order to be considered an efficient cause of death under the terms of the specific provisions, in the recent case of Emergency Aid Ins. Co. v. Connell, 258 Ala. 521, 63 So.2d 603, 605, Judge Foster wrote: "We note that in Bergeron v. Prudential Ins. Co. of America, 96 N.H. 304, 75 A.2d 709, 711, it is well said that in order for a condition to be a disease or bodily infirmity within the meaning of such a special clause, there must be `some ailment or disorder of an established or settled character to which the insured is subject, an ailment or disorder which materially impairs, weakens, or undermines the condition of the insured and is so considerable or significant that it would be characterized as disease or infirmity in the common speech of men."
For the plaintiff, Richard Painter and Carlie Johnson testified Columbus Nelson, while helping to load logs on a truck at the sawmill where he was employed, slipped and fell against a steel bolster on the truck, striking the pit of his stomach about the lower part of his ribs. He stayed at work the remainder of the day, and worked for several days thereafter. On cross examination Painter testified he had seen Nelson taking medicine for about a year but didn't know what he was taking it for. Johnson testified Nelson had complained to him at least a year before that he was suffering from high blood pressure and told him the army turned him down in 1944 because of his high blood pressure and that a doctor had told him the high blood pressure was going to kill him sooner or later. On redirect examination this witness stated he was not present when the doctor made these statements and witness was basing his testimony as to the high blood pressure on the complaints and statements by insured and insured did not say when the doctor had told him he was going to die from the high blood pressure, and Nelson was still working when he was hurt.
Felix Stovall testified he owned the sawmill where Nelson worked; he took out a policy of group insurance with defendant covering his employees and Nelson was included in the group, his estate being named as beneficiary. The policy was introduced as an exhibit to his testimony. On cross examination he testified insured worked about eleven days after his fall. Before the injury Nelson told him he was suffering from high blood pressure and had to take off from work quite a bit. He stated when insured was turned down by the army Dr. Shores told witness: "I don't see how the boy is living." A few months before the accident insured said he would have to quit work because he wasn't able to perform his job of sawing on account of his high blood pressure, and witness told him to stay on and keep the saw filed and when he wasn't busy at saw filing he could help load the truck or help cut a road; that after he knew Nelson had high blood pressure he took out the policy of insurance.
The plaintiff testified insured was her husband and that he died November 15, 1950; she was appointed administratrix of his estate. Sometime in October, 1950, her husband came home from work with his chest badly bruised. He was pale, sore, breathing hard, could hardly talk. Seven or eight days later he went to see Dr. Gaines W. Keith.
He was the attending physician at the time of Columbus Nelson's death and signed the death certificate introduced in evidence. The primary cause of death was malignant hypertension, which is a very severe type of high blood pressure with hardening of the arteries; arteriosclerosis being the technical name. He had treated insured for this disease at intervals since March 1946, and insured gave him a history of having had it before then. A cerebral hemorrhage is a blood hemorrhage in the brain caused by malignant hypertension or severe high blood pressure; normal blood pressure would be 120 over 80; insured's pressure ranged from 240 to 300 and sometimes was so high his instruments would not register it; there is no cure for the disease and even with treatment it pursues a rapidly progressive down hill course and the patient invariably dies, either with a hemorrhage or a ruptured ventricle. In his judgment this disease killed Columbus Nelson. On November 6, 1950, insured came to his office with an infection of the right chest wall and said he fell off a truck a week before. He had an abrasion, a temperature of a hundred, with swelling, inflammation and pain. Insured was given penicillin and sulfadiazine. He responded to the treatment insofar as the abrasion and infection was concerned. On November 15 Nelson suffered a cerebral hemorrhage in the witness' office. The abrasion and infection had nothing to do with his death. As to the onset of the cerebral hemorrhage Dr. Keith testified: "Well, in our conversation there I had done written out his return-to-workship. He made a statement to me—said `I feel funny.' I saw that he did—I mean he was—his equilibrium was disturbed, and he had a poor balance. Acted like a fellow would if he was intoxicated. I asked him to stand up and I would help him on the table. He became disoriented in a matter of two or three minutes and he was unconscious I would say within four or five minutes, and he started having a massive cerebral hemorrhage right while I was talking with him." Insured was carried to a hospital and died some three or four hours later.
On cross examination this witness testified there was redness and inflammation for several inches front and rear and the treatment prescribed for the abrasion and swelling was penicillin and sulfadiazine, or duracillin to be specific, which is a form of penicillin. These drugs are given to eliminate infection as much as possible. On November 8 the sulfadiazine was stopped because it nauseated the patient. The penicillin was given through the 14th, the day before he died. It is always given for about 72 hours after the fever leaves so as to be reasonably sure there will not be a relapse, and the witness knows the infection was eliminated.
Arteriosclerosis is hardening of the arteries brought on by cholesterol deposits, which is a waxy substance which builds up in the walls of the arteries causing them to harden. This waxy substance is not caused by infection. You may have "flaking off' of this substance and get an embolus or an occlusion of the artery. High blood pressure goes along with the arteriosclerosis process. The insured's arteries were very hard. No autopsy was performed. Witness didn't treat insured regularly but treated him at intervals for high blood pressure and arteriosclerosis. If a man has arteriosclerosis in the form insured had it, violent exercise or a blow might lead to his death, but it is not probable. Witness told insured he should quit work because exertion would make him very uncomfortable and might bring on a fatal attack, but he wouldn't be more apt to have a fatal attack doing one type of thing than he would have if he were doing another. If a man in insured's condition had a violent blow, fell down and hit something violently, it could aggravate his trouble and could lead to his death. A severe blow doesn't cause a hemorrhage; pressure is what causes a hemorrhage, and a blow does not aggravate the pressure.
On redirect examination witness testified insured gave no history of a lick on the head. Witness signed the death certificate and put in it that insured died from the cerebral hemorrhage which was brought
On recross examination the doctor stated that what he was testifying to in that connection was his opinion; that he was not present and did not see insured when he died and had not seen him after he left his office three or four hours before he died.
In answer to questions propounded by the court the witness stated that a contusion and abrasion are quite similar. A contusion is a bruise and abrasion means a skin. A contused abrasion is what he actually had. The infection was caused by germs getting into the abrasion which was not treated at the time he got them. Arteriosclerosis would not cause infection. On redirect examination the witness said the infection had nothing whatsoever to do with insured's death and on recross examination he said the hardening of the arteries couldn't cause and didn't cause the infection that witness was giving him all that duracillin for, and again on redirect he stated that a lick to the chest wall, even if it become infected, would have no connection with a cerebral hemorrhage some three weeks after the lick or abrasion on his chest, and if a man had a lick on the head the hemorrhage would start immediately and not three weeks later.
Defendant's witness, Henry Nelson, insured's brother, testified insured had been suffering from a high blood pressure disease for four or five years, and that insured told him he was turned down by army doctors on account of high blood pressure. His brother also told him the doctor said if he didn't quit work he was going to die. The day before he died insured said "he was aiming to try to kill him a squirrel." On cross examination he stated insured didn't tell him he had been squirrel hunting.
It is contended by appellant that Dr. Keith's testimony was direct, positive and emphatic that the death of Columbus Nelson was caused by a brain hemorrhage which was caused by severe malignant hypertension. Also that the death certificate is strong and to the point that the man's death was the result of a disease and not an accident and that Dr. Keith's testimony on the stand was conclusive of this fact.
The weight and credibility of opinion evidence by experts, and the question as to when the general affirmative charge should be given or refused based on such evidence has been considered many times by our courts.
In passing upon the facts the jury, as a matter of law, is not required to accept the conclusion or expressed opinions of expert witnesses, however, such testimony should not be capriciously rejected, but should be weighed in connection with all the facts and circumstances in the case. Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192, 146 So. 524; Booker T. Washington Burial Ins. Co. v. Williams, 27 Ala. App. 393, 173 So. 269; Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755.
Our courts have applied the doctrine that where the definite testimony of an expert is based upon facts such as tests and personal examinations, and when such evidence is uncontradicted, the general affirmative charge, with hypothesis, should be given. Aetna Life Ins. Co. v. Norfleet, 232 Ala. 599, 169 So. 225; New York Life Ins. Co. v. Horton, 235 Ala. 626, 180 So. 277; Grabove v. Mutual Benefit Health & Accident Ass'n, 241 Ala. 88, 1 So.2d 297.
Under the evidence here, we think it must necessarily be concluded that insured, at the time of his death, was suffering from an ailment of such significant degree as to be characterized as a disease.
Further, Dr. Keith's statement as to the cause of death is binding on the beneficiary if unrebutted. No contradiction is to be found in any of the evidence. Cotton States Life Ins. Co. v. Crozier, 216 Ala. 537, 113 So. 615; National Life & Accident Ins. Co. v. Puckett, 217 Ala. 110, 115 So. 12; Liberty Nat. Life Ins. Co. v. Trammell, 33 Ala.App. 275, 33 So.2d 479.
For the error of the court in refusing appellant's requested affirmative charge with hypothesis the judgment is reversed and the cause remanded.
Reversed and remanded.