NEW YORK LIFE INSURANCE COMPANY v. JOHNSTON

RIVES, Circuit Judge.

This appeal is from a judgment for the plaintiff in an action for the double indemnity provided in two life insurance policies each in the face amount of five thousand dollars. The pertinent provisions in the two policies are identical, being as follows:

upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, and that such death occurred within sixty days after sustaining such injury.

"This Double Indemnity benefit will not apply if the Insured's death resulted from self-destruction, whether sane or insane; from any violation of law by the Insured; from Military or Naval Service in time of war; from a state of war or insurrection; from engaging in submarine or aeronautic operations; from physical or mental infirmity; or directly or indirectly from illness or disease of any kind. The Company shall have the right and opportunity to examine the body, and to make an autopsy unless prohibited by law."

The first question, preserved by denials of defendant's motions for directed verdict, for judgment notwithstanding the verdict, and for new trial, is whether there was sufficient evidence to support the jury's verdict. The appellant insists that there was no substantial evidence to prove "that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause," and not "from physical or mental infirmity; or directly or indirectly from illness or disease of any kind."

At the time of his death, the insured was 82 years and 9 months old. He neither smoked nor drank intoxicants, and was, generally speaking, a man of temperate habits. His occupation was that of a travelling salesman, in which he usually drove his automobile. He engaged in that occupation up until seventeen days before his death, at which time he fell down the steps in his home. Until that fall, he was erect in carriage, walked briskly, was keenly interested in current affairs, and his sight and hearing were good. He had never had a serious illness of any kind.

On the morning of August 4, 1956, he fell down six of the thirteen steps between the first and second floors of his house. The fall resulted in a slight discoloration on his left temple, his legs were skinned, and some of the fingers of his right hand were fractured. Except for keeping one business engagement in town on the day of his fall, the insured did not work thereafter. He steadily went down, lost his appetite, lost interest in people and in his personal appearance, complained of pain around his neck and shoulders, and became confused in his mental processes. After the fall, he spent the majority of his time during the day lying on a couch.

On the morning of August 21, he was found in the bathroom, sitting on the commode, in a slumped over position; he could not speak coherently. The solid top of the commode was down, but there was evidence of his having vomited in an adjacent lavatory. He died in less than two hours.

The attending physician certified that his death was due to "cerebral hemorrhage."1 There was no autopsy. The testimony went to show that without an autopsy a physician cannot be positive as to the cause of death in such cases, and that, in tests, autopsies had revealed that a number of deaths thought to have been caused by cerebral hemorrhage were in fact caused by subdural hematoma resulting from injuries.

The insured's regular physician testified that during the years 1955 and 1956, prior to his fall on August 4, 1956, he had treated the insured for high blood pressure and arteriosclerosis; that on July 5, 1955, his blood pressure reading was 208 over 98, which was abnormal for a man of his age and moderate habits; that thereafter his blood pressure varied on account of the treatment but remained about the same; that his blood pressure on August 14, ten days after the fall, was 202 over 102; that he could then see that he was worse, "he was groggy and sort of incoherent."

The evidence was in conflict as to whether the arteriosclerosis and high blood pressure before the fall were of such severity as to be termed a disease. One of the physicians testified that he would not consider them such unless they produced "some morbid change or morbid state." Prior to the fall, they had not produced any marked personality changes, nor caused the insured to stop work as a travelling salesman, nor to stop driving his automobile. The district court charged the jury fully and fairly on this issue.2

The answer to the question as to whether substantial evidence supports the verdict depends, of course, upon the details of the evidence in each particular case, and a discussion of the many cases cited by the parties would be of no real value. We need only say that, while here the question is a close one, we agree with the district court that the evidence made a case for the jury.

Appellant's only other insistence is that the district court erred in instructing the jury in its oral charge as follows:

The form in which appellant's counsel reserved an exception to that portion of the charge is significant:

The general rule is that opinion testimony of expert witnesses is not of controlling effect, and a jury is not absolutely required to accept opinions of experts in the place of its own judgment.3 There is, of course, a recognized distinction between opinion testimony and factual testimony by an expert witness.4 In some Alabama cases also, it has been held that opinion testimony may require the giving of the affirmative charge, with hypothesis on belief of evidence, when there is no reason for the exercise of common knowledge against such opinions,5 or "when * * * the opinion of experts is based upon facts, such as tests and examinations."6

In the present case, the actual facts, such as blood pressure readings, testified to by the expert witnesses were few, and we cannot believe that the jury, in the light of the wording of the court's charge, could have understood that it was authorized to disregard such facts. The objection to the charge limited to "the opinion of experts" shows that appellant's counsel did not apprehend that the jury would disregard factual testimony. We will assume that all of the Alabama rules are binding as to a jury's function in a federal court.7 We cannot, however, say as a matter of law in this case that the jury could have no reason for the exercise of its common knowledge against the opinions of the experts. Further, most of the testimony by experts in this case was not based upon any autopsy or any other tests or examinations, but was pure opinion evidence. In any event, any possible error which may have lurked in the court's charge probably did not affect the substantial rights of the parties. See Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A.

Finding no reversible error in the record, the judgment is affirmed.