Opinion
6 Div. 629.
May 23, 1935.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Suit by John Scott Marks against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant appeals.
Affirmed.
The suit is to recover disability benefits under two policies of insurance, issued in 1924 and 1926, respectively, each reciting that the company "hereby insures * * * John Scott Marks * * * against disability commencing while this policy is in force and resulting from bodily injury effected through accidental means; and against disability commencing while this policy is in force and resulting from sickness; such disability, in both cases, to be such as will result in continuous, necessary and total loss of all business time, * * *" and agreeing to pay a stipulated monthly indemnity during the continuance of disability as above defined. Plaintiff sought to recover indemnity for the period between May 15 and November 15, 1933.
Evidence offered on behalf of plaintiff tended to show that he suffered from arthritis, particularly affecting his lower limbs, and that during the period in question he was disabled to the extent of losing all business time. Evidence for defendant tended to show that plaintiff's condition was not such as to prevent him from engaging in his usual occupation, and that so engaging would have been beneficial, rather than detrimental, to him.
It appears that in December, 1933, plaintiff and his family were on a ranch in Arizona, at which time a Mrs. Crews, an agent of the defendant (unknown to plaintiff), visited this ranch and observed the activities of the plaintiff. She testified as a witness for defendant on the trial.
There was evidence to the effect that plaintiff, while at this ranch, had taken or had caused to be taken motion pictures showing certain of his activities. Defendant sought to have these motion pictures projected upon a screen on the trial.
During the examination of its witness, Dr. McLester defendant propounded this question: "Based on all of these things, this examination you made of Mr. Marks, and the history he gave of his previous disability, his past illness and disabilities, if any, tell the court and jury whether or not he on that occasion was suffering such disability as to result in the continuous, necessary and total loss of all business time. Give your judgment as to that."
Plaintiff's objection to this question was sustained, and this ruling is made the basis of assignment of error 16.
The following question was propounded by plaintiff to his witness Dr. Stubbins: "State whether or not during the period I have inquired about, that is, from May 16th, to November 16th, 1933, Mr. Marks, in your opinion, was able to do any substantial work that required activity?"
Defendant's objection to this question was overruled (assignment of error 20), and the witness answered as indicated in the opinion.
In his argument to the jury, counsel for defendant made this statement: "You know that there sits and has sat for the past many months a man in Washington whose lower extremities. * * *"
Plaintiff's objection to this language was sustained, and the court excluded it from the consideration of the jury. This ruling is made the basis of the first assignment of error.
The following statement was made by defendant's counsel in argument: "The only thing in the world wrong with Mrs. Crews is the fact that she is trying to make honest money by honest work. Of course after three or four years of inactivity it is probably a crime in the mind of Mr. Arant for anybody to engage in any sort of honorable occupation."
The trial court sustained plaintiff's objection to this statement, and on motion excluded it from the jury. This ruling is the basis of assignment of error 3.
Defendant requested the following charge, refusal of which is the basis of assignment of error 7: "D-1. Unless you are reasonably satisfied from all the evidence in this case that during the period from May 15th, 1933, until June 15th, 1933, the plaintiff suffered such a disability as resulted in a continuous, necessary and total loss of all business time, then you would not be authorized to render a verdict in favor of the plaintiff and against the defendant for the disability benefits provided for in the policy of insurance introduced in this case for said period of time."
Charges refused to defendant and made the basis of assignments of error 8 to 15, inclusive, are in substance and effect the same as charge D-1, next above quoted; the only difference being in the period of time covered.
London, Yancey, Smith Windham and J. K. Jackson, all of Birmingham, for appellant.
In their arguments to the jury, analogies and illustrations may be drawn by counsel, based on public history and public character. Cross v. State, 68 Ala. 476; Henderson v. State, 15 Ala. App. 1, 72 So. 590; Peel v. State, 144 Ala. 125, 39 So. 251; Starr Jobbing House v. May Hosiery Mills, 207 Ala. 620, 93 So. 572; 64 C. J. 265. That the illustration is forced or inept is beside the mark. Authorities, supra. The failure of the trial judge to permit such argument is a usurpation foreign to his function, constituting error of serious import. American Ins. Co. v. Fuller, 224 Ala. 387, 140 So. 555; Birmingham R. E. Co. v. Wildman, 119 Ala. 547, 24 So. 548; Mitchell v. State, 114 Ala. 1, 22 So. 71. The fact that a question propounded to an expert witness will elicit an opinion in practical affirmation or disaffirmation of a material issue does not render the question improper. Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33; Jones v. Keith, 223 Ala. 36, 134 So. 630; 4 Wigmore, Evidence (2d Ed.) p. 15, § 1920. Exhibition of motion pictures is competent evidence. 2 Wigmore, p. 101 et seq. §§ 795, 798, p. 687, § 1160; 15 Ill. Law Rev. p. 123; 78 Univ. of Penn. Law Rev. p. 565; Southern R. Co. v. Lockridge, 222 Ala. 15, 130 So. 557; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; Demopolis Tel. Co. v. Hood, 212 Ala. 216, 102 So. 35; Strickland v. Davis, 221 Ala. 247, 128 So. 233.
Bradley, Baldwin, All White, of Birmingham, for appellee.
Counsel, in argument to the jury, should not be permitted to state as facts anything of which there is no proof nor to comment upon facts not proved before the jury as true and not legally competent and admissible as evidence. Sullivan v. State, 66 Ala. 48; McAdory v. State, 62 Ala. 154; Cross v. State, 68 Ala. 476; Wolffe v. Minnis, 74 Ala. 386; Birmingham R., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037. Expert witnesses may not against objection state their conclusions on the ultimate issue to be decided by the jury. American Nat. Ins. Co. v. Rosebrough, 207 Ala. 538, 93 So. 502; Staples v. Steed, 167 Ala. 241, 52 So. 646, Ann. Cas. 1912A, 480; Travis v. L. N. R. Co., 183 Ala. 415, 62 So. 851; Eureka Co. v. Bass, 81 Ala. 200, 8 So. 216, 60 Am. Rep. 152; United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617. The admissibility of motion pictures in evidence is largely within the discretion of the trial court, and in no event are they admissible unless their accuracy is clearly established. De Camp v. United States, 56 App. D.C. 119, 10 F.(2d) 984; State v. United Railways, 162 Md. 404, 159 A. 916, 83 A.L.R. 1307; Pandolfo v. United States (C.C.A.) 286 F. 8; Massachusetts Bonding Ins. Co. v. Worthy (Tex.Civ.App.) 9 S.W.(2d) 388. The question of liability in this case was for the jury. Pacific Mut. L. I. Co. v. Ringold (C.C.A.) 47 F.(2d) 738, 738, 739; Pacific Mut. L. I. Co. v. McCrary, 161 Tenn. 389, 32 S.W.(2d) 1052; New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547; New York Life Ins. Co. v. Torrance (Ala.App.) 153 So. 458; Id., 228 Ala. 286, 153 So. 463.
We may concede that counsel in argument should not be so restricted as to prevent indulgence, by way of illustration, in historical facts and facts concerning public characters, and may allude to principles of divine law relating to transactions of men as may be appropriate to the case. We may also concede that the present occupant of the "White House" has, as a matter of common knowledge, a bodily infirmity, but we fail to see that such a physical condition on his part has an appropriate bearing, by way of analogy or otherwise, upon the case at bar, as the occupation and duties of this plaintiff are quite dissimilar to those of the President. At any rate, we do not think the trial court committed reversible error in excluding this reference of defendant's counsel to the physical condition of the occupant of the "White House." Nor was there prejudicial error in the remarks of the trial court when excluding this allusion, as it was but a legitimate admonition to the jury.
So much of the argument of defendant's counsel embodied in the third assignment of error was highly improper, and was properly excluded. There is nothing in the record to indicate that Mr. Arant, counsel for the plaintiff, expressed or entertained such views imputed to him concerning the witness, Mrs. Crews. This argument is in line with that heretofore condemned in the case of Birmingham Railway, Light Power Co. v. Drennen, 175 Ala. 338, 349, 57 So. 876, Ann. Cas. 1914C, 1037.
Whether or not the question to Dr. McLester, embodied in the sixteenth assignment of error, was so defective in form as to justify the trial court in sustaining the plaintiff's objection to same matters not, as it affirmatively appears that the defendant got the full benefit of the facts thereby sought in the subsequent, unobjected to testimony of the witness, Dr. McLester.
We cannot agree with counsel for the appellant that it had the right to this evidence to rebut evidence of a similar character brought out by the plaintiff. We do not think that the questions set out in appellant's brief, pages 36 and 37, as asked by the plaintiff and answered, are identical or similar to the questions asked by the defendant, with perhaps the exception of one to Dr. Stubbins, page 32 of the record. It must be noted, however, that the answer of the witness was not objectionable. He did not attempt to state the result that the plaintiff's physical condition would have upon his ability to labor. He merely stated the nature and character of his condition during the period hypothesized, that is, "Mr. Marks was in bed a part of the time. In September he had an acute exacerbation, an acute attack, that kept him in bed for about a month or maybe a little longer. * * * During that time he had two or three joints involved. He was greatly swollen and painful, and ran a temperature most of the time."
The trial court permitted the introduction in evidence of certain photographs taken by the plaintiff, and of him taken by another when in Arizona. The defendant then made an effort to have them reproduced or displayed upon a screen in the courthouse. There is no question but what moving pictures have reached a marvelous degree of production and reproduction, not only accurately, but often in a most exaggerated form; the accuracy depending largely upon conditions, etc., of the camera when the first impression is taken. It also appears that motion pictures have been received in evidence in many courts when a proper predicate has been established, Wigmore on Evidence (Supp. to 2d Ed.) § 798 a, wherein the question is discussed and the essentials of a sufficient predicate are outlined. It is sufficient to say, however, that the examination of defendant's witness, Bromberg, was such as to fail to establish the fact that the reproduction by him of the photographs on the screen could be done with such accuracy as to put the trial court in error for rejecting this offered evidence. The pictures were not authenticated, and Bromberg's testimony shows that whether a motion picture accurately reflected the movements of the object taken depends on the speed at which the camera is operated during the exposure; that the matter of speed of motion will depend upon the speed at which the camera was set in Arizona; and that he did not know and had no way of definitely ascertaining the speed, and there was no evidence as to the speed at which the camera was set at the time the pictures were taken. Nor did the testimony of the plaintiff, Marks, help matters. While he owned the camera, and took some of the pictures, the ones in which he appeared, and the only ones of any relevancy, were taken by another and he did not know just how the speed was set when the pictures of him were taken.
The last insistence of error relates to assignments 7, 8, 9, 10, 11, 12, 13, 14, and 15, which are grouped in argument, and relate to charges refused the defendant, and which are postulated upon the literal language of the policy and not the meaning and construction given same by this court, and were refused without error. New York Life Ins. Co. v. Torrance, 228 Ala. 286, 153 So. 463, 464; Protective Life Ins. Co. v. Wallace, ante, p. 338, 161 So. 256, and cases there cited.
The judgment of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.