Travelers Insurance v. Berlin

Henderson, J., delivered the opinion of the Court. This is an appeal from a judgment of the Court of Common Pleas of Baltimore City, rendered on a verdict of a jury in favor of the appellee. The action was brought by the appellee for permanent total disability benefits under a life insurance policy. The questions presented are: (1) Whether the opinion of a medical witness was properly admitted in evidence; (2) whether the appellant was entitled to a directed verdict; and (3) whether the court’s charge to the jury correctly stated the law of the case.

The policy in question was issued to the appellee on May 19, 1925. It provided life insurance in the amount of $5,000 on the life of Joseph N. Berlin, and further provided for disability income in the amount of $50 a month and waiver of premiums. The premium for the life insurance was $101.30 per year, including $7.10 for .the disability feature. The clause dealing with “permanent total Disability Benefits” read as follows: “Upon due proof that since the payment of the initial premium upon this contract, before a default in the payment of any subsequent premium and before the anniversary of this contract nearest to the sixtieth anniver ⁴⁰⁷ sary of the date of birth, the insured has become wholly disabled by bodily injuries or disease and will be continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the company will waive the payment of any premiums which may fall due on this contract during such disability and will pay from the commencement of such disability and during its continuance the disability income stated on the first page of this contract.” The appellee was thirty-four years old when the policy was issued.

At that time, as stated in his application, his occupation was “Furniture Manufacturing, Texas, Md.” In 1929, he contracted tuberculosis of the throat and lungs. On November 5, 1931, he was sent to a sanitarium in Colorado and remained there until June, 1934. At the time he entered the sanitarium, the tubercular condition of his lungs and throat had reached such a stage that he lost his voice completely; the pain he suffered was so severe that he was unable to eat or drihk. Both lungs were involved as well as his entire larynx.

After treatments lasting about two and a half years his condition had improved so as to permit his return to Baltimore, where he continued the same type of therapy. In 1931 the appellee filed a claim for permanent total disability benefits. The claim was approved and regular monthly payments were made from July 15, 1931, up to and including April 15, 1944, during which period premiums were also waived. Since April 15, 1944, the date on which this action was instituted, no further payments were made and the company insisted upon the payment of premiums.

It was stipulated that if the verdict should be for the plaintiff, the amount should be $251.30, consisting of three monthly payments and one premium payment. The appellant sought to justify the termination of payments on the ground that on April 15, 1944, the appellee had recovered from his illness to such an extent that he was not “wholly disabled,” within the meaning of the policy, so as to be “continuously and wholly pre ⁴⁰⁸ vented thereby for life from engaging in any occupation or employment for wage or profit.” The extent of disability is, therefore, the primary issue in the case. Dr. J. Julian Chisholm, called by the plaintiff, testified that he examined the plaintiff on July 22, 1944, and previously on February 26, 1937. On both occasions he found extensive scarring of the larynx, the result of healed tuberculosis, and stenosis of the larynx, as a result of scar tissue.

He explained that stenosis means a narrowing of the lumen, or air-passage; the latter was narrowed approximately two-thirds, leaving about one-third of the normal space through which to breathe. This caused difficulty in breathing or shortness of breath on exertion. He found no evidence of active tuberculosis in the nose or throat on either occasion. The witness was then asked whether he came to any conclusion, on February 26, 1937, as to whether or not the insured was totally disabled.

Over objection, he answered: “It was my belief that he was.” He was then asked whether he came to any conclusion, on July 22, 1944, as to whether the insured was totally disabled, and over objection, the witness said: “My opinion at that time was that in as much as I could see no change in his condition I saw no reason to change my previous opinion that he was still disabled.” At this point the Court asked the witness what he meant by “totally disabled.” He replied: “Well, your Honor, I don’t know that I could give a legal definition of that.” The Court then said: “No I don’t want a legal definition; I want you to tell us as a doctor what this man could do and what he could not do.” The witness replied: “I don’t think he could do any form of work that required exertion; I think if he could sit at a desk all day he could do that without impairing his health.” No objection was taken to these questions by the Court. It is contended that it was error to permit the witness to testify that the appellee was “totally disabled,” because it called for a conclusion of the witness upon the ⁴⁰⁹ ultimate fact in the case which was for the jury alone to determine. We think it is clear from the testimony as a whole that the witness was not undertaking to render a verdict. In the case of Prudential Ins.

Co. v. Brookman, 167 Md. 616, 626 , 175 A. 838, 841 , where medical witnesses testified that the plaintiff was “totally and permanently disabled,” this Court said: “But it is to be borne in mind that the physicians in this instance were not testifying entirely as experts. Both of them had examined the insured, and testified from personal knowledge of facts, and give their conclusions on those facts, as well as others testified to. Their answers, all read together, seem to the court to have removed the cause for objection that they were rendering verdicts on the case to be considered and decided by the jury.” In the case of Travelers Ins. Co. v. Needle, 171 Md. 517, 521 , 189 A. 216, 218 , where the question propounded to a medical witness was whether the plaintiff was “permanently disabled,” this Court said: “The form of the questions propounded may be the object of some criticism, but under the circumstances in this case, this does not constitute reversible error.” See also Commercial Casualty Ins.

Co. v. Zajic, 175 Md. 368, 378 , 1 A. 2d 903 . In the case at bar the questions put by the court made it perfectly clear to the jury that the witness was not undertaking to give a legal definition of the phrase used in the policy, but, on the contrary, was expressing his opinion as to the physical capacity of the claimant in view of his medical history. Thus, any inferences to be drawn from the answers of the witness were limited and qualified by the explanation elicited by the court. We find no prejudicial error in the court’s rulings.

Dr. Weinberg, called by the plaintiff, testified on the basis of an examination on June 27, 1944, and a. number of previous examinations, that “the entire right half of the larynx all the way down is completely out of commission in functioning for talking or in the act of widening the passage for inhaling and exhaling.” As ⁴¹⁰ to the effect of this condition upon the insured’s ability to work, he said: “that would impair the flexibility of his cords, which are necessary to an extent for easy breathing, and would necessarily lead to fatigue. I don’t believe that Mr. Berlin personally could hold down any job, any kind of a job personally for a whole day.” Dr. Louis P. Hamburger, called by the plaintiff, testified that he had treated the insured since 1929. In 1938, there was still a certain amount of activity in the left lung, which had entirely cleared up by 1944, so that he was not suffering from any active tubercular condition. As to ability to work, the witness said he thought the insured could do some “light clerical work,” if an employer would accept him, knowing his past medical history and disabilities, if the job would allow a two-hour daily rest period, if the insured did not have to hurry, inducing shortness of breath, and if he could stay at home when he caught a cold “because it is notorious that one who has had tuberculosis is prone to have tuberculosis activated by repeated colds.” Dr. George McLean, called by the defendant, testified, on the basis of an examination on March 15, 1944, that the tuberculosis was completely arrested and that the insured was able to engage in the same type of occupation he was in before he was taken ill.

He testified that the insured told him he had been general manager of a furniture manufacturing business, spending part time on the road as salesman. Dr. Charles R. Austrian, called by the defendant testified, on the basis of an examination on April 6, 1944, and previous examinations, that the insured’s tubercular condition had been arrested, and that he “should be capable of carrying on a sedentary occupation that does not necessitáte marked physical effort, * * * not capable of carrying on gainful occupation that requires sustained physical effort, as much because of dispnea (shortness of breath) consequent upon tracheal, bronchial narrowing, as because of the hazard of activating his tuberculosis. He is physically fit to undertake a sedentary ⁴¹¹ occupation such as bookkeeping or accounting, provided such resumption of activity is undertaken on a graduated scale. * * * I do not know where a man of his age could get a job like that.” Dr. Edward A. Looper, called by the defendant, testified on the basis of an examination in March, 1944, that the insured had obstructions of the right half of the epiglottis, paralysis of the right vocal cord, some adhesions, and scar tissue formation. Witness felt he could do sedentary work, something like bookkeeping, or things that do not require an unusual amount of exertion or hard strenuous labor.

The plaintiff, called by the defendant, testified that he lived with his