Opinion
Decided June 5, 1934.
Motions for a nonsuit and directed verdict do not raise the question of a proposed expert's competency; but that question is one of fact for the presiding justice to determine. By permitting an expert to testify, the presiding justice by inference rules that he is qualified. Testimony of reputable physicians of long experience is not rendered inadmissible as matter of law because it disagrees with the text book authorities upon the subject. An exception to the denial of a motion to set aside a verdict as against the law and the evidence presents no question of law not already saved by an earlier exception; and the only question raised by such motion is whether the evidence is so overwhelmingly in favor of the losing party that the verdict can be explained only on the ground of prejudice, partiality, corruption or mistake.
ASSUMPSIT, on a policy of life insurance the material portions of which are as follows:
"ACCIDENTAL DEATH BENEFIT. One Thousand Dollars, payable in addition to the Face Amount of Insurance, . . . in event of death by accident as defined in the clause headed `Provisions as to Accidental Death Benefit', on the second page hereof, subject to the provisions therein set forth."
"PROVISIONS AS TO ACCIDENTAL DEATH BENEFIT. The Amount of Accidental Death Benefit specified on the first page hereof shall be payable in addition to the Face Amount of Insurance immediately upon receipt of due proof that the death of the Insured occurred during the continuance of this Policy while there was no default in the payment of premium, as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, . . . provided, however, that no Accidental Death Benefit shall be payable if the death of the Insured resulted . . . directly or indirectly from bodily or mental infirmity or disease in any form."
At the time of his death, the insured, Joseph A. Ricard, was thirty-two years of age. He was short, well developed, and somewhat, though not excessively, over weight. Prior to the day of his death he had never lost any time from his work due to sickness with the exception of one occasion when he had a cold. He had never suffered from pains in the region of his heart, nor of abnormal shortness of breath for one of his physique.
About 4 o'clock in the afternoon of April 10, 1931, while engaged in operating a circular splitting saw he was struck on the right forearm by a small piece of wood which was thrown back by the saw. This wedge, or sliver, weighing only a few ounces, was thrown with sufficient force to inflict a "V" shaped wound, approximately an inch and three quarters on each side, and about an eighth to a quarter of an inch deep. A temporary dressing was immediately applied at the office of the corporation for which he worked, and he was then taken to the office of a local doctor who cleaned the wound and closed it with seven stitches.
At the doctor's office, on the way home and during the evening, the insured was pale or, as some witnesses described it, greenish in color, he had some difficulty in breathing, and also complained of intermittent pains in the region of his heart. He was not able to eat any supper but soon after seven o'clock started to go to the theater with a friend. On the way he complained of more pain about his heart, and went again to the office of the doctor who had treated him earlier in the day. The doctor examined his heart with a stethoscope but found nothing wrong with it. He did, however, prescribe pills containing strychnine. After taking a pill, the insured felt better, and continued on to the theater although the doctor had advised him to go home.
Soon after he had seated himself in the theater the insured collapsed. He was taken out into the lobby and a doctor was summoned who pronounced him dead.
After the body had been embalmed an autopsy was performed. The doctor who performed the autopsy testified that he found the heart in a condition to indicate that the insured was suffering from and had died of angina pectoris. Other medical experts called by the defendant testified to the same effect in answer to hypothetical questions.
The plaintiff produced two doctors of long experience, one of whom had treated the insured for hernia in 1921, and had given him a physical examination in 1928. In answer to hypothetical questions, both gave it as their opinion that the insured died of an embolism which formed at the wound on his forearm, proceeded in the blood stream through the heart and lodged in the pulmonary artery.
The defendant seasonably moved for a nonsuit and for a directed verdict on the ground that there was no competent evidence that the death of the insured "was due solely to the accident, independent of all other causes." These motions were denied and the defendant excepted.
There was a verdict for the plaintiff which the defendant moved to set aside on the grounds that it was against the law and the evidence and the weight of the evidence. This motion was also denied subject to exception. A bill of exceptions was allowed by Page, J.
Albert Terrien (by brief and orally), for the plaintiff.
Thorp Branch (Mr. Branch orally), for the defendant.
The defendant argues in support of its motions that the plaintiff's doctors were not qualified by either study or experience to give expert opinions on the medical question involved. It has long been the law of this state that the qualifications of a witness to give expert opinion presents a preliminary question of fact to be determined at the trial by the presiding justice, and will not, in the absence of abuse of discretion, be reviewed in this court unless that question of discretion "is specially reserved by him for revision." Jones v. Tucker, 41 N.H. 546; Taylor v. Railway, 48 N.H. 304, 311; Dole v. Johnson, 50 N.H. 452; Hess v. Shurtleff, 74 N.H. 114. For further authorities see Hening's Dig. p. 628.
Since 1901, when the present judicial system was established, the practice of reserving questions of discretion for decision in this court has become obsolete. Questions of discretion must now be decided by the superior court. The only question before us is whether there is any evidence upon which the decision of that court could reasonably be made. Nawn v. Railroad, 77 N.H. 299, 304.
The record discloses that the plaintiff's doctors were asked the customary questions concerning their education and experience and then were asked and proceeded to give their opinions. No objection or suggestion was made at the time that they were not qualified to testify as they did. The presiding justice was not asked to rule on their qualifications as experts, nor was any motion made to have their testimony stricken from the record.
By permitting them to testify, the presiding justice, by inference, ruled that they were qualified (Flint v. Company, 73 N.H. 483, 485), and no complaint of this implied ruling was made, except that to be inferred from the motions for nonsuit and directed verdict.
Such motions are not adequate to raise the question of an expert's qualifications. The uniform practice in this state is that questions relating to the competence of testimony must be raised at the time the testimony is given. To defer the question as to the competence of these doctors as experts until the motion for nonsuit or directed verdict is to deny the plaintiff an opportunity to further qualify his experts or to find others in the event of an adverse ruling.
The doctors, having shown medical education and experience, were prima facie qualified. If later during the course of their examination it appeared to opposing counsel that they were not qualified to testify on some particular phase of medicine or surgery it was counsel's duty to object to the question or move to have the testimony stricken from the record, or to adopt some other convenient procedure to bring their complaint specifically to the attention of the presiding justice. Their failure to do this warranted the assumption that they did not question the competence of the doctors to testify as they did. Under these circumstances the presiding justice would not, naturally, direct his attention to the witnesses' qualifications, but rather to what they said, when he passed upon the defendant's motions.
The ruling of competence as experts implied from permitting the doctors to testify must stand in the absence of any sufficient objection and exception thereto.
"The defendant's exception to the denial of its motion `that the verdict be set aside as against the law and the evidence', presents no question of law not already saved by an earlier exception." Hould v. Company, 83 N.H. 474, 476; Salvas v. Cantin, 85 N.H. 489; Simes v. Atwell, 85 N.H. 537. No sufficient exception having been taken to the implied ruling that the plaintiff's doctors were qualified, the question of their competence is not raised by the motion to set the verdict aside. On this motion the only question before the presiding justice was whether the evidence was so overwhelmingly in favor of the defendant that a verdict for the plaintiff can only be explained on the ground of prejudice, partiality, corruption or mistake. The question before us is whether the action of the presiding justice in passing upon that motion can only be explained on the same grounds.
The defendant asserts that the jury in finding a verdict for the plaintiff and the presiding justice in denying its motion to have that verdict set aside were both in error because the testimony of the plaintiff's doctors is clearly incredible. In support of this position the defendant shows that the doctors had never seen a case of pulmonary embolism, verified by autopsy, resulting from a superficial uninfected wound of the forearm; that they did not agree with a statement found in a text on surgery published in 1917 to the effect that "infection is an essential prerequisite of embolism from wounds"; and that, even though they became convinced that all other authorities agreed with that above quoted, still they would continue to assert that, in their experience, they had seen embolisms form from uninfected wounds.
Both doctors were men of long practical experience as practicing physicians and surgeons. Both testified that they had seen cases of pulmonary embolism result from superficial uninfected wounds, and even that such diagnosis had in some but not all instances been verified by autopsy. Pulmonary embolism is admittedly an event of rare occurrence. The fact that the doctors had never encountered, and verified by autopsy, one which had resulted from a precisely similar wound at most affects their credibility. In the absence of conclusive evidence of any physiological reason why an embolism cannot result from a wound in the forearm, the lack of a precisely similar experience cannot operate to render testimony worthless.
Their disagreement with the statement read to them from the text, and their willingness to follow their own experience even if that ran counter to statements to be found in all texts, likewise affects only the credibility of their testimony. Both doctors asserted that authorities which supported their contention had come to their notice, but neither brought such authorities into court when requested to do so. Whether this failure on their part was due to lack of time or local facilities for medical research, or because there were no such supporting authorities does not appear. Assuming, however, that there were no such authorities, still their testimony from their own experience is not thereby rendered worthless. Probably one without practical experience, who testified as an expert merely because of his study of authorities, as was the case in Dole v. Johnson, supra, could not disagree with all authorities without loss of his standing as an expert. In the case at bar the doctors were practical as well as theoretical experts. If their practical experience was at variance with the authorities, they could either follow what their experience taught them, or else conclude that their observations were wrong and follow the authorities. In the instant case the experts elected to follow their own experience. Their abandonment of authority may, of course, be shown to affect their credibility, but it does not affect their credibility to such an extent as to render their testimony valueless. We are not prepared to hold that, as a matter of law, the testimony of an iconoclast is always without probative force.
The defendant, in support of its position, relies upon a statement of Professor Wigmore (1 Wig., Ev. s. 687) quoted in Laird v. Railroad, 80 N.H. 377, 380, to the effect that: "To allow any physician to testify who claims to know solely by personal experience is to appropriate the witness-stand to impostors." The plaintiff's doctors did not claim "to know solely by personal experience." Both testified that there were authorities to support them. If it should appear that such a claim of support were unfounded or too tenuous to be credible such matter should be brought directly to the attention of the presiding justice, and might form sufficient ground for his eliminating such testimony from the record. The question whether a self-professed expert is an expert or an impostor remains one for the presiding justice, only reviewable here for manifest error and no case of such error is here made out.
Judgment on the verdict.
BRANCH, J., did not sit: the others concurred.