LORRAINE A. MILLEY vs. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA.

HALE, C.J. The plaintiff has appealed from a judgment entered on March 21, 1975, on a jury verdict for the defendant in an action to collect the proceeds of a life insurance policy issued by the defendant on the life of the plaintiff's husband, William Milley, and of which the plaintiff was the named beneficiary. In filling out the application

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for the insurance the deceased answered in the negative the question, "Have you ever . . . been treated for alcoholism?" The principal issue before the jury was whether that answer was a false representation of a material fact so as to justify the defendant's avoidance of the policy under G. L. c. 175, Section 186. [Note 1] The judge instructed the jury in accordance with that section. From what we can gather from her brief, the plaintiff attempts to draw our attention to four issues on appeal, each of which is discussed separately below.

1. The plaintiff argues that the question concerning alcoholism called for a statement of opinion, not of fact, and thus that no answer to the question could be considered a misrepresentation of a material fact. But that issue is not properly before us. The plaintiff points to no action of the trial judge to which she made objection which would bring that issue before us on appeal. The proper way to have raised such an issue in the trial court was by a request for a jury instruction, or by an objection to an instruction given. The plaintiff calls our attention to no such request or objection, and the record reveals none. The plaintiff is therefore precluded from arguing that issue for the first time on appeal. John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719, 724 (1976).

2. A Doctor Margiotta, a physician specializing in internal medicine who had been consulted by the deceased on December 12, 1967, and who had thereafter treated the deceased on several occasions, was called to testify at trial. He testified that at the time of his examination he was of the opinion that the deceased was suffering from a disease of the liver caused by an excessive intake of alcohol, and that he had advised the deceased to give up drinking and

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to join Alcoholics Anonymous. The doctor, having earlier testified to his definition of alcoholism, was asked whether in his opinion the deceased was an alcoholic. The plaintiff's objection to that question was overruled, and the doctor answered that the deceased "did fit into my definition of alcoholism at the time I saw him in December of 1967." The plaintiff contends that that answer was erroneously admitted over her objection. We fail to see any error, but in any event, the testimony was nothing more than cumulative, as a substantially similar question had been asked and answered without objection moments earlier during the same direct examination. [Note 2] Ross v. Ross, 329 Mass. 644, 649 (1953). Even had the objection been seasonably made, there would have been no error in allowing the question to be answered. Dr. Margiotta, once qualified as a medical expert, could properly testify as to his medical opinion where the opinion related to a matter in issue. Commissioner of Corps. & Taxn. v. Bullard, 313 Mass. 72, 92 (1943). Dr. Margiotta had testified that his opinion was based upon his personal experience as a physician dealing with individuals with alcohol-related problems for a period of more than ten years; that the definition he gave of alcoholism was both his personal and a medical definition; and that his opinion that the deceased was an alcoholic was a medical opinion. Such testimony was admissible. Commonwealth v. Russ, 232 Mass. 58, 73 (1919).

3. The defendant introduced in evidence a hospital admissions record containing the following: "First Winchester Hospital admission of a 40 yr. old alcoholic who enters with jaundice and the `shakes.' Patient has been an

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alcoholic for the past 10 years but has 2 married daughters and has been able to support his family and work as an inside salesman. States that he has never missed any work because of the drinking although this is hard to believe" [Note 3] (emphasis supplied).

The plaintiff objected to and sought to have deleted the emphasized portion of the above record on the ground that it did not relate to the treatment or medical history of the deceased and thus did not come within the language of G. L. c. 233, Section 79 [Note 4], which allows medical records to be admitted in evidence "so far as such records relate to the treatment and medical history" of the case. We do not regard the emphasized words to be a commentary by the doctor on the deceased's credibility. Rather, we regard them to be a commentary on a part of the history as well as the doctor's evaluation of the symptoms and the severity of the conditions he observed in his patient.

4. The plaintiff testified at trial about a conversation with Dr. Margiotta, which was said to have taken place after he had examined the deceased. The plaintiff testified that the doctor had informed her, in the presence of her

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husband, that her husband was in good health. [Note 5] The doctor had testified that at the time of his examination he had suspected that the deceased was suffering from hepatic cirrhosis. The testimony of the plaintiff concerning her conversation was offered by the plaintiff and admitted by the judge for the sole purpose of impeaching Dr. Margiotta's previous testimony. The judge then instructed the jury as to that limitation. The plaintiff then sought to have the statement also admitted on the question of the deceased's "credibility in the signing and answering of questions in the application . . . as to his intent." Thereupon there was an unrecorded bench conference and nothing further appears on the record at that point as to the matter. The transcript does not indicate that the plaintiff made an objection as required by Mass.R.Civ.P. 46, 365 Mass. 811 (1974). However, after both parties had rested, the judge in a statement for the record concerning that testimony said, "Counsel for the plaintiff asked that it be admitted generally and I refused to admit it except for a limited purpose." He then noted the plaintiff's objection to that ruling. At that time the plaintiff made no suggestion to the judge that the evidence might be admissible for another non-hearsay purpose. [Note 6] When the judge noted her objection to his refusal to admit the testimony "generally," the plaintiff did not protest the use of that term. If the plaintiff considered that there was a misunderstanding on the part of the judge, it would have been a relatively simple matter for her to have so informed the judge on either of the two occasions when he had the matter under consideration. We conclude that the request of the plaintiff was that her testimony be admitted generally. The testimony

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being thus offered was hearsay and was properly limited. Commonwealth v. DelValle, 351 Mass. 489, 491-493 (1966).

Judgment affirmed.