Woods v. National Life and Accident Insurance Company

• Decision Date: 22 June 1965
• Docket Number: No. 14968.,14968.
• Parties: Odessa WOODS v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, a Tennessee Corporation, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

347 F.2d 760 (1965)

Odessa WOODS v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, a Tennessee Corporation, Appellant.

No. 14968.

United States Court of Appeals Third Circuit.

Argued January 21, 1965.

Decided June 22, 1965.

COPYRIGHT MATERIAL OMITTED

Richard C. Witt, White, Jones & Gregg, Pittsburgh, Pa. (Thomas Lewis Jones, Pittsburgh, Pa., on the brief), for appellant.

Byrd R. Brown, Utterback, Brown & Harper, Pittsburgh, Pa., for appellee.

Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.

GANEY, Circuit Judge.

On March 7, 1961, Emmet F. Woods, while a resident of Pittsburgh, Pennsylvania, made application to defendant insurance company for a policy of life insurance. Contained in the application are various questions which he answered concerning his past health history and medical consultations.¹ He designated his wife, Odessa Woods, as beneficiary and stated that his last previous occupation was the "U.S. Army". He paid the first premium installment and the policy was issued to him on or about March 21, 1961. Thereafter he made timely payment of premiums as they fell due. The policy provides that the application constitutes a part of the insurance contract and that it "will be incontestable after it has been in force during the lifetime of the insured for a period of two years from its date of issue, except for the non-payment of premiums." Within two years of the issuance of the policy, the insured, while he was still a resident of Pittsburgh, died on August 21, 1962, of infectious hepatitis. Plaintiff-beneficiary submitted proof of death of the insured to defendant. The latter refused to pay the face amount of the policy, and, instead, tendered a check of $253.21 representing the amount of premiums paid. Whereupon plaintiff brought an action on May 29, 1963, in the United States District Court for the Western District of Pennsylvania to recover the proceeds of the policy. Jurisdiction of that court was invoked on the basis of diversity and the jurisdictional amount.² She demanded a jury trial in her complaint.

The answer to the complaint avers that the insured secured the policy by giving false answers to questions numbered 51b, 51g, 54 and 55 of the application,³ which answers were material and relied upon by the defendant and that the insured knew them to be false, thereby rendering the policy void. And defendant's pre-trial narrative statement states in part: "No. 51b The insured answered that he had never had any disease of the heart or lungs; No. 51g that he had never consulted a physician for any ailment or disease pertaining to any part of the human anatomy other than the brain, nervous system, heart, lungs, skin, middle ear, eyes, stomach or intestinal tract. * * * No. 54 The insured also stated that there was nothing in his health history not mentioned elsewhere in the application. No. 55 In answer to a question which called for the names and addresses of physicians that the insured had consulted, he answered `None'."

At the jury trial plaintiff presented evidence of the facts previously adverted to, the truth of which defendant admitted. After completing its defense, in which it offered the testimony of two physicians and the records of their examinations, several chest x-ray films and records from the files of the Veterans' Administration ("VA") relating to the adjudication of applications for benefits by a person named Emmet F. Woods and the plaintiff as his widow, the defendant moved for a directed verdict. It also moved for a "dismissal with prejudice" on the grounds that the documentary evidence which had been submitted to the court for the benefit of the jury is proof that fraud was committed by the insured in applying for the policy. These motions were denied, and the case was submitted to the jury which returned a verdict in favor of the plaintiff for $24,500, the face amount of the policy. Without filing either a motion for judgment notwithstanding the verdict under Rule 50(b) of the Federal Rules of Civil Procedure or for a new trial pursuant to Rule 59, defendant appealed to this court from the judgment entered on the verdict.

The ground for its appeal is that the trial court committed reversible error when it excluded certain evidence offered by the defendant, and that if this evidence had been considered by the trial court, it (defendant) would have been then and is entitled now to a dismissal of the action with prejudice. In order to properly dispose of defendant's contentions it will be necessary to treat them in some detail.

The trial court in its charge removed all but question 51b from the jury's consideration It is highly doubtful whether defendant's only relevant objection to the charge complied with Rule 51 of the Federal Rules of Civil Procedure. However this situation does not prevent this court from reviewing the questions raised by defendant on this appeal. Coca Cola Bottling Co. of Black Hills v. Hubbard, 203 F.2d 859, 862 (C.A. 8, 1953); 1A Moore's Fed.Pract. (2nd ed.) ¶ 0.4049. The fact that it did not file post-trial motions does not do so either. Garman v. Metropolitan Life Ins. Co., 175 F.2d 24 (C.A.3, 1949); United States v. Mountain State Fabricating Co., 282 F.2d 263 (C.A.4, 1960); United States v. Harue Hayashi, 282 F. 2d 599 (C.A.9, 1960). Also see Trout v. Pennsylvania R. R. Co., 300 F.2d 826, 829-830 (C.A.3, 1962); 6 Moore's Fed. Pract. (2nd ed.) ¶¶ 59.14, 59.15 3.

Defendant's first item of complaint is the trial court's admonition and instruction to the jury to disregard the testimony of one Dr. Charles Edwin Greenlee, a practicing physician. This witness, called by defendant for the purpose of proving that the insured answered questions 51b and 55 fraudulently, testified that a man came to his office in Pittsburgh, Pennsylvania, on August 6, 1960. He stated that according to his records he examined this man's chest with a stethoscope, heard high-pitched rales, concluded that there was some obstruction to his breathing, and gave him a preparation of potassium iodide as a treatment. He also stated that he kept a record of this examination and that it was his practice to keep such records in the normal course of pursuing his profession. This record had written on it the same name, address, telephone number, occupation and age as that of the insured. Out of hearing of the jury, he told the trial judge that although the man's condition was not normal, it was not a severe case but an ordinary one, that it was "no big deal" and "you see it every day", and that high-pitched rales could easily be detected "by just listening with your stethoscope." The doctor was unable to say that the man he examined that day was the insured. The basis for the trial court's action was that part of the doctor's testimony was a privileged communication barred from being disclosed in a civil action by the Act of June 7, 1907, P.L. 462, 28 P.S. § 328, and that the remainder was irrelevant once it had been established that the doctor could not identify the patient as having been the insured.

Assuming that the person examined by Dr. Greenlee on August 6, 1960, was the insured, the Act of 1907 did not prevent him from disclosing the purpose of his examination, his diagnosis and treatment. The Act applies only to communications made by a patient to a physician in a civil action: Phillips's Estate, 295 Pa. 349, 145 A. 437 (1929), and then only if they tend to blacken the character of the patient. Soltaniuk v. Metropolitan Life Ins. Co., 133 Pa.Super. 139, 143-144, 2 A.2d 501 (1938). With the exception of the name, address and so forth, and a few items concerning the patient's health history entered in his records, Dr. Greenlee's testimony did not and would not have revealed any information obtained by communications from the patient. The revealing of a name, address and other identifying data given by a patient is not a communication which tends to blacken the character of the patient. Sweeney v. Green, 116 Pa.Super. 190, 176 A. 849 (1935). The Act of 1907 presented no obstacle to Dr. Greenlee's testimony. His records, to the extent that the contents were relevant and material, were admissible. Ettelson v. Metropolitan Life Ins. Co., 164 F.2d 660, 667 (3 Cir. 1947). The fact that the doctor was unable to say that the patient he examined was the insured is immaterial. The identity of the patient was for the jury to determine.

Since defendant asserted that the answer to question 55, which was removed from the jury's consideration, was fraudulent, and Dr. Greenlee's testimony had some bearing on the issue raised by that assertion, the defendant is entitled to a new trial alone on the trial court's rulings regarding that witness's testimony.

Defendant also complains of the court's ruling that Dr Harold T. Brown, who was chief of the pulmonary disease unit of the VA regional office in Pittsburgh and examined service veterans in the routine course of his employment as a VA physician, was not a physician "consulted" by the insured within the meaning of question 55 of the application for insurance. The effect of this ruling, along with that on Dr. Greenlee's testimony, was to remove question 55 from the jury's consideration. With the aid of documents from the VA file, Dr. Brown testified that on December 29, 1960, he examined from head to toe a medium sized, very good-looking, well dressed, personable colored man who appeared to be well educated and spoke good English. He explained to the man that the probable cause of his trouble was sarcoidosis⁴ and possibly pulmonary mycosis (a fungus disease of the lungs) or a bronchiolitis (inflammation of the bronchioles). An x-ray picture of this man's chest taken the same day under Dr. Brown's direction showed shadows of a very finely dotted nature indicating, according to the doctor, a fine nodular type infiltration of both lungs. The doctor advised the man to go to a VA hospital for further observation and examination. He...