Anzano v. Metropolitan Life Ins. Co. of New York

• Decision Date: 10 March 1941
• Docket Number: No. 7419.,7419.
• Parties: ANZANO v. METROPOLITAN LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Third Circuit

118 F.2d 430 (1941)

ANZANO v. METROPOLITAN LIFE INS. CO. OF NEW YORK.

No. 7419.

Circuit Court of Appeals, Third Circuit.

March 10, 1941.

COPYRIGHT MATERIAL OMITTED

Louis Rudner, of Trenton, N. J. (Katzenbach, Gildea & Rudner, of Trenton N. J., on the brief), for appellant.

J. Emil Walscheid, of Jersey City, N. J., for appellee.

Before CLARK, JONES, and GOODRICH, Circuit Judges.

GOODRICH, Circuit Judge.

This is an appeal from a judgment rendered for the plaintiff in an action upon a policy of accident insurance issued by the appellant to Ralph Anzano. The pertinent provision of the policy, which insured Anzano against loss from accidental injuries causing whole and continuous disability in his occupation, provided that if such injuries caused death within two hundred weeks from the date of the accident the company would pay, in addition to the weekly indemnity for the disability, the principal sum of the policy to the beneficiary thereof, who was the insured's wife. The insured's occupation was that of proprietor of and pharmacist in his own drug store.

On July 10, 1931, while the policy was in force, Anzano suffered a blow upon the head during a holdup. He made claim upon the company stating that he was totally disabled from July 11 to August 5, 1931, and partially disabled from August 5 to August 17, 1931. In this claim he stated that his disability was not ended. The company thereupon wrote to Anzano asking him whether that statement was supposed to be his final statement or whether he was still disabled. In response thereto Anzano wrote, on August 27, 1931 as follows: "In response to your letter of August 26 I wish to state that unless something unforeseen develops I am now in as good health as I was previous to my accident. Please consider the report that I submitted as final." On September 29, 1931 after Anzano had had several meetings with a claim adjuster of the company the company issued to him a check in the sum of $163.57. On the face of the check there appeared the statement "For full payment of claim under above numbered policy for injuries or sickness beginning on or about 7-10-31." On the reverse side of the check there appeared the statement "Received payment in full as detailed on the reverse side". This check was endorsed by Anzano and cashed by him. On April 25, 1935 Anzano became ill while driving his automobile and was taken to a hospital. He died on April 30, 1935. This action was brought by the insured's wife in two counts; one in her own behalf as beneficiary of the policy to recover the face amount thereof; the second as administratrix of Anzano's estate to recover the weekly benefit payments for Anzano's disability from the date of the accident to the date of his death, less the amount already paid by the company. The plaintiff's case was based upon the contention that Anzano's death was caused by the accident and that he was totally and continuously disabled from that time until his death. During the period following the receipt of the check from the appellant until the date of his death Anzano never made any further claim upon the company under the policy, although it was renewed from year to year.

The defendant asks this court for relief in the alternative; either for entry of judgment notwithstanding the verdict or for a new trial because of errors in the court below. It is urged that on the facts the plaintiff's evidence did not make out a case for recovery. It is to be noted that for recovery on these two counts plaintiff was under the burden of showing both the continuous disability upon the part of Ralph Anzano for the period between the accident and his death and that his death was caused by the accident. The defendant urges upon us the rule that a case should not be submitted to the jury unless the evidence is substantial enough to sustain an affirmative finding. Then it is urged that the evidence in this case is not sufficient to sustain an affirmative finding, and that the trial judge erred in failing to direct a verdict for the defendant. Upon the general rule there is, of course, no dispute. The application of the general rule to the facts of an individual case presents more difficulty and this litigation is no exception. It is obvious, and still true, that neither a trial judge, in a case tried before a jury, nor an appellate court, judges the credibility of the witnesses and that the determination of whether the plaintiff had established a case for the consideration of a jury must be made by taking the evidence offered by the plaintiff at its face value.

Subject to the discussion of certain law points made in connection with the testimony, which will be considered below, there is nothing to be gained by a long recital of the stories of the various witnesses. That the insured was injured in a manner which brought him within the terms of the policy is not disputed. There was testimony bearing upon his subsequent inability to carry on the duties of his occupation as dispensing pharmacist and proprietor of a drug store. There was medical testimony ascribing the cause of his incapacity and death to a head injury which, in turn, was a consequence of the blow upon the head received at the hands of the felons who attacked him. This testimony was sufficient, if believed, to establish the plaintiff's case, subject to the legal problems involved. It was distinctly a problem for the jury to decide whether the plaintiff's witnesses or the witnesses of the defendant who testified to the same points were to be believed.

A legal question is raised, however, as to the sufficiency of proof as to total disability. The language of the clause of the policy covering this point is that the insured shall have been prevented from "performing any and every kind of duty pertaining to his occupation". The literal application of these words would, obviously, prevent recovery on a claim for total disability unless the insured was shown to have been completely helpless so far as the carrying on of his occupational duties is concerned. The uniform course of judicial decision upon this point, however, is that these words are used "relatively rather than literally" and are applicable if the insured is substantially unable to perform his usual occupational duties. See Cantor v. Metropolitan Life Insurance Co., 1933, 108 Pa.Super. 1, 164 A. 145, 146, and decisions cited therein. The New Jersey decisions are collected and discussed in Teitelbaum v. Massachusetts Accident Co., 1935, 181 A. 395, 13 N.J.Misc. 811; see also notes in 79 A.L.R. 857 and 98 A.L.R. 788. While the language from court to court on this point shows some variation the main course of decision is clear. In the instant case the trial judge charged the jury in substantially the language used in the New Jersey decisions. The testimony offered on behalf of the plaintiff was amply sufficient to show such incapacity on the part of Anzano to do his work as a pharmacist to bring him within the right to recover under the decisions cited if the jury believed the testimony. The fact that Anzano may have gone bowling or hunting or engaged in extra-pharmaceutical activities is simply evidentiary with regard to his capacity to carry on his regular work. On ample evidence the jury found in the plaintiff's favor upon this point and their finding cannot be disturbed.

The most difficult problem in connection with the request for judgment notwithstanding the verdict relates to the effect of the payment by the company to the policy holder on September 29, 1931. It is claimed by the company that this constituted either a release or an accord and satisfaction of all claims by Anzano under the policy. If the insured released all his claims or if the transaction between the insured and the company resulted in satisfaction of all claims, it is clear, of course, that this action will not lie.

In this connection the difference between the...