Baum v. Metropolitan Life Insurance Co.

• Court: Pennsylvania Superior Court
• Writing for the Court: Baldrige, J.
• Citation: Baum v. Metropolitan Life Insurance Co., 144 Pa.Super. 37, 19 A.2d 486 (Pa. Super. Ct. 1941)
• Decision Date: 30 January 1941
• Docket Number: 80-1940
• Parties: Baum v. Metropolitan Life Insurance Company, Appellant

19 A.2d 486

144 Pa.Super. 37

Baum v. Metropolitan Life Insurance Company, Appellant

No. 80-1940

Superior Court of Pennsylvania

January 30, 1941

Argued October 11, 1940.

Appeal from judgment of M. C. Phila. Co., Dec. T., 1937, No. 72, in case of Bertha Baum v. Metropolitan Life Insurance Company.

Assumpsit. Before Tumolillo, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff. Defendant appealed.

Error assigned, among others, was refusal of judgment n. o. v.

Judgment reversed.

John Bishop, with him Francis L. Van Dusen, Dechert, Smith &amp Clark, Harry Cole Bates and Owen B. Rhoads, for appellant.

Daniel Marcu, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Baldrige, J.

An action in assumpsit was brought upon a policy of life insurance dated March 1, 1937, issued by the defendant. The insured, the plaintiff's husband, died suddenly July 16 1937, from a cause not shown on this record.

The policy contained the following provision:

"If (1) within two years prior to the date of issue of this policy the Insured has been a patient at, or an inmate of, any institution for the treatment of physical or mental disease, or has undergone any surgical operation, or has been attended by a physician, unless it shall be shown by the Insured or any claimant that no such institutional, surgical, or medical treatment or attention was for a serious disease, injury, or physical or mental condition; or if (2) prior to such date of issue the Insured has been rejected for life insurance by this or any other insurer; then, in any such case, this Policy shall, subject to the clause entitled Incontestability, be voidable by the Company, unless reference to such institutional, surgical, or medical treatment or attention, or such prior rejection, is endorsed on this Policy by the Company ...."

Defendant averred in its affidavit of defense that the insured had, within two years prior to the date of the policy, received treatments at the Jefferson Hospital for a serious disease, i. e., osteomyelitis of the right leg, for which condition he was attended during that period by a physician or physicians, and no reference thereto was endorsed on the contract of insurance; that the first knowledge of this serious disease or condition and the treatments therefor was obtained after the death of the insured.

The plaintiff at the trial made out a prima facie case by introducing in evidence certain portions of the statement of claim, the policy of insurance, and the payment of premiums. Defendant produced the records of the Jefferson Hospital, showing that the insured had been treated in the surgical clinic of that institution on thirty-nine different occasions in the two year period immediately prior to the date of the policy. Dr. Steiner was called as a witness in rebuttal, who stated over defendant's objection that he had examined the insured January 26, 1936, when he made application to become a member of a beneficial association, and that he did not notice any osteomyelitis. "I examined him and found him in good physical health. At that time I believe that Mr. Baum had some sort of a wound -- a bullet wound -- in his right leg; a bullet wound received during the war." The plaintiff admitted on cross-examination that her husband had received treatments for his leg in the Jefferson Hospital prior to his death. There was other testimony by acquaintances of the insured that he was able to do his work as a printer, drive his car, and engage in normal activities.

The trial resulted in a verdict for the plaintiff in the sum of $ 908, upon which judgment was entered. This appeal followed.

The appellant's main contention is that the plaintiff failed to carry the burden of showing that the insured's hospital treatments during the two years prior to the issuance of the policy, were not for a serious disease. The clause in the policy above quoted is one that has been adopted recently by the defendant company and apparently has not been construed by an appellate court in this Commonwealth, although it has been passed upon by the higher courts of New York and Ohio. In McDermott v. Metropolitan Life Insurance Company, 8 N.Y.S.2d 896, this same provision was under consideration. There the claimant gave no proof that the ailment for which the insured was treated by a physician was not a serious disease. The Appellate Division of the New York Supreme Court held that a verdict should have been directed for the defendant. The judgment was later modified (8 N.Y.S.2d 897) by reducing plaintiff's recovery to the sum of $ 11.50 and costs.

The provision with which we are concerned was also before the Court of Appeals of Ohio in Davis v. Metropolitan Life Insurance Company, 31 N.E.2d 98, and in Baranowicz v. Metropolitan Life Insurance Company, opinion filed June 17, 1940. Both decisions were in harmony with that rendered in the McDermott case.

The defendant having proved the numerous treatments the insured received in the Jefferson Hospital, by the records of that institution, which were competent (Evans v. Penn Mutual Life Insurance Company, 322 Pa. 547, 555, 186 A. 133, et seq., 186 A. 133), the burden of going forward with the evidence was then undoubtedly shifted to the plaintiff to show that they were not for...