Jones v. Manhattan Life Insurance Co., of New York

• Decision Date: 31 January 1939
• Docket Number: 279-1938
• Citation: 4 A.2d 220,134 Pa.Super. 437
• Parties: Jones, Appellant, v. Manhattan Life Insurance Company of New York
• Court: Pennsylvania Superior Court

4 A.2d 220

134 Pa.Super. 437

Jones, Appellant, v. Manhattan Life Insurance Company of New York

No. 279-1938

Superior Court of Pennsylvania

January 31, 1939

Argued October 28, 1938.

Appeal from judgment of C. P. No. 4, Phila. Co., June T., 1937, No 6119, in case of Absalom Jones v. The Manhattan Life Insurance Company of New York.

Assumpsit. Before Alessandroni, J., without a jury.

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

Finding and judgment for defendant. Plaintiff appealed.

Error assigned, among others, was refusal of new trial.

Judgment affirmed.

Thomas O. Haydock, with him Albert G. F. Curran, for appellant.

J. S Conwell, with him J. S. Conwell, Jr., Philip J. Ross and Pepper, Bodine, Stokes & Schoch, for appellee.

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

OPINION

Rhodes, J.

This is an action in assumpsit to recover benefits for total disability, which plaintiff alleges are payable to him under the disability provision of a policy of life insurance issued by defendant. The case was tried without a jury by a judge of the court below, who found in favor of defendant. Plaintiff's motions for a new trial and for judgment n.o.v. were dismissed by the court in banc, and from the judgment thereupon entered plaintiff has appealed. Error is assigned to the refusal of aforesaid motions.

In considering the validity of plaintiff's motion for judgment in his favor n.o.v., our review is circumscribed by the rule that "the findings of a trial judge, sitting without a jury, have the force and effect of the verdict of a jury, and, when sustained by the court in banc, will not be set aside by an appellate court, if there is competent evidence to support them": Horsfield v. Metropolitan Life Ins. Co., 124 Pa.Super. 458, at page 462, 189 A. 892, at page 893.

The policy in question was issued December 6, 1924, the amount of life insurance granted thereby being $ 5,000. The total annual premium was $ 152.90, which included $ 9.40 for double indemnity benefit, and $ 15.90 for the disability benefits that are the subject of this controversy. The provisions of the policy relative to disability benefits are printed in the margin. ^[1]

It is not disputed that on October 15, 1932, plaintiff suffered a fracture of the lower third of the left leg with some dislocation of the ankle joint and the lower fragment; also a fracture of the head of the tibia on the right side. His claim for disability benefits was duly perfected, and beginning February 1, 1933, defendant made the required monthly payments to and including March 1, 1937, and also waived the premiums which fell due during the years 1933 to 1936, inclusive. On March 5, 1937, defendant notified plaintiff that disability benefits would be discontinued as of March 1, 1937, and that premiums falling due thereafter would have to be paid within the days of grace in order to maintain the policy in force, and thereafter this action was brought.

Plaintiff contends that he is equipped to make a living only as a carpenter; that the evidence shows that he can perform only isolated duties of that occupation, principally while seated; that he cannot obtain a medical certificate which would enable him to secure industrial employment; that the only occupations mentioned at which he might work were purely speculative and based upon abnormal conditions; and that he is totally and permanently disabled within the meaning of the policy.

At this point it is necessary to emphasize a factor to which the argument of plaintiff does not give sufficient recognition, namely, that the finding of the learned trial judge, sitting as trier of the facts, having been in favor of defendant on a disputed question of fact involving the veracity of witnesses, we must assume the truth of defendant's evidence and every inference fairly deducible therefrom (Vogt v. Brady, 108 Pa.Super. 144, 146, 164 A. 96); and all the evidence and proper inferences therefrom favorable to the defendant must be taken as true and all unfavorable to it rejected. See Levick Building & Loan Ass'n v. Collins et al., 112 Pa.Super. 434, 171 A. 300.

Plaintiff was forty-eight years of age, and a native of Persia, where he attended the Presbyterian school. At seventeen he was an apprentice to a carpenter in Russia, and continued so until he came to the United States four years later. Since coming here he has worked as a carpenter, inside and outside, and also as a cabinet maker, joiner, and layer of hardwood floors. He can read and write, and has a knowledge of elementary arithmetic. He admitted that his condition was all right, except for his legs, and the acuteness of his mental condition, as well as his comprehension of the English language, is evident from his apparent ability to cope with direct examination and extended cross-examination.

Plaintiff received no medical treatment after May, 1935, until he was sent to Dr. Thomas J. Ryan by his attorney in March, 1937. Dr. Ryan treated plaintiff at the time of his admission to the hospital after his accident in 1932. He last treated him on January 10, 1933. Dr. Ryan, as a witness for the plaintiff, testified that plaintiff could work at cabinet making. This was an occupation in which plaintiff had engaged prior to his accident and resulting disability. Dr. Ryan further testified: "Q. In your opinion is he in such a physical condition today, is he so disabled that he would be unable to perform any of the duties of any occupations which he ordinarily might be capable of performing? A. No. I have answered that." Dr. Ryan was of the opinion that the alignment of the fractures was perfectly satisfactory from a medical standpoint, and that he never felt that plaintiff was totally and permanently disabled. The witness thought, however, that the work which plaintiff could do would be limited to such as required the use of his hands, in a seated position, provided he was not obliged to sit more than two or three hours at a time.

Dr. John P. Chapman, a witness for defendant, testified that in his opinion plaintiff was neither permanently nor totally disabled, and that he could still do cabinet work. In his opinion plaintiff could stand for a great length of time, but would be capable only of partly performing the duties of a carpenter, in that he could not readily climb out on a scaffold with any degree of safety, or readily climb up and down ladders.

Another medical witness for defendant, Dr. R. L. John, testified that he examined plaintiff on June 15, 1937, in Dr. Ryan's office, and found that the lower end of the left leg "was much thickened above the ankle, but not swollen nor was there any edema. He stated that when he walked or was on the foot for very long that it did swell, and that he wore an elastic stocking from his toe to his mid-calf. But he had come down from his home to Dr. Ryan's office, and it was not swollen when I saw it. It was very much thickened due to the excessive callus on the back here. His foot was in excellent alignment with the leg. There was no limitation apparently of the ankle joint, to the motion of the ankle joint. The right leg showed some thickening about the upper end of the tibia and fibula, that is about the knee joint. The motion was from 180 to about 80. That means from full extension to slightly less than a right-angle, when the motion was suddenly arrested by what I could feel was a bony block, tight capsule or ligaments. I guess that is all. Q. How about the lateral mobility of the leg? A. There was no abnormal lateral mobility in the knee, which occurs if the ligaments have been torn and not healed properly. In other words, it was normal. There should be no lateral mobility and there was none. Q. How about the muscle tone? A. The muscle tone was good and there was apparently no atrophy. The color was also good, a little dusty at the lower end of the leg." He was also asked: "Q. In your opinion, having in mind what I have recited, is Mr. Jones able to perform any of the duties of any occupation that he ordinarily had been capable of performing? Mr. Haydock: Not any of the duties, the majority of the duties? Mr. Conwell: No, I want you to answer the question. (Objection overruled.) (Exception for plaintiff.) The witness: Any of the duties? Well, I should say he is . . . . Q. In your opinion, doctor, is Mr. Jones able to engage in a gainful occupation? A. Yes." And on cross-examination he was asked: "Q. Doctor, what gainful occupation is he able to engage in? A. I should say even a jobbing carpenter. Certainly a man who has come to do...