Moyer v. Aetna Life Ins. Co., 7804.

Decision Date13 February 1942
Docket NumberNo. 7804.,7804.
Citation126 F.2d 141
PartiesMOYER v. ?TNA LIFE INS. CO.
CourtU.S. Court of Appeals — Third Circuit

Walter L. Hill and Edward W. Warren, both of Scranton, Pa. (O'Malley, Hill, Harris & Harris, of Scranton, Pa., on the brief), for appellant.

Alvin W. Carpenter, of Sunbury, Pa. (J. P. Carpenter, of Sunbury, Pa., on the brief), for appellee.

Before BIGGS, MARIS, and GOODRICH, Circuit Judges.

MARIS, Circuit Judge.

The plaintiff brought suit upon two policies of life insurance issued by the defendant upon the life of Charles Moyer, the plaintiff's husband. Each of the policies provides for benefits including waiver of premiums in the event of total and permanent disability. Premiums were paid to August and October, 1929, respectively, but none thereafter. The insured died August 16, 1931. Suit was originally instituted for the face amount of the policies as death benefits. The defense was that the policies had lapsed because of failure of payment of premium. The plaintiff amended to include claims for disability income from September, 1927, and waiver of unpaid premiums. The defendant denied that the insured was disabled and that evidence of disability was received by it and contended that the amendments were improperly allowed because the statute of limitations had run.

The suit has been twice tried in the court below. At the first trial the jury returned a verdict for the plaintiff for $2,691.00. The district court denied the defendant's motion for judgment n.o.v. and the defendant appealed. Upon that appeal this court decided that the district court properly denied the defendant's motion for judgment n.o.v. Aetna Life Insurance Co. v. Moyer, 3 Cir., 113 F.2d 974. We held that there was sufficient evidence submitted to the jury to support its findings that the insured was totally and permanently disabled as those terms are used in the policies and that proper notice thereof was given to the defendant. We also held that the amendments were properly allowed. The plaintiff, being dissatisfied with the amount of the verdict, had moved for a new trial and this motion had been granted by the district court.

On the second trial the plaintiff again obtained a verdict, this time for $35,675.03. The district court refused the defendant's motion for judgment n.o.v. and for a new trial. From the judgment entered on the verdict, the defendant has taken the appeal now before us. It argues that judgment should have been entered for the defendant because it was not shown by the testimony that the defendant received requisite evidence that the insured was permanently and totally disabled within the meaning of the policies, because the evidence showed that there was a subsequent determination that the insured's disability was not permanent, and because the claims for disability and waiver of premium benefits were barred by the statute of limitations. These contentions need not be discussed again. The law of the case with respect to them was settled by this court upon the first appeal. We accordingly pass to the consideration of the points upon which the defendant relies for a new trial and which deal with alleged errors of the trial judge in his rulings upon evidence and in his charge to the jury.

1. The insured was in the Geisinger Memorial Hospital at Danville as a patient between December 7th and December 19, 1928. Dr. C. E. Ervin, who was chief of the medical department of that hospital, was in charge of the insured's case. Both parties subpoenaed Dr. Ervin. Upon his direct examination by the plaintiff he testified as to the entries which he made in the insured's hospital records, which entries consisted of a list of diseases from which the insured suffered at the time. The defendant cross-examined as to the extent, prescribed treatment and prognosis of each of those diseases. The defendant then sought to elicit from the witness his opinion as to the then ability of the insured to perform the usual duties of a proprietor of a restaurant. The trial judge refused to permit this line of cross-examination. In this we find no prejudicial error.

Subject to enlargement within the discretion of the trial judge in special cases1 the rule in the Federal courts is that "a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine him as to other matters, he must do so by making the witness his own, and calling him as such, in the subsequent progress of the cause." Story, J. in Philadelphia & Trenton Railroad Co. v. Stimpson, 14 Pet. 448, 39 U.S. 448, 460, 10 L.Ed. 535. This limitation upon the scope of cross-examination was first enunciated by Chief Justice Gibson in Ellmaker v. Buckley, 1827, 16 Serg. & R., Pa., 72. Although the rule has been the subject of vigorous attack as being unsound in reason and without justification in history2 and has been to some extent modified in Pennsylvania, the state of its origin,3 it continues to be the rule in the Federal courts.

This seems clear from the history of the formulation of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. In the preliminary draft of the rules published in April, 1937 by the Advisory Committee appointed by the Supreme Court proposed Rule 44(b) provided, inter alia, "When a party calls a witness and examines him as to some of the issues, an opposing party may cross-examine the witness upon all the material and pertinent issues of the action; but if the witness is an adverse party the cross-examination shall be limited to the subject matter of his examination in chief. * * *" In the final report of the Advisory Committee made in November, 1937, proposed Rule 44 included the provision that "Except as stated in the last preceding sentence, any witness called by a party and examined as to any matter material to any issue may be cross-examined by the adverse party upon all matters material to every issue of the action." The Supreme Court, however, rejected these proposals. The only reference to the subject in the rules as adopted is in Rule 43(b) which provides that an adverse party or officer, director or managing agent of an adverse corporate party called by the other party "may be cross-examined by the adverse party only upon the subject matter of his examination in chief." By its failure to promulgate the rule proposed by the Advisory Committee the Supreme Court indicated that the historic limitation upon the scope of cross-examination to the subject matter of the direct examination is still to be enforced in the federal courts.4 It follows that the trial judge did not abuse his discretion in limiting the cross-examination of Dr. Ervin.

Nor does it appear that the facts in this case were such as might have moved the trial judge to exercise his discretionary power to relax the rule. The witness was in court under subpoena by the defendant. He was by no means hostile to the defendant. By agreement of the parties and with the consent of the trial judge he was called as witness for the defendant out of turn, while plaintiff's case was still in progress. His opinion testimony as a medical expert on behalf of the defendant followed without any interlude of time his testimony as to the medical history of the insured. The defendant as a practical matter lost none of the legitimate value of the expert opinion of the witness as an aid to the jury in interpreting the facts to which...

To continue reading

Request your trial
30 cases
  • United States v. Stoehr
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • September 5, 1951
    ...he must do so by making the witness his own and calling him as such in the subsequent progress of the case. Moyer v. Aetna Life Ins. Co., 3 Cir., 126 F.2d 141, at page 143;38 United States v. Hornstein, 7 Cir., 1949, 176 F.2d 217, at page An unusual case might arise where a party may be per......
  • Moran v. Pittsburgh-Des Moines Steel Co., Civ. No. 4761.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 29, 1949
    ...federal court. The federal rule must be applied. Cyclopedia of Federal Procedure, 2nd Edition, Volume 7, Section 3153; Moyer v. Aetna Life Ins. Co., 3 Cir., 126 F.2d 141; Zumwalt v. Gardner, 8 Cir., 160 F.2d In determining the extent to which an adverse party, or an officer, director or man......
  • Smith v. Welch
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 22, 1951
    ...Loew Booking Agency v. Princess Pat, Limited, 7 Cir., 141 F.2d 152; Cohen v. Travelers Ins. Co., 7 Cir., 134 F.2d 378; Moyer v. Aetna Life Ins. Co., 3 Cir., 126 F.2d 141. Finally it is urged that the trial court erred in refusing to grant a new trial upon the grounds that the verdict of the......
  • Bell v. United States
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 8, 1950
    ...of the trial. Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. 448, 461, 39 U.S. 448, 461, 10 L.Ed. 535; Moyer v. Aetna Life Ins. Co., 3 Cir., 126 F.2d 141, 143; Kincade v. Mikles, 8 Cir., 144 F.2d 784, 787; Wigmore on Evidence, (3d Ed.), §§ 1885-1888. See Hider v. Gelbach, 4 Cir., 135......
  • Request a trial to view additional results
1 provisions
  • Fed. R. Evid. 611 Mode and Order Ofexamining Witnesses and Presenting Evidence
    • United States
    • US Code 2019 Edition Title 28 Appendix Federal Rules of Evidence Article VI. Witnesses
    • January 1, 2019
    ...and not one in which involvement at the appellate level is likely to prove fruitful. See for example, Moyer v. Aetna Life Ins. Co., 126 F.2d 141 (3rd Cir. 1942); Butler v. New York Central R. Co., 253 F.2d 281 (7th Cir. 1958); United States v. Johnson, 285 F.2d 35 (9th Cir. 1960); Union Aut......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT