De Rose v. Metro. Life Ins. Co.
| Citation | 200 A. 887 |
| Parties | DE ROSE v. METROPOLITAN LIFE INS. CO. |
| Decision Date | 15 July 1938 |
| Court | Superior Court of Pennsylvania |
DE ROSE
v.
METROPOLITAN LIFE INS. CO.
Superior Court of Pennsylvania.
July 15, 1938.
Appeal No. 256, April term, 1938, from judgment of Allegheny County Court, No. 535 of 1935; Benjamin Lencher, Judge.
Action by Bertha De Rose, administratrix of the estate of Nicholas De Rose, deceased, against the Metropolitan Life Insurance Company upon a life policy. At the conclusion of plaintiff's testimony, compulsory nonsuit was entered, and from refusal of motion to take off nonsuit and to grant a new trial, plaintiff appeals.
Judgment of nonsuit vacated and record remitted for further proceedings.
Argued before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, and RHODES, JJ.
Louis L. Kaufman, of Pittsburgh, for appellant. D. C. Jennings, of Pittsburgh, for appellee.
CUNNINGHAM, Judge.
>Plaintiff, as administratrix of the estate of her deceased husband, Nicholas DeRose, brought this action against the Metropolitan Life Insurance Company upon a policy of insurance covering the life of her husband, whose death occurred on August 2, 1934. A compulsory nonsuit was entered at the conclusion of plaintiff's testimony and she has appealed from the action of the court below refusing her motion to take off the nonsuit and to grant a new trial.
The policy was issued under date of December 25, 1933, in the face amount of $930. It also contained a provision for the payment of double indemnity "upon receipt of due proof that the insured * * * has sustained,
after the date of this policy, bodily injuries, solely through external, violent and accidental means, resulting, directly and independently of all other causes, in the death of the insured * * *." The material portions of another clause of the policy, pertinent to a review of the case, read: "No accidental death benefit will be paid if the death of the insured * * * is caused or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity."
Alleging that the death of the insured "resulted directly and independently from a collision between a street car and an automobile [in which he was a passenger] on June 25, 1934," appellant sued to recover $1860, with interest from August 2, 1934.
Our review of the record has satisfied us that the uncontradicted testimony elicited by the cross-examination of appellant and of the medical expert called by her, if properly admitted, conclusively defeated her right to recover even the face amount of the policy, and, of course, incidentally defeated any recovery under its double indemnity clause. But the appellee-insurer was not entitled to a judgment of nonsuit. Under the pleadings and all the evidence, appellant was entitled to a directed verdict in her favor, and judgment thereon, in the amount of $22.50, representing the premiums paid upon the policy. The entering of the nonsuit seems to have been the exclusive idea of the trial judge; counsel for the insurance company did not ask for a nonsuit and it was entered in the face of the express admission in the sixteenth paragraph of the affidavit of defense that the company was liable to appellant in that amount. It was also there averred that appellee had offered to return the premiums on November 26, 1934, but as appellant was not appointed administratrix until after suit had been brought it was "not liable for interest or costs." No tender, however, was made at the trial.
The record discloses this anomalous proceeding at the conclusion of the testimony. Counsel for the company moved the trial judge "to direct a verdict for the defendant" because the testimony of, and in behalf of, the plaintiff showed she was not entitled to recover on the policy. "By the Court (addressing counsel for the plaintiff): Now' we believe the motion must be granted, Mr. Kaufman. I do not think you have a prima facie case that can take you to the Jury. The defendant's motion is granted. Note an exception to the plaintiff. Dismiss the jury." (Italics supplied.) The docket entry of this action by the trial judge reads: "On motion of attorney for the defendant judgment of compulsory nonsuit is granted." When the trial judge reached the conclusion that appellant was not entitled to recover the face of the policy, he should have directed the jury to return a verdict in her favor for only the amount of the premiums paid by, or on behalf of, the insured.
The fundamental and controlling issue in this case arose under the following provisions of the insurance contract:
"This policy constitutes the entire agreement between the company and the insured and the holder and owner hereof. * * *
"If, (1) the insured is not alive or is not in sound health on the date hereof; or if (2) * * * the insured has * * * within two years before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had any pulmonary...
To continue reading
Request your trial