184 A. 51 | Pa. | 1936
Argued January 20, 1936. Plaintiff sued in assumpsit as beneficiary of a policy of insurance issued by defendant upon the life of her husband. The jury returned a verdict for defendant, and the court subsequently granted plaintiff's motion for a new trial. Defendant appealed.
On April 19, 1933, the insured, a merchant, remained at home and in bed, suffering from a slight bronchial *545 irritation, for which he was taking a cough medicine. Sometime in the afternoon of the following day his wife and daughter, both of whom were about the household work on the first floor, heard a call. Upon going to his room they found him in bed and in great pain. He had vomited and there were brownish stains on the bed clothing; he told them that he must have taken the wrong medicine. The doctor, arriving within fifteen minutes, found him in a serious condition; his lips were swollen; the region about the mouth was brownish in color; the skin there was burned and shriveled; his tongue was swollen and the whole interior of the mouth was burned. The diagnosis was iodine poisoning. He died three days later.
It appears that the bottle of cough syrup was kept in a medicine cabinet in the bathroom, immediately next to his own room, that the bottle containing the iodine was similar to it, and that the two bottles were kept side by side on the same shelf in the cabinet. The insured was accustomed to going into the bathroom and taking his medicine directly from the bottle. The foregoing circumstances were testified to by plaintiff, her daughter, the family physician, and the latter's brother, who was also a doctor, and who had been summoned for the purpose of consultation.
The face amount of the policy has been paid. The present controversy relates to the payment of the additional amount provided by the contract in the event death was accidental. In this respect the policy provides that death must result "directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body . . . provided, however, that no accidental death benefit shall be payable if the death of the insured resulted from suicide." The beneficiary maintained that her husband's death was accidental *546 and that it was within the terms of the policy. Defendant set up several defenses. It contended that the insured committed suicide, that if death was not intentional there could nevertheless be no recovery because the taking of the iodine was not the sole cause of death, and finally, and in any event, plaintiff must fail because (there being no internal injuries revealed by an autopsy) there were no visible contusions or wounds on the exterior of the body.
The court below granted a new trial for the reason that, in the words of its opinion, " 'suicide' was not once mentioned before the jury until the charge of the court," and that "it would seem that [the] verdict was founded upon a view of the case that was not squarely presented before [the jury]." The award or refusal of a new trial is ordinarily within the sound discretion of the trial judge: Lombardo v. Barilla,
Nor can we say that plaintiff failed to make out a prima facie case. If this were true, of course she would not be entitled to a new trial: Fornelli v. P. R. R. Co.,
In view of the conclusion already reached, it is of no great moment to plaintiff that we do not sustain her motion to quash the appeal. This might very well be done. Plaintiff submitted thirteen reasons for a new trial, only two of which were mentioned by the court below in its opinion granting the motion. In view of this fact, and of the further fact that the record does not *548
contain a definite statement by the court that it would have refused to grant the new trial but for the reasons given, which, to the exclusion of all else, controlled its decision, it would seem that defendant may not now be heard to complain of the discretion exercised by the court below in awarding plaintiff a new trial: Class Nachod Brewing Co. v.Giacobello,
The order is affirmed.