18 A.2d 474 | Pa. Super. Ct. | 1940
Argued October 3, 1940. This was an action of assumpsit brought by Gaetano Mirabella against Metropolitan Life Insurance Company on a group insurance contract, insuring its own employees. A certificate — No. 11784 — was issued to him under Group Contract No. 50, entitling him to certain benefits by way of (a) Life Insurance, (b) Temporary Disability Insurance, (c) Total and Permanent Disability Insurance, and (d) Retirement Annuity. The claim here involved is concerned with the third clause (c), which reads as follows:
"(c) TOTAL AND PERMANENT DISABILITY INSURANCE, benefits under which are payable monthly while the Employee is totally and permanently disabled, as a result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation or performing any work for wage or profit, and provided such disability has already continued for a period of at leastfifty-three (53) weeks and provided that the Employee had completed five years of service on the date of the commencement of such disability. The total and permanent disability benefit will cease in any event on the normal retirement date or optional retirement date, whichever is earlier."
The plaintiff, in his statement of claim, averred that he had become ill on or about May 17, 1932 and that as a result thereof he was wholly and continuously disabled so as to be prevented from performing the duties of his position as agent for the defendant company. In consequence of which the defendant remitted to him weekly benefits of $30 for fifty-three weeks, as provided in clause (b); and that on or about May 24, 1933 he submitted proofs of total and permanent disability as defined in clause (c) above and made claim for the benefits in such case provided by the policy; that the defendant thereupon paid him monthly benefits of $50, as provided in said policy up to and including March 24, *503 1936; but neglected and refused to pay said benefits on and after April 24, 1936, and by reason thereof there was due and owing him by defendant said monthly benefit of $50 from April 24, 1936 to April 24, 1939, the date of bringing suit, together with interest from the respective dates they should have been paid. The defendant filed an affidavit of defense denying that the plaintiff "was totally and permanently disabled" within the meaning of the clause of the contract relied upon, and averring that he had "never suffered from any disease, deformity or pathology which prevented him from engaging in work for compensation or profit or from performing the duties of his ordinary occupation."
The case came to trial before a judge and jury. At the close of the plaintiff's case — the defendant offered no testimony — the court gave binding instructions in favor of the defendant, on the ground that the plaintiff had "failed to show by sufficiently competent evidence that he is totally disabled from following any employment."
The plaintiff filed a motion for a new trial setting forth alleged errors by the trial judge in his rulings on evidence — Nos. 1 to 10 inclusive — and in affirming defendant's point for binding instructions (11) and directing a verdict for the defendant (12).
The court in banc granted a new trial, and on January 22, 1940 filed a four page opinion reviewing the case, the gist of it being that the evidence, which was almost wholly oral, warranted the submission of the case to the jury, with which conclusion we agree. Defendant appealed to this court.
On January 29, 1940, "The Trial Court" filed the following certificate:
"And Now, this 29th day of January, 1940, it is hereby certified that the reasons discussed in the opinion filed on January 22, 1940 in the above-entitled case are the only reasons which moved this Court to *504 make the order complained of by Defendant on its present appeal in this case."
We need not discuss at length whether this certificate so conforms with the ruling of the Supreme Court in Class NachodBrewing Co. v. Giacobello,
But an insuperable obstacle, in our view, to our holding the order granting a new trial to be reversible error is the fact that the trial judge's rulings on evidence in a number of material matters were erroneous and were of such weight and importance as to require the granting of a new trial by us if the court in banc below had refused to order it.
For example, (1) the plaintiff was a competent witness to testify as to his physical condition and his inability to work (Record p. 32a — Reason 1): Amrovcik v. Metropolitan Life Ins.Co.,
Furthermore, the fact that the plaintiff had a baffling disease, which the doctors were not able to diagnose with certainty, and therefore were unable or unwilling to express a positive opinion as to whether the disability would be permanent, would not prevent a recovery by the plaintiff. If the jury should find from the evidence that he has been totally disabled from engaging in any occupation or performing any work for wage or profit — that is, from performing the duties of any occupation, which he might be ordinarily capable of performing, or from engaging in or carrying on any gainful business or occupation and himself performing an effective part of the work incident thereto, *507
from March 24, 1936 down to the time of trial, without any apparent improvement, it would have the right to conclude that it was "reasonably likely to endure for the remainder of his life"(Pearlman v. Metropolitan Life Ins. Co.,
We are, therefore, of opinion that as errors were committed on the trial of the case which would require us to order a new trial, if the court below had not done so, the order of that court granting a new trial should be affirmed.
Order affirmed.