Odessa Woods v. The National Life and Accident Insurance Company, a Tennessee Corporation

MсLAUGHLIN, Before FORMAN GANEY, Judges. Circuit GANEY, Judge. Circuit On March Emmet F. Woods, Pittsburgh, while a resident of Pennsylvania, application to de made policy company fendant for a ap of life insurance. Contained the plication questions are he various which past answered his health his tory and medical He consultations.1 designated Woods, wife, his as Odessa beneficiary pre and stated that last occupation Army”. vious was the “U.S. paid premium He the first installment policy on or issued to him about March 1961. Thereafter timely payment premiums made they policy provides due. fell part the a constitutes insurance contract and “will force incontestable after it has been during the lifetime of insured for period yеars of two date from its issue, except non-payment for premiums.” years Within two the is insured, policy, suance of the while Pittsburgh, he was still a resident August 21, 1962, died on of infectious hepatitis. Plaintiff-beneficiary submit proof of ted death of to de insured pay The latter fendant. refused to instead, policy, and, face amount of the representing check tendered a of $253.21 premiums paid. the amount Where May upon plaintiff brought on an action plaintiff script brief In her de states found and have finding support had the fendant insured their examined no evidence physician prior issuing policy physician act- insured was examined ing carefully him. We have read tran- of defendant. behalf 7fíg for It also moved a directed verdict. the United District States prejudice” Penn moved “dismissal with District of Court the Western documentary grounds sylvania proceeds on the recover the policy. had been submitted to evidence which Jurisdiction of that court was diversity the court for the benefit of invoked on the basis of jurisdictional proof that fraud was committed amount.2 She demanded policy. applying complaint. insured in her denied, and the case These motions were complaint avers answer jury which was submitted to the return- policy insured secured plaintiff for aed verdict in favor of the giving questions num false answers to $24,500, policy. the face amount of 51b, 51g, app 55 of the bered judg- filing motion for Without either a lication,3 which answеrs were material notwithstanding ment the verdict upon and relied defendant and 50(b) Rules Rule the Federal of Civil false, to the insured knew them be pursuant to Procedure or for a new trial rendering thereby policy the And void. appealed to court Rule defendant this pre-trial defendant’s statement narrative from the on the ver- entered part: in The states insured “[No. 51b] dict. any answered he had had never ground appeal lungs; 51g] for its is that the The disease of [No. heart the error reversible physician he trial committed never a had consulted any it offered pertaining when excluded certain evidence for to ailment or disease by defendant, any if this evi- part anatomy the and that of the human other by brain, heart, had the trial system, been considered than the nervous court, (defendant) lungs, skin, it ear, eyes, would been have middle stomach or ** * then and to a dismissal is entitled now intestinal tract. [No. 54] prejudice. In order of the action with insured also stated that there was noth ing properly dispose defendant’s con- history to of in his health not mentioned necessary application. tentions it will to treat elsewhere in [No. 55] them in some detail. In answer to a which called physicians the names and addresses of eharge re trial court in its consulted, insured had an all from moved 51b but swered ‘None’.” jury’s highly doubt consideration It is presented only plaintiff At trial ful defendant’s relevant whether previously objection chargе complied of evidence facts adverted to, the Rules Civil truth which defendant admit- 51 of Federal Rule completing defense, ted. After does its situation Procedure. However this reviewing prevent which it offered of two from not this court physicians questions this and the records their exam- defendant on raised inations, x-ray Bottling appeal. Co. Black several chest films and Coca Cola Hubbard, records from 862 the files of F.2d Veterans’ Hills v. 203 (“VA”) relating 8, 1953); (C.A. Administration 1A Moore’s Fed.Pract. adjudication ed.) applications it (2nd benefits The fact 0.404[9]. ¶ by person post-trial named Emmet F. motions does Woods did file plaintiff widow, Metropolitan as his the defendant Garman v. do so either. Pennsylvania 2. “Under conflict Ins. of laws York Life Cо. dence.” New interpretation 1943). Levine, rule a contract is F.2d 288 138 place Ins. determined contracting. law of the see v. Penn Mutual Life Also Co., Faron 1949). Pennsylvania (C.A.3, it held is 176 F.2d 290 place contracting in the case included, place but is the No. was also contract 53 Question policy appears de- where the was delivered. In the to have been abandoned policies proof proof absence of to lack of it was as where fendant falsely. presumed were delivered is that de answered livery place took the insured’s resi Co., 1949); (C.A.3, prevent 175 F.2d 24 Life did not from disclosing him purpose examination, diag- United Mountain Fabri States v. State of his his cating Co., (C.A.4, 1960); 282 F.2d 263 applies nosis and treatment. The Act Hayashi, only pa- United States 282 F. v. Harue communications made (C.A.9, 2d 599 physician Also see Trout tient a civil action: Phillips’s Estate, R. R. A. Pa. 1962); (C.A.3, (1929), ‍‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌​‌​‌​​​​​‌‌​‌​​​​‌‌‍only they 829-830 Moore’s Fed. and then tend (2nd 59.14, ed.) Pract. 59.15 patient. to blacken [3]. the character of the ¶¶ Metropolitan Soltaniuk v. Life Ins. complaint Defendant’s first item Pa.Super. 139, 143-144, 2 A.2d 501 and in- court’s admonition exception name, With the disregard to«the struction forth, address and so and a few items testimony of one Dr. Charles Edwin patient’s history health Greenlee, practicing physician. This records, entered Dr. Greenlee’s witness, pur- called defendant for the testimony did not and would not pose proving answer- insured any revealed information obtained questions fraudulently, ed 51b and 55 pаtient. communications testified that a man came his office revealing name, aof address and other Pittsburgh, August Pennsylvania, identifying given by patient data according 1960. He stated that to his not a communication which tends records he examined this chest man's patient. blacken the character of the stethoscope, high-pitched with a heard Sweeney Green, Pa.Super. 190, rales, concluded ob- that there was some 176 A. 849 The Act breathing, gave to struction his and him presented no to Dr. obstacle Greenlee’s preparation potassium as a iodide testimony. records, His to the extent kept treatment. He also he stated that that the contents were relevant and ma- record оf this examination and that it terial, admissible. were Ettelson practice keep was his to such records Metropolitan 660, Life Ins. 164 F.2d pro- pursuing the normal course his The fact the that fession. This record had written on it say patient doctor was unable to that the name, address, telephone the same num- he was the examined insured is imma- ber, occupation age and as that of the identity patient terial. The of the was hearing jury, insured. Out of of the for the to determine. judge although told the trial that the normal, man’s condition was not it was defendant that Since asserted ordinary one, not a severe case but an question 55, the answer to re which was big “you that it was “no see deal” and jury’s consideration, mоved from the was every day”, high-pitched that and rales fraudulent, testimony and Dr. Greenlee’s easily “by just could be detected listen- bearing by had some on the issue raised ing your stethoscope.” with doctor assertion, that the defendant is entitled say was unable to the that he ex- man to a new on the trial trial alone court’s day amined was insured. the rulings regarding that witness’s testi basis for the trial court’s action was mony. part testimony was a doctor’s complains the Defendant also privileged from communication barred Brown, ruling court’s that Dr Harold T. being disclosed in a civil action pulmonary who was chief of the disease 462, Act of June P.L. 28 P.S. regional unit VA in Pitts- office 328, and that remainder was ir- § burgh and examined veterans serviсe relevant once it had been established that employment as routine course of his identify patient the doctor could not physician, physician was not having been the insured. by the within “consulted” insured Assuming meaning applica- ex August 6, amined Dr. on this Greenlee tion for insurance. effect insured, ruling, along was the the Act of 1907 Dr. with that on Green- insured choice than testimony, to remove lee’s was by physicians when jury’s earlier examinations With consideration. from Army. file, If the into the he was inducted the VA of documents from the aid argument were es facts included in her that on December Dr. Brown testified evidence, think— we to toe tablished from head he examined lacking authority good-looking, thereon —a sized, very wеll definite medium juris ap dressed, Court of statewide personable man colored who agree spoke to with peared diction would be inclined educated and to well good Brown’s testi English. explained man that Dr. He mony question 55. to probable was not relevant cause of his trouble pulmonary man ex possibly has conceded that the She never was sarcoidosis insured, lungs) mycosis (a fungus Brown amined was disease showing no the exam (inflammation and there was or a bronchiolitis personal bronchioles). x-ray picture not the result of this ination was An True, day the man examined. choice under man’s chest taken the same going the evi burden forward shadows Dr. Brown’s direction showed prove indicating, very finеly is on defendant to dotted nature of a However, de according insured fraud. doctor, nodular committed a fine attempt lungs. show the circum type fendant’s The doc infiltration of both go the man examined stances which hos tor the man to a VA advised successfully got to see Dr. Brown was pital and exam for further observation objection by plaintiff’s on the frustrated ination. He admitted that he did sought ground question 41, which on De know the man he examined had ever insured ascertain whether the insured was the cember disability identifying applied compensation gave no the latter him any source, Nevertheless, not at issue.5 Had trial court left data. disability conjunc filed determine, benefits it to in given by been admitted November other tion with evidence, the usual routine plaintiff data read and the identification processing application ex by such an been VA them defendant’s counsel from to done, plained, person to have documents, as defendant tried described whether the choice but by no other the insured. would have was in fact Dr. Brown they applicant di was to conclude that them that He also instructed by Brown and to see Dr. person the in rected the VA not found that such was report of the lat the results sured, of must be for then their verdict eyes of for the plaintiff, examination was then be ter’s there would “because adjudication of plaintiff’s view section. the VA no to the effect that evidenсe knowledge proof, think the testi any of we the state had husband lung mony for any Brown admissible of Dr. was condition.” purpose proving that answer argues that the exam Plaintiff falsely. 51b, well as was answered request physician ination VA at the complaint is though item of of such The next of the no evidence VA— permit de request refusal to in no more the trial court’s is the record —was two into evidence personal introduce as a result fendant consultation percent According canse time it will ten of the 4. Third New and Webster’s symptoms Dictionary (unabridged), are to die. Its the victim International irritating cough of breath and shortness un- is “a chronic disease of sarcoidosis by the forma- on exertion. known cause characterized resembling tion of nodules true tubercles ques- response negative lymph nodes, lungs, bones, and 5. The insured’s skin in the in- organs.” was 41 of the tion other com- in answer also cluded defendant’s Dr. Harold T. Brown stated usually very plaint, in defend- nor was it mentioned and the disease chronic becoming disabling time, pre-trial progressive, in statement. ant’s x-ray properly chest of a name The file films was shown purpose part Emmet for the to have F. Woods been a records. VA proving the answer to 54 Such within records are business records question, meaning false. was This answered of 28 U.S.C.A. § deformed, negative, you reads: “Are Brooks v. Texas General Indem. lame, ruptured, 1958); (C.A.5, or is F.2d maimed or there Gore Kendall v. anything yоur history Properties, Inc., U.S.App.D.C. not men- health application?” (C.A.D.C.1956). tioned elsewhere in this Of x-rays One taken an Alle- course was at mere fact that the documents gheny County part center and the health oth- were VA file make did not Mercy se; per they er the C. them Howard State Hos- must be admissible pital Pittsburgh, fall of 1960. relevant material at the issue correctly Baking We think the trial. trial court con- United Continental Co. v. seeking States, (C.A.6, strued 54 as not infor- 281 F.2d 148-149 x-rays mation they about chest that a those And even if meet appellate tests, court, court would the trial in its discre sound agree Moreover, tion, may they with this construction. mere exclude them if are lungs ly an ailment or disease is cov- cumulative. apрlication by ered elsewhere in the Getting specific docu down question 51b, you which reads: “Have ments, with defendant discontent any ever had ailment disease: b. proposed of its Exhibits exclusion lungs?” heart or The trial court com- A, B, G, K, M and one refusing mitted no error in defendant’s marked G is for identification. Exhibit proffer purpose films “Report Medical Examination stated defendant. Defendant also Disability prepared Evaluation” prejudiced by maintains that it was Brown re 1960. This December rejection court’s of his offer as evidence port contained the results examina certain documents from VA file. This person by tions made of a name revealed, among things, file other Emmet F. Woods. It also included an ex-serviceman the name of Emmet diagnosis sarcoidosis, “pulmo applied disability F. Woods benefits nary mycosis to be and bronchiolitis on November based on his out”, ruled and some remarks brief lung condition, was examined finely x-ray effect that indicated a physicians ap- in connection with the upper nodular two- involvement plication, the benefits were denied including thirds, apices, of both on June lungs, capacity this decision and that timed vital changed was not per predicted after additional was evi- cent of —indicative x-ray breathing dence in the form of films and re- defect marked restrictive gathered ports diagnosis. from several health cen- re consistent with ters port signature werе taken into consideration. F. bore the “Emmet reports being file contained dozen about a of Woods” as examined. x-rays June, 1960, probative taken between and fact The document was January, 1962, hospitals, at two several Dr. someone had been examined public health 29, 1960, and the clinics VA. Also Brown on December diagnosed file disability numerous were letters and as sarcoidosis was memoranda, rating reports, applica- signature ques and that it bore the dependency indemnity signature tion for report, and com- tion. The on the when pensation pension by compared or death widow or on the with that child, signed 19, 1962, dupli dated application, October and was almost an exact testimony Woods, denied, latter, Odessa J. which was cate of the Army and expert medical service handwriting record of have would not jury’s Emmet F. predecent Woods. been a condition signatures concluding were dice. Defendant concedes that it did plain- any person. not evidence in defense offer Since the same written identity plaintiff’s case, of that she would have been en not admit tiff would to to it ad was unable titled a directed verdict since person, Brown and Dr. verity How him, was a mitted the of her evidence. identify proposed G Exhibit ever, in it that the evi of that effect maintains link in the establishment vital corroborating proffered nature identity dence it was of such a in addition to have with think its should Brown. We jury and di highly prejudicial to the case from the de- drawn exclusion was regard dismissed with defense, rected that prejudice. action be least fendant’s special 51b, In the absence and the trial court jury’s present kept circumstances which are should eyes. procure here, in the the issue of fraud ment of insurance is triable proposed exhibits The other Metropolitan upon ‍‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌​‌​‌​​​​​‌‌​‌​​​​‌‌‍Ettelson demand. A properly Exhibits and excluded. 62, (3 Co., 65-66 Cir. Life Ins. 137 F.2d July respectively on B are letters written 777, 1943), 64 S.Ct. cert. den. U.S. adjudica 1962, 27, 22, and March 467; 92, Federal 88 L.Ed. Moore’s regional office in tion officer of the VA ed.) Applying (2nd 38.20. Practice ¶ signed by F. Pittsburgh, Emmet and rule, the necessary choice of law transcript K a Woods. hеaring is Exhibit elements consti substantive 25, 1962, April at which held on tuting prop is fraud in the instant case three mem Woods testified before Mr. erly the law ascertained reference to rating board bers of the VA The situations that State. disability. severity On the of his the authority application in an which false statements Metropolitan Life of Pollack v. recovery policy are set will bar on the 1943), each 138 F.2d Pennsylvania In 622 of the forth in § proposed was in three exhibits of.the May Company Law of surance objection plaintiff. admissible over VI, This P.L. art. P.S. § Exhibit M is a letter dated November falsity any provides: section “The Military Person addressed any application for in the statement Army Center, nel Records GSA and/or * * * right policy shall not bar Louis, Missouri, Record Center in St. recovery thereunder, false such unless authorizing signed by Odessa Woods made with actual intent statement was representative obtain defendant to deceive, materially affect or unless it F. information in the files of Emmet acceptance risk or ed either the proposed exhibit to which Woods. assigned To the hazard assumed the insurer.” alphabet no letter of the dependency prove a VA form for was made that a “false statement indemnity compensation or death in intent to deceive” all the with actual pension by child filled out widow or surer show that the insured knew need signa bearing October acted in that it was false or otherwise ture Both of these “Odessa J. Woods”. making Penn bad faith in it. Evans v. documents were offered identifica Mutual Life Ins. 322 Pa. enough purposes. tion More than good 186 133 is a exam A. This were read documents ple presumption of a so-called conclusive purpose. proposed ex Since proof A fact where of fact establishes merely of other hibits were cumulative Wigmore (3rd B. 9 on Evidence See may purpose not evidence for that we ed.) Pennsylvania have Courts 2492. § ruling judge on his overrule trial determining their own when rules for as evidence. to their admission into do not fraud has been committed and Regarding jury defendant’s re leave the matter for the decide. Supreme quest In the Court of that we direсt the issuance of Evans ease the dismissing p. preju- Pennsylvania (p. 361, A. order 186 action with said 768

142): problem proof in insur- of Also see “The Summers v. Motor Watkins Lines, 120, 1963); (C.A.4, cases is not from what is ance different 323 F.2d 123 Baker, (C.A. 213, other cases. are estab- in When facts Braud v. 324 F.2d 216 evidence, 1963); and Buckley, lished uncontroverted Johnson 317 v. credibility (C.A.5, 1963). 644 where witnesses v. Contra: Dean necessarily involved, Ry. (C.A.6, Co., has no Southern 327 F.2d 757 may function, be the case decided This court has directed affirmed long companies without its so as assistance. But verdicts for in ac insurance jury system exists, policies if that branch on life tions where any purpose, representations. the court is to it must have defense was fraudulent regarded disputed be fact as thе trier of Croll v. John Hancock Mutual Life Ins. Co., 1952); testi- (C.A.3, trustworthiness 198 F.2d 562 Mc- mony.” (Italics ours.) Concerning Dermott v. John Life Hancock Mutual proof Co., 1958), fraud, (C.A.3, the Court also stated: Ins. 255 F.2d 562 falsity requisite “If such bad cert. den. 358 3 U.S. 79 S.Ct. affirmatively (a) appear faith from com- 306. L.Ed.2d like has also cases it petent documentary judgments and uncontradicted reversed verdicts entered on ** evidence, hospital plaintiff-beneficiaries such as records directions with may judgments a verdict for the in- be directed enter n. o. in favor Fidelity companies. surer.” And Orr v. Union the insurance v. Mu Landau 553, p. 557, Pa.Super. Life Ins. Y., 202 tual Life Ins. Co. of N. 199 F.2d 431, p. (1964), 1953); (C.A.3, Stopper 198 A.2d the Penn- Manhattan sylvania Superior (C.A. Y., Court “Ordi- Life Co. said: of N. F.2d 465 narily 1957), or not whether cert. den. 355 U.S. S.Ct. given good the answеrs faith L.Ed.2d jury, is for the but where the evidence If the state rule coincides with establishes that the insured must have federal, difficulty. there will no But be falsity, been aware of their the court own, if the former is less liberal than our may enter for the insurer.” party’s does a federal court violate a right by jury under the Seventh The federal courts have by applying Amendment the former? ascertaining own their standard problem adequately pre- has been when a verdict should This be directed. sented and discussed Professor variously standard has ‍‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌​‌​‌​​​​​‌‌​‌​​​​‌‌‍been One stated. Wright Charles Allen in his Handbook is “When the evidence is such with Series) (Hornbook on Federal Court § weighing credibility out of the wit 92. Also see Moore’s Practice Federal nesses there can be but one reasonable (2nd ed.) 30.20. Plaintiff intimates verdict, conclusion as court problem have no on that we here proceeding should determine assertedly score defendant’s evi- because * ** * * * directed verdict with such, meas- dence was not even if it is by judg out jury, submission to rule, would ured notwithstanding ment verdict.” required inde- trial court to act Brady v. Southern R. 320 U.S. pendently jury. agree there We 479-480, S.Ct. 88 L.Ed. problem is no but for reason different (1943). Also see 5 Federal Moore’s given by plaintiff. from that (2nd ed.) j[ Practice It has 50.02 [1]. quan been held that the A motion to dismiss proof prejudice usually proper tum federal courts neces Rule sary partic 41(b) to sustain Pro the existence of the Federal Rules of Civil ular fraud decided оn elements is to in an action the court cedure tried per jury, where, the basis the federal standard without a the evidence findings mitting, may that of the court in which of the state make though Safeway federal court sits. Stores v. defendant even favor Fannan, 1962). (C.A.9, require 308 F.2d 97 is not such as to evidence 769 findings making appellant’s evidence, in his favor. When on offer of that purposes jury case, preserved appeal made alone for such a motion is in a offer considering jury’s though propriety a mo will treated it were he as application. 50(a), tion ver insurance under Rule for directed R., Pennsylvania R. dict. See v. Sano specific Turning to the merits By (C.A.3, 282 938 majority points The evidential raised. pres analogy treat will we defendant’s appropriately the evi- demonstrates that though request ent as it were one through proffered Dr. Greenlee judgment Un enter n. o. v. direction to the trial. should have been admitted at der case we the circumstances of this testimony have reveal- His which would may grant request. A defendant’s name, telephone number, address, ed the judg party’s failure to file motion for analy- age, occupation, and the medical precludes in the ment n. o. v. trial court him sis of the had visited who examination of record considered to was not such could be purpose as court or this court of the deceased blacken insured, character certaining party en whеther that was sufficing this alone to remove to a directed Johnson titled verdict. of the Penn- this evidence from the reach York, H. & H. 344 U.S. New 48, N. R. sylvania physician-patient statute on 97 L.Ed. 77 S.Ct. court, however, privilege. The district (2nd Also see Moore’sFederal Practice ed.) on most of items excluded the above 50.11. ¶ ground trying of the time of the Accordingly, judgment perspective of the dis- is from the civil cause physician-patient be cause trict court will reversed and the which the communica- tendency judged will remanded for a trial. new tion must be as to its patient. blacken the character Metropolitan Life Ins. But Judge (concur- Skruch v. FORMAN, Circuit 301-302, A. Pa. ring) : (1925) persuasive time of the I in the reach- concur ultimate result making governs the de- statement colleagues my ed that the tendency of its blacken termination the district court be reversed of the declarant. character I cause remanded for a trial. new associating myself difficulty, however, in assuming urges appellee The grounds upon with my which certain inapplica- physician-patient privilege is reaching rest in the result brethren here, Dr. Greenlee’s ble myself and which, my view, to other factors will address hearsay upon person’s declara- based upon the dis- bear tions, were statements and even such position appeal. of this and, there- to be admissions considered hearsay excep- falling fore, my within that position It is that Federal Rule only tion, they binding the de- considerations, are Civil Procedure privy appellee, a bene- Bottling clarant or a ficiary Coca Cola Co. of Black Hills —the contract, 1953) Hubbard, 203 F.2d 859 majority Moore, qualifying. indicates along so with the reference in 1A (2d Dr. Greenlee j[ [9], in its discussion relative to Federal Practice 0.404 upon 1953) his records both reflected ed. the di- their reliance on testify, called to which was as a method of rected verdict element pursuing his kept normal preserving appeal, in the course questions of law profession. certain of disposition fact do not assist by Dr. Green- notations were made here these Most the issues case at hand. regularly in the employed nurse lee’s court’s arise out the district involved employment should of her As usual course refusal to admit certain evidence. doctor’s the character of the portions not alter its of the insur- elimination transcript indicates record. ance consideration sought rulings inextricably these office records were related by appel- therefore, faith, be admitted into evidence have made in bad an ele- by necessary present lant but were barred the trial court. ment be before deciding propriety may escape liability Without either insuror its testifying policy. Dr. Greenlee’s as to what was Thus, even it could be deter- office records the admis- without mined Dr. Brown’s examination was records, themselves, sion into of those of the insured, deceased not fol- it does testifying evidence, or of Dr. Greenlee’s permitted low that a should at all as to the contents of the records find that relative to Dr. Brown a fraud- available, representation once the records were offer ulent was made answer successfully question the business records objection appel- avoids the raised Finally, a broad evidential issue raised hearsay aspects lee to the of the other appellant concerns the refusal evidence. of the district court to allow admis- question A second evidential concerns sion into evidence of certain documents Brown, physician, whether Dr. a VA Appellee sup- from a VA file. seeks to testify. permitted should port have been the district admit court’s refusal to although that, The district court ruled by arguing these documents identify Dr. Brown could not the de- standard sylvania’s their admission Penn- ceased insured as the man he examined Business Records As Evidence testify, and about whom he would his Act rather than existent federal statutes testimony question 51b, relating was relevant to admission business urged that, if the first found records. It is that the man so if the Penn- sylvania applied, statute were the docu- examined was in fact in- the deceased question ments in could not be admitted testimony, however, sured. Dr. Brown’s present for under the state of the record inapplicablе question was ruled identity there is no as to the which asked for the names and address- proposed ‍‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌​‌​‌​​​​​‌‌​‌​​​​‌‌‍documents, mode of physicians es of the deceased insured they preparation, their and whether consulted, had to which answer was made near time of the “none.” The district court considered they purport event to which to refer. Dr. examination, Brown’s made at the Assuming appellee’s position merit purposes proc- direction of the VA for essing request Pennsylvania disability benefits, evidence is to law personal govern voluntary question not a examina- of whether the VA and, thus, tion legally not a consultation are within documents records, sufficient business question majority recognizes diffiсulty appellee’s 55. The I do not have finding question involved, requisites the closeness of the Pennsylvania proofs concludes the state of the Business Records As Evi- considering Indeed, warrants appellee the examination dence Act are met. sets authority Dr. Brown a consultation forth no within to indicate that question requirements 55 and thus relevant to the issue statute appellant. of fraud raised I can- been met this trial record. support only reality, this conclusion. Even as- for which exhibit suming examination, argument appellee’s applicability that Dr. Brown’s has legal matter, consultation, G, report was a and Exhibit of a December question disability in fact the answer to 55 1960 medical examination for materially having false and did affect the evaluation made of a appellant, recog- risk assumed name As to the deceased insured. nized exhibit, closeness of the of wheth- Dr. Brown identified er report that examination medical was a consultation as his and indicated inveighs against construing regular the de- was made in the of his course signature ceased insured’s answer to duties. The Brown Brown, appeared report along at least as to Dr. as one that on the anu, preparation, must have known to date of have been false its December 77I made con- sue under similar circumstances. Gar that it was indicating Co., Metropolitan man temporaneous examina- Ins. actuаl Life Surely Pennsyl- patient. tion of the requisites as to vania are established my appropriate view, evi- being appropriate this exhibit an busi- defendant-ap- admitted, dence had been ness record. pellant’s motion for directed verdict agree granted I should have been under either that Exhibit G should or been admitted into ma- federal standard evidence. The signa- denying jority lucidly points determining granting out that application problem ture on the almost such a motion. No of credi- insurance exactly duplicated bility emerges to create that of Dr. Brown’s witnesses Though plain- patient report. peculiarly jury found on the medical matter. quite tiff-appellee that her introduction this record was did not concede husband, insured, relevant both as an demon- aid the deceased stration that the deceased insured was man examined Dr. Greenlee both party ap- same, and the same one examined Dr. Brown one and the probative pellant adequately Brown and as evidence of a has the bur- sustained answering question 51b, going fraudulent den of to demonstrate forward jury relationship. for Dr. Brown result of that A could not rea- testified sonably his examination as embodied the medi- conclude otherwise. The evi- report through proffered cal had been re- communicated to the Dr. Greenlee patient. vealed a man with the examined telephone name, address, exact same The last issue to be considered age number, occupation and as that appellant whether would have been en- application stated on the insurance titled to the directed verdict for which re- the deceased insured. The medical argues. majority deciding avoids during port prepared by Dr. Brown ground the merits of this issue on the patient examination of his contained party’s that “a failure to file a motion Affixed much of this same information. n. 0. inv. report signature of the to this was the precludes an examination of the record patient, duplicate of that an almost exact pur- that court or this court for the insured as reflected deceased pose ascertaining party whether signature applica- on the insurance citing verdict,” was entitled to a directed Furthermore, report tion. the medical York, Johnson v. New N. H. & H. R. patient reflects the fact that Dr. Brown’s 344 U.S. 73 S.Ct. 125 While any had authorized release VA medi- agree judg- I that a failure to move for a reports cal to none other than Dr. Green- ap- ment permit n. o. will neither factors lee. The combination these pellate court nor a trial court to enter a neatly of reason- indicates judgment notwithstanding verdict, de- not doubt able men could ground and on this we must remand this ceased insured and the man examined trial, cause for a new I read Johnson to one Dr. Greenlee and Dr. Brown were determining, sanction our for trial court and the same. guidance, whether a directed verdict granted. motion should have been In- the de- How clear is the evidence deed, “* fraudulently footnote 3 of Johnson states that concealed ceased insured * * holding appellant company that a ver- directed given lung 51b) dict (question should have been cannot be he had a ailment equivalent entry judg- previously a court’s and that he consulted a had notwithstanding physician regarding (question ment for defendant his health plaintiff.” (Emphasis 55) verdict for in- ? On March 1961 the deceased added.) coverage. previously Our court has reach- sured made prior ed the merits of time the directеd verdict is- months to this About two pellant may informed Dr. Brown he had been not be entered on this record lungs he had a disease of the which was but the must be remanded for case what enough require appear formality serious further ex- would to be the useless hospital. amination and treatment of a trial. new See Garman v. Metro- politan supra. nature of disease communicated Life to the deceased insured and its relation-

ship extremely lapse short time problem

between his awareness of his spell

and his for insurance

out in terms certain a fraudulent an- swering question which 51b would

have in and of itself sustained directed appellant. Stopper

verdict v. Manhattan Life Co. of Insurance New America, UNITED STATES York, 465 I am Plaintiff-Appellee, view, however, also that a directed granted apрel- verdict could have been BURKHART, Anderson Defendant- lant on the basis a fraudulent answer Appellant. question regarding any physicians America, UNITED STATES of the insured had consulted Plaintiff-Appellee, clearly health. It was within de- knowledge 7, ceased insured’s ‍‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌​‌​‌​​​​​‌‌​‌​​​​‌‌‍on March TOLLIVER, Harmon Defendant- 1961 that Dr. had been con- Greenlee Appellant. though sulted, even the consultation took 16016, Nos. place August 6, 1960. The in- deceased relationship sured's awareness of his Appeals United Court States emerges Dr. Greenlee from the notation Sixth Circuit. on Dr. Brown’s December medi- July 8, 1965. report indicating cal medical records be released to Dr. Green- every Surely phy-

lee. routine visit

sician need not be mentioned for an in- legal require-

sured to have satisfied the answering

ment of such as 55 good However, faith. the fact

the insured was aware of his relation-

ship to Dr. on December Greenlee

1960 and authorized release VA medi- reports Greenlee,

cal to Dr. when taken together totality with the of the circum- stances reflected in his fraudulent an- swering question 51b, sustains a find-

ing that as a matter of law the deceased fraudulently

insured answered Stopper

55. See v. Manhattan Life In- supra York,

surance of New Co.

quoting from Freedman v. Mut. Life York, Co. of New Pa. A.2d A.L.R. noted, however, As above because a judgment

motion for o. v. n. was not

made, defendant-ap-

Case Details

Case Name: Odessa Woods v. The National Life and Accident Insurance Company, a Tennessee Corporation

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 22, 1965

Citation: 347 F.2d 760

Docket Number: 14968_1

Court Abbreviation: 3rd Cir.