2 A.2d 501 | Pa. Super. Ct. | 1937
Lead Opinion
Argued October 4, 1937; reargued October 13, 1938.
Only one real question is presented by this appeal, viz., should the trial judge, at the conclusion of the case, have affirmed the defendant's point requesting binding instructions for the plaintiff in the amount of $42.71, the admitted liability? If it should, then this court, under the Act of April 22, 1905, P.L. 286, is specifically directed to do what the lower court should have done. See Horsfield v. Metropolitan Life Ins.Co.,
We are satisfied that the decisions, so admirably collated by Mr. Justice DREW in Evans v. Penn Mutual Life Ins. Co.,
The testimony produced by appellant to take the case out of the rule as established in Evans v. Penn Mutual Life Ins. Co., supra, was given by the plaintiff, himself, who said that while the medical examination was taking place he was passing in and out of the room, going back and forth to the kitchen and the bar, [of the tap room he and the applicant were conducting as partners] "and this and that", and that he heard the *143
doctor ask some questions and heard applicant say "I was in the hospital a couple of years ago" and that he thinks he asked him what hospital, "and the applicant said `Yes' near to me, because he used to live down there, it was near to him, in the Lankenau Hospital." He was not a witness to the examination. His testimony does not clearly relate to the 19th question and answer. It does not refer to treatment in a hospital. It was not clear, precise and definite as the evidence relied on in Suravitz v. PrudentialIns. Co.,
Most of the assignments of error relating to alleged errors in the admission of evidence and in the charge of the court are not material on this appeal because the verdict of the jury was in favor of the plaintiff. They might have been material if the verdict had been for the defendant. The evidence of the physicians and the hospital records offered by the defendant were not inadmissible under the Act of June 7, 1907, P.L. 462, — which prohibits physicians and surgeons from testifying *144
in civil cases to communications made to them by their patients, which tend to blacken the character of the patient —, as interpreted by the Supreme Court in Phillips' Estate,
The judgment in favor of the defendant is reversed and judgment is entered in favor of the plaintiff for $42.71, with interest from February 10, 1937.
Addendum
Following the filing of an opinion in this case on March 4, 1938, in which we reversed the judgment of the court below and entered judgment in favor of the plaintiff for $42.71, with interest from February 10, 1937, we granted a re-argument "to be limited to the point which appellant avers was not fully argued by him, to wit, whether there was clear, precise and definite evidence that the answer to the 19th question in the medical examination was wrongly entered by the doctor who examined the applicant for insurance."
The re-argument so ordered has been had, and we are still of opinion that the evidence presented by the appellant to show that the defendant's agent, the doctor, incorrectly or fraudulently filled in the answer to the 19th question in the medical examination, wholly failed to sustain the burden resting upon him, to produce evidence not only preponderating, but of a kind, character *145
and quality which is not overstated by the phrase "clear and satisfactory evidence," as laid down in Suravitz v. PrudentialIns. Co.,
It is not necessary, in this opinion, to refer again or at more length to the vague and indefinite testimony of the plaintiff which is relied on to establish that the answer written by the doctor to the 19th question was not that given by the applicant. We have read and re-read the testimony carefully and are satisfied that it does not meet the requirement of `clear and satisfactory evidence.' As we said in our former opinion: "It was not of a character to require the defendant to rebut it by calling the physician, and thus submit it as a question of fact to the jury." Its unsatisfactory and unsubstantial nature is further evident from the plaintiff's answer to the following question asked by the court:
"Q. Do you remember the doctor asking him specific questions? Were you sitting down with the man, or with the doctor, when the doctor was asking him question after question, or were you tending to your business?
"A. No, I was just a little bit with the doctor, I wasn't all the time with the doctor, I tended to the business and listened to him, and the doctor asked me, and I say `Yes.' You know, just help out."
The judgment in favor of the defendant is reversed and judgment is entered in favor of the plaintiff for $42.71, with interest from February 10, 1937. *146