27 A.2d 411 | Pa. Super. Ct. | 1942
Argued May 4, 1942. The Equitable Life Assurance Society, the appellant herein, issued a group insurance policy covering the lives of eligible employees of the Carnegie-Illinois Steel Corporation, the employer of Harvey Wheeler, a holder under the master policy of an individual certificate wherein his mother, Mattie B. Woolford this plaintiff, was named beneficiary.
On November 17, 1937, Harvey Wheeler, who was then 25 years of age, voluntarily quit his employment due, according to the plaintiff's contention, to physical disability and never worked thereafter. The writing called a "Termination Interview" shows that he was not working the previous day owing to illness, and there is other evidence indicating that he had not worked after November 11. Under the terms of paragraph 6 of the "Special Provisions" of the policy his insurance automatically ceased 31 days after he quit work or on December 18, 1937. In this paragraph it is provided also that if within one year after the insured's death *227 due proof is submitted to the insurer that he was totally disabled by bodily injury or disease on the expiration of the 31 day period so that he could not engage in any occupation for compensation or profit and that disability continued to his death, occurring not longer than 12 months thereafter, then the insurance shall be paid to his beneficiary.
On October 18, 1938, Wheeler died as the result of bilateral lobar pneumonia. Claim was made by the beneficiary named in his certificate under the extended death benefit provisions of the group policy for the payment of the insurance money. The defendant denied liability and suit was brought. The trial resulted in a verdict in favor of the plaintiff for $1675. After motions for judgment n.o.v. and for a new trial were refused this appeal was taken.
The appellant's assignments of error relate to (1) an alleged failure of the plaintiff to sustain the burden of proof that the insured was totally disabled within the terms of the policy on December 18, 1937, and that his disability continued until his death; and (2) that the court erred in its charge in defining "total disability."
The insured from 1930 to 1937 worked in a "mud mill," where the atmosphere was "dusty practically all the time." His duties included the preparation of clay for cementing up the doors of coke ovens operated by his employer. In 1936 he had contracted pneumonia and some reference was made to his previously having that same disease. Following his apparent recovery from the 1936 attack after an illness of two weeks he resumed his employment but according to six witnesses, three of whom were members of the family and the others friends, he soon began to lose weight markedly, to have hemorrhages from the nose and mouth, a severe cough, he suffered from night sweats, and grew so weak that he was able to walk a short distance only without resting. *228 On October 12, 1938, he contracted bilateral lobar pneumonia, which was classified as type 1. He was taken to the hospital during the evening of October 18, 1938, and died a few hours thereafter.
Dr. Lebovitz and Dr. Weddell, specialists in the diagnosis and treatment of pulmonary tuberculosis, each, in answer to a hypothetical question embodying the essential facts, expressed the opinion that the insured had active pulmonary tuberculosis during the year prior to his death, which totally disabled him from engaging in any gainful occupation.
Dr. Shuster testified that he had treated the insured for pneumonia in 1936 and later he visited his office complaining of a cough, a pain in his lung, and of night sweats; that at that time he diagnosed his ailment as pleurisy, but he thought there was an indication of tuberculosis as he had lost weight and apparently had not recovered as he should have from the pneumonia. He advised the man to have an X-ray taken, but he did not know whether that was done.
Dr. Randall, a friend of the insured, saw him in the fall of 1937 and noticed that he was losing weight, and becoming emaciated. Wheeler later came to his office complaining of a cough and profuse perspiration. The doctor's examination at that time revealed that Wheeler had mucuous rales in both lungs and a chronic cough. He advised him to go to the McKeesport tuberculosis clinic, but this advice apparently was not followed. This witness concluded from the insured's appearance and the conversations he had with him that he was not able to work. This medical testimony was all admissible: Cooper v. Metropolitan LifeInsurance Company, 323, Pa. 295, 302,
The defense laid much stress upon the report of an autopsy which was performed, in the absence of the *229 hospital pathologist, by Dr. Bondi the resident physician. He testified that the examination of the lungs confirmed the diagnosis of pneumonia, but that he made no microscopic examination of any of the lung tissues to determine the presence or absence of tubercular infection, as the primary purpose of the autopsy was to ascertain the cause of death rather than to determine the presence of any other disease the man may have been suffering from prior to contracting pneumonia. This witness stated that he did not see any lung cavities or other conditions that indicated to him that the deceased had suffered from acute pulmonary tuberculosis.
Dr. Lebovitz had stated that he did not base his opinion on the autopsy report as in the absence of a microscopic examination of the section of the lungs he did not regard it as complete. Dr. Marcy, who specialized in diseases of the lungs, was called by the appellant. He said that from examination he made of the autopsy reports and of the records of the insured he found no evidence of active pulmonary tuberculosis. Dr. Mills, who was in charge of the insured while he was in the hospital, was called by the defendant also and expressed an opinion in accord with that of Dr. Marcy.
We therefore have a direct conflict in the experts' opinions. The witnesses who gave a description of the perceptible changes that took place in the insured and the manifestations of his disability merited consideration in the hands of the jury. ". . . . . . a lay witness may testify as to certain matters involving health, the apparent physical condition of a person, and as to obvious symptoms, but his testimony must be confined to facts within his knowledge, and may not be extended to matters involving the existence or non-existence of a disease, which is only discoverable through the training and experience of a medical expert." Baum v. Metropolitan Life Insurance Company, *230
The evidence, lay and medical, adduced by the plaintiff was sufficient in quantity and quality to take the case to the jury:Losnecki v. Mutual Life Insurance Company,
That brings us to a consideration of the complaint that the jury was given an incorrect definition of "total disability."
The trial judge quoted from the Supreme Court's opinion inCooper v. Metropolitan Life Insurance Company,
The appellant objects to the italicized portion which was applicable to the facts in the Feigenbaum case although the record discloses that its attorney handed that case to the trial judge before he charged the jury. Feigenbaum had been personally conducting his own clothing store and an important issue involved was *231 whether or not he was physically able to do some things in connection with the management of his store and collect rents from his property.
In Cooper v. Metropolitan Life Insurance Company, supra, (
In Pearlman v. Metropolitan Life Insurance Company,
In Silvano v. Metropolitan Life Insurance Company, *232
In view of the issues of fact in the case before us we have no doubt that the jury understood from the charge of the court that the plaintiff could not recover if the insured was able to do a substantial part or portion of the work that he ordinarily was capable of performing. The definition employed by the trial judge in this case was quite different than those used in the cases relied upon by the appellant. Taking the charge in its entirety we find no reversible error therein.
Judgment of the court below is affirmed.
