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February 24, 1937


The opinion of the court was delivered by: SCHOONMAKER

George A. Adamos, beneficiary on four life insurance policies issued by the New York Life Insurance Company, each in the sum of $5,000, on the life of Andy Adamos, has brought this suit. The Insurance Company is defending on the ground that the policies are null and void, by reason of false answers made by Andy Adamos in the course of his medical examination for this insurance. The case was tried before the court and a jury, with the result that at the conclusion of the testimony, the court gave the jury binding instructions to find a verdict in favor of the plaintiff for $1,184.36, the amount of the premiums paid for this insurance.

The plaintiff has moved for a new trial and assigned twenty reasons why that motion should be granted.

 Reasons 1 to 7, inclusive, 19 and 20, relate to the affirmance of defendant's point for binding instructions to the jury, the refusal of plaintiff's request for instructions to the jury, and the failure of the court to submit the case to the jury on the issues arising out of alleged misrepresentations made by Adamos as to his medical history. Reasons 8 to 16, inclusive, and 18, relate to rulings on evidence. Reason 17 relates to refusal of plaintiff's motion to withdraw a juror and continue the case, on account of alleged improper remarks of defendant's counsel in the presence of the jury.

 The correctness of our instruction to the jury all hinges on the question of whether or not, on the undisputed testimony properly admitted in evidence, we were justified in giving the binding instructions requested by defendant. If we were, then the requests of plaintiff to submit the case to the jury were properly refused. If we were right in so doing, then the alleged prejudicial remarks of defendant's counsel that the insured had deliberately and willfully committed a fraud could not have prejudiced the plaintiff.

 We shall, therefore, confine our discussion to two questions: (1) Was there any error committed in the admission of evidence; (2) was there any error committed under the undisputed evidence admitted in giving binding instructions to the jury that the plaintiff was entitled to recover only the premiums paid for the insurance?

 The first question of evidence relates to the admission in evidence of the application for insurance attached to the policies. Plaintiff complains that the photostatic copies attached to the policies do not comply with the Pennsylvania law. We cannot so hold. In our view, the copy of the application is perfectly legible. We have had no trouble in reading it, and do not think the applicant would. This same type of copy attached to one of defendant's policies was passed upon by the Circuit Court of Appeals of this Circuit in Enelow v. New York Life Insurance Co., 83 F.2d 550, 105 A.L.R. 493, certiorari to Supreme Court denied in 298 U.S. 680, 56 S. Ct. 948, 80 L. Ed. 1401, and held to satisfy the Pennsylvania statute.

 The second question of evidence relates to admission of the testimony of doctors. The plaintiff's objection is based on the Pennsylvania Act of 1907, P.L. 462, 28 P.S.Pa. § 328, which provides that a doctor may not testify in a civil case to any information acquired in attending a patient in a professional capacity, which would blacken the character of the patient, without the consent of the patient.

 In the first place, Andy Adamos, in Part II of the application for the insurance, expressly waived all provisions of law which would forbid a physician to testify.

 In the second place, there was nothing in the testimony of the doctors which would in any manner tend to blacken the character of Adamos.

 In the third place, the Pennsylvania courts, in construing this act, held that it does not render incompetent the testimony of a physician in regard to facts which he learned by an examination of a patient. It excludes only communications from the patient to the physician, and then only when that communication was of facts which would tend to blacken the character of his patient. Skruch v. Metropolitan Life Insurance Co., 284 Pa. 299, 131 A. 186; In re Phillips' Estate, 295 Pa. 349, 145 A. 437. There was no information received by the physicians who testified in the instant case, which would tend to blacken the character of Andy Adamos in any way.

 The third question of evidence relates to the competency of witnesses Kalkstone, O'Neil, and Welch to testify, since they were policyholders of the defendant, a mutual company.

 The objection to their testimony is based on the Pennsylvania Act of 1887, P.L. 158, § 5(e), 28 P.S.Pa. § 322, which provides that where a party to a contract is dead, the surviving party shall not be a competent witness to any matters occurring before the death. This statute does not apply to the instant case. This suit is brought by George Adamos in his individual right. No right of the deceased, Andy Adamos, passed either by his act or by act of law to the plaintiff in this case. Hamill v. Supreme Council, 152 Pa. 537, 25 A. 645; Broadrick v. Broadrick, 25 Pa.Super. 225.

 The fourth question of evidence relates to the exclusion of testimony of John D. Meyer as to alleged statements of Dr. Wiley, which would tend to contradict the doctor's evidence. We excluded this evidence in rebuttal, because no proper foundation was laid for it. It is a well-established principle of law that evidence of contradictory statements made by a witness out of court will not be admitted unless the witness has been previously given an opportunity on cross-examination to explain the alleged contradictory utterances. Marshall v. Carr, 275 Pa. 86, 89, 118 A. 621; Commonwealth v. Powell, 303 Pa. 104, 106, 154 A. 287.

 This brings us to the second question in the case; i.e., were we right in holding that the policies were null and void by reason of fraud? After a careful review of the testimony, we conclude that we were. The four policies of insurance were all issued in pursuance of a written application signed by the insured on April 6, 1932. The insured died on July 6, 1932. ...

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