Appeal, No. 327, Oct. T., 1963, from judgment of Court of Common Pleas of Clearfield County, May T., 1962, No. 15, in case of W. Albert Ramey, executor under will of Bessie Best, v. Knights Life Insurance Company. Judgment affirmed.
John B. Gates, for appellant.
Thomas F. Morgan, with him W. Albert Ramey, for appellee.
Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).
[ 203 Pa. Super. Page 379]
In this case an industrial accident policy was issued upon the decedent's life without examination or written application by the insured. The policy contained a clause making it voidable by the company if within two years prior to the date of issue of the policy "the Insured has been ... attended by a physician, either before or after any claim, unless it shall be shown by the Insured or any claimant that no such ... attention was for a serious disease, injury, or physical or mental condition. ..."
At the trial the defendant called Dr. Stanley Z. Weisshaus who testified that the deceased was his patient prior to November 14, 1960, the date when the policy was issued, that he first had her as a patient on April 22, 1957 and saw her in his office seventeen times during the two year period prior to November 14, 1960, the first time on February 18, 1959 and the last on October 17, 1960. The doctor was not asked, either on direct or on cross-examination, what he treated her for. The plaintiff presented only the testimony of two lay witnesses who said that during the period in question the decedent appeared in good health and lost no time from work.
[ 203 Pa. Super. Page 380]
Following a verdict for the plaintiff the defendant moved for judgment n.o.v. citing the uncontradicted testimony of the doctor showing that the plaintiff was treated by him during the two years prior to the issuance of the policy. The court refused the motion on the ground that the doctor's testimony was oral and was therefore for the jury.
The holding of the court below is in accord with what this Court said in the case of Smolinsky v. Metropolitan Life Insurance Company, 149 Pa. Superior Ct. 72, 26 A.2d 131 (1942), where the condition in the policy was the same as the one before us except that it read: "If ... the insured ... has, within two years before the date of issue hereof, been attended by a physician for any serious disease or complaint. ..." In that case two doctors testified that during an examination within the two year period they found the insured suffering from chronic valvular heart disease. Referring to the first doctor's testimony the court said: "Appellant's defense of breach of the conditions upon which it relied rested upon oral testimony, and, under the principles announced in Evans v. Penn Mutual Life Insurance Co., 322 Pa. 547, 186 A. 133 , the case was for the jury." After noting the second doctor's similar testimony, the court said: "This testimony, although practically uncontradicted, was oral, and therefore necessarily for the jury. ..."
The rule that judgment n.o.v. cannot be entered when the defense depends upon oral testimony was reiterated by the Supreme Court in Exner v. Safeco Ins. Co. of America, 402 Pa. 473, 477, 167 A.2d 703, 705 (1961): "There is very little disputed evidence, but even if the witnesses were in complete agreement and their ...