No. 893 October Term, 1978 Appeal from the Order in the Court of Common Pleas of Luzerne County, Civil Action--Law, No. 6556 of 1976.
Barry A. Yelen, Wilkes-Barre, for appellant.
Joseph F. Iracki, Wilkes-Barre, for appellee.
Price, Hester and Hoffman, JJ. Hoffman, J., concurs in the result.
[ 271 Pa. Super. Page 264]
This case involves an action by appellee to recover on a sickness disability policy issued to him on February 15, 1973, by appellant, Mutual Life Insurance Company of America (Mutual). The first paragraph of that policy provides that appellee is insured "against loss . . . beginning while this Policy is in force and resulting from sickness incurred
[ 271 Pa. Super. Page 265]
during the term of this Policy which is contracted and begins after thirty days from the effective date of this Policy . . . ."*fn1 Any sickness contracted subsequent to March 15, 1973, was thus within the ambit of the policy.
In his complaint, appellee alleged that he became sick on July 11, 1973, due to an ailment later diagnosed as chronic glomerulonephritis.*fn2 He was hospitalized for 140 days and became totally disabled as a result of the disease. Mutual answered: (1) that the nephritis was a condition which predated the effective coverage date of the policy; and (2) that appellee had made false and fraudulent statements in his application for the policy. Pursuant to a non-jury trial conducted on April 14, 1977, a verdict was returned in favor of appellee in the amount of $23,900. Appellant's motion for a new trial was denied, but the court en banc modified the verdict so as to reduce the total recovery to $20,900.*fn3 Appellee filed a timely remittitur as required by the court below, and appellant subsequently perfected this appeal. Appellant now contends that: (1) the verdict was against the facts and the weight of the evidence; and (2) the lower court erred in excluding certain pieces of information from a hypothetical question propounded by appellee's counsel. We agree with appellant's second argument, and consequently reverse and remand for a new trial.
In an attempt to demonstrate that appellee's sickness antedated the effective date of the policy, appellant placed on the stand Dr. Basil M. Rudusky, an expert in internal medicine and cardiovascular diseases. In the course of Dr.
[ 271 Pa. Super. Page 266]
Rudusky's testimony, appellant's counsel submitted a hypothetical question to the witness. The question incorporated information on appellee's physical condition and history prior to March 14, 1973, and invited the witness to consider, inter alia, "that [appellee] had a history of hypertension and that Dr. Adonizio [appellee's personal physician] had made reference to a possibility that there was a medical report saying that at least ten years prior to July 18, 1973, he had been diagnosed to have albumin in the urine and high blood pressure about a year before the 1973 date." (N.T. 127). Before the witness could state an opinion on whether these symptoms indicated kidney involvement, an objection was interposed. Following discussion, Dr. Rudusky was not allowed to consider any incident of hypertension or albumin in the urine.*fn4 Confronted with this truncated ...