Professional Documents
Culture Documents
Odessa Woods v. The National Life and Accident Insurance Company, A Tennessee Corporation, 347 F.2d 760, 3rd Cir. (1965)
Odessa Woods v. The National Life and Accident Insurance Company, A Tennessee Corporation, 347 F.2d 760, 3rd Cir. (1965)
2d 760
Odessa WOODS
v.
The NATIONAL LIFE AND ACCIDENT INSURANCE
COMPANY, a
Tennessee Corporation, Appellant.
No. 14968.
Richard C. Witt, White, Jones & Gregg, Pittsburgh, Pa. (Thomas Lewis
Jones, Pittsburgh, Pa., on the brief), for appellant.
Byrd R. Brown, Utterback, Brown & Harper, Pittsburgh, Pa., for appellee.
Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.
GANEY, Circuit Judge.
Whereupon plaintiff brought an action on May 29, 1963, in the United States
District Court for the Western District of Pennsylvania to recover the proceeds
of the policy. Jurisdiction of that court was invoked on the basis of diversity
and the jurisdictional amount.2 She demanded a jury trial in her complaint.
2
The answer to the complaint avers that the insured secured the policy by giving
false answers to questions numbered 51b, 51g, 54 and 55 of the application,3
which answers were material and relied upon by the defendant and that the
insured knew them to be false, thereby rendering the policy void. And
defendant's pre-trial narrative statement states in part: '(No. 51b) The insured
answered that he had never had any disease of the heart or lungs; (No. 51g) that
he had never consulted a physician for any ailment or disease pertaining to any
part of the human anatomy other than the brain, nervous system, heart, lungs,
skin, middle ear, eyes, stomach or intestinal tract. * * * (No. 54) The insured
also stated that there was nothing in his health history not mentioned elsewhere
in the application. (No. 55) In answer to a question which called for the names
and addresses of physicians that the insured had consulted, he answered 'None'.'
At the jury trial plaintiff presented evidence of the facts previously adverted to,
the truth of which defendant admitted. After completing its defense, in which it
offered the testimony of two physicians and the records of their examinations,
several chest x-ray films and records from the files of the Veterans'
Administration ('VA') relating to the adjudication of applications for benefits
by a person named Emmet F. Woods and the plaintiff as his widow, the
defendant moved for a directed verdict. It also moved for a 'dismissal with
prejudice' on the grounds that the documentary evidence which had been
submitted to the court for the benefit of the jury is proof that fraud was
committed by the insured in applying for the policy. These motions were
denied, and the case was submitted to the jury which returned a verdict in favor
of the plaintiff for $24,500, the face amount of the policy. Without filing either
a motion for judgment notwithstanding the verdict under Rule 50(b) of the
Federal Rules of Civil Procedure or for a new trial pursuant to Rule 59,
defendant appealed to this court from the judgment entered on the verdict.
The ground for its appeal is that the trial court committed reversible error when
it excluded certain evidence offered by the defendant, and that if this evidence
had been considered by the trial court, it (defendant) would have been then and
is entitled now to a dismissal of the action with prejudice. In order to properly
dispose of defendant's contentions it will be necessary to treat them in some
detail.
The trial court in its charge removed all but question 51b from the jury's
Assuming that the person examined by Dr. Greenlee on August 6, 1960, was
the insured, the Act of 1907 did not prevent him from disclosing the purpose of
his examination, his diagnosis and treatment. The Act applies only to
communications made by a patient to a physician in a civil action: Phillips's
Estate, 295 Pa. 349, 145 A. 437 (1929), and then only if they tend to blacken
the character of the patient. Soltaniuk v. Metropolitan Life Ins. Co., 133
Pa.Super. 139, 143-144, 2 A.2d 501 (1938). With the exception of the name,
address and so forth, and a few items concerning the patient's health history
entered in his records, Dr. Greenlee's testimony did not and would not have
revealed any information obtained by communications from the patient. The
revealing of a name, address and other identifying data given by a patient is not
a communication which tends to blacken the character of the patient. Sweeney
v. Green, 116 Pa.Super. 190, 176 A. 849 (1935). The Act of 1907 presented no
obstacle to Dr. Greenlee's testimony. His records, to the extent that the contents
were relevant and material, were admissible. Ettelson v. Metropolitan Life Ins.
Co., 164 F.2d 660, 667 (3 Cir. 1947). The fact that the doctor was unable to say
that the patient he examined was the insured is immaterial. The identity of the
patient was for the jury to determine.
8
Since defendant asserted that the answer to question 55, which was removed
from the jury's consideration, was fraudulent, and Dr. Greenlee's testimony had
some bearing on the issue raised by that assertion, the defendant is entitled to a
new trial alone on the trial court's rulings regarding that witness's testimony.
Defendant also complains of the court's ruling that Dr. Harold T. Brown, who
was chief of the pulmonary disease unit of the VA regional office in Pittsburgh
and examined service veterans in the routine course of his employment as a VA
physician, was not a physician 'consulted' by the insured within the meaning of
question 55 of the application for insurance. The effect of this ruling, along
with that on Dr. Greenlee's testimony, was to remove question 55 from the
jury's consideration. With the aid of documents from the VA file, Dr. Brown
testified that on December 29, 1960, he examined from head to toe a medium
sized, very good-looking, well dressed, personable colored man who appeared
to be well educated and spoke good English. He explained to the man that the
probable cause of his trouble was sarcoidosis4 and possible pulmonary mycosis
(a fungus disease of the lungs) or a bronchiolitis (inflammation of the
bronchioles). An x-ray picture of this man's chest taken the same day under Dr.
Brown's direction showed shadows of a very finely dotted nature indicating,
according to the doctor, a fine nodular type infiltration of both lungs. The
doctor advised the man to go to a VA hospital for further observation and
examination. He admitted that he did not know that the man he examined on
December 29, 1960, was the insured and that the latter gave him no identifying
data. Nevertheless, the trial court left it to the jury to determine, in conjunction
with other testimony given by the plaintiff and the identification data read to
them by defendant's counsel from VA documents, whether the person described
by Dr. Brown was in fact the insured. He also instructed them that if they found
that such person was not the insured, then their verdict must be for the plaintiff,
'because there would then be no evidence to the effect that plaintiff's husband
had any knowledge concerning any lung condition.'
10
11
physicians in connection with the application, that the benefits were denied on
June 7, 1961, and that this decision was not changed after additional evidence in
the form of x-ray films and reports gathered from several health centers were
taken into consideration. The file contained about a dozen reports of x-rays
taken between June, 1960, and January, 1962, at two hospitals, several public
health clinics and the VA. Also in the file were numerous letters and
memoranda, rating reports, an application for dependency and indemnity
compensation or death pension by widow or child, dated October 19, 1962, and
signed by Odessa J. Woods, which was denied, and the Army medical service
record of Emmet F. Woods.
12
The file was properly shown to have been a part of the VA records. Such
records are business records within the meaning of 28 U.S.C.A. 1732. Brooks
v. Texas General Indem. Co., 251 F.2d 15 (C.A.5, 1958); Kendall v. Gore
Properties, Inc., 98 U.S.App.D.C. 378, 236 F.2d 673, 684 (C.A.D.C.1956). Of
course the mere fact that the documents were part of the VA file did not make
them admissible per se; they must be relevant and material to the issue at the
trial. Continental Baking Co. v. United States,281 F.2d 137, 148-149 (C.A.6,
1960). And even if they meet those tests, the trial court, in its sound discretion,
may exclude them if they are merely cumulative.
13
prejudicial to defendant's defense, at least with regard to question 51b, and the
trial court should not have kept it from the jury's eyes.
14
The other proposed exhibits were properly excluded. Exhibits A and B are
letters written respectively on July 27, and March 22, 1962, to the adjudication
officer of the VA regional office in Pittsburgh, and signed by Emmet F. Woods.
Exhibit K is a transcript of a hearing held on April 25, 1962, at which Mr.
Woods testified before three members of the VA rating board concerning the
severity of his disability. On the authority of Pollack v. Metropolitan Life Ins.
Co., 138 F.2d 123 (3 Cir. 1943), each of the three proposed exhibits was
inadmissible over the objection of plaintiff. Exhibit M is a letter dated
November 2, 1962, addressed to the Military Personnel Records Center, GSA
and/or Army Record Center in St. Louis, Missouri, and signed by Odessa
Woods authorizing a representative of defendant to obtain information in the
files of Emmet F. Woods. The proposed exhibit to which no letter of the
alphabet was assigned is a VA application form for dependency and indemnity
compensation or death pension by widow or child filled out on October 10,
1962, and bearing the signature 'Odessa J. Woods'. Both of these documents
were offered for identification purposes. More than enough of the VA
documents were read to the jury for that purpose. Since the proposed exhibits
were merely cumulative of other evidence for that purpose we may not overrule
the trial judge on his ruling as to their admission into evidence.
15
hazard assumed by the insurer.' To prove that a 'false statement was made with
actual intent to deceive' all the insurer need show is that the insured knew that it
was false or otherwise acted in had faith in making it. Evans v. Penn Mutual
Life Ins. Co., 322 Pa. 547, 560, 186 A. 133 (1936). This is a good example of a
so-called conclusive presumption where proof of fact A establishes fact B. See
9 Wigmore on Evidence (3rd ed.) 2492. Pennsylvania Courts have their own
rules for determining when fraud has been committed and do not leave the
matter for the jury to decide. In the Evans case the Supreme Court of
Pennsylvania said (p. 361, 186 A. p. 142): 'This problem of proof in insurance
cases is not different from what is in other cases. When facts are established by
uncontroverted evidence, and where the credibility of witnesses is not
necessarily involved, the jury has no function, and the case may be decided
without its assistance. But so long as the jury system exists, if that branch of the
court is to have any purpose, it must be regarded as the trier of disputed fact
and of the trustworthiness of testimony.' Concerning proof of fraud, the Court
also stated: 'If such falsity and the requisite bad faith affirmatively appear (a)
from competent and uncontradicted documentary evidence, such as hospital
records * * * a verdict may be directed for the insurer.' And in Orr v. Union
Fidelity Life Ins. Co., 202 Pa.Super. 553, p. 557, 198 A.2d 431, p. 433 (1964),
the Pennsylvania Superior Court said: 'Ordinarily the question of whether or not
the answers were given in good faith is for the jury, but where the evidence
establishes that the insured must have been aware of their falsity, the court may
enter judgment for the insurer.'
16
The federal courts have their own standard for ascertaining when a verdict
should be directed. This standard has been variously stated. One is 'When the
evidence is such that without weighing the credibility of the witnesses there can
be but one reasonable conclusion as to the verdict, the court should determine
the proceeding by * * * directed verdict * * * without submission to the jury, or
by judgment notwithstanding the verdict.' Brady v. Southern R. Co., 320 U.S.
476, 479-480, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). Also see 5 Moore's
Federal Practice (2nd ed.) P50.02(1). It has been held that the question of the
quantum of proof in the federal courts necessary to sustain the existence of
particular fraud elements is to be decided on the basis of the federal standard
and not that of the court of the state in which the federal court sits. Safeway
Stores v. Fannan, 308 F.2d 94, 97 (C.A.9, 1962). Also see Summers v. Watkins
Motor Lines, 323 F.2d 120, 123 (C.A.4, 1963); Braud v. Baker, 324 F.2d 213,
216 (C.A.5, 1963); Johnson v. Buckley,317 F.2d 644 (C.A.5, 1963). Contra:
Dean v. Southern Ry. Co., 327 F.2d 757 (C.A.6, 1964). This court has affirmed
directed verdicts for insurance companies in actions on life insurance policies
where the defense was fraudulent representations. Croll v. John Hancock
Mutual Life Ins. Co., 198 F.2d 562 (C.A.3, 1952); McDermott v. John
Hancock Mutual Life Ins. Co., 255 F.2d 562 (C.A.3, 1958), cert. den. 358 U.S.
935, 79 S.Ct. 324, 3 L.Ed.2d 306. In like cases it has also reversed judgments
entered on verdicts for plaintiff-beneficiaries with directions to enter judgments
n.o.v. in favor of the insurance companies. Landau v. Mutual Life Ins. Co. of
N.Y., 199 F.2d 549 (C.A.3, 1953); Stopper v. Manhattan Life Ins. Co. of N.Y.,
241 F.2d 465 (C.A.3, 1957), cert. den. 355 U.S. 815, 78 S.Ct. 17, 2 L.Ed.2d 32.
17
If the state rule coincides with the federal, there will be no difficulty. But if the
former is less liberal than our own, does a federal court violate a party's right to
trial by jury under the Seventh Amendment by applying the former? The
problem has been adequately presented and discussed by Rpofessor Charles
Allen Wright in his Handbook on Federal Court (Hornbook Series) 92. Also see
Moore's Federal Practice (2nd ed.) P.30.20. Plaintiff intimates that we have no
problem here on that score because assertedly defendant's evidence was not
such, even if it is measured by the Pennsylvania rule, as would have required
the trial court to act independently of the jury. We agree where is no problem
but for a reason different from that given by plaintiff.
18
A motion to dismiss with prejudice is usually proper under Rule 41(b) of the
Federal Rules of Civil Procedure in an action tried by the court without a jury,
where, the evidence permitting, the court may make findings in favor of a
defendant even though the evidence is not such as to require the making of
findings in his favor. When such a motion is made in a jury case, it will be
treated as though it were a motion under Rule 50(a), for a directed verdict. See
Sano v. Pennsylvania R.R., 282 F.2d 936, 938 (C.A.3, 1960). By analogy we
will treat defendant's present request as though it were one for a direction to
enter judgment n.o.v. Under the circumstances of this case we may not grant
defendant's request. A party's failure to file a motion for judgment n.o.v. in the
trial court precludes an examination of the record by that court or this court for
the purpose of ascertaining whether that party was entitled to a directed verdict.
Johnson v. New York, N.H & H.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77
(1952). Also see 5 Moore's Federal Practice (2nd ed.) P50.11.
19
Accordingly, the judgment of the district court will be reversed and the cause
will be remanded for a new trial.
FORMAN, Circuit Judge (concurring):
20
which my brethren rest in reaching the result and will address myself to other
factors which, in my view, bear upon the disposition of this appeal.
21
22
Turning to the merits of the specific evidential points raised. The majority
appropriately demonstrates that the evidence proffered through Dr. Greenlee
should have been admitted at the trial. His testimony which would have
revealed the name, address, telephone number, occupation, age, and the
medical analysis of the person who had visited him was not such as could be
considered to blacken the character of the deceased insured, this alone sufficing
to remove this evidence from the reach of the Pennsylvania statute on
physician-patient privilege. The district court, however, excluded most of the
above items on the ground that the time of the trying of the civil cause is the
perspective from which the physician-patient communication must be judged as
to its tendency to blacken the character of the patient. But Skruch v.
Metropolitan Life Ins. Co., 284 Pa. 299, 301-302, 131 A. 186 (1925) is
persuasive that the time of the making of the statement governs the
determination of its tendency to blacken the character of the declarant.
23
in his office records without the admission of those records, themselves, into
evidence, or of Dr. Greenlee's testifying at all as to the contents of the records
once the records were available, the offer of the business records successfully
avoids the objection raised by the appellee to the other hearsay aspects of the
evidence.
24
25
Finally, a broad evidential issue raised by the appellant concerns the refusal of
the district court to allow the admission into evidence of certain documents
from a VA file. Appellee seeks to support the district court's refusal to admit
these documents by arguing that the standard for their admission is
Pennsylvania's Business Records As Evidence Act rather than existent federal
statutes relating to the admission of business records. It is urged that, if the
Pennsylvania statute were applied, the documents in question could not be
admitted for under the present state of the record there is no testimony as to the
identity of the proposed documents, the mode of their preparation, and whether
they were made at or near the time of the event to which they purport to refer.
I agree that Exhibit G should have been admitted into evidence. The majority
lucidly points out that the signature on the insurance application almost exactly
duplicated that of Dr. Brown's patient found on the medical report. The
introduction of this record was quite relevant both as an aid in the
demonstration that the deceased insured was one and the same party examined
by Dr. Brown and as evidence probative of a fraudulent answering of question
51b, for Dr. Brown testified that the result of his examination as embodied in
the medical report had been communicated to the patient.
27
The last issue to be considered is whether appellant would have been entitled to
the directed verdict for which it argues. The majority avoids deciding the merits
of this issue on the ground that 'a party's failure to file a motion for judgment
n.o.v. in the trial court precludes an examination of the record by that court or
this court for the purpose of ascertaining whether that party was entitled to a
directed verdict,' citing Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48,
73 S.Ct. 125 (1952). While I agree that a failure to move for a judgment n.o.v.
will neither permit an appellate court nor a trial court to enter a judgment
notwithstanding the verdict, and on this ground we must remand this cause for
a new trial, I read Johnson to sanction our determining, for trial court guidance,
whether a directed verdict motion should have been granted. Indeed, footnote 3
of Johnson states that '* * * holding that a directed verdict should have been
given cannot be the equivalent of a court's entry of judgment for defendant
notwithstanding a jury verdict for plaintiff.' Our court has previously reached
the merits of the directed verdict issue under similar circumstances. Garman v.
Metropolitan Life Ins. Co., 175 F.2d 24, 28 (3 Cir. 1949).
28
In my view, if the appropriate evidence had been admitted, defendantappellant's motion for a directed verdict should have been granted under either
the federal or the Pennsylvania standard for determining the granting or
denying of such a motion. No problem to credibility of witnesses emerges to
create a peculiarly jury matter. Though plaintiff-appellee did not concede that
her husband, the deceased insured, and the man examined by both Dr. Greenlee
and Dr. Brown were one and the same, appellant has adequately sustained the
burden of going forward to demonstrate that relationship. A jury could not
reasonably conclude otherwise. The evidence proffered through Dr. Greenlee
revealed that he examined a man with the exact same name, address, telephone
number, occupation and age as that stated on the insurance application by the
deceased insured. The medical report prepared by Dr. Brown during the
examination of his patient contained much of this same information. Affixed to
this report was the signature of the patient, as almost exact duplicate of that of
the deceased insured as reflected in his signature on the insurance application.
Furthermore, the medical report reflects the fact that Dr. Brown's patient had
authorized release of any VA medical reports to none other than Dr. Greenlee.
The combination of these factors neatly indicates that a jury of reasonable men
could not doubt that the deceased insured and the man examined by Dr.
Greenlee and Dr. Brown were one and the same.
29
How clear is the evidence that the deceased insured fraudulently concealed
from appellant insurance company that he had a lung ailment (question 51b)
and that he had previously consulted a physician regarding his health (question
55)? On March 7, 1961 the deceased insured made application for coverage.
About two months prior to this time he had been informed by Dr. Brown that he
had a disease of the lungs which was serious enough to require further
examination and treatment in a hospital. The nature of the disease
communicated to the deceased insured and its relationship to the extremely
short lapse of time between his awareness of his problem and his application
for insurance spell out in terms certain a fraudulent answering of question 51b
which would have in and of itself sustained a directed verdict for the appellant.
Stopper v. Manhattan Life Insurance Co. of New York, 241 F.2d 465 (3 Cir.
1957). I am also of the view, however, that a directed verdict could have been
granted appellant on the basis of a fraudulent answer to question 55 regarding
any physicians the insured had consulted concerning his health. It was clearly
within the deceased insured's knowledge on March 7, 1961 that Dr. Greenlee
had been consulted, even though the consultation took place August 6, 1960.
The deceased insured's awareness of his relationship to Dr. Greenlee emerges
from the notation on Dr. Brown's December 29, 1960 medical report indicating
that VA medical records were to be released to Dr. Greenlee. Surely every
routine visit to a physician need not be mentioned for an insured to have
As above noted, however, because a motion for a judgment n.o.v. was not
made, judgment for the defendant-appellant may not be entered on this record
but the case must be remanded for what would appear to be the useless
formality of a new trial. See Garman v. Metropolitan Life Ins. Co., supra.
In her brief plaintiff states that the defendant had the insured examined by their
physician prior to issuing the policy to him. We have carefully read the
transcript of the testimony and have found no evidence to support a finding that
the insured was examined by a physician acting on behalf of defendant
Question No. 53 was also included, but appears to have been abandoned by
defendant for lack of proof that it was answered falsely