Fickes v. Prudential Insurance Co. of America

Opinion by Mr. Justice Drew, Plaintiff, beneficiary of a policy of insurance issued by defendant upon her husband’s life, sues to recover the face amount of the policy. In a previous trial, a verdict was returned for plaintiff, whereupon a new trial was granted, on the ground that the verdict was against the *476 weight of the evidence. The second trial, had in the court below, resulted in another verdict for plaintiff. Defendant’s motion for a new trial was again granted, on the same ground as in the previous instance. This appeal is by defendant from the denial of its motion for judgment n. o. v. Plaintiff has not appealed. The insured made written application on January 29, 1931, for the policy, which was issued on the following February 4th. He died about three weeks later. The single premium paid- was returned to plaintiff by defendant, accompanied by a denial of liability. The defense is that insured made false and fraudulent representations in his application, in reliance upon which defendant issued the policy. The application stated that insured had not been attended by a physician during the previous three years, and that insured had never had dyspepsia or syphilis. The testimony of defendant’s witnesses, including that of several doctors who had attended insured, tended to show that these statements were false, that in fact insured had been attended by physicians a large number of times within the three years prior to the date of his application, and that he had suffered from dyspepsia and had several times been examined and treated for syphilis. Two doctors called as experts by plaintiff in rebuttal testified that, in their opinion, based on the testimony in the case, insured had never had syphilis. Defendant has appealed from an order of the trial court granting a new trial. The usual rules governing such appeals apply, although the appellant’s complaint is founded upon the dismissal of its motion for judgment n. o. v.: March v. Phila. & W. C. Traction Co., 285 Pa. 413; Pringle v. Smith, 286 Pa. 152; Regan v. Davis, 290 Pa. 167; Trimble v. Mennel Milling Co., 313 Pa. 188. No abuse of discretion on the part of the trial court appears here, and indeed none is claimed. Nor is this a case in which the order of the trial court is based solely upon an erroneous conclusion of law which necessarily *477 governs the case: see Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530, 538; Marko v. Mendelowski, 313 Pa. 46, 47; Engel v. Werner, 117 Pa. Superior Ct. 498, 499. In the present state of the record, the insurer’s defense depended upon oral testimony, the credibility of which, even though uncontradicted, was for the jury: Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236. The order must therefore be affirmed. Defendant’s claim for judgment n. o. v. rests chiefly upon the proofs of death which were furnished to it by plaintiff in compliance with the terms of the policy. One of the proofs consisted of a claimant’s statement, signed by plaintiff, and stating that insured had been treated by three physicians during the preceding two years. In another of the proofs, an attending physician’s statement, it appeared that the physician had been consulted by insured for indigestion in 1930, and that the date of the inception of the disease causing death was “years ago.” Defendant’s contention is that these proofs, offered in evidence by plaintiff, were sufficient to take the case from the jury. The trial court, however, found that the proofs were offered and admitted specially, for the sole purpose of showing that the relevant provision in the policy had been complied with, and that they were not in the case generally. We think the trial court’s finding in this respect must be accepted. After having offered the policy and application and having produced certain testimony in connection therewith, plaintiff rested. Defendant then moved for a nonsuit, on the ground that proofs of death had not been shown. After some discussion, plaintiff was permitted to reopen her case and offer the proofs. While it nowhere appears in the record that counsel for plaintiff expressly stated the offer to be special, nevertheless it is clear from what transpired that it was so intended and understood. The trial judge is obviously in a better position than we are to decide just how the evidence is offered and admitted in a situation of this sort. We therefore abide by his *478 finding. Since the proofs were not offered for the purpose of showing the truth of the matters therein asserted, defendant could not avail itself of them for that purpose without offering them as part of its own case. It did not do so, and its contention in this respect must accordingly fail. We express no opinion as to what the result would be if the proofs had been offered by defendant, since we are not now concerned with that situation. Defendant further contends that plaintiff’s reply to the new matter set forth in its affidavit of defense did not sufficiently deny the averments therein of attendance of insured by physicians and of his having suffered from dyspepsia. It is claimed that the reply to these averments, although following closely the language of the relevant statutory provision, 1 is inadequate under the doctrine of Bank of Am. Nat. Tr. & Sav. Assn. v. Sun seri, 311 Pa. 114, and the averments must therefore be taken to be admitted. In the Bunseri case, it was held that “averments in an affidavit of defense that the means of proof of particular ‘facts alleged [in the statement of claim] are under the exclusive control of the party making the allegation’ ” are of no effect if it appears that such averments “cannot, in the nature of the case, be true.” No such averments, however, are contained in plaintiff’s reply in the present case. In accordance with the act, plaintiff averred that she had no knowledge of the facts alleged by defendant, was unable to ascertain their truth after reasonable investigation, and demanded proof of them. We do not think plaintiff was obliged, under the circumstances here presented, to set forth the details of her investigation, as was suggested in the Bunseri case. In this view of the matter, we need not consider.the applicability of the Act of July 12, 1935, P. L. *479 666, 2 enacted after the trial in the court below and said to nullify the doctrine of the Sunseri case. Defendant’s allegations were placed in issue and were so treated at the trial by both parties. The reply must be considered sufficient. The order of the court below is affirmed. Footnotes [1] Section 8 of the Practice Act of May 14, 1915, P. L. 483, as amended by the Acts of April 22, 1929, P. L. 627, and June 12, 1931, P. L. 557. [2] That act amended section 8 of the Practice Act of 1915, as amended by the Acts of 1929 and 1931, by the addition of the following language: “. . . and, in no event, shall the party demanding proof of such alleged facts be required to state, specifically or otherwise, or to prove what reasonable investigation he has made to obtain the information of which he alleges he has no knowledge; but his affidavit alone shall be deemed sufficient to support his allegation of reasonable investigation.”