# Odessa Woods v. The National Life and Accident Insurance Company, a Tennessee Corporation

> Court of Appeals for the Third Circuit · June 22, 1965 · 347 F.2d 760

URL: https://www.frixlaw.com/law-library/cases/9450855

## Case

- **Full name:** Odessa WOODS v. the NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, a Tennessee Corporation, Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** June 22, 1965
- **Citations:** 347 F.2d 760; 1965 U.S. App. LEXIS 5159
- **Precedential status:** Published
- **Opinion:** Concurrence by Forman
- **Judges:** McLaughlin, Forman, Ganey
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9450855

## How later opinions describe it (automated extraction)

- noting, in case applying state contract law, that “[t]he federal courts have their own standard for ascertaining when a verdict should be directed”

## Opinion text

FORMAN, Circuit Judge
(concurring) :
I concur in the ultimate result reached by my colleagues that the judgment of the district court be reversed and the cause remanded for a new trial. I have difficulty, however, in associating myself with certain of the grounds upon 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.
It is my position that Federal Rule of Civil Procedure 51 considerations, and Coca Cola Bottling Co. of Black Hills v. Hubbard, 203 F.2d 859 (3 Cir. 1953) along with the reference in 1A Moore, Federal Practice j[ 0.404 [9], at 4231 (2d ed. 1953) with their reliance on the directed verdict element as a method of preserving questions of law for appeal, do not assist in the disposition of the case at hand. Most of the issues here involved arise out of the district court’s refusal to admit certain evidence. As its elimination of portions of the insurance application from jury consideration was inextricably related to the rulings on appellant’s offer of evidence, that offer alone preserved for appeal purposes the propriety of the jury’s considering the insurance application.
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.
The appellee urges that assuming the physician-patient privilege is inapplicable here, Dr. Greenlee’s testimony is based upon a person’s hearsay declarations, and even if such statements were to be considered admissions and, therefore, falling within that hearsay exception, they are only binding on the declarant or a privy — the appellee, a beneficiary under the insurance contract, not so qualifying. The majority indicates in its discussion relative to Dr. Greenlee that his records both reflected that upon which he was called to testify, and were kept in the normal course of pursuing his profession. The fact that certain of these notations were made by Dr. Green-lee’s regularly employed nurse in the usual course of her employment should not alter the character of the doctor’s record. The trial transcript indicates that these office records were sought to *770 be admitted into evidence by the appellant but were barred by the trial court. Without deciding the propriety either of Dr. Greenlee’s testifying as to what was 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.
A second evidential question concerns whether Dr. Brown, a VA physician, should have been permitted to testify. The district court ruled that, although Dr. Brown could not identify the deceased insured as the man he examined and about whom he would testify, his testimony was relevant to question 51b, if the jury first found that the man so examined was in fact the deceased insured. Dr. Brown’s testimony, however, was ruled inapplicable to question 55 which asked for the names and addresses of physicians the deceased insured had consulted, to which the answer was “none.” The district court considered Dr. Brown’s examination, made at the direction of the VA for purposes of processing a request for disability benefits, not a personal and voluntary examination and, thus, not a consultation within question 55. The majority recognizes the closeness of the question involved, and concludes that the state of the proofs warrants considering the examination by Dr. Brown a consultation within question 55 and thus relevant to the issue of fraud raised by the appellant. I cannot support this conclusion. Even assuming that Dr. Brown’s examination, as a legal matter, was a consultation, and that in fact the answer to question 55 was false and did materially affect the risk assumed by the appellant, the recognized closeness of the question of whether that examination was a consultation inveighs against construing the deceased insured’s answer to question 55, at least as to Dr. Brown, as one that he must have known to have been false anu, therefore, have made in bad faith, an element necessary to be present before an insuror may escape liability under its policy. Thus, even if it could be determined that Dr. Brown’s examination was of the deceased insured, it does not follow that a jury should be permitted to find that relative to Dr. Brown a fraudulent representation was made in answer to question 55.
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. Assuming merit in appellee’s position that Pennsylvania evidence law is to govern the question of whether the VA documents are legally sufficient business records, I do not have appellee’s difficulty in finding that the requisites of the Pennsylvania Business Records As Evidence Act are met. Indeed, appellee sets forth no authority to indicate that the requirements of the Pennsylvania statute have not been met by this trial record. In reality, the only exhibit for which appellee’s argument has applicability is Exhibit G, a report of a December 29, 1960 medical examination for disability evaluation made of a person having the name of the deceased insured. As to that exhibit, Dr. Brown identified the medical report as his and indicated it was made in the regular course of his VA duties. The signature of Dr. Brown appeared on the report along with the date of its preparation, December 29, *771 1960, indicating that it was made contemporaneous with the actual examination of the patient. Surely the Pennsylvania requisites are established as to this exhibit being an appropriate business record.
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.
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. 0. 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.” (Emphasis added.) 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).
In my view, if the appropriate evidence had been admitted, defendant-appellant’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 of 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, an 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. Green-lee. 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.
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 *772 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. Green-lee. Surely every routine visit to a physician need not be mentioned for an insured to have satisfied the legal requirement of answering a question such as 55 in good faith. However, the fact that the insured was aware of his relationship to Dr. Greenlee on December 29, 1960 and authorized release of VA medical reports to Dr. Greenlee, when taken together with the totality of the circumstances reflected in his fraudulent answering of question 51b, sustains a finding that as a matter of law the deceased insured fraudulently answered question 55. See Stopper v. Manhattan Life Insurance Co. of New York, supra at 468, quoting from Freedman v. Mut. Life Ins. Co. of New York, 342 Pa. 404, 409 , 21 A.2d 81, 84 , 135 A.L.R. 1249 (1941).
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450855. Public record. Not legal advice.