December 5, 1935.
January 31, 1936.
Appeals — Review — Order granting new trial — Verdict properly directed for other party.
Order granting new trial reversed on appeal, where the record disclosed that the trial judge had been amply warranted in directing a verdict for defendant, and the lower court in its opinion stated that the trial judge was correct in giving binding instructions, had been correct in his rulings on evidence and patient in permitting counsel for plaintiff to attempt to present the evidence necessary for plaintiff's case, and awarded the new trial to give plaintiff another opportunity, although it believed the result would be the same.
Before FRAZER, C. J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
Appeal, No. 295, Jan. T., 1935, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1933, No. 7458, in case of Jennie Petkov v. Metropolitan Life Insurance Company. Order of court below, granting a new trial, reversed, and judgment entered on verdict for defendant.
Assumpsit. Before SHERWOOD, J., specially presiding.
Verdict directed for defendant. Motion by plaintiff for new trial granted, opinion by LAMBERTON, J. Defendant appealed.
Error assigned was action of lower court in making rule for new trial absolute.
Arthur G. Dickson, with him Leroy A. Lincoln, for appellant.
Bertram U. Weinberg, with him Maurice G. Weinberg, for appellee.
Argued December 5, 1935.
This was a suit for an accidental death benefit under a policy of life insurance, and also a suit for benefit under an accident policy. The accidental death benefit was payable under the life policy if death occurred in consequence of bodily injury effected solely through external, violent and accidental means, independently and exclusively of all other causes, and it was further provided that this provision for the payment of an increased amount in the event of death from bodily injury should not apply if the death of the insured resulted, directly or indirectly, from disease or from bodily or mental infirmity. Under the accident policy the provision was substantially the same. That policy insured against the results of bodily injuries caused, directly and independently of all other causes, by violent and accidental means, and it was provided that the insurance should not cover accident, injury, disability, death or other loss caused, wholly or partly, by disease or by bodily or mental infirmity or medical or surgical treatment therefor.
The case was tried before a jury and at the conclusion of the case the court gave binding instructions to the jury to return a verdict for defendant. Plaintiff filed motions for judgment n. o. v. and for a new trial. The court below in its opinion on the motions for judgment n. o. v. and for a new trial said: "On the evidence presented, the trial judge was entirely correct in giving binding instructions. The trial judge was also correct in his numerous rulings on evidence, which apparently frustrated counsel for plaintiff. The trial judge was not only correct but he was extremely patient in permitting counsel for plaintiff to frame and reframe questions in an effort to overcome the objections properly made by counsel for defendant. . . . There were certain matters which plaintiff was required to prove before the case could be submitted to a jury. . . ." Because these "matters" were not proved, plaintiff's case failed. The court below directed that a new trial should be granted to give plaintiff another opportunity to present her case, though the court added, "in all probability, the result will be the same." See Fornelli v. Penna. R. R. Co., 309 Pa. 365, 164 A. 54.
The record in this case discloses that the trial judge was amply warranted in directing a verdict for defendant. We find in the record no adequate reason for granting a new trial.
The order of the court below, granting a new trial, is reversed, and judgment is entered on the verdict for defendant.