Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Mr. Joseph Kraemer argued the cause for plaintiff-respondent. Mr. Nicholas Conover English argued the cause for defendant-appellant ( Messrs. McCarter, English Studer, attorneys).

See more information ...

Smart Summary

Case Summary: Sarah Epstein, Executrix v. National Casualty Company

Factual and Procedural Background

The suit sought recovery under an indemnity policy for disability from disease suffered by Saul Epstein. The policy dated September 28, 1942, limited coverage to "illness that is contracted and begins after this policy shall have been maintained in continuous force for ten days from its date." Plaintiff obtained a directed verdict below at the Essex Circuit; defendant appealed from the judgment entered in the former Supreme Court. Defendant had previously filed a chancery bill seeking rescission of the policy on grounds of fraud, which was dismissed; several defenses in the present action alleging fraudulent representations were struck as res judicata in the trial court. Medical evidence conflicted as to whether the disabling disease began before or after the policy coverage period. Issues also arose over timeliness of notice of sickness and the admissibility of testimony and a medical report of Dr. Manfred L. Gorten. The Supreme Court reversed and remanded for a new trial.

Legal Issues Presented

Whether the evidence supported directing a verdict for plaintiff rather than submitting to the jury the question of when the insured's illness was contracted and began in relation to the policy's ten-day waiting provision.
Whether notice of sickness was given within the time and manner required by the policy or, alternatively, whether lateness was excused under the policy's saving clause.
Whether the trial court erred in excluding Dr. Gorten's testimony as to the history obtained from the insured.
Whether the trial court erred in excluding the copy of Dr. Gorten's report to Dr. Kaufman.

Arguments of the Parties

Appellant's Arguments (Defendant — National Casualty Company)

Contended that evidence showed the disease began before the policy's ten-day continuous-force period, so a directed verdict for plaintiff was improper and defendant's directed verdict should have been granted (relies on policy provision and defenses in amended answer).
Asserted that notice of sickness was not seasonably given under the policy, warranting judgment for defendant as a matter of law.
Argued the trial court erred in excluding Dr. Gorten's testimony regarding the history obtained from the insured and in excluding Gorten's written report to Dr. Kaufman.

Respondent's Arguments (Plaintiff — Sarah Epstein, Executrix)

Argued that by reason of res judicata the defendant was estopped from asserting defenses grounded in fraudulent representations (reliance on dismissal of chancery bill).
Maintained that evidence permitted a finding that the illness began within the policy period and that notice was provided as soon as reasonably possible under the policy's saving clause.
Opposed admission of Dr. Gorten's written report; trial court's rulings led to motion for directed verdict in plaintiff's favor.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sardino v. Agnellino, 119 N.J.L. 7 (E. A. 1937)	Standard for directing a verdict: a verdict should not be directed unless no view favorable to the other party can be sustained.	Applied to conclude that neither party was entitled to a directed verdict on the evidence; factual issues must be submitted to the jury.
Consolidated Traction Co. v. Lambertson, 60 N.J.L. 452 (E. A. 1897 )	Rule on admissibility of patient declarations to physicians: statements made to a physician for treatment are admissible; statements made to elicit an opinion to be used as evidence for the declarant generally are not.	Used to frame the admissibility question but the court distinguished the instant case because Gorten was a treating physician whose examination was for diagnosis and treatment.
Sandford v. The Chanaz Co., 117 N.J.L. 485 (E. A. 1936)	When a treating physician is called by the adverse party as an expert, the witness may nonetheless testify to relevant statements made by the patient during examination.	Relied upon to hold that Dr. Gorten should have been treated as a treating physician and that exclusion of his testimony was erroneous.
State v. Neiman, 123 N.J.L. 341 (Sup.Ct. 1939), affirmed on opinion below (E. A. 1940)	Addresses admissibility of writings to support witness credibility when impeachment or credibility attack has occurred.	Cited by appellant to support admission of Gorten's report; court held the circumstance had not developed into an attack on the witness's credibility and sustained trial court's discretionary exclusion.

Court's Reasoning and Analysis

The court reviewed each principal contention raised on appeal and applied governing legal principles to the trial record.

On the ten-day waiting provision: The court observed conflicting medical testimony—Dr. Gorten opined the disease began in March 1942 while other proof supported onset within the policy period. Because the factual issue of when the illness began was controverted, it was for the jury to decide; the court cited the directed-verdict standard (Sardino) and concluded the trial court erred in granting a directed verdict for plaintiff and denying defendant's directed verdict.
On timeliness of notice: The policy required written notice within ten days of commencement of disability but contained a saving clause excusing failure to notify if it was not reasonably possible and notice was given as soon as reasonably possible. Given the medical circumstances (slow onset, initial nondiagnosis, statements often communicated only between physicians) and the evidence about when notice forms were completed and sent (May 29, 1943, sent early in June), the court found sufficient evidence and permissible inferences for a jury to find compliance or excuse; thus the issue was for the jury and not a basis for a directed verdict for defendant or plaintiff.
On admissibility of Dr. Gorten's testimony: The court analyzed the authorities on patient declarations to physicians and the distinction between statements made for treatment and statements made to elicit an opinion for litigation. Finding that Gorten examined Epstein for diagnosis and treatment and rendered professional care during hospitalization, the court held Gorten was a treating physician and that exclusion of his testimony as to the patient's history was error.
On admissibility of Gorten's written report: The court considered appellant's contention that the report would bolster the witness's credibility given the trial judge's attitude. The court determined that the incident had not matured into an attack on the witness's credibility and that exclusion of the report was within the trial court's discretion.

Holding and Implications

Holding: The judgment below is reversed and the cause is remanded for a new trial.

Implications: The Supreme Court found reversible error in (1) the submission of a directed verdict for plaintiff on disputed factual issues (onset of illness and timeliness of notice) and (2) exclusion of Dr. Gorten's testimony as a treating physician. The exclusion of Gorten's written report was upheld as within the trial court's discretion. The direct effect is that the parties are entitled to a new trial; the opinion remands for further proceedings rather than announcing a novel governing precedent.

Show full summary ...

SARAH EPSTEIN, EXECUTRIX OF THE ESTATE OF SAUL EPSTEIN, DECEASED,PLAINTIFF-RESPONDENT, v. NATIONAL CASUALTY COMPANY, A CORPORATION,DEFENDANT-APPELLANT.

The opinion of the court was delivered by CASE, J.

National Casualty Company, defendant below, appeals from a judgment entered in the former Supreme Court upon a directed verdict for the plaintiff at the Essex Circuit. The suit was to recover for disability from disease under an indemnity policy covering plaintiff's decedent.

Appellant's first point is that the evidence upon whether the insured's illness was contracted and began after the policy had been in continuous force for ten days after its date was such that plaintiff's motion for a directed verdict should have been denied and defendant's motion for a directed verdict should have been granted. The point is predicated upon a policy provision hereinafter set forth and arises out of defendant's eighth and tenth defenses, made parts of the amended answer. Plaintiff argues that upon the principle of res judicata defendant is estopped by the dismissal of a bill in Chancery wherein the latter sought to rescind the policy on the ground of fraud. The answer in the present lawsuit originally contained twenty-two defenses, of which the eighteenth, nineteenth, twentieth, twenty-first and twenty-second alleged fraudulent representations in the application. The enumerated defenses were, on plaintiff's motion, struck as res judicata by reason of the Chancery decision. Those defenses then passed out of the case as did also the charge of res judicata. The attack upon the defenses presently under discussion is now made for the first time and must, of course, fall for that reason. In addition, there is not identity in the subject matter or the issues. The Chancery suit grounded in fraud; the present action grounds in a contractual provision upon which, it is alleged, the right of action depends. It appears from the proofs that the rather unusual disease from which the insured suffered might even have been present without his knowledge. The absence of fraud does not entitle plaintiff to prevail if the factual structure of the case does not come within the policy coverage.

The policy was dated September 28, 1942, and provided that it should cover only "illness that is contracted and begins after this policy shall have been maintained in continuous force for ten days from its date." The testimony of Dr. Gorten was that in his opinion, based upon a physical examination made in March, 1943, the insured had been suffering from the disabling ailment since March, 1942. On the other hand there was proof that the illness began within the policy period. The fact as to when the illness began was for the jury and not for determination by the court.

It is next said that the notice of sickness was not seasonably given and that, therefore, plaintiff's motion for a directed verdict should have been denied and defendant's motion for a directed verdict should have been granted. The policy provisions were:

"4. Written notice * * * of sickness on which claim may be based must be given to the Company * * * within ten days after the commencement of disability from such sickness.

"5. * * * Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible."

There was evidence from which, with the inferences of fact legitimately to be drawn therefrom, the jury could have found:

The policy was written September 28, 1942. In December of 1942 Epstein injured his thumb with his car door. He was attended by his family physician, Dr. Michael J. Kaufman, who was dead at the time of the trial. The doctor put the finger in a splint and later bandaged it. Epstein reported the injury to the company and was paid $75 for the resulting disability. In March, 1943, Dr. Kaufman, upon removing the bandage, observed a condition which was not then diagnosed but which caused him to advise Epstein to go to Dr. Manfred L. Gorten, a specialist in neurology and psychiatry and also to go to a hospital for a check up. Epstein complied. He went to and was examined by Dr. Gorten on March 16, 1943. He was at the Beth Israel Hospital from March 22 to March 27, 1943, and while there he received professional care from Dr. Gorten. Dr. Gorten's diagnosis was that the patient was suffering from amyotrophic lateral sclerosis with bulbar paresis. There is nothing to indicate that Dr. Gorten communicated the diagnosis to Epstein. The inference is that he did not, for his testimony is that he reported his opinion about the case to Dr. Kaufman and to no one else. Epstein did not feel well; he remained mostly about his home or garden. On April 29, 1943, and again on May 18, 1943, at the suggestion of his doctor, he called upon and was examined by Dr. Charles Englander, a pathologist, who, also, diagnosed the disorder as amyotrophic lateral sclerosis but did not so inform Epstein. The doctor permitted the patient to believe that he was suffering from a nervous disorder but sent the correct diagnosis to the referring physician. At that time Epstein had some weakness and clumsiness of his hands and atrophy of the small muscles of his hands and some small twitchings as well as reflex changes, but he could walk back and forth and up and down stairs with no apparent irregularity in his gait. He looked relatively well. His blood pressure, heart, lungs, speech, eyebrows and pupils were normal. The was nothing in his condition to prevent him from talking to people in his customary pursuit of selling merchandise. He did not entirely discontinue his attendance at his place of business until some time in May. Toward the end of that month he fell and cut his forehead, requiring some surgical stitching. His daughter, disturbed by the fact of the fall, went to Dr. Kaufman and asked if there was a medical explanation. She was then told that her father was suffering from the disease mentioned above. So far as appears, that was the first time the information was passed except from one physician to another. The daughter forthwith procured a company form which was sent by the company agent, Mattes Lerner, to Epstein's place of business and was forwarded from there to the daughter. The latter attended to the filling in of the form, including the physician's questionnaire, which was dated May 29th, 1943, and was sent to the company early in June. The form so provided by the company as the form required by the pertinent policy provision was entitled as to the first sheet "Claimant's Preliminary Notice of Sickness" and as to the second sheet "Physician's Preliminary Report of Sickness". The illness was a degenerative disease of slow onset and gradual development. Usually the patient does not know for quite a while what is wrong with him; he becomes aware of weakness, stiffness and other disabilities but does not know what is the matter with him. He may even have the disease without knowing that he is sick. Epstein died November 4, 1944.

Under the view of the evidence outlined above we conclude that the defendant was not entitled to prevail on its motion for a directed verdict upon the ground that notice of sickness was not given in accordance with the policy provision. A verdict should never be directed for one party unless the evidence is such that no view the jury may lawfully take of it favorable to the other party can be sustained. Sardino v. Agnellino, 119 N.J.L. 7 (E. A. 1937). Under the same proofs, and other proofs which it is not necessary to recite, the plaintiff, also, was not entitled to have the issue determined in her favor as a matter of law.

The third point presented by the appellant is that the trial court committed error in excluding from evidence the testimony of Dr. Gorten as to the history he had obtained from the insured. It is well settled that the declarations of a patient as to his symptoms made to his physician or surgeon for the purpose of treatment are admissible in evidence. When those declarations are made, not for the purpose of treatment, but for the purpose of leading the physician or surgeon to form an opinion to which he may testify as a witness for the declarant, the better rule is that the declarations made under such circumstances are not competent evidence on behalf of the declarant. Consolidated Traction Co. v. Lambertson, 60 N.J.L. 452 (E. A. 1897 ). But when a physician who has examined the patient is called by the adverse party, the fact that he is called as an expert witness does not disqualify him from testifying, as any other witness at the instance of that adverse party might testify, to a relevant statement made by the patient at the time of the examination. Sandford v. The Chanaz Co., 117 N.J.L. 485 (E. A. 1936).

In the instant case the insured did not consult Dr. Gorten for the purpose of qualifying him as a medical expert. The consultation and examination at the doctor's office were for the purpose of diagnosing the patient's illness to the end that intelligent treatment might be administered. In view of the nature and purpose of that examination, and of the professional care rendered by the doctor to Epstein during the latter's hospitalization, we think that Dr. Gorten should have been accorded, with respect to giving testimony, the position of a treating physician. The court seems to have entertained the erroneous view that a physician who has been consulted by a patient for the purpose of consultation or treatment may not, properly, testify for the adverse party, and perhaps because of that view the court was led to adopt a somewhat hostile attitude toward the witness and in effect to invite from the plaintiff the motion for a direction of verdict in plaintiff's favor. We conclude that the ruling against the admission was error.

Appellant's final point is that the copy of Dr. Gorten's report to Dr. Kaufman should have been admitted in evidence. The argument advanced in support is that the attitude of the trial judge towards the witness had suggested a want of integrity and reliability, that the report, made of course before that circumstance had arisen, supported the truthfulness of the witness's testimony and that, under State v. Neiman, 123 N.J.L. 341 (Sup.Ct. 1939), affirmed on opinion below (E. A. 1940), the offered exhibit should have been admitted. We think that the incident had not developed into an attack on the witness's credibility and that the ruling was within judicial discretion.

The judgment below is reversed for the reasons stated in the discussion of appellant's points, one, two and three. The cause will be remanded for a new trial.

Justice HEHER concurred in the result. For reversal: Chief Justice VANDERBILT and Justices CASE, HEHER, OLIPHANT, WACHENFELD, BURLING, and ACKERSON — 7.

For affirmance: None.

EPSTEIN v. NATIONAL CASUALTY COMPANY