Grollman v. Metropolitan Life Insurance Company, Supreme Court of Pennsylvania (March 21, 1938)

Factual and Procedural Background

The action was assumpsit on insurance policies. The central factual dispute was the age of the policyholder. At trial in the Court of Common Pleas of Northampton County (Feb. T., 1936, No. 114) the jury returned a verdict and judgment for plaintiff (appellee). Defendant (appellant) appealed (Appeal No. 36, Jan. T., 1938). Appellee's and his mother's testimony had been taken by deposition (the jury did not see or hear them), while appellee's brother and son testified in open court. The Supreme Court affirmed the judgment.

Legal Issues Presented

Whether a new trial was required because key witnesses (appellee and his mother) testified by deposition and the jury did not see or hear them, such that this Court would have an equal advantage in determining facts.
Whether omissions in the trial court's charge, specifically failure initially to state the burden of proof, constituted reversible error.
Whether the trial court's reference to defendant's testimony as "not conclusive" was reversible error.

Arguments of the Parties

Appellant's Arguments

Relied on prior decisions (Gilbraith's Estate; Mirkil v. Morgan) for the proposition that when a fact-finding body has not seen or heard witnesses, an appellate court has an equal advantage in determining questions of fact, and argued this principle should extend to jury findings to justify granting a new trial.
Assigned error to the trial court's omission in its main charge to state the burden of proof, arguing inadequate instruction prejudiced the defense; contended the court's reference to appellant's testimony as "not conclusive" was improper.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gilbraith's Estate, 270 Pa. 288, 289	The rule that if the fact-finding body has not seen or heard witnesses, an appellate court is in as good a position as the tribunal to determine questions of fact.	Cited by appellant to argue for extending the rule to jury findings; court found the extension unnecessary here because the appellee's case also included live testimony the jury saw and heard.
Mirkil v. Morgan, 134 Pa. 144, 155	Same principle as cited in Gilbraith's Estate regarding appellate parity when factfinders have not seen or heard witnesses.	Used by appellant to support request for new trial; court declined to apply the principle because live testimony was present in the trial record.
Slocock v. Liggit, 326 Pa. 492, 494	Failure to except particularly to omission in instructions precludes raising the omission on general exception unless the charge error is basic and fundamental.	Cited to support affirmance; court held appellant's failure to point out deficiencies when invited to do so barred relying on general exception absent fundamental error.
Mulheirn v. Brown et al., 322 Pa. 171, 177	Same procedural rule regarding the requirement of particular exceptions to trial judge's omissions in charge.	Applied to conclude the appellant could not rely on general exceptions for omitted instructions that were not shown to be fundamental.
Tropical P. O. Co. v. Sharon Building Co., 313 Pa. 51, 52	Reiterates the necessity of specific exceptions to trial court charges to preserve error on appeal.	Relied upon in assessing appellant's challenge to the charge; omissions were not deemed fundamental after review.
Winters et al. v. York Motor Express Co., 116 Pa. Super. 421, 425	Affirms the rule that general exceptions do not preserve alleged omissions in the trial court's charge unless the error is fundamental.	Used with the other authorities to support the court's holding that appellant's general exception was insufficient to sustain reversal.
Notes, 1 A.L.R. 469; 14 A.L.R. 927	References for the rule in many jurisdictions that an insurer defending on misrepresentation of age may have the burden to prove the insured's age is other than as stated.	Mentioned in a footnote; the court did not decide the point but noted the rule might have favored defendant if adopted.

Court's Reasoning and Analysis

The court identified the single factual issue as the insured's age and noted the jury's verdict for appellee rested on both depositions (appellee and his mother) and live testimony (appellee's brother and son). On the argument that the appellate court should have equal advantage because the jury did not see two witnesses, the court cited Gilbraith's Estate and Mirkil v. Morgan but found the principle inapplicable here because there was live testimony the jury did observe. Regarding the charge, the court acknowledged the trial judge initially omitted reference to the burden of proof but, when alerted by appellant's counsel, instructed the jury that the burden was on appellee to establish his age. The court emphasized that when it later asked counsel if the instructions were adequate, counsel made no suggestions or specific exceptions; relying on established precedent, the court held failure to except particularly precluded raising the omissions on a general exception unless the error was basic and fundamental. After reviewing the evidence and the charge, the court concluded the omissions were not fundamental. Finally, when the trial court referred to appellant's testimony as "not conclusive," it immediately remedied any potential prejudice by instructing that the nonconclusive remark applied equally to appellee's proof and that the jury should consider all evidence in reaching its determination.

Holding and Implications

JUDGMENT AFFIRMED

Direct effect: The jury verdict and judgment for plaintiff (appellee) were upheld; appellant's request for a new trial was denied. The opinion did not announce a new rule of law; it applied established principles concerning when omissions in a trial court's charge may be raised on appeal and addressed the curative instruction given regarding the "not conclusive" remark.

Show full summary ...

Grollman v. Metropolitan Life Insurance Company, Appellant.

Practice — Charge — Inadequacy — Failure to except particularly — Reference to defendant's proof as "not conclusive."

1. Failure to except particularly to the trial judge's omission to give adequate instructions on any branch of the case precludes such error from being raised on general exception, and from being assigned as error on appeal unless the error in the charge is basic and fundamental. [272]

2. In an action of assumpsit, reference by the trial court to defendant's testimony as being "not conclusive" was held not to be reversible error, where, when this was called to the court's attention, it immediately instructed the jury that its statement as to the nonconclusive character of the defendant's proof applied equally as well to plaintiff, and that the jury should take into consideration all the evidence in reaching their determination. [272]

Argued January 7, 1938.

PER CURIAM, March 21, 1938:

The single issue before the court below was the age of the policyholder. We need not detail the testimony which was submitted to the jury, and upon which a verdict and judgment were rendered in favor of appellee. We are asked to grant a new trial, and it is argued that an exception to the rule of "manifest abuse of discretion by the trial court" is presented because appellee's testimony, as well as that of his mother, was taken by depositions and the jury did not hear and see these witnesses. Appellant cites Gilbraith's Estate, 270 Pa. 288, 289 and Mirkil v. Morgan, 134 Pa. 144, 155, wherein we held that if the fact-finding body has not seen or heard the witnesses, this court has equal advantage with it in determining questions of fact. Appellant argues for an extension of this principle to a jury finding. Whether the rule should be so extended is of no moment here, for, even an extension of the principle could obviously have no application, since appellee's case depended not merely upon his own and his mother's depositions (witnesses whom the jury did not see and hear), but also upon testimony given in open court by his brother and son.

Appellant also complains of the charge on the burden of proof. The court omitted any reference to the burden of proof in its main charge, but when appellant's counsel called this to its attention it then briefly instructed the jury that the burden was upon appellee to establish his age. A sufficient answer to appellant's objections to the charge is that at the conclusion of its instructions the court below asked counsel whether they were adequate, and counsel did not offer any suggestions or point out any deficiencies either with respect to the burden of proof or to other matters now alleged as errors. The rule is firmly established that failure to except particularly to the trial judge's omission to give adequate instructions on any branch of the case precludes it from being raised on general exception, and from being assigned as error on appeal, unless the error in the charge is basic and fundamental. See Slocock v. Liggit, 326 Pa. 492, 494; Mulheirn v. Brown et al., 322 Pa. 171, 177; Tropical P. O. Co. v. Sharon Building Co., 313 Pa. 51, 52; Winters et al. v. York Motor Express Co., 116 Pa. Super. 421, 425. In the light of a thorough review of the evidence in the charge of the court below, we do not deem these omissions fundamental error.

Without passing upon this question it may be that the defendant thereby received a more favorable charge than it was entitled to, for the rule in a great many jurisdictions is that an insurer, defending on the ground of misrepresentation of age, has the burden of proving that the age of the insured is other than as stated by him. See Notes, 1 A.L.R. 469; 14 A.L.R. 927.

The only other complaint of appellant is that the court referred to appellant's testimony as "not conclusive." When this was called to the court's attention it immediately remedied whatever prejudice, if any, appellant may have suffered, by instructing the jury that its statement as to the nonconclusive character of the defendant's proof applied equally as well to appellee's, and that they were to take into consideration all the evidence in reaching their determination.

Judgment affirmed.

GROLLMAN v. MET. LIFE INS. CO