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HARGRAVE v. FIDELITY MUTUAL LIFE INSURANCE COMPANY. (12/14/61)

December 14, 1961

HARGRAVE, APPELLANT,
v.
FIDELITY MUTUAL LIFE INSURANCE COMPANY.



Appeal, No. 263, April T., 1961, from judgment of Court of Common Pleas of Somerset County, No. 180 Continuance Docket, 1960, in case of Joseph Kirk Hargrave v. The Fidelity Mutual Life Insurance Company. Judgment affirmed.

COUNSEL

Leland W. Walker, with him Walker and Kimmel, for appellant.

Charles H. Coffroth, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 196 Pa. Super. Page 629]

OPINION BY MONTGOMERY, J.

This is an appeal from a judgment rendered on the pleadings in an action in assumpsit for double disability income benefits under an insurance policy.

On April 2, 1930 the appellee insured the wife of the appellant, and for an additional premium the appellee agreed to pay the appellant the sum of $10.00 per month in the event the appellant became totally and permanently disabled. This insurance contract further provided that double indemnity of $20.00 per month be paid if total disability resulted from external violent and accidental means, and for the waiver of the annual premium during such disability.

On November 13, 1943 the appellant became seriously ill in his residence and was treated at a hospital. On November 18, 1943 he was readmitted to the hospital and his illness diagnosed as carbon monoxide poisoning. At this time the appellant was engaged in the business of repairing and manufacturing artificial dentures. He continued to supervise this business until he was obliged to liquidate the same due to a nervous and exhausted condition.

On May 14, 1944 the appellant was advised by his physician that he was totally and permanently disabled by reason of the monoxide poisoning. Thereafter the appellant has been paid and accepted $10.00 per month by the appellee as single indemnity for being totally disabled; but made no claim for double indemnity until February 3, 1960 when he instituted suit for its recovery. After an answer was duly filed, the lower court, upon motion of the appellee company, entered judgment on the pleadings in favor of the appellee, denying the appellant the benefits of the double indemnity provision of the policy.

The question raised by the case, both in the court below and in the appeal, is whether the appellant is entitled to double indemnity payments or is limited to

[ 196 Pa. Super. Page 630]

    single indemnity payments, since he failed to give notice in writing to the company's head office of his injury within sixty days from the date of the injury as required by the ...


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