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FRANKEL v. RELIANCE MUTUAL LIFE INSURANCE COMPANY ILLINOIS (09/13/62)

September 13, 1962

FRANKEL
v.
RELIANCE MUTUAL LIFE INSURANCE COMPANY OF ILLINOIS, APPELLANT.



Appeal, No. 22, Oct. T., 1962, from judgment of County Court of Philadelphia, May T., 1958, No. 2880, in case of Alvin H. Frankel, guardian of estate of Miguel Quinones, a minor, v. Reliance Mutual Life Insurance Company of Illinois. Appeal quashed.

COUNSEL

S. Gordon Elkins, with him Stradley, Ronon, Stevens & Young, for appellant.

William J. Toy, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 199 Pa. Super. Page 297]

OPINION BY WOODSIDE, J.

This is an appeal by the defendant insurance company from a finding against it in the County Court of Philadelphia. The minor plaintiff is claiming under a master school accident insurance policy issued to the district where he was enrolled. It is admitted that the

[ 199 Pa. Super. Page 298]

    child was insured by the defendant against the injuries which he suffered when struck by an automobile on his way to school. The only question is whether the insured should be denied recovery for failure to give to the insurance company the required notice of the injuries and to file with it the proof of loss within the time required by the policy.

The action was brought in assumpsit. A complaint, an answer with new matter, and a reply were filed. When the case came before the court for trial, no testimony was taken, but four undenied paragraphs of the complaint were offered into evidence and admitted along with a "stipulation of facts as a case stated". The stipulation contained an agreement that the "facts be and the same hereby are admitted into evidence ... as though same had been formally proved at trial ...", and that "The Court shall determine the rights of the Plaintiff to recover in accordance with the facts hereinafter stated and the applicable legal principles involved." It was also stipulated that the court should "determine the issue of liability only and that if the said issue is favorably decided toward the Plaintiff, the parties will amicably agree to the amount of compensation to which the Plaintiff is entitled."

On August 24, 1961, the court found for the plaintiff, and on November 1, 1961, the parties stipulated "that the amount of the Court's finding" should be $1678.28. No exception was filed to the court's finding for the plaintiff. After the defendant appealed to this Court, a motion was filed by the plaintiff to quash the appeal on the ground that the Act of April 22, 1874, P.L. 109, as amended, authorizing a trial by a judge without a jury, provides in § 2, 12 P.S. § 689, that exceptions must be filed in the court below and disposed of there before an appeal can be taken. The motion will be granted. McDermott v. Blank, 230 Pa. 392, 79 A. 657 (1911); Meitner v. Scarborough, 321 Pa. 212,

[ 199 Pa. Super. Page 299184]

A. 81 (1936); Evans v. Moffat, 388 Pa. 559, 131 A.2d 141 (1957); G. I. Motors, Inc. v. Broadway Motors, Inc., 172 Pa. ...


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