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COBOSCO v. LIFE ASSURANCE COMPANY PENNSYLVANIA (09/17/64)

decided: September 17, 1964.

COBOSCO
v.
LIFE ASSURANCE COMPANY OF PENNSYLVANIA, APPELLANT



Appeal from judgment of Court of Common Pleas of Luzerne County, March T., 1963, No. 620, in case of Emma B. Cobosco v. Life Assurance Company of Pennsylvania.

COUNSEL

Morris J. Dean, with him David J. Dean, and Dean & Dean, for appellant.

Albert N. Danoff, with him Patrick J. Toole, Jr., and Winkler, Danoff, Lubin and Toole, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 204 Pa. Super. Page 121]

Plaintiff-appellee recovered a jury verdict of $3,258.50 (subsequently reduced to $2,900 by the filing of a remittitur of $358.50) on a claim based on a policy of health and accident insurance issued to her by defendant-appellant. This appeal is from the entry of judgment on the verdict as reduced after appellant's motions for judgment n.o.v. and for a new trial had been refused. Although appellant's counsel has devoted much of his brief in support of an argument for a new trial, we shall not consider this appeal as from a refusal of a new trial. Counsel for appellant advised the lower court of his withdrawal of the motion for a new trial and an order denying it was entered on that basis. Since the lower court did not pass on the reasons assigned by appellant for a new trial, we will not do so on appeal. When counsel seeks to have the appellate court consider matters which are not properly before it and counsel is fully aware of that fact, as it must have been in the present case, the real issues become obscure. Such efforts are not to be encouraged. The duty of attorneys is to assist the judges and not to render their tasks more difficult. Rago v. Nelson, 194 Pa. Superior Ct. 317, 166 A.2d 88 (1960).

Although this action was instituted to recover benefits for total disability and a further sum for premiums alleged to have been mistakenly paid when in fact they had been waived under the terms of the policy, we are no longer concerned with the second claim inasmuch as appellee has filed a remittitur for the amount of same, which had been included in the verdict.

Factually, Mrs. Cobosco fell on October 29, 1960, in a restaurant near Stroudsburg and suffered a fracture of the right femur, which required an open reduction and the insertion of a Smith-Peterson nail. A

[ 204 Pa. Super. Page 122]

    shortening of the right lower extremity resulted. After her discharge from the hospital she was walking with the aid of crutches in her home on December 24, 1960, when she fell and suffered another fracture of the same femur. On October 16, 1961, she fell for the third time and wrenched her right knee.

Appellant paid benefits to appellee as follows: Total disability, October 29, 1960, to August 24, 1961, in the sum of $2,699.98; partial disability, August 24, 1961, to October 16, 1961, in the sum of $173.33; total disability, October 16, 1961, to January 20, 1962, $626.66; partial, January 20, 1962, to February 20, 1962, $100; partial, February 20, 1962, to February 28, 1962, $26.67. The verdict included $2,900 for total disability payments from March 1, 1962, to May 15, 1963, at $200 per month. It is appellant's contention that the record does not support a finding that appellee's injuries caused "continuous total disability and total loss of time" as required by article IV of the policy, after January 20, 1962.

Appellant advances a second contention by which it denies responsibility for any disability after January 20, 1962. This contention is based on the theory that the policy lapsed because of nonpayment of the November, 1961 premium within the grace period allowed by the policy and that the subsequent acceptance of that payment constituted a "reinstatement" of the policy. The policy provided: "The reinstated policy shall cover only loss resulting from such accidental injury as may be sustained after the date of reinstatement and loss due to such sickness as may begin more than ten days after such date. In all other respects the insured and insurer shall have the same rights thereunder as they ...


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