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COBOSCO v. LIFE ASSURANCE COMPANY PENNSYLVANIA (09/29/65)

decided: September 29, 1965.

COBOSCO, APPELLANT,
v.
LIFE ASSURANCE COMPANY OF PENNSYLVANIA



Appeal from judgment of Superior Court, Feb. T., 1965, No. 3, reversing 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

Albert N. Danoff, with him Winkler, Danoff, Lubin and Toole, for appellant.

T. F. Gill, with him David J. Dean, Morris J. Dean, and Dean and Dean, for appellee.

Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell dissents.

Author: Cohen

[ 419 Pa. Page 160]

This is an appeal from the judgment of the Superior Court, which reversed a judgment upon a jury verdict for plaintiff, insured, and entered judgment n.o.v. for defendant, insurance company. We granted allocatur for the sole purpose of determining whether or not the Superior Court correctly decided that the

[ 419 Pa. Page 161]

    insurance company was entitled to judgment n.o.v. on the ground that the evidence was insufficient to show that Mrs. Cobosco was "totally disabled," within the meaning of the insurance contract and the pertinent case law, for the period of March 1, 1962, to May 17, 1963. Without comment, we affirm the Superior Court's decision on the other questions which were raised before it.*fn1

It is clear that in deciding upon the propriety of a judgment n.o.v. the evidence must be reviewed in the light most favorable to the verdict winner, Mrs. Cobosco, and all conflicts therein must be resolved in her favor and she must be given the benefit of every reasonable inference therefrom. Greco v. 7-Up Bottling Company of Pittsburgh, 401 Pa. 434, 165 A.2d 5 (1960); Brandon v. Peoples Natural Gas Company, 417 Pa. 128, 207 A.2d 843 (1965). If, from the evidence so reviewed, a reasonable jury might conclude that Mrs. Cobosco was "totally disabled" for the period in question, then she is entitled to the judgment entered for her in the trial court.

[ 419 Pa. Page 162]

It is undisputed that on October 29, 1960, Mrs. Cobosco fractured her right femur, necessitating hospitalization, an open reduction of the fracture, and the insertion of a Smith-Peterson nail. On December 24, 1960, she again fractured her right femur, necessitating hospitalization and another open reduction, and the placing of a metal plate on her right femur. In October, 1961, she twisted the same leg.

It is also undisputed that from 1951, until her injury on October 29, 1960, Mrs. Cobosco's sole occupation was operating, almost entirely by herself, a 25 x 100 foot hardware store owned by her. Before then, she operated the store together with her husband. As the Superior Court stated, "The only other specialized training that Mrs. Cobosco has ever had was as an elementary school teacher; but since she taught school for only four years about twenty-eight years ago and has neither a college degree nor a teaching certificate, she is not now qualified in that field." Cobosco v. Life Assurance Company of Pennsylvania, 204 Pa. Superior Ct. 119, 126, 203 A.2d 353 (1964).

It is further undisputed that the duties required in the operation of the hardware store are attending hardware shows, purchasing stocks, soliciting orders, making deliveries, maintaining the appearance of the store, stocking the shelves, arranging displays, and waiting on customers. These duties necessitated both mental and physical efforts, the latter including the driving of a car, going up and down a ladder, and the handling of items varying in weight from light to very heavy. Up to her injury on October 29, 1960, Mrs. Cobosco performed these duties almost entirely by herself, eight to ...


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