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SAFRAN v. MUTUAL LIFE INSURANCE COMPANY NEW YORK (09/15/67)

decided: September 15, 1967.

SAFRAN
v.
MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, APPELLANT



Appeal from judgments of County Court of Philadelphia, Dec. T., 1963, No. 14266-A, in case of Moses A. Safran v. Mutual Life Insurance Company of New York.

COUNSEL

Tyson W. Coughlin, with him Matthew M. Strickler, Samuel C. Cantor, of the New York Bar, and Ballard, Spahr, Andrews & Ingersoll, for appellant.

David Berger, with him Norman C. Henss, and Cohen, Shapiro, Berger, Polisher and Cohen, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J.

Author: Watkins

[ 210 Pa. Super. Page 409]

This is an appeal from judgment n.o.v. entered by the County Court of Philadelphia in favor of the plaintiff-appellee, Moses A. Safran, and against the defendant-appellant, Mutual Life Insurance Company of New York, in the amount of $1585.17; and from judgment n.o.v. entered in favor of the appellee-insured on the counterclaim of the appellant insurance company.

The company had paid monthly disability payments to the insured on two life insurance policies from October 1956 until May 17, 1963, when it refused to continue payments. This action sought to recover $1350 with interest for benefits from that date until the institution of the suit. The company counterclaimed to recover benefits paid in the amount of $4600 upon the ground that the insured became ineligible for benefits in June of 1960, since, at that time "plaintiff was following and/or capable of following a gainful occupation

[ 210 Pa. Super. Page 410]

    and has so continued to the present date". The jury brought in a verdict for the company in the amount of $5980, the amount of the benefits claimed in the counterclaim, with interest, and found for the company on the insured's claim. Post trial motions were filed and the court en banc, with the trial judge dissenting, entered judgment n.o.v. in favor of the appellee on both claim and counterclaim.

At the time of trial, the insured was 67 years of age, spoke with a speech impediment, was hard-of-hearing and had walking difficulties as a result of a stroke and a number of heart attacks. The court below relates his history as follows:

"There is no question that the plaintiff was in good health in 1929 when the policies were issued. At that time he was 31 years of age. He came to the United States at the age of 13 and had little formal education. He made his living as a salesman and, in 1922, started his own jewelry business. He developed a business which had eighteen employees and sold jewelry in about 20 States.

"He had a stroke in 1932 and received disability benefits for about 15 months. In 1937 he was injured in an accident, sustaining a fractured knee. He received disability benefits on that occasion until he was able to resume work. In 1942 he had a heart attack and received benefits for the period of disability. He had several seizures in the years that followed. In 1947 he was hospitalized and received benefits until he was able to resume work. He has been under constant medical attention since 1949. In 1956 he had a severe attack and was hospitalized at the Jefferson Hospital. Plaintiff made claim for total and permanent disability. He submitted ...


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