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PAUL TIMBROOK v. FOREMOST INSURANCE COMPANY (02/10/84)

filed: February 10, 1984.

PAUL TIMBROOK, ADMINISTRATOR OF THE ESTATE OF DAVID M. TIMBROOK, DECEASED
v.
FOREMOST INSURANCE COMPANY, APPELLANT



No. 1196 Pittsburgh, 1981, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of McKean County, No. 79 C.D. 1980.

COUNSEL

Murray R. Garber, Bradford, for appellant.

Robert L. Saunders, Bradford, for appellee.

Cercone, President Judge, and Spaeth and Hester, JJ. Spaeth, J., filed a concurring statement.

Author: Hester

[ 324 Pa. Super. Page 386]

This is an appeal from the denial of a motion for directed verdict and for judgment non obstante veredicto (hereinafter judgment n.o.v.). Appellee, administrator of the estate of David M. Timbrook, sought and recovered an award against appellant as the insurer of the deceased. Appellant argues on appeal that the lower court erred in not granting

[ 324 Pa. Super. Page 387]

    its motions for a directed verdict and judgment n.o.v. We agree and, therefore, we reverse.

The standard which we employ when reviewing the denial of a motion for directed verdict and a motion for judgment n.o.v. is the same. We will only reverse the lower court when we find "an abuse of discretion or an error of law which controlled the outcome of the case." McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 442, 450 A.2d 991, 993 (1982). In ruling upon these motions, the trial judge must consider "the evidence, together with all reasonable inferences that may be drawn therefrom . . . in the light most favorable to the verdict winner." Carrender v. Fitterer, 310 Pa. Super. 433, 436, 456 A.2d 1013, 1014 (1983). Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary, the trial judge must grant said motions when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case. Thomas v. Allegheny & Eastern Coal Co., 309 Pa. Super. 333, 455 A.2d 637 (1982).

The evidence adduced at the one-day trial was undisputed and uncontradicted.*fn1 Decedent was a career forester. Following his graduation from college, where he was awarded a degree in forestry, he was hired by the state of Washington as a forest fire-fighter. From May, 1976, until the date of his death, August 21, 1979, he was employed by Columbia Helicopters, a company engaged in harvesting timber. During this period he worked in Canada, Washington, Oregon, Montana, and three different locations in Idaho as a logger or woods boss. Since housing accommodations were difficult to locate in these areas, the decedent purchased a trailer. This trailer constituted his sole residence from the date of its acquisition in 1977 until the date of his death. He had no residence in Idaho or in any location in the Pacific northwest other than the aforementioned

[ 324 Pa. Super. Page 388]

    trailer. The decedent died as the result of a logging accident which occurred while he was engaged in the course of his employment as a woods boss.

The decedent had maintained a policy of liability insurance on his travel trailer. Under the caption entitled "Scheduled Medical ...


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