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ELIZABETH I. MCGURL BENESHUNAS v. INDEPENDENCE LIFE AND ACCIDENT INSURANCE COMPANY (06/13/86)

filed: June 13, 1986.

ELIZABETH I. MCGURL BENESHUNAS, APPELLEE,
v.
INDEPENDENCE LIFE AND ACCIDENT INSURANCE COMPANY, APPELLANT



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 639 May Term, 1980.

COUNSEL

Gilbert F. Casellas, Philadelphia, for appellant.

Felix P. Gonzalez, Philadelphia, for appellee.

Wickersham, Wieand and Popovich, JJ. Popovich, J., files a concurring and dissenting statement.

Author: Wieand

[ 354 Pa. Super. Page 393]

Elizabeth McGurl Beneshunas was the beneficiary of a policy of insurance issued by Independence Life and Accident Insurance Company to provide indemnity in the event of the accidental death of the beneficiary's son, Harry McGurl. The insured was killed when the tractor trailer unit which he was operating collided with a concrete bridge abutment. The insurance company denied liability pursuant to a policy exclusion applicable to death caused in whole or in part by the insured's intoxication. Beneshunas sued and, following trial without jury, recovered a verdict for $15,000.00. The insurer's motion for post-trial relief was denied, and judgment was entered on the verdict.

On appeal, the insurer contends (1) that the trial court's findings were not supported by the evidence, and (2) that the trial court committed an abuse of discretion when it denied the insurer's request to reopen its case for the purpose of hearing the testimony of the insured's widow.

The written policy provided as follows:

[ 354 Pa. Super. Page 394]

"The company shall not be liable for any loss to which a contributing cause was the insured's being intoxicated or under the influence of any narcotic unless administered on the advice of a physician."

At trial, the beneficiary established that her son, the insured, had died as a result of accident. The burden was then upon the insurer to show by a fair preponderance of the evidence that a contributing cause of the accident had been the insured's intoxication. The trial court determined that the appellant-insurer had failed to meet this burden.

"In reviewing the findings of the trial judge, the test is not whether the appellate court would have reached the same result on the evidence presented, but [whether], after due consideration of the evidence, a judge could reasonably have reached the conclusion of the trial judge." Delahanty v. First National Bank, N.A., 318 Pa. Super. 90, 113-114, 464 A.2d 1243, 1255 (1982). See: School District of City of Harrisburg v. Pa. Interscholastic Athletic Assn., 453 Pa. 495, 499, 309 A.2d 353, 356 (1973). The evidence must be viewed in the light most favorable to the party prevailing at trial. Delahanty v. First National Bank, N.A., supra, 318 Pa. Super. at 114, 464 A.2d at 1255; Krobot v. Ganzak, 194 Pa. Super. 49, 52, 166 A.2d 311, 312 (1960). In examining the evidence of record and the trial judge's conclusions based on the evidence he found credible, we are cognizant of the rule that it is not the province of an appellate court to find facts nor substitute its judgment for that of the trial judge. Delahanty v. First National Bank, N.A., supra; Stowe v. Booker, 284 Pa. Super. 53, 57, 424 A.2d 1388, 1390 (1981). Therefore, we accept the trial judge's findings with respect to the credibility of the witnesses and the weight to be accorded their testimony. Delahanty v. First National Bank, N.A., supra; In Interest of Black, 273 Pa. Super. 536, 543, 417 A.2d 1178, 1182 (1980); Commonwealth ex rel. Pruss v. Pruss, 236 Pa. Super. 247, 249, 344 A.2d 509, 510 (1975).

Trooper Eugene Baidas, a twenty-five year veteran of the Pennsylvania State Police, testified ...


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