F. Brewster Wickersham, Metzger & Wickersham, Harrisburg, for appellant.
Charles J. Ware, George Kunkel, Harrisburg, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 87]
Dauphin Deposit Trust Company, executor of the estate of Charles William Hardt, deceased, instituted assumpsit against Lumbermens Mutual Casualty Company upon a policy of insurance, and recovered a verdict. Defendant appealed from refusal of its motion for judgment n. o. v.
The pertinent provisions of the policy insured Hardt 'against loss resulting directly and independently of all other causes from bodily injuries * * * solely through accidental means, which bodily injuries or their effects shall not be caused wholly or in part, directly or indirectly, by any disease, defect or infirmity and sustained: A. While driving or riding in a private passenger automobile of the pleasure car type.'
Plaintiff claims that the injuries suffered by Hardt in an automobile collision caused his death. The defense was that a pre-existent coronary thrombosis caused Hardt's death, and that he was actually dead before the collision.
In suits upon policies of this type, plaintiff must establish more than a casual relation between the accident and the death. He must show that the death was caused solely by external and accidental means, and if the proof points to a pre-existent infirmity, which may have been a contributing factor, plaintiff must also produce evidence to exclude the possibility. Rodia v. Metropolitan Life Ins. Co., 354 Pa. 313, 47 A.2d 152. It should be noted, however, as Mr. Justice Horace Stern pointed out in Frame v. Prudential Ins. Co., 358 Pa. 103, 106, 56 A.2d 76, 77, 'that the word 'possibility' in
[ 171 Pa. Super. Page 88]
that connection is not to be taken in its absolute or literal sense, but rather as having the practical meaning which the law ordinarily ascribes to such abstract terms.' At another place 358 Pa. at page 108, 56 A.2d at page 78, he said: 'The right to recover on the policy was barred only if there was in fact such a contributing factor, not if, as a mere matter of speculation, there may have been.' That is to say, plaintiff is not required to produce conclusive or incontrovertible evidence which excludes the possibility of a contributing factor. He meets the requirements of the burden of proof resting upon him where his evidence forms the basis for a sound conclusion that the accident, and not the contributing factor, was the actual, immediate and direct cause of the death.
Before reviewing the evidence it should be stated that since plaintiff has the verdict, all the evidence and all the inferences fairly deductible therefrom which are favorable to plaintiff must be taken as true and all evidence and inferences unfavorable to it must be rejected. Foulkrod v. Standard Accident Ins. Co., 343 Pa. 505, 23 A.2d 430; McIntyre v. Equitable Life Assur. Soc., 324 Pa. 417, 188 A. 172.
At the time of the accident Hardt was 74 years of age. He was employed by the State Highway Department as an engineer in charge of township roads in four counties, and his duties required constant travel by automobile through his territory. His son testified that his father was 'in excellent health all his life', and that on the morning of the accident 'he seemed to be in fine spirits, he was in excellent health, couldn't have been better.' Defendant in its brief concedes that 'he appeared to be in good health.' Ten months before the accident, Dr. Paul A. Kunkel had performed a surgical operation, described as 'a repair ...