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ZAGOWSKY v. JOHN HANCOCK MUT. LIFE INS. CO. WALKER V. JOHN HANCOCK MUT. LIFE INS. CO. (01/20/53)

January 20, 1953

ZAGOWSKY
v.
JOHN HANCOCK MUT. LIFE INS. CO. WALKER V. JOHN HANCOCK MUT. LIFE INS. CO.



COUNSEL

D. C. Jennings, Pittsburgh, for appellant.

Albert F. Paslow, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.

Author: Hirt

[ 172 Pa. Super. Page 320]

HIRT, Judge.

Elizabeth Zagowsky, insured under three life policies issued by defendant John Hancock Mutual Life Insurance Company, died on April 30, 1950. Each of the policies contained a provision for the payment of additional benefits equal to the face amount, upon proof 'that the death of the Insured was caused directly, independently and exclusively of all other causes, by a bodily injury sustained solely by external, violent and accidental means'. Recovery was further limited by the provision: 'The Company shall not be liable for the payment of the Additional Benefits * * * If such death results, directly or indirectly, or wholly or partially, * * * from any bodily or mental disease * * *.' Steve Zagowsky, son of the insured was the named beneficiary in two of the policies and Julia Walker, a daughter, in the third. The defendant has paid the sum insured on the life of Elizabeth Zagowsky as specified in each of the policies. These actions were brought by the beneficiaries to recover additional benefits under the above double indemnity clause. The jury found for the plaintiffs and the lower court entered judgments on the verdicts. In these appeals the defendant contends that the court erred in refusing to enter judgment in its favor n. o. v. on the general ground that there is no evidence of the cause of death. The judgments will be reversed.

About 6:30 in the morning of April 30, 1950, the insured was observed lying on a flight of outside steps

[ 172 Pa. Super. Page 321]

    leading to her son's home on Barry Street in Pittsburgh. The police, upon notice, immediately removed the body to South Side Hospital in Pittsburgh where she was declared dead. The only evidence as to her prior activities were that she had spent the evening of April 29 in a saloon, drinking wine and dancing from about 11 p. m. until midnight but was not intoxicated. She was 62 years old. The steps were of wood and were not of firm construction. But the insured had lived in her son's house for a year and a half and she was familiar with the condition of the stairway. The body was lying on the fourth step from the bottom, face down, with the head toward the wall of the house and one leg protruding through the railing on the outside of the steps. The injuries as evidenced externally were bruises on the legs, a cut on the upper lip below the nostril, and a second superficial cut on the forehead at the hair line. No autopsy was held and there was no medical testimony as to the cause of death.

The plaintiff's right to recover in each instance was limited by the terms of the policy to death from violent, external and accidental means, to the exclusion of any bodily or mental disease or infirmity. There were no witnesses to the occurrence although circumstantial evidence, in the light of the verdicts, may be accepted as establishing an accidental fall. The evidence from all of the circumstances however is insufficient, especially in view of the superficial injuries to the insured's body, to sustain a finding that death resulted solely from the fall or other accidental means. There is no other evidence and plaintiffs therefore have failed to meet the burden of proof, essential to charging the insurer with liability for double indemnity.

In Keefer v. Pacific Mut. Life Ins. Co., 201 Pa. 448, 51 A. 366, the action was on a policy containing the same limitation

[ 172 Pa. Super. Page 322]

    on the payment of additional benefits. The insured had died two days after a fall. In that case it was categorically stated as the established rule that the burden of proof was on the plaintiff to establish that death resulted as a consequence of the fall. Judgment for the defendant was affirmed for want of proof to that effect. In Mulholland v. Fidelity & Casualty Co., 161 Pa. Super. 425, 55 A.2d 561, 562, the beneficiary sued for additional benefits under a similar clause, within the same limitation as imposed in the present policies. Following the trial of the case, in which the jury disagreed, the lower court entered judgment for the defendant insurer on the whole record. In that case there was no medical testimony of a causal connection between an injury from a fall and death. And we affirmed the judgment for the defendant because of the failure of the plaintiff, ' upon whom rested the burden of proof, * * * to present facts or circumstances from which the jury could infer legitimately to the exclusion of other inferences equally plausible that the insured's death resulted from an accident '.' The above language in ...


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