Appeal, No. 50, April T., 1960, from judgment of Court of Common Pleas of Washington County, May T., 1958, No. 375, in case of Rose M. Kubacki v. Metropolitan Life Insurance Company. Judgment affirmed.
Charles G. Sweet, for appellant.
Adolph L. Zeman, with him Robert L. Zeman, and Zeman & Zeman, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 193 Pa. Super. Page 140]
We are here concerned with an action in assumpsit instituted by Rose M. Kubacki to recover double indemnity under a policy issued by the Metropolitan Life Insurance Company insuring the life of her husband, Andrew A. Kubacki, who died on October 22, 1957. The jury returned a verdict in favor of the plaintiff beneficiary. Motions by the defendant for judgment n.o.v. and for a new trial were overruled by the court en banc, one judge dissenting. The defendant has appealed from the entry of judgment on the verdict. The relevant policy provision is set forth in the footnote.*fn1
[ 193 Pa. Super. Page 141]
On the date of his death, Kubacki drove from his home in the Borough of Canonsburg to the nearby Citizens Water Dam for the purpose of fishing. Because of the abnormally dry weather, the water in the dam had receded for a considerable distance. The intervening area consisted of mud which had crusted over. At about 4:00 P.M., Harry T. Gibbs, a witness for the plaintiff, came across Kubacki's automobile sitting along the road with its motor running and the driver's door open. Gibbs then noticed Kubacki lying on his back about 100 feet out in the mud area. His left leg was stuck in the mud up to the knee. His right leg had been pulled completely out of the hip boot with the boot stuck in the mud and the sock still in the boot. Extreme difficulty was experienced in removing the body from the mud. Kubacki was pronounced dead by Dr. Sidney Safran at the Canonsburg Hospital. An autopsy, limited to the thoracic cavity, was performed by Dr. Ernest L. Abernathy, one of the pathologists at the Washington Hospital.
Plaintiff's theory at the trial was that Kubacki's death resulted from his efforts to extricate himself from the mud and that he died from a cerebral hemorrhage, independent of any other contributing cause. The theory of the defense, based on the autopsy report, was that Kubacki died as the result of an existing heart condition, which not only contributed to his death but actually was the sole and exclusive cause. The autopsy report is set forth in the footnote.*fn2
[ 193 Pa. Super. Page 142]
Plaintiff testified that her husband was 38 years of age, that he maintained steady ...