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September 16, 1960


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.

Author: Wright

[ 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 and regular employment,

[ 193 Pa. Super. Page 143]

    that he never lost any work because of sickness or ill health, that he was an expert glazier and often performed services of that nature after his working hours, that he assisted the carpenters, plumbers, and painters in working on his dwelling, recently remodeled, that he did all of the usual chores around the home and around the home of his parents who lived nearby, including mowing the lawn and spading a large garden, that her husband had returned from work about 3:00 on the day of his death and was apparently in normal health. Her testimony was substantially corroborated by that of Joseph Arceri and E. I. Vitullo.

Dr. Harold Sloan, who impressed the trial judge "as having a profound grasp of the medical problems

[ 193 Pa. Super. Page 144]

    involved", testified for the plaintiff that the cause of Kubacki's death was a cerebral hemorrhage and that the heart condition disclosed by the autopsy was not in any way a contributing factor. "A. Well, in my professional opinion, the cause of death here was definitely due to a cerebral hemorrhage ... Q. Doctor, in your opinion, even if we assume the conditions of this man's heart as disclosed by Dr. Abernathy's report, in your professional opinion, would the condition of this man's heart in any way contribute to his death? A. None whatsoever. Q. Doctor, if this man had had a perfectly normal heart, would the end result have been the same? A. Exactly the same". Dr. Sloan stated that "in medical diagnosis you would say it was a subarachnoid hemorrhage" caused by fear and panic in Kubacki's attempt to extricate himself from the mud - "in a layman's term, you might say he was scared to death". Without questioning the autopsy findings, Dr. Sloan pointed out that Dr. Abernathy did not follow the usual and established procedure of posting the entire body, including the brain. He stated that persons with myocardial infarction often lead normal lives and die from independent causes. Vigorous cross-examination failed to shake Dr. Sloan's testimony.

For the defense, Dr. Abernathy testified in detail as to the autopsy, and that "the sole single cause" of Kubacki's death was a coronary occlusion with consequent infarction. His conclusion was largely predicated on the basis of an assumption that a thrombus had formed four days prior to death. Dr. Abernathy admitted that there are types of brain hemorrhage which cause sudden death, and that without an examination of the brain he could not say whether or not there was a cerebral accident. He attempted to explain the incomplete autopsy on the ground of a policy of economy in the coroner's office. Dr. J. Paul Proudfit, formerly

[ 193 Pa. Super. Page 145]

    a medical examiner for the appellant, testified that the conditions described in the autopsy report "are quite adequate as a complete explanation for death", and stated that Kubacki died "of a clear cut coronary occlusion". He admitted the possibility of a cerebral accident independent of a heart condition, and that coronary occlusion is frequently found at autopsy in persons who have died of other causes.

Appellant's first and principal contention is that the lower court should have granted judgment n.o.v. because the plaintiff failed to establish that Kubacki died "as the result, directly and independently of all other causes, of bodily injuries caused solely by external, violent, and accidental means". In passing upon this contention we must view the evidence in the light most favorable to the plaintiff who has the verdict: Geiger v. Schneyer, 398 Pa. 69, 157 A.2d 56; Richardson v. Wilkes-Barre Transit Co., 172 Pa. Superior Ct. 636, 95 A.2d 365; Forbes v. Forbes, 159 Pa. Superior Ct. 243, 48 A.2d 153; Lessy v. Great A. & P. Tea Co., 121 Pa. Superior Ct. 440, 183 A. 657. Appellant argues that the verdict cannot stand in the face of the positive autopsy findings, that the plaintiff's evidence is wholly speculative, having no foundation in scientific fact, and that as a matter of law the type of opinion evidence presented by Dr. Sloan was insufficient to support the verdict.

There is no dispute as to the applicable legal principles. Plaintiff concededly had a two-fold burden. She was required not only to show a direct casual relation between the accident and the death, but also to establish that the death was caused solely by external and accidental means. Where the proof points to a pre-existing and substantial infirmity which may have been a contributing factor, plaintiff must also produce evidence to exclude such possibility: Rodia v.

[ 193 Pa. Super. Page 146]

    and find that it amply supports and substantiates the verdict returned in favor of the plaintiff". Other cases in which verdicts have been sustained under similar policy language are: Frame v. Prudential Insurance Company of America, 358 Pa. 103, 56 A.2d 76; Foulkrod v. Standard Accident Insurance Co., 343 Pa. 505, 23 A.2d 430; Real Estate Trust Company of Philadelphia v. Metropolitan Life Insurance Co., supra, 340 Pa. 533, 17 A.2d 416; Arnstein v. Metropolitan Life Insurance Co., 329 Pa. 158, 196 A. 491; Dauphin Deposit Trust Co. v. Lumbermens Mutual Casualty Co., 171 Pa. Superior Ct. 86, 90 A.2d 349.

Appellant contends alternately that it is entitled to a new trial because the verdict was against the weight of the evidence. In passing upon this contention we must consider all of the evidence, and assess its weight to determine whether the lower court abused its discretion: Jemison v. Pfeifer, 397 Pa. 81, 152 A.2d 697. We find no abuse of discretion in the instant case. When a new trial is sought upon the ground that the verdict was against the weight of the evidence, only a most unusual situation will warrant the appellate court in granting a new trial which has been refused by the court below: Battistone v. Benedetti, 385 Pa. 163, 122 A.2d 536. Where the testimony supports the jury's finding, the trial court's refusal to disturb the verdict is proper even though such finding may not have been the only possible inference: Maloney v. Rodgers, 184 Pa. Superior Ct. 342, 135 A.2d 88. Appellant cites cases on the point that opinion evidence is considered of a low grade and not entitled to much weight against positive testimony of actual facts. See Draper's Estate, 215 Pa. 314, 64 A. 520; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287; Avins v. Commonwealth, 379 Pa. 202, 108 A.2d 788. We subscribe to this general proposition. In the case at bar, however, the evidence

[ 193 Pa. Super. Page 148]

    offered by both sides on the crucial issue was entirely opinion. Appellant would have us accept its theory that the opinions offered by its experts were supported by facts developed in the autopsy. But there was only a partial autopsy, and we are no more willing than apparently was the jury to accept the report thereof as an unqualified factual basis for the opinions of appellant's doctors. Plaintiff presented uncontroverted evidence as to decedent's prior good health which casts doubt on the significance of the facts revealed by the autopsy. It should be noted that both Dr. Proudfit and Dr. Abernathy completely disregarded decedent's prior health in arriving at their conclusions.

Appellant also contends that "there are material errors in the admission of evidence" which require the grant of a new trial. The first of these complaints is that the trial judge improperly excluded an averment by the plaintiff in paragraph 6 of a complaint which she had filed against the Citizens Water Company which was allegedly contradictory to the testimony based on the averment in paragraph 4 of the complaint in the instant case. The contrasting averments are set forth in the footnote.*fn3 In this connection we agree with the court below that there was no apparent contradiction, and that a collateral issue would have been improperly injected into the trial.

The second complaint relates to the exclusion of the death certificate. This certificate had been prepared and executed by the deputy coroner on the basis of information

[ 193 Pa. Super. Page 149]

    received from Dr. Abernathy, and without any personal knowledge of the cause of death. The deputy coroner would have been incompetent to testify if called as a witness: Heffron v. Prudential Insurance Company of America, 137 Pa. Superior Ct. 69, 8 A.2d 491. Section 810 of the Act of June 29, 1953, P.L. 304, 35 PS ยง 450.810, provides that: "Any record or duly certified copy of a record or part thereof which is (1) filed with the department in accordance with the provisions of this act and the regulations of the Advisory Health Board ... shall constitute prima facie evidence of its contents". While it has been held that the cause of death may be shown by the death certificate, Castor v. Ruffing, 178 Pa. Superior Ct. 124, 112 A.2d 412, it is always open to explanation and contradiction: Griffin v. National Mining Co., 127 Pa. Superior Ct. 588, 193 A. 447; Hanrahan v. John Hancock Mutual Life Insurance Co., 143 Pa. Superior Ct. 557, 18 A.2d 512. We perceive no substantial error or injustice which resulted from the exclusion of the death certificate under the circumstances of the instant case. Appellant undertook to prove the cause of death by medical testimony, and by the autopsy report which was admitted as Defendant's Exhibit 2. As pointed out by the court below, the death certificate was merely a repetitious summary of this lengthy evidence. See Lederer v. Metropolitan Life Insurance Co., 135 Pa. Superior Ct. 61, 4 A.2d 608.

The third complaint involves the refusal of the trial judge to permit the autopsy report to go out with the jury. This is a matter which is largely within the discretion of the trial judge: Commonwealth v. Clark, 123 of the trial judge: Commonwealth v. Clark, 123 Pa. Superior Ct. 277, 187 A. 237; Quartz v. Pittsburgh, in detail concerning the autopsy report, and it had been read in evidence. The trial judge took the position that

[ 193 Pa. Super. Page 150]

    sending out the technically worded report would not be of material aid in the deliberations of the jury. We perceive no abuse of discretion in this ruling. See Zank v. West Penn Power Co., 169 Pa. Superior Ct. 164, 82 A.2d 554.


Judgment affirmed.

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