Appeal from judgment of County Court of Philadelphia, Sept. T., 1963, No. 9201-A, in case of Elizabeth Beckham v. The Travelers Insurance Company.
Richard J. Van Roden, with him Pepper, Hamilton & Scheetz, for appellant.
Charles Polis, with him Polis and Polis, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J. Wright, J., would affirm on the opinion of the court below.
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This is an action in assumpsit brought by the mother of Andrew Beckham, who was the named beneficiary under a group policy of insurance covering the employes of the Humble Oil & Refining Company. This suit was brought to recover the sum of $4,000.00 under the policy, which provided: "If bodily injury not hereinafter excepted effected directly and independently of all other causes through accidental means shall be sustained
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by a Participant while insured under this Part. . . ."*fn1
The plaintiff's complaint alleged that Andrew Beckham died as a result of accidental means caused by an overdose of narcotics. The defendant filed an answer and new matter, admitting the overdose of narcotics but denying that the death was effected directly and independently of all causes through accidental means within the meaning of the terms of the policy. The case was tried before Hon. Felix Piekarski and a jury. The only evidence introduced was the testimony of Dr. James T. Weston, medical examiner for the City of Philadelphia, a copy of the death certificate, which showed that the insured "injected self with narcotic overdose", and a copy of the certificate of insurance. The defendant did not introduce any evidence and specifically admitted that the death was accidental, that it was not homicide and that it was not suicide. The jury returned a verdict in favor of the plaintiff in the sum of $4,410.00. Defendant's motions for judgment n.o.v. or for a new trial were dismissed and judgment was entered on the verdict.
The contention of the defendant is the same as that which was tersely stated by Judge, later President Judge, Keller in the case of Trau v. Preferred Accident Insurance Co. of N.Y., 98 Pa. Superior Ct. 89: "It may be admitted, for the purposes of this case, that the injury was an accidental one, that is, that it happened by chance or unexpectedly; but that is not the test. Was it caused by means which were external, not natural, and which happened by chance or unexpectedly?"
In 29A Am. Jur. 311, Insurance, § 1166, it is pointed out that there is a conflict of authority in the United States based on a distinction in the cases involving accidental
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means and accidental results. The text lists cases from 23 jurisdictions,*fn2 including Pennsylvania, holding "that insurance against death or injury by 'accidental means' is not insurance against death or injury by accident or as an accidental result; and that hence death or injury is not incurred by 'accidental means' merely because the effect or result is accidental in the sense that it is unforeseen, undesigned, unusual, and unexpected." It also lists cases from 14 jurisdictions*fn3 which either did not recognize such distinction or which have repudiated their earlier holdings and have held the terms to be legally synonymous. The article states that many of these decisions have resulted from the reasoning of Mr. Justice Cardozo in his dissenting opinion in Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491 (1934), wherein he said: "The attempted ...