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May 24, 1966

Deka Ann M. SMITH, Plaintiff,

The opinion of the court was delivered by: WEBER

 This is a suit under the accidental death benefit clause of a life insurance policy. The insuring agreement provided for payment to the beneficiary for death "as a result of bodily injury sustained solely through external, violent and accidental means, directly and independently of all other causes * * *". The defendant insurance company alleges that plaintiff's proof fails to measure up to the terms of the insuring contract.

 On April 17, 1964, at about 6:30 p.m., Stewart Smith, the insured, was found dead in his automobile at a point alongside Pa. Route 22, about five miles east of Cresson, Pennsylvania. He was then forty-nine years of age, and in previous good health. He resided in Altoona, Pennsylvania, some twenty miles away. At this point Route 22 is a straight two-lane highway, having narrowed from a three-lane highway 320 feet west in the direction from which Smith was proceeding. The pavement at this point is twenty-four feet in width, and at this location the highway passes under a railroad underpass in the form of an arched stone tunnel. On the sides of this underpass the stone walls supporting the railroad bed extend out like wings at about a 45 degrees angle from the highway. Smith's automobile had struck this stone-abutment beside the underpass at a point 15' 10" perpendicular from the right-hand edge of the pavement. Tire tracks leading back from Smith's vehicle to the highway indicated that the vehicle left the right-hand side of the paved highway at a point 90 feet from the point of impact against the wall and proceeded in a straight path to the wall. The marks of the tire treads were clear in the tracks indicating that all four tires were inflated and that no braking sufficient to cause skidding had occurred. The extensive damage to the front of the vehicle produced the opinion of a trained State Police traffic officer that the speed of the vehicle at the time of impact was in excess of fifty miles per hour. Plaintiff proved the above circumstances of the death, the insurance coverage, and produced a death certificate from the Pennsylvania Department of Vital Statistics, containing a report, certified by the Coroner, that the immediate cause of death was "traumatic shock, crush injuries of left chest, possible fractured skull", and under the heading "Other significant conditions", the statement "accident", and "lost control of car and struck culvert." This certificate is admissible as evidence of the facts therein related (28 U.S.C.A. § 1732), but the Coroner's opinion is not binding on the trier of fact. Thomas v. Conemaugh & Black Lick R.R. Co., 234 F.2d 429 (3rd Cir., 1956).

"A death certificate may have a prima facie evidentiary value as to the cause of death, particularly where a statute expressly so provides, but it is not conclusive. * * * but under some statutes it is prima facie proof." 46 C.J.S. Insurance § 1357d, p. 538.

 This is a diversity case and the law of Pennsylvania applies.

"In passing, we apprehend it to be the duty of a federal court, when called upon to ascertain and apply local law, to look to the status, generally, of the pertinent local law rather than to an isolated case, marked by the peculiarity of its own particular facts." Lennig v. New York Life Ins. Co., 122 F.2d 871, 874 (3rd Cir., 1941).

 The well-established rule in Pennsylvania holds that where death is shown to be from both external and violent means there is no presumption that the death was caused by accidental means, and the plaintiff must set forth facts showing that the death was by accidental means. Watkins v. Prudential Insurance Co., 315 Pa. 497, 173 A. 644, 95 A.L.R. 869 (1934); Waldron v. Metropolitan Life Ins. Co., 347 Pa. 257, 31 A.2d 902 (1943). Nevertheless, the accidental nature of the death may be inferred from the surrounding circumstances, if the inference is warranted. While no presumption is created having the force of evidence from the proof of violent and external causes which shifts the burden of proof to the defendant, there still remains an inference to be drawn from the natural instinct of self-preservation that the death was accidental.

"In cases of this nature, where plaintiff's circumstantial evidence of accidental death is not strong and as a whole comes close to the borderline, the testimony, nevertheless, is prima facie sufficient, presenting a case which must be submitted to the jury." Heffron v. Prudential Insurance Co. of America, 144 Pa.Super. 307, at p. 311, 19 A.2d 556, at p. 559 (1941).

 Where it has been established that the cause of death is both violent and external, and that the deceased has no apparent reason to take his own life, the inference of accidental means of death makes out a prima facie case for the plaintiff. Wainstein v. Equitable Life Assurance Society, 318 Pa. 428, 178 A. 502 (1935). Walters v. Western & Southern Insurance Co., 318 Pa. 382, 178 A. 499 (1935).

 Having made a prima facie case in this manner, the plaintiff has cast upon the defendant the duty of producing some evidence to meet it.

"It is not necessary that this prima facie case be met by a preponderance of the evidence or by evidence of greater weight. It is sufficient if defendant's evidence equalizes the weight of plaintiff's evidence, or, in other words, puts the case in equipoise. The burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue and remains upon him throughout the trial." 20 Am.Jur. Evidence § 1251, p. 1102.
"The burden of proving suicide as a defense to the policy ordinarily is on the insurer; but on the issue of double indemnity for accidental death it has been held that the burden is on the plaintiff to prove, as between suicide and accident, that death resulted from accident."
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"* * * nevertheless, on the issue of additional benefits for accidental death, plaintiff is held to have the ultimate burden of establishing that the death resulted from accident rather than from ...

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