Staley, Chief Judge, Kalodner, Circuit Judge, and Sheridan, District Judge.
SHERIDAN, District Judge:
Sidney E. Lewin, a citizen of Pennsylvania, brought an action against the Metropolitan Life Insurance Company, a New York corporation with its principal place of business in New York City, to recover benefits under two accident insurance policies. A jury awarded him $33,700, the maximum benefits under the policies. The district court granted Metropolitan's motion for judgment n. o. v. and, in the alternative, its motion for a new trial. Lewin v. Metropolitan Life Ins. Co., E. D. Pa. 1966, 257 F. Supp. 506. This appeal is from that order.*fn1
The district court had jurisdiction under 28 U. S. C. A. § 1332. The substantive law of Pennsylvania applies.
Lewin was insured under two policies of accident insurance issued by Metropolitan in 1936 and 1945. The 1945 policy provided in pertinent part:
"If, while this policy is in force, the insured shall sustain bodily injuries caused directly and independently of all other causes by external, violent, and accidental means, and if such bodily injuries shall cause, directly and independently of all other causes, any of the results hereinafter enumerated and defined in the following Provisions 1 to 5, inclusive, the Company shall pay the amount therein specified for such result, subject to the terms and limitations of this policy, and to the exclusions specified under 'Risks Excluded' on page 2 hereof.
"This policy shall not cover, and no payment of any kind shall be made hereunder for any of the results enumerated and defined in Benefit Provisions 1 to 5, inclusive, which are caused directly or indirectly, wholly or partly, by
"(f) Ptomaine or bacterial infection, excepting only septic infection of and through a visible wound caused, directly and independently of all other causes, by external, violent, and accidental means;"
The 1936 policy was similar in that it provided for payment for injuries "caused directly and independently of all other causes, by violent and accidental means," and excluded coverage for disabilities caused by disease germs excepting only septic infection "of and through a visible wound caused directly and independently of all other causes by violent and accidental means."
On June 7, 1960, Lewin, 64 years of age, was the head of a candy brokerage firm and was attending a candy convention at the Bellevue-Stratford Hotel in Philadelphia. At 5:30 o'clock in the afternoon, he went to the room of a guest of the hotel to shower and change clothes. While showering, he stepped on a sharp object which resulted in a wound on the bottom of his right foot. He applied a Mercurochrome Band-Aid, but sought no treatment until eleven days later when he called Dr. Asher Woldow who had been treating him since 1956 for diabetes mellitus and peripheral vascular disease associated with coronary artery disease (arteriosclerosis). Dr. Woldow found a massive infection, with the foot and leg swollen and inflamed to mid calf and pus exuding from the undersurface of the foot from a large wound with necrotic tissue*fn2 underneath it. He diagnosed the infection as a "toxic purulent septic infection"*fn3 which was so far advanced as to present a surgical problem. Dr. Woldow called in Dr. Stein, a surgeon, who after a period of conservative treatment, amputated several toes and finally amputated the right leg at mid-thigh. Lewin had a severe psychic disturbance resulting from the amputation which caused an acute depression and required treatment by a neurologist and psychiatrist. He was not able to return to work.
Lewin applied for benefits under the policies. If the provisions had been fulfilled, under the 1936 policy he would have received $2,500 for the loss of one foot and $25 per week up to a maximum of 262 weeks, and under the 1945 policy $5,000 for the loss of one foot and $75 per week up to a maximum of 262 weeks. Metropolitan denied coverage.
The district court granted the motion for judgment n. o. v. because Lewin "did not sustain his burden of producing sufficient evidence so that a reasonable jury could find that the wound was the sole cause of the damages. Specifically, plaintiff did not produce any evidence to show that the arteriosclerosis and diabetes mellitus which either singly or together created a reduced blood flow to the foot, did not cause the infection or result in a condition where the body was totally unable to prevent the spread of infection. There is no testimony that the infection did not progress or remain viable because of the total occlusion of the popliteal artery." The court's conclusion was based principally on a determination that Pennsylvania law made it plaintiff's burden to show not only that the loss was caused solely by external, violent and accidental means, but also to exclude as causative factors all pre-existing and substantial infirmities which may have combined with the accident to produce the loss. Appellant contends that the court erroneously placed on Lewin the burden to prove that it did not come within the exclusions, which is an affirmative defense. Appellant also argues that even if this burden were on Lewin, there was sufficient evidence to meet it. We hold that the district court erred in both of these respects.
The district court relied primarily on O'Neill v. Metropolitan Life Ins. Co., 1942, 345 Pa. 232, 26 A.2d 898. In that case the court held that the burden of proof in the first instance was upon a plaintiff to show that he did not come within the exclusions in the policy. The court noted, however, that the plaintiffs alleged they were not within the exclusions:
"Furthermore, by their pleadings the plaintiffs assumed the burden of proof, as the quotation, supra, from the statement of claim shows. The affidavit of defense accepted the issue tendered by denying the plaintiffs' ...