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DILLIPLAINE v. LEHIGH VALLEY TRUST COMPANY (11/28/72)

decided: November 28, 1972.

DILLIPLAINE, APPELLANT,
v.
LEHIGH VALLEY TRUST COMPANY



Appeal from order of Court of Common Pleas of Lehigh County, Jan. T., 1968, No. 239, in case of Wayne F. Dilliplaine v. Lehigh Valley Trust Company, executor under the Last Will and Testament of James A. Burdette, a/k/a James Albert Burdette.

COUNSEL

Edward N. Cahn, for appellant.

Richard F. Stevens, with him Butz, Hudders & Tallman, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Concurring Opinion by Hoffman, J. Spaulding and Cercone, JJ., join in this concurring opinion. Concurring Opinion by Packel, J.

Author: Per Curiam

[ 223 Pa. Super. Page 246]

Order affirmed.

Disposition

Order affirmed.

Concurring Opinion by Hoffman, J.:

Appellant contends that the trial judge erred in instructing the jury that the decedent was presumed to have exercised due care at the time that the accident occurred.

This action arose out of a collision between an automobile operated by plaintiff-appellant, Wayne Dilliplaine, and a car operated by defendant-appellee's decedent James Burdette. Burdette died following the accident from causes unrelated to the accident.

When an individual suffers a violent death, there is a presumption that the deceased exercised due care in the actions preceding his death. Watkins v. Prudential Insurance Company, 315 Pa. 497, 173 A. 644 (1934); Groh v. Philadelphia Electric Company, 441 Pa. 345, 271 A.2d 265 (1970). This is a presumption of fact which has no evidentiary value and gives way in the face of evidence to the contrary. Watkins, supra, at 315 Pa. 497, 500-503. This presumption is founded in the belief that men so cherish life and fear death that they will act carefully to avoid the horror of death. Morin v. Kreidt, 310 Pa. 90, 97, 164 A. 799 (1933); Watkins, supra, at 315 Pa. 497, 509. Social policy mandates that where a death may be the result of either suicide or accident, the law should presume accidental death; such a presumption inclines "toward the fruition rather than the frustration of plans for family protection through life insurance." McCormick, Law of Evidence at 643 (1954).

"The so-called 'presumption against suicide' is neither a procedural expedient (1) nor a rule rooted in the consideration that ...


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