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MARY MARGARET WETZEL v. WESTINGHOUSE ELECTRIC CORPORATION AND EQUITABLE LIFE ASSURANCE COMPANY (10/20/78)

decided: October 20, 1978.

MARY MARGARET WETZEL, APPELLANT,
v.
WESTINGHOUSE ELECTRIC CORPORATION AND EQUITABLE LIFE ASSURANCE COMPANY



No. 854 April Term, 1977, Appeal from the Order of May 31, 1977 of the Court of Common Pleas of Beaver County, Pennsylvania, Civil Action--Law at No. 335 of 1976--In Assumpsit.

COUNSEL

Gretchen Sohn Reed, Beaver, for appellant.

Robert C. Jones, Pittsburgh, for appellees.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, concurs in the result. Van der Voort and Hester, JJ., dissent. They would affirm the order of the court below. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 258 Pa. Super. Page 501]

Willy C. J. Wetzel died on March 16, 1975 at the hand of his son, Roy Wetzel. Roy Wetzel was tried by a jury for murder and voluntary manslaughter in the Court of Common Pleas of Beaver County and was found not guilty. Mary Margaret Wetzel, appellant and widow of Willy Wetzel,

[ 258 Pa. Super. Page 502]

    then brought this suit to recover the insurance proceeds from an accidental death policy issued on her husband's life. At the close of the pleadings, both parties moved for summary judgment under Pa.R.Civ.P. 1035, 42 Pa.C.S. In their motions, the parties asked the court to decide, as a matter of law, whether the death of Willy C. J. Wetzel occurred through "accidental means" within the meaning of the insurance policy on his life. In order to decide that question, the lower court examined the bizarre facts surrounding the death of Willy Wetzel, the insurance policy itself, and the case law on the subject. The lower court found that Willy Wetzel's death did not occur through accidental means and therefore there could be no recovery under the insurance policy. The court granted defendant's motion for summary judgment and it is from that order this appeal comes to us. We reverse the decision of the lower court.

Willy Wetzel and his son, Roy Wetzel, were experts in the martial arts, including karate, and operated a school in Beaver County. On the day of Willy Wetzel's death, Roy had been working on his father's income tax return. Willy visited his son and began reading the completed tax forms. The testimony of Roy, admitted through an excerpt from the transcript in the criminal proceedings in Beaver County, describes the events that ensued. As Willy Wetzel started to sign the tax forms, he threw the pen against the drapes and began to scream obscenities. He walked toward the front door mumbling that he was going to lose his house, car and everything. Grabbing a Hawaiian sword, Willy Wetzel turned and let out a battle cry called a "kewah." The fight began.

Willy began to remove the sword from its case when Roy attempted to grab the case. Willy kicked Roy and the sword was bent in half. The hand-to-hand fight continued for approximately twenty-five minutes. Roy made several attempts to reach the telephone to call for help, but was stopped each time by his father's tactics. Finally, Roy placed nanchukas sticks, used in karate, around his father's head to try to render him unconscious. Shortly after that Roy realized his father was dead.

[ 258 Pa. Super. Page 503]

Based on these facts, we are faced with deciding whether the death of Willy Wetzel occurred through accidental means under the insurance policy in question. The Benefit Provisions of the Certificate of Insurance in this case read in part:

"If, while insured under the Group Policy for Personal Accident Insurance, the Employe sustains bodily injuries solely through violent, external and accidental means, and within ninety days thereafter suffers any of the losses specified in Section C hereof as a direct result of such bodily injuries independently of all other causes, the Insurance Company shall pay the amount of the insurance specified for such loss . . ...


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