*1 Reversed with a venire facias de novo.
Dissenting Opinion Bell: Mr. Chief Justice was a evidence substantial conflict There. as to Under negligence negligence. contributory these ob- the verdict of the circumstances, I viously compromise verdict and with the agree trial and with the Judge Superior Court of the weight negligence evidence as to contributory and that a trial defendant, new should refused.
I the judgments opinion would affirm Superior Ervin Court. Judge Appellant, St. Paul Fire and Brenneman, Company. Marine Insurance *2 1963. Before C. Mus- Argued May Bell, J., Roberts, O’Brien Eagen, manno, Jones, Cohen, JJ. for appellant. Nelson Alexander,
P. H. him Robert Griffith, & Markowitz, Kagen appellee. for Griffith,
Opinion Mr. Justice Musmanno, 1963: July 2, at about 7 January 13, 1960, On an automo p.m., traveling seen southwardly bile U. S. Route No. York Dillsburg County. near It left the main grass over a right-of-way, passed crossed berm, , plot front of returned to a gasoline station, veered then highway weaving after some general y front off into a ditch where its abruptl stopped, over degrees end downward at an of 45 pointing angle sinking a concrete its like the stern culvert, rear, raised ship, high.
The Chief of R. Clyde King, cruising Police, saw the car investigated. astride culvert and area, of a woman body Inside automobile found the Her ascertained later to be Mrs. Sara Brenneman. G. at floor. feet were and her pedals lay body A Dr. Weldon Jr. after was summoned Pyle, pronounced suitable woman dead. examination, Her Paul notifed the St. Paul husband, Brenneman, *3 and Fire Marine Insurance and requested Company the amount payment $10,000 policy of an accident Mrs. Brenneman had taken out with that com- with him as the named pany, beneficiary. policy The for provided sum on payment indicated of life “resulting loss and directly independently all from causes accidental bodily . . . injury (excluding loss) such from . . . bodily mental infirmity any kind of . . .” disease. refused company payment on the basis that
Mrs. death Brenneman’s was not result of accident as defined in the policy. Brenneman brought and obtained a jury suit verdict for the face value plus the policy, The defendant interest.. made mo- a for n.o.v. judgment tion which was granted by the trial appealed. The plaintiff court.
Dr. Weldon testified Pyle that when he examined of Mrs. Brenneman in body the car, he noted cut a her nose and abrasions on across her knees and left Her face was A bleeding. shoulder. pool of blood some in diameter 7 inches had 6 or accumulated performed An autopsy floor. by Dr. Pyle and Bren- Pyle that Mrs. a Dr. James Smith. Dr. testified hemorrhage upper canal cervical neman died of a by physical violence and cerebella fossi, Brenneman Mrs. neck and head. also that He stated process which had sustained a fracture of the odontoid projection from finger-like of bone as “a described vertebra cervical this is the second the second vertebra, head.” from the down neck, hemorrhage that the Dr. Smith confirmed deputy George coro- A Paulus, result of trauma. Dr. body, that testified and also examined the who ner, having hemorrhage origin, traumatic the fatal being by blow—“by body for- thrust been caused been in this automobile.” ward it must have produced tes- Dr. H. H. Evans who The defendant patient Mrs. Brenneman as a tified he had seen that during year from three times she suffered pressure high blood severe arteriosclerosis He stated also he advised her to retire work. complained to him of headaches Mrs. Brenneman dizziness. charged jury: judge “From medical this you be for to determine whether there Avill bodi- there Avasan accidental
was an whether accident, bodily injury ly injury, and whether this accidental independent death of Mrs. Brenneman resulted or was there a condition of her health of other causes, *4 you a concurrent of her death. If cause which the condition of her health conclude that not of of her health and a concurrent condition plaintiff then of course the her would be en- to recover.” titled company contends
The insurance that Mrs. Bren- as the result of not die an did accident. What neman Everyone knows what an accident? is accident is an up in comes court. Then it the word until becomes a phenomenon, mysterious order to resolve the law- experts testify, are summoned, witnesses enigma, when and even treatises are consulted yers argue, individuals world-knowledgeable conclave of twelve out an facts made a certain set of as whether agree it settled and not be question may yet the accident, accident An court. appellate be reheard an must is it event; unanticipated an merely is simply stated, natural of not as the result which occurs something with- working routine the culmination of forces but as dis- more plan. out And the coordination design, operate, more confusedly they organized forces, in- haphazard the clash indiscriminately more accident. more is the perfect termingling, Assn. In of Commercial Travelers’ the case Western abra Fed. the insured sustained an Smith, shoes. of new sion on his foot as the result wearing he the abrasion reasonable gave attention, Although blood from he died. poisoning nevertheless caused which of production as to question arose whether Judge from Circuit abrasion resulted accidental means. of States discussed Eight United Circuit, Sanborn natural “An accidents as follows: effect which is of an or course of action probable consequence act nor accidental produced is an is accident, It or it means. is either the result acutal design, under the maxim that man must be held to every falls his probable consequence intend the natural an deeds. “On the effect which is not the hand, consequence probable natural the means which an effect which does not follow it, ordinarily produced anticipated reasonably and cannot use effect which the actor those did not intend to means, cannot be charged and which with the de produce is produced ... producing accidental means. sign means were neither It is produced designed cause it. Such an effect is not re nor calculated cannot be reasonably un design, is anticipated, sult *5 produced expected, by is an combination unusual pro it is of fortuitous other circumstances; words, finding trial the accidental means.” duced produced by court that was accidental the abrasion means affirmed. was bodily is which the
Whether disablement subject inquiry, the accident was pre- weighing disease is a matter of facts which injury company ceded the or death. The insurance mishap dis- maintains automobile here under spell dizzy occa- cussion came about as the result of a hypertension sioned which, arteriosclerosis Thus, it is Mrs. Brenneman was afflicted. claimed, argues, pre-existing infirmity it- to the contributed of death. granting judgment
The trial h.o.v. said court, explained “in Mrs. Brenneman’s death could be way no than that” Mrs. Brenneman overcome was by dizziness or a blackout which lose caused her to carry control her car and her to her As death. against jury’s certainly verdict under found, judge, instructions trial that there an ac- imposed injury, cident and an accidental the court arbitrary conclusion. There could, course, surmise that the lost control due to dizziness or overcoming a blackout but such surmisal driver, inquiry not lock the .door of does and ratiocination. upon only basis which the court can found its categorical conclusion that a blackout took Bren- neman car off its normal course is the statement of Dr. Evans that Mrs. Brenneman told him she had had dizzy spells past. several But the dizziness of yesterday didactically cannot dictate the decision of today. Dr. Moreover, Evans’ flatly statement was con- by Mrs. tradicted Brenneman’s husband certainly who relationship more in an even intimate testify *6 Brenneman was this He testified that Mrs. subject. re- just in that both of them had excellent health, “I saw and that never turned from to trip Florida, though as her in her cheerful seemed life, better never with her.” anything wrong there was hypothesis accepted if á But even were dizziness further in the of itself would without not, case, slight position. the defendant’s With prove evidence, still car could at aberration temporary wheel, could stop highway, have come to a harmless plot. in the grassy to an innocuous halt have ground course erratic of The occurred not because fatality ditch. it fell into a but because automobile, was in n.o.v. said: “The burden granting court below caused collision which prove to that the car plaintiff constituting from some event resulted injury the head inference that it re- and to exclude the an Accident,’ or blackout caused arterio- dizziness sulted pressure.” blood high sclerosis of indeed did have burden plaintiff required, not to establish an but he was accident, dizziness of disprove possible inferences doing so, blood high caused arteriosclerosis blackouts with accident, After he a bona fide proved pressure. caused therefrom the violence insurance the defendant the burden shifted to illness, a pre-existing to sIioav that without company did occurred.* The defendant not have death would whatever produce such evidence, specifically before the produce placed jury did evidence laboratory of factual decision alembic malady decided that no deliberation, their death. to Mrs. Brenneman’s contributed caused confused cause of evidently below acci The court death. The cause of accident dent * Railways, Pittsburgh 321 Pa. 12. Fazio con important only that the cause to the extent If processes physiological of death. tributed to the bottom body at the had been found Mrs. Brenneman’s what no evidence as cliff and there was a 300-foot liability under fall from the her to cliff, unquestionably There policy attached. have would alleged no in the case that the illnesses evidence drove Brenneman and dizziness Mrs. arteriosclerosis canyon death. into off the cliff of life her impres- company to be of the seems The insurance fault that Mrs. Brenneman somehow was at sion *7 assumedly driving told her, car after her doctor a what part (in absence of an insured the fault provision policy any nullifying that in the for reason) in- does not cancel out a contract of accident proved Mrs. If in that this case it had been surance. attempted light cigarette had while Brenneman to a driving thoughtless had because of that she act, against con- lost control of the car and it dashed causing policy crete her the accident culvert, unquestionably would have remained unaffected. Thoughtlessness, forgetfulness, miscal- inattention, People, in fact, culation often are of accidents. causes protect only policies, often take out accident to their own themselves the fault but from others, imperfections. foibles and conjure explanations why up many
One could as to highway: the car left the could be that Brenne-r Mrs. asleep, that man fell she was distracted a radio song, sought story that she to avoid some obstruc- highway, regained lost control and tion never it, overly she became excited when she that first noticed slipped highway. off the she had that There would be enumerating possibilities point many in no planation of ex- mishap point for the and there is as little concluding, in the state of the record, that dizziness, against smashed the alone, dizziness car and cul- especially history cate- when the of dizziness was vert, gorically jury conflict
denied, resolved testimony plaintiff. in favor of the Speer
In the case of Western Southern Life Pa. Superior insurance Ct. Co., Insurance company argued that dizziness had caused the fall the, the fall skull. insured; fractured years There was evidence decedent five had, prior to the fatal been hit. over the head fall, pipe un and that the blow left him with an occasional steady walk and “some that he suffered sometimes dizziness.” It not established trial at the. just assailed fell. dizziness the insured before he question Court death held that the to as whether de was accidental or not an issue for saying: go cide, “This was sufficient to jury. require proof Were it it would otherwise, fainting to esoclude or dizziness as the antecedent cause any precise fall and means which the brought eye fall was about, where there are no impossible, such would witnesses exactly done were unless ‘by done, as was circum evidence of here, i.e., whole, reasonably stances which viewed as exclude, .a probative preponderating weight, any their other ex *8 ” planation found in the evidence.’
The Court said also since “the insured’s death solely immediately was due the fracture of the .and to. death could not have been partially, skull, even due, to preexisting infirmity.” a disease or
In the case of Pomorskie v. Prudential Insurance 318 Pa. 177 A. ly Co., 185, 783, insured was found ing ground, on the frozen with a bruise and blood on temple. testimony his left medical indicated that injuries, exposure. .death had been head “Plainly, testimony Our Court said: this suffi permit to a reasonable cient inference of death ‘ef through solely, fected external, violent and accidental 418 from inferred
means.’ The well have jury might sur body, of on insured’s position and marks ap he and the fact rounding circumstances, of some because that he fell parently by accident, lame, on ground, condition slippery obstruction head to his suffered a blow doing so to led eventually brain and caused concussion have might his death. that he There was of concussion had concussion no evidence though even may found in brain tissues. The evidence occurred to that death finding sufficient sustain a al and accidental means violent through external, there are no . .” though eyewitnesses.
In Accident Assurance Corp., Taylor General step; fell from a fourth Pa. 57 A. the assured 439, hemorrhages he died four later days re- to stomach. In beneficiary’s right sustaining we in the case cover the accident insurance policy ex- absolutely said: “It be that this does not may all clude the of some kind as possibility a seizure to the extent fall; certainly goes cause ex- both disease as an reasonably excluding design and more of the fall ... planation vastly by making innumer- that the of it of those probable was one experience may able common accidents which, teaches, intervene the raising with disastrous effect between foot and the . putting down it. . as long [S]o points things evidence to one or fairly more these in- probable cause of the rather than to fall, ternal disorder—so Pre- long quote Merritt v. as, Mut. Acct. Assn. ferred Masonic Rep. N.W. (Mich.), ‘some 169 ... there is evidence tending show that from an death resulted accident rather than design a prima facie causes,’ natural case is made and the out, of affirmative of an requirement accident is satis- fied.” *9 Curran v.
The case National Insurance Life Pa. 96 A. 420, 1041, had Company, to do with defendant recovery a fire insurance policy. not did the circumstances there, here, argued invalidated exclude all conditions which would have is question This Court said: policy. “The hy- whether the circumstances exclude every theory support hut whether pothesis, they fairly prepon- their plaintiff advanced by by exclude defendant. advanced derating weight theory To plaintiff prove hold as a matter of law that failed would sufficient facts to take the case to the jury, prevent . . . because of the dif- most cases recovery imposing thus ficulty proving origin fire, contemplated a burden not policyholder contract.” of the court is reversed direction judgment the verdict of the be reinstated.
Mr. Justice Cohen concurs in the result. Dissenting Opinion Mr. Chief Bell: Justice It is clear from the doctors testimony plaintiff’s defend- on cross-examination—and plaintiff’s claim stronger against ant’s doctors was even opinion —that express were unable to a definite they plaintiff’s the death of “resulted wife directly all other independently accidental causes, bodily injury.”
I judgment would affirm the of non vere- obstante opinion Judge dicto on the I. Shadle. Robert Christoff Estate.