*1 Sfakianakis, Supe v. for divorce: Sfakianakis Superior rior (1956) ; Ogram Ogram, Ct. 87 Neither these Colin, supra. Colin Ct. defendant. alternatives was proved affirm the decree entered by we Accordingly, court below. P. dissents. J.,

Weight, Lehigh Valley Appellant, Dilliplaine, Company. Trust 1972. Before P. September J., Argued Weight, Spaulding, Watkins, Jacobs, Hoffman, Ceecone, JJ. Packel, N. for appellant. Cohn,

Edward him Stevens, with Rudders Buts, Richard & Tail- appellee. man, November 28, 1972: Per Curiam,

Order affirmed. *2 Concurring J. : Hoffman, in- erred Appellant judge contends that the trial the decedent was structing have exercised at due care the time that occurred.

This action an arose out of a collision between au- Dilli- operated tomobile by plaintiff-appellant, Wayne a de- car plaine, operated by defendant-appellee’s James Burdette. cedent Burdette died following accident from causes unrelated to accident.

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

“The so-called ‘presumption against suicide’ nei- ther a expedient nor a procedural rule rooted one the consideration that of the litigants posses- available evidence determinative of sion of the most nor based issue is it conclusion trying (2), It human experience (3). known results wide the nonprobabili- consideration of merely permissible of death suicide.” at ty Watkins, supra, 505.

A the decedent jury instruction to the effect that exercised been benefit given due care has always neg decedent who has established a facie case of prima negl wherein the defendant ligence alleges contributory igence.1 is also a re party loses his or is unable to testify injuries Heaps sult sustained Southern Traction Pennsylvania 213-214, A. 548 Auel White, equate party’s A. 2d 350 The courts *3 is to with his death. Where the inability testify party accident, and not killed as a result only injured of lose there is no that a decedent’s will possibility family death In both the love instances, however, of benefits. to motivate the to act with due life care. Pa. supra, 276 553. Heaps, at

This charg- the converse of presumption merely prov- jury plaintiff the burden of and the of ing negligence defendant has the burden in- proving contributory negligence. such an Thus, adds nothing jury’s intelligent- struction ability decide a ly impartially charge, case. Instead, such befuddle the may issues should the misunderstand jury 1 Glancy Borough, Rocks 216, McKees Pa. 243 A. 89 972 Pittsburgh Company, 166, Yuhasz v. Construction Pa. 305 Kreidt, supra; Lewis, (1931) ; Morin v. Michener v. A. 157 461 314 Wiley, 156, (1934) ; Susser v. A. Pa. 272 Pa. 170 350 39 Express Corp., (1944) ; Lear v. Motor Pa. Shirk’s (1959) Skoda v. West Penn Power A. ; Snelling, ; Allison v. (1963) A. 2d 376 A. 2d 861 to be weight given presumption. presump- in reali- of due care is a of fact which is not a at all. ty Watkins, supra, at ‘pre- 500-501. “The term employment here of the historical sumption’ simply usage, was a term one ‘presumption’ originally equivalent, sense . kind to ‘inference.’ . . There is one truth but fact’ ‘presumption and the term presumption; should be .” discarded as useless and . . confusing. Watkins, supra, at 501.

Given the of this admittedly confusing nature expand Court should refuse to sumption, ap plicability of the presumption. This Court has refused to allow instructions

due care party’s alleged failure of not the injuries result of incurred in the accident question. Snyder Union Pa. Supe Paving Co., rior Ct. 84 A. 2d 373 In Penn interpreting sylvania Federal law, Courts have give refused of due care charge cases where the de cedent’s death was a result not of the accident. Webb 364 F. 2d 229 Cir. Martin, (3d Brain v. Elli 1966); ott-Spicher Motors, Supp. (W.D. Pa., 1966). Indeed, Pennsylvania Supreme stat Court ed : “There is a presumption of due care on part a decedent whose death or inability to occurs testify only reason accident.” Estate, v. Bodek Lyons (emphasis added).

This presumption only has the confuse capacity to the and the jury becloud issues. There is no reason for expand court of applicability the presump- tion cases defendant’s death arose out of causes unrelated to the accident.

The made a appellant only general exception to the been principle long charge, established that in the absence of even be granted, a new trial will charge constitutes improper when general exception, Patterson Pittsburgh error. basic and fundamental 185 A. 283 (1936). Pa. 125, 128, Railways Co., in care of due presumption Nevertheless, giving basic and fundamental constitute did not struction the lower court not of Thus, error. the decision trial should be affirmed. a new grant concur- join JJ., Spaulding Cercone, ring opinion.

Concurring J.: Packel, are raised as to the applica- issues evidentiary Two that a decedent case of the presumption a tort The first, appellant contends, exercised due care. had of for the benefit is applicable the presumption that and, the benefit of defendants; and not for plaintiffs, the presumption ap- event any only second, the death was caused when plicable instructed the both had judge The trial of the immediate- had no events who plaintiff, de- and the following accident,1 ly preceding the accident unrelated died after fendant, care. to have exercised due were causes, of due care in Penn- The settled well railroad cases to offset the sylvania2 originated any inference of contribu- rebutting task difficult from the could be drawn solely which tory negligence plaintiff suffering when White, memory, Auel 132 A. from loss jurisdictions in which there is no There are place jurisdictions prov Generally, the burden of care. negligence contributory plaintiff give do not lack plaintiff the benefit of due care. See deceased App. Konicek, Ill. 247 N.E. 2d Siebens *5 250 extended

occurrence of the accident. The rule has been to all on kinds of tort and been justified actions,3 the basis of the self-preservation.” “instinct of Allison v. and 425 Pa. 229 Snelling Snelling, 519, 525, 864

In it light of the for the reasoning presumption, would be appear to to a defense defendant’s plaintiff’s claim of well as de negligence as nial of a claim of Without contributory negligence. in any the discussion of the courts so held problem, 112 Balla v. A. 156 and Sladek, (1955), 2d v. Freund Huster, Pa. A. 2d 534 652, 156 (1959) respect with to deceased defendants. reported

No have Pennsylvania appears case the treated second issue the applicability case presumption to a which the death was cause unrelated to the There litigation. are two federal diversity cases, applying Pennsylvania law, which have dealt Mar with situation, Webb 2d tin, (3d Cir. Brain tt- 1966) and v. Ellio Spicher 249 F. Motors, Supp. (W.D. In both 1966). cases the court decided that of due care sumption was not parties available to died from unrelated In causes. de Webb case, cedent had testified a criminal evi case, dence held an admissible as admission. could That have been the basis for denying presumption. decision was three con judges J., Freedman, any curred without opinion. other jurisdictions

Two have faced the ques- same tion and have decided that presumption is applica- Express Corp., Motor Lear Shirk’s A. 2d (collision (1959) tractor-trailers) ; Kreidt, between two Morin v. (1933) (pedestrian Ritchey truck) ; killed Cassone, (death (1929) burning A. 822 in a building). See causes. died other though ble even App. 151 Cal. Michaels v. Hawthorne Voorheis away later did (California 312 P. 2d 51 completely) care of due with 274 Wis. Mud. Ins. Co., v. Dairyland Wells *6 the ques In a third jurisdiction N.W. 2d 380 (1957). ap held not was raised and the tion was was holding it is not clear whether but plicable, not result the fact that the death did based on an eyewitness on the fact that there was accident or N.W. Iowa DeBuhr v. Taylor, 2d 597 (1942). be seem to would self-preservation instinct survives as to a who

equally strong party In uphold thereof. died as a result as general are aware that we judge’s charge, trial restrict its warrant might criticism of the presumption law, in our recognized it so well ion.4 However, should it great,5 its is not though significance even It is true limitation. be a new complicated by not was due the death case it admitted that this be is to if rule general cause, an extraneous create it could limitation, contended subjected to determining preliminari problem cases the many be should of evidence cause of death.6 Rules ly applicability. in terms practical couched Braen, A. 2d N.J. See Jurman Samuel (1966). ordinarily presump though Doctor Heath is dead and “Even care, might he arise that exercised due by plain testimony destroyed adduced in the instant case v. Prudential Ins. in Watkins tiff. As hold weighed evidence, sumption cannot not and it be this is such as contrary way proof gives evidence, the moment it since Klosterman, 501, 503-4, presented.” Heath v. Hess, Goodall Cf.