Kubacki v. Metropolitan Life Ins. Co.

• Decision Date: 16 September 1960
• Citation: 193 Pa.Super. 138,164 A.2d 48
• Parties: Rose M. KUBACKI v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant.
• Court: Pennsylvania Superior Court

Page 48

164 A.2d 48

193 Pa.Super. 138

Rose M. KUBACKI v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant.

Superior Court of Pennsylvania.

Sept. 16, 1960.

Charles G. Sweet, Washington, for appellant.

Adolph L. Zeman, Robert L. Zeman, Zeman & Zeman, Canonsburg, for appellee.

Before RHODES, P. J., and GUNTHER, WRIGHT, WOODSIDE, ERVIN, WATKINS, and MONTGOMERY, JJ.

WRIGHT, Judge.

We are here concerned with an action in assumpsit instituted by Rose M. Kubacki to recover double indemnity under a policy issued by the Metropolitan Life Insurance Company insuring the life of her husband. Andrew A. Kubacki, who died on October 22, 1957. The jury returned a verdict in favor of the plaintiff beneficiary. Motions by the defendant for judgment n. o. v. and for a new trial were overruled by the court en banc, one judge dissenting. The defendant has appealed from the entry of judgment on the verdict. The relevant policy provision is set forth in the footnote. ¹ On the date of his death, Kubacki drove from his home in the Borough of Canonsburg to the nearby Citizens Water Dam for the purpose of fishing. Because of the abnormally dry weather, the water in the dam had receded for a considerable distance. The intervening area consisted of mud which had crusted over. At about 4:00 P.M., Harry T. Gibbs, a witness for the plaintiff, came across Kubacki's automobile sitting along the road with its motor running and the driver's door open. Gibbs then noticed Kubacki lying on his back about 100 feet out in the mud area. His left leg was stuck in the mud up to the knee. His right leg had been pulled completely out of the hip boot with the boot stuck in the mud and the sock still in the boot. Extreme difficulty was experienced in removing the body from the mud. Kubacki was pronounced dead by Dr. Sidney Safran at the Canonsburg Hospital. An autopsy, limited to the thoracic cavity, was performed by Dr. Ernest L. Abernathy, one of the pathologists at the Washington Hospital.

Plaintiff's theory at the trial was that Kubacki's death resulted from his efforts to extricate himself from the mud and that he died from a cerebral hemorrhage, independent of any other contributing cause. The theory of the defense, based on the autopsy report, was that Kubacki died as the result of an existing heart condition, which not only contributed to his death but actually was the sole and exclusive cause. The autopsy report is set forth in the footnote. ² Plaintiff testified that her husband was 38 years of age, that he maintained steady and regular employment, that he never lost any work because of sickness or ill health, that he was an expert glazier and often performed services of that nature after his working hours, that he assisted the carpenters, plumbers, and painters in working on his dwelling, recently remodeled, that he did all of the usual chores around the home and around the home of his parents who lived nearby, including mowing the lawn and spading a large garden, that her husband had returned from work about 3:00 on the day of his death and was apparently in normal health. Her testimony was substantially corroborated by that of Joseph Arceri and E. I. Vitullo.

Dr. Harold Sloan, who impressed the trial judge 'as having a profound grasp of the medical problems involved', testified for the plaintiff that the cause of Kubacki's death was a cerebral hemorrhage and that the heart condition disclosed by the autopsy was not in any way a contributing factor. 'A. Well, in my professional opinion, the cause of death here was definitely due to a cerebral hemorrhage. * * * Q. Doctor, in your opinion, even if we assume the conditions of this man's heart as disclosed by Dr. Abernathy's report, in your professional opinion, would the condition of this man's heart in any way contribute to his death? A. None whatsoever. Q. Doctor, if this man had had a perfectly normal heart, would the end result have been the same? A. Exactly the same'. Dr. Sloan stated that 'in medical diagnosis you would say it was a subarachnoid hemorrhage' caused by fear and panic in Kubacki's attempt to extricate himself from the mud--'in a layman's term, you might say he was scared to death'. Without questioning the autopsy findings, Dr. Sloan pointed out that Dr. Abernathy did not follow the usual and established procedure of posting the entire body, including the brain. He stated that persons with myocardial infarction often lead normal lives and die from independent causes. Vigorous cross-examination failed to shake Dr. Sloan's testimony.

For the defense, Dr. Abernathy testified in detail as to the autopsy, and that 'the sole single cause' of Kubacki's death was a coronary occlusion with consequent infarction. His conclusion was largely predicated on the basis of an assumption that a thrombus had formed four days prior to death. Dr. Abernathy admitted that there are types of brain hemorrhage which cause sudden death, and that without an examination of the brain he could not say whether or not there was a cerebral accident. He attempted to explain the incomplete autopsy on the ground of a policy of economy in the coroner's office. Dr. J. Paul Proudfit, formerly a medical examiner for the appellant, testified that the conditions described in the autopsy report 'are quite adequate as a complete explanation for death', and stated that Kubacki died 'of a clear cut coronary occlusion'. He admitted the possibility of a cerebral accident independent of a heart condition, and that coronary occlusion is frequently found at autopsy in persons who have died of other causes.

Appellant's first and principal contention is that the lower court should have granted judgment n. o. v. because the plaintiff failed to establish that Kubacki died 'as the result, directly and independently of all other causes, of bodily injuries caused solely by external, violent, and accidental means'. In passing upon this contention we must view the evidence in the light most favorable to the plaintiff who has the verdict. Geiger v. Schneyer, 398 Pa. 69, 157 A.2d 56; Richardson v. Wilkes-Barre Transit Co., 172 Pa.Super. 636, 95 A.2d 365; Forbes v. Forbes, 159 Pa.Super. 243, 48 A.2d 153; Lessy v. Great A. & P. Tea Co., 121 Pa.Super. 440, 183 A. 657. Appellant argues that the verdict cannot stand in the face of the positive autopsy findings, that the plaintiff's evidence is wholly speculative, having no foundation in scientific fact, and that as a matter of law the type of opinion evidence presented by Dr. Sloan was insufficient to support the verdict.

There is no dispute as to the applicable legal principles. Plaintiff concededly had a two-fold burden. She was required not only to show a direct causal relation between the accident and the death, but also to establish that the death was caused solely by external and accidental means. Where the proof points to a pre-existing and substantial infirmity which may have been a contributing factor, plaintiff must also produce evidence to exclude such possibility. Rodia v. Metropolitan Life Insurance Co., 354 Pa. 313, 47 A.2d 152. And see Real Estate Trust Co. of Philadelphia v. Metropolitan Life Insurance Co., 340 Pa. 533, 17 A.2d 416; Lucas v. Metropolitan Life Insurance Co., 339 Pa. 277, 14 A.2d 85, 131 A.L.R. 235; Roeper v. Monarch Life Insurance Co., 138 Pa.Super. 283, 11 A.2d 184. Our review of the record in the instant case clearly indicates that the testimony adduced by the plaintiff was sufficient to sustain her burden. In the words of Judge Weiner: 'Medicine is not an exact science, in its totality, but a mixture of science and art. There may be and frequently are areas in which physicians of unquestioned integrity and competency may reach differing conclusions on the same facts'. The testimony of Dr. Sloan expressed his professional opinion that Kubacki died as the result of a cerebral hemorrhage independent of any other contributing cause. The value and weight of his testimony was for the jury. Certainly the members of this court cannot set themselves up as super experts in the field of medicine and announce as a matter of law that the evidence was insufficient to support the verdict.

The instant case is comparable in many respects to Parrish v. Equitable Life Assurance Society, 376 Pa. 611, 103 A.2d 678, 680, wherein a verdict for the plaintiff was affirmed on appeal. The following statement by Mr. Justice Musmanno in the Parrish case is particularly applicable: 'The diametrically opposing opinions of the doctors went to the jury, together with other evidence presented by the plaintiff as to the insured's normal habits and good health. The judge's charge was a model of fairness and clarity; it presented the issue of fact squarely to the jury, it contained a correct statement of the law as to the burden of proof which had to be carried successfully by the plaintiff in order to win a verdict. We have studied the record and find that it amply supports and substantiates the verdict returned in favor of the plaintiff'. Other cases in which verdicts have been sustained under similar policy language are: Frame v. Prudential Insurance Company of America, 358 Pa. 103, 56 A.2d 76; Foulkrod v. Standard Accident Insurance Co., 343 Pa. 505, 23 A.2d 430; Real Estate Trust Company of Philadelphia v. Metropolitan Life Insurance Co., supra, 340 Pa. 533, 17 A.2d 416; Arnstein v. Metropolitan Life Insurance Co., 329 Pa. 158, 196 A. 491; Dauphin Deposit Trust Co. v. Lumbermens Mutual Casualty Co., 171 Pa.Super. 86, 90 A.2d 349.

Appellant contends alternately that it is entitled to a new trial because the verdict was against the weight of the evidence. In passing upon this contention we must consider all of the evidence, and assess its weight to determine whether the lower court abused its discretion. Jemison v. Pfeifer, 397 Pa. 81, 152 A.2d 697. We find no abuse of discretion in the instant case. When a new trial is sought upon the ground that the verdict was...