concurring:
Although I agree with the result reached by the majority, I would treat appellant’s final argument in a different fashion than does the majority. As noted in the majority opinion the policy in question contained a basic “caused solely by accident” clause and an express exclusion clause. Appellant contends, however, that appellee waived the express exclusion clause by failing to plead the facts necessary to give rise to the exclusion. See Janco v. John Hancock Mutual Life Insurance Company, 160 Pa.Super. 280, 50 A.2d 695 (1947), Pa.R.C.P. 1030. She concludes that this failure meant that the insurance policy should have been construed by the lower court as one in which there was only one restrictive clause, the basic “caused solely by accident” clause.
*77The distinction between policies with only one restrictive clause and those with two restrictive clauses is dispositive as to what a claimant must show in order to satisfy his burden of proof. As explained in Johnson v. Kentucky Central Life and Accident Insurance Co., 144 Pa.Super. 116, 124, 18 A.2d 507, 511 (1941),
Where the liability of the insurance carrier is limited by both restrictive clauses, it is not sufficient for the insured or his beneficiary in case of death to establish a direct causal relation between the accident and the death or disability. He must show that the resulting condition was caused solely by external and accidental means, and if the proof points to a pre-existing infirmity or abnormality which may have been a contributing factor, the burden is upon him to produce further evidence to exclude the possibility.
The rule established by the Kelley case, [Kelley v. Pittsburgh Casualty Co., 256 Pa. 1, 100 A. 494 (1917)], however, is as follows: Where the liability of the insurance carrier is limited by the one restrictive clause referred to, that exception in the policy will not relieve the insurer if the accident is the moving, sole and proximate cause of the death, even though a pre-existing disease or physical infirmity be a necessary condition to the result.
In other words, where a policy contains a “caused solely by accident” clause alone, an award in favor of the claimant is required once it is established that an accident was the direct cause of death, whether or not a pre-existing infirmity was a contributing factor in the death. Instantly, appellant contends that, given her argument that the policy contained, in effect, only the one restrictive clause, her evidence that the decedent’s heart attack was the direct cause of death was sufficient to submit the case to the jury.
I would disagree with appellant. As noted by the majority, appellee pled the facts of decedent’s pre-existing disease in its new matter and argued them in the trial court.
In the cases cited by appellant the insurer relied solely on an exclusionary clause for its defense and, therefore, had to plead and prove the facts necessary to give rise to the *78exclusion. However, Johnson, supra, holds that where an exclusionary clause is relied on in conjunction with another primary restrictive clause, a “caused solely by accident” clause, the burden of proof shifts to the claimant to exclude the possibility that a pre-existing infirmity was a contributing factor to the death, if the proof at trial point to such a possibility. The rule that appears to emerge from a consideration of these cases together is that the insurer must plead the facts giving rise to the exclusion before it can be considered in conjunction with the primary restrictive clause. The only burden the insurer would then bear would be a possible burden of going forward with evidence that a pre-existing infirmity contributed to the death if the evidence adduced during the claimant’s case in chief did not point to such a possibility.
In the instant case, appellee pled the facts necessary to give rise to the second restrictive clause (the exclusionary clause), and thus, appellant had the burden of excluding the possibility that a pre-existing infirmity contributed to the death when the evidence in her case in chief pointed to that possibility. Since the evidence she presented, if believed, would not have excluded such a possibility, I agree with the majority that a compulsory nonsuit was properly granted by the lower court.