Johnson v. &aelig

• Decision Date: 19 November 1919
• Docket Number: (No. 10376.)
• Citation: 101 S.E. 134
• Parties: JOHNSON. v. ÆTNA LIFE INS. CO.
• Court: Georgia Court of Appeals

101 S.E. 134

JOHNSON.

v.ÆTNA LIFE INS. CO.

(No. 10376.)

Court of Appeals of Georgia,

Division No. 2.

Nov. 19, 1919.

(Syllabus by the Court.)

Where a verdict is directed for the defendant and exception thereto is brought to this court by the plaintiff, the direction of the verdict will be affirmed, where it appears from all the evidence, both for the plaintiff and the defendant, with all reasonable deductions therefrom, that the verdict was demanded. The fact that the trial judge, at the conclusion of plaintiff's evidence, refused to award a nonsuit, will not be considered as adjudicating that there was an issue of fact for the jury.

The plaintiff offered in evidence the following question and answer of the witness Mrs. Bogart: "Q. Is it your opinion, Mrs. Bogart, that this thing you saw on the back of his [insured's] neck was the thing that caused his death? A. I do; yes, sir. I think so." The evid»nce of this witness was taken by deposition, the question being one propounded by the defendant's counsel on cross-examination, and the answer was in response to that question. The defendant objected to the introduction of this question and answer, and by permission of the court withdrew the question, and the court ruled the evidence out. The judge did not abuse his discretion in so holding, as the answer or evidence of the witness was not competent. Moreover, had this evidence been admissible, its rejection by the court would not have been reversible error, since, with the testimony in, the evidence would nevertheless have demanded a verdict in favor of the defendant.

Where an accident policy insured against loss "from bodily injuries effected solely through external, violent and accidental means, " it is incumbent upon a plaintiff in an action thereon to show that in the act which preceded the injury alleged to have caused his death something "unforeseen, unexpected, or unusual occurred."

While, in such case, the allegation that the insured met his death "as the result directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means, " may be sustained by proof of circumstances, as well as by direct evidence, the proved facts in this case, considered in connection with the defensive facts developed upon cross-examination, were not sufficient to make a jury question. Accordingly, the court did not err in directing a verdict for the defendant.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by A. F. Johnson, administrator, against the-iEtna Life Insurance Company. Judgment for defendant on a directed verdict, and plaintiff brings error. Affirmed.

Winfield Payne Jones, of Atlanta, for plaintiff in error.

Anderson, Rountree & Crenshaw, of Atlanta, for defendant in error.

SMITH, J. Only an elaboration of the rulings made in the second and third headnotes is deemed necessary.

In an action on an accident policy such as the one sued upon in this case, there is no legal presumption that death resulted from an "accident." On the contrary, if there is any presumption at all, it is that death resulted from natural causes. Therefore it will not suffice a plaintiff seeking to recover on an accident policy to rely upon a presumption that death resulted from accidental means, but the law imposes upon him the burden of proving such fact by competent evidence, either direct or circumstantial. In other words, there can be no accident as a matter of law without proof of a fact or facts pointing to death through accidental means.

In the case at bar, it was incumbent upon plaintiff to show that, in the act or acts which preceded the injury alleged to have caused the insured's death, something "unforeseen, unexpected, or unusual happened." Whether or not this burden was sucessfully carried either by direct or circumstantial evidence is the controlling question in the case. The salient facts established by the proof submitted on the trial show that the insured was a traveling salesman weighing approximately 200 pounds, possessed of apparent unusual physique and strength, and that on the day of the tragedy he, together with his wife and two of her lady friends, were riding in an automobile when there occurred a blow-out, which he attemped to remedy by hurriedly changing tires, and in some way, not shown by the evidence, he ruptured a blood vessel and died almost immediately. Notwithstanding all this occurred in the daytime, and in the presence of the insured's wife and...