Gamble v. Travelers Ins. Co.

• Decision Date: 01 April 1968
• Docket Number: No. 18775,18775
• Citation: 160 S.E.2d 523,251 S.C. 98
• Parties: Sam GAMBLE, Respondent, v. TRAVELERS INSURANCE COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 523

160 S.E.2d 523

251 S.C. 98

Sam GAMBLE, Respondent, v. TRAVELERS INSURANCE COMPANY, Appellant.

No. 18775.

Supreme Court of South Carolina.

April 1, 1968.

James M. Morris, Manning, for appellant.

Ralph F. Cothran, Manning, for respondent.

MOSS, Chief Justice.

This is an action brought by Sam Gamble, the respondent herein, against Travelers Insurance Company, the appellant herein, to recover death benefits under a life and accident insurance policy issued by the appellant on April 1, 1963, with Albertus Conyers as the insured therein named, and the respondent as the beneficiary therein named.

It is alleged in the complaint that the appellant issued its group life insurance policy, with an accidental injury and death provision therein, to Humble Oil and Refining Company and thereby insured the lives and health of certain marketers and their employees. It is also alleged that the respondent, as a marketer, duly qualified one Albertus Conyers, an employee, as an insured under the life and accident provisions of said policy, entitling said employee to the various benefits set forth in said policy and entitling the respondent, upon the death of the insured by accidental means, to recover the accidental death benefits payable under said group policy. It is then alleged that on April 27, 1965, while the said policy was in full force and effect, the said Albertus Conyers died from accidental means entitling the respondent to recover the accidental death benefits payable under said policy.

The appellant demurred to the complaint upon the grounds that it failed to state facts sufficient to constitute a cause of action, in that, (1) there is no allegation therein that a loss occurred within the provisions of the policy; and (2) there is no allegation that the insured died from accidental means resulting directly and independently dependently of all other causes.

The demurrer was heard by The Honorable W. L. Rhodes, Jr., Presiding Judge, and he overruled such on the ground that the complaint does state a cause of action for death by accidental means. The appellant asserts that the trial judge erred in overruling the demurrer.

It is, of course, elementary that in passing on a demurrer the court is restricted to the facts as they appear in the complaint. Hartford Accident & Ind. Co. v. South Carolina Ins. Co., 249 S.C. 120, 153 S.E.2d 124. The group insurance policy was not made a part of the complaint nor was such before the trial judge for consideration in deciding whether a cause of action was stated in the complaint. Although the allegations of the complaint are couched in general terms, liberally construing such, we think the complaint states a cause of action for benefits accruing to the respondent as beneficiary under said policy by reason of the death of the insured by accidental means. It is alleged that Albertus Conyers 'was covered under the provisions' of the policy and that he died from accidental means. While the complaint does not specifically state that death through accidental means is a 'loss within the provisions of the policy', we think the allegations of the complaint, when liberally construed, fairly embrace such averment. The appellant asserts that the complaint was defective in failing to allege that the insured died 'from accidental means resulting directly and independently of all other causes'. Apparently the appellant is relying upon a provision or condition contained in the policy agreement and since the policy was not a part of the complaint it would have been improper for the trial judge to consider a condition or a provision of the policy in determining whether the foregoing allegation was necessary. Since the objection of the appellant to the allegations of the complaint does not appear upon the face thereof, such objection could not be taken by demurrer. The demurrer was properly overruled.

After the demurrer was overruled, the appellant filed an answer admitting that the policy had been issued and that Albertus Conyers died on April 27, 1965, but denied that benefits were payable under the terms of the policy, which policy was incorporated in the answer and provides in its pertinent part for benefits for bodily injury 'effected directly and independently of all other causes through accidental means. * * *' 'Exclusions:--The insurance under this Part shall not cover any loss (1) caused or contributed to by bodily or mental infirmity, disease or infection * * *, even though the proximate and precipitating cause of the loss is accidental bodily injury; * * *.' The answer of the appellant alleged that the insured had an epileptic seizure or convulsion and that such caused or contributed to the fall that resulted in his death.

The case was tried at the Spring term of the Court of Common Pleas for Clarendon County before Judge Rhodes and a jury, resulting in a verdict for the respondent in the amount of the accidental death benefits payable under the policy. The appellant made timely motions for a nonsuit, directed verdict and, after the verdict, for judgment Non obstante veredicto or, in the alternative, for a new trial. The respondent made a motion for a directed verdict in his favor on the ground that the testimony showed that the insured died as a result of an accident and there was no evidence to sustain the defense that such death was caused or contributed to by any bodily or mental infirmity, disease or infection. The trial judge overruled all of the foregoing motions and the appellant is here on several exceptions which, in addition to charging error in overruling the demurrer, asserts error on the part of the trial judge in submitting the case to the jury, in certain aspects of his charge, and in failing to declare a mistrial.

The burden of proof was upon the respondent to show the death of the insured by accident. Coleman v. Palmetto State Life Ins. Co., 241 S.C. 384, 128 S.E.2d 699. From the evidence introduced in this case it is clear that there is no dispute as to the fact that the direct cause of the death of the insured was epidural hemorrhage due to a skull fracture. This being true, the burden of proof was on the insurer to establish that the injury or death was caused or contributed to by the disease of epilepsy and that such came within the exclusion clause of the policy. Outlaw v. Calhoun Life Ins. Co., 238 S.C. 199, 119 S.E.2d 685. If the insured is afflicited with a disease or infirmity at the time an alleged accident occurs, which disease or infirmity causes or contributes to the death or injury resulting, such death or injury is not within the coverage of a policy which insures against death or bodily injury by accident or accidental means, independently of all other causes or which excepts death or bodily injury...