Gaynor v. Travelers' Ins. Co.
| Docket Number | 4601,4602. |
| Decision Date | 16 April 1913 |
| Citation | 77 S.E. 1072,12 Ga.App. 601 |
| Parties | GAYNOR v. TRAVELERS' INS. CO. TRAVELERS' INS. CO. v. GAYNOR. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In a suit upon an insurance policy, the petition should contain or have attached thereto a copy of everything appearing "upon the face or in the body of the policy," including all stipulations embraced in that part of the policy which precedes the signatures of the company's officers by whom it was executed. Southern Mut. Insurance Co. v. Turnley, 100 Ga. 296, 27 S.E. 975.
An evasive answer consists in refusing either to admit or to deny a matter as to which the defendant is necessarily presumed to have knowledge. Where a defendant is alleged to be a corporation, an answer declining, for want of sufficient information, either to admit or to deny such an averment would be evasive and should be treated as an admission of the averment. Raleigh & Gaston Ry. Co. v. Pullman Co., 122 Ga. 700, 50 S.E. 1008; So. Bell Telephone & Telegraph Co. v. Shamos, 12 Ga.App. --, 77 S.E. 312. But an answer distinctly denying an allegation that the defendant is a corporation, although it may be false, is not evasive.
Where at the conclusion of the plaintiff's evidence, a motion for nonsuit is overruled, and a verdict is directed in favor of the defendant, to which exception is duly taken, a determination of this exception settles the case, and an assignment of error in a cross-bill of exceptions complaining of a refusal to grant a nonsuit will not be considered.
Where one person injures another and the injury is not the result of misconduct or participation of the injured party, but is unforeseen by him, it is, as to him, accidental, although it may be intentionally inflicted by the other party.
Where in a policy of accident insurance, it is stipulated that no recovery shall be had for an injury intentionally inflicted upon the insured by any other person the burden is upon the insurer to show that the injury came within this exception.
Where a person receives an injury, the presumption is that it was accidental rather than the result of design.
An injury intentionally inflicted upon another by a person intoxicated at the time is within an exception in a policy of accident insurance which provides that no recovery shall be had for an injury "intentionally inflicted upon the insured by any other person, sane or insane."
The inference that one intends the natural consequence of his act is a rule of circumstantial evidence applicable to all human transactions, and it is to be applied in criminal as well as in civil cases in passing upon the sufficiency and weight of the evidence.
Where one approaches another from the rear and, at a distance of eight or ten feet, deliberately aims and fires a deadly weapon at the person thus approached, and the latter dies from the wound thus inflicted, and nothing more appears there is a conclusive inference that the person shooting intended to take the life of the person at whom he shot.
The mere fact that, at the time the homicide took place, other persons were in close proximity to the person killed and might have been injured by the shot was not sufficient to rebut the inference that the slayer intended to kill the person shot.
Error from City Court of Savannah; Davis Freeman, Judge.
Action by A. L. Gaynor against the Travelers' Insurance Company and vice versa. Judgment for defendant and plaintiff, and defendant files cross-bill. Affirmed on main bill, and cross-bill dismissed.
Anderson Cann & Cann, of Savannah, for plaintiff in error.
Osborne & Lawrence and Edmund H. Abrahams, all of Savannah, for defendant in error.
The action was upon an accident insurance policy insuring against loss resulting from bodily injuries effected, directly and independently of all other causes, through "external, violent, and accidental means." One of the exceptions in the policy was as follows: "This insurance shall not cover disappearance, suicide, sane or insane, *** injuries, fatal or nonfatal, intentionally self-inflicted or intentionally inflicted upon the insured by any other person, sane or insane" (with certain exceptions not material to be here noted). The insured met his death under the following circumstances: He and three other men were walking slowly down Congress street, in the city of Savannah, late in the afternoon, and one Davis was seen walking rapidly behind the four men. When Davis arrived within eight or ten feet of the men he stopped and called to one of them. The insured turned around and faced Davis, who immediately discharged a pistol twice. One of the shots struck the insured, and he afterwards died in consequence of the wound thus inflicted. Immediately after the shooting, Davis walked away with the pistol in his hand. When arrested, he asked the officer what he would do if a fellow came up and slapped him in the face. This was the only remark made by Davis in reference to the shooting. It was not shown that the insured had slapped Davis' face; nor did it appear that there had been any previous difficulty between them; nor is any motive for the killing disclosed by the evidence. It further appears that Davis was very drunk at the time the shooting took place. Davis was not introduced as a witness. The trial judge overruled a motion for a nonsuit, at the conclusion of the plaintiff's evidence, and directed a verdict in favor of the defendant after testimony, substantially as set out above, had been introduced by the defendant. The plaintiff sued out a bill of exceptions complaining of the direction of the verdict, and the defendant, by cross-bill, complains of the refusal to grant a nonsuit.
The headnotes state our view of the practice questions involved and need no elaboration. It is well settled that, where a motion for a nonsuit is overruled and the defendant introduces evidence and recovers a verdict, if the evidence as a whole authorizes the verdict rendered, the judgment overruling the motion for a nonsuit will not be reversed, even though the plaintiff failed to make out a prima facie case. Rice v. Ware, 3 Ga.App. 573, 575, 60 S.E. 301; Carr v. Georgia Loan & Trust Co., 108 Ga. 757, 33 S.E. 190; Holder v. Scarborough, 119 Ga. 256, 46 S.E. 93. There is no real dispute between counsel in reference to the legal principles which control this case. Policies of insurance are to be construed most strongly against the insurer. Mass. Benefit Life Ass'n v. Robinson, 104 Ga. 256 (2), 30 S.E. 918, 42 L.R.A. 261.
An injury is presumed to be the result of accident rather than of design.
In policies of accident insurance, which indemnify against loss effected through external, violent, and accidental means, it has uniformly been held that a recovery may be had for an injury inflicted by another if the injury is not the result of misconduct or participation of the injured party, but is unforeseen by him. Travelers' Insurance Co. v. Wyness, 107 Ga. 584, 589, 34 S.E. 113, and citations. To meet these decisions, an exception was inserted in accident policies to the effect that no recovery could be had for an injury intentionally inflicted by another. Under this exception it was held that, if the injury upon the insured was inflicted by an insane person, it could not be said to have been intentional. Corley v. Travelers' Protective Ass'n, 105 F. 854, 46 C.C.A. 278; Berger v. Pacific Mut. Life Ins. Co. of California (C. C.) 88 F. 241. Finally, to meet this last line of decisions, an exception, such as the one now involved, was added to policies to the effect that no recovery could be had for an injury intentionally inflicted by another person, whether he was sane or insane at the time.
The burden is upon the company to prove that the injury is within this exception. Travelers' Ins. Co. v. Wyness, supra. The only question, therefore, material to be considered is whether or not the company so far carried the burden in the present case as to demand a finding in its favor. We agree with counsel for the plaintiff that, in order to carry this burden, it is necessary for the defendant to prove a specific intent to kill on the part of the person inflicting the injury, for he must have intended to inflict the particular injury which resulted to the...
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