Green v. Metropolitan Life Ins. Co.
| Decision Date | 06 July 1942 |
| Docket Number | 29560. |
| Citation | 21 S.E.2d 465,67 Ga.App. 520 |
| Parties | GREEN v. METROPOLITAN LIFE INS. CO. |
| Court | Georgia Court of Appeals |
Stevens & Stevens, of Thomson, for plaintiff in error.
Randall Evans, Jr. and Jack D. Evans, both of Thomson, and Cohen & Cohen, of Augusta, for defendant in error.
Mrs Willie Green brought suit against Metropolitan Life Insurance Company, as beneficiary, to recover $500 as double indemnity under an insurance policy issued to her husband, Willie Green, and also to recover damages and attorney's fees on account
of the alleged bad faith of the company in failing to pay under the double-indemnity provision of the policy, the company having paid, without prejudice to her rights, the face amount of the policy on the life of the insured. The policy provided, among other things, that "Upon receipt of due proof that the death of the insured resulted independently of other causes, from bodily injuries caused solely by external, violent, and accidental means, the company will pay, as an additional death benefit, an amount equal to the amount payable under the schedule, unless such injuries were sustained [under circumstances not here involved]," and that "the additional benefit shall not be payable if the insured's death *** is the result of participation in an assault or felony."
The insurance company filed an answer denying liability admitting that the insured came to his death on November 24, 1939, from shotgun wounds inflicted upon him, but defended on the ground that his death did not result "independently of other causes from bodily injuries caused solely by external, violent, and accidental means," setting up that at the time he met his death, at the hands of one Albert Hinton, he had been warned by Hinton that he would be killed if he came to Hinton's house, and that at the time he was shot he was attempting, after dark, to get into the window of Hinton's home and was armed with a pistol, and that the shooting and the injuries resulting in his death were not unusual, unexpected, and unforeseen by the insured, but were just what he had been told to expect, and that from the nature of his act he must have foreseen that he would be shot and killed if detected; that the shooting of the insured was the natural and known consequence of his own act, was a risk which he assumed, and that an injury and consequent death did not result by accidental means. The defendant denied that due proof of the death of the insured had been made on December 17, 1939, as alleged in the petition. It admitted issuing a receipt for proof of death and that it received a proof of the death of the insured, but received no proof showing death by accidental means.
The jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial, and by amendment added several special grounds. The court overruled the motion and the exception here is to that judgment.
Upon the trial of the case the following evidence was introduced: Mrs. Willie Green testified that she was the widow of the insured; that she saw his body after he had been brought home, his face showing evidence of having been shot; that she made demand upon the company for the double indemnity under the policy but had not been paid.
Albert Hinton testified: "When I first knew him [the insured] was in 1926. * * Worked for him a while in 1930. *** In 1933 I never had any dealings with Willie Green. I did see him in my home. That was in 1933, I don't recall the date. I had been to work that morning and went home. When I got home I set right down at the edge of the yard in some high weeds and just watching. I saw Willie Green. I said something to him. He was in my house. My wife was there. Willie ran out of the house. I stepped up on the steps and asked Willie 'What are you doing here?' and he said 'I've been out here looking at this timber.' He said he stopped here to get a drink of water. I said 'Willie, there is no well here.' He said 'Well, I just stopped here to get a drink', and I said 'Here is the water bucket out here on the porch,' and at that time I turned around and he started out and I got my gun and stopped him. I sent for sheriff Norris. I had a shotgun. In the presence of the sheriff I told him I would kill him if he footed my premises again. *** Sheriff Norris said 'Albert, just let him alone, and I will talk to him and he won't never bother you any more.' He told him, he said, 'Willie, stay away.' Willie said he never intended to foot my place again. That was in 1933. The next time I saw him in my home it was in '36. *** Well, in the meantime on Friday I was at home. I was working at night at that time, and I was sitting there and my wife was getting ready to get off. They were having some big act. When I was sitting there by the window somebody blowed the horn. I looked out the window. I seen who it was. It was Willie Green, just about a hundred yards above where you turn in. Well, I was sitting by the window with the shade pulled partly down, and some of the children run to the door and he kept on by and didn't stop. He goes on up the road beyond there five or ten minutes and came back but he never stopped then. *** The next time I saw him was one Saturday morning. I had been sick and was at home, in 1939, it was September, 1939. He drove out there in his car and I went to the door. He was kindly frightened by me being there. He said 'I am at the wrong place.' He said 'I didn't know where you all had been living for two or three years.' He said 'I am hunting a negro' by the name of so and so. He said Well, it wan't but just a short time, I say a month or two, before I saw him, and he told me he was hunting my wife's brother, and I told him my wife's brother didn't live there. At that time I was working at the box factory. I was working night duty. Well, as I told you, about Friday we went to Augusta. I got back and came on to work, went to work at 7 o'clock. Well, I placed my car just in front at the door where we go in, and too where he could see it, and I got my brother to take me out near my home. Well, we left the box factory *** and I met him, met Willie Green. He was driving. *** I goes on home and places myself out in the edge of the yard. I imagine that is about 75 yards from the road. And I had my gun out there with me. Well, it wasn't five minutes that I got hid before a car topped the hill, stopped, put Willie out of the car, drove on by, and in about three or four minutes here he come right across the field. I just lay there, just to see what he was going to do first. So the shade was pulled down. He peeped in and didn't do anything, only just looked in. He goes on around to the back door where it was fastened, but after he got around the kitchen window was shut, and he taken and prized that window, and it was fastened and he couldn't get it open. Then he goes up to the bedroom and tried to get in there. My wife and two children were at home, minor children. He come around in the front door, and he tries to look in the keyhole, look through. It had just a padlock on it, and he couldn't make no headway, and come around the chimney of the house where there was only one window and pulled at that to try to attract their attention, and at that time he came out. I hollered at him and I said 'Hey, there.' He reached for his gun. When he did, I shot him. As to how he reached for his gun-- come back like that [indicating], with his hand to his hip. He reached for his gun before I shot, yes, sir. He had a pistol, yes, sir. That was about 7.30 at night. It was in December, 1939. As to whether I said November or December--November, 1939. The moon was shining almost as bright as day."
E. G. Wade testified that he was justice of the peace for Thomson district, McDuffie County, and identified a judgment rendered by him and two other justices in a commitment hearing of a charge against Albert Hinton for the alleged murder of Willie Green, the insured, in which hearing the judgment of the justices was that the accused be not bound over. This judgment was introduced in evidence by the defendant.
L. J. Norris, sheriff, testified that in response to a call he went to the home of Albert Hinton in 1933, as testified by the latter, and that Hinton was sitting in the yard with Willie Green; that Hinton informed the witness that he had caught Green in the house, and that he told Willie that he was going to give him a chance but that if he ever came back to his place he would kill him; that in 1939, about 8 o'clock, he was summoned to Albert Hinton's house, and that when he arrived Hinton was standing out in the yard and showed him where Willie Green had been standing by the window and the way he ran, Hinton stating that he did not go to the body but heard it fall, and that the witness found Willie Green dead and with a 32 Smith & Wesson in his right-hand hip pocket.
The plaintiff introduced in evidence the policy sued on and also the following documentary evidence: Letter, under date of February 5, 1940, from the plaintiff's counsel to the company stating that they had been employed to collect the double indemnity under the policy and stating: ...
To continue reading
Request your trial