Johnson v. Southern Life Ins. Co.

• Decision Date: 08 April 1957
• Docket Number: No. 36630,No. 2,36630,2
• Parties: G. H. JOHNSON, Administrator, v. SOUTHERN LIFE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 382

98 S.E.2d 382

95 Ga.App. 625

G. H. JOHNSON, Administrator, v. SOUTHERN LIFE INSURANCE COMPANY.

No. 36630.

Court of Appeals of Georgia, Division No. 2.

April 8, 1957.

Rehearing Denied April 25, 1957.

Syllabus by the Court.

It is for the jury to determine whether or not death by being shot by another is an accident, where the evidence, together with all reasonable inferences to be drawn therefrom, is conflicting as to whether or not the insured's own wrongful assault produced his death, or whether or not he voluntarily and intentionally committed an assault from which he foresaw, or could have foreseen, that death might result.

George H. Johnson, as the duly appointed administrator of the estate of LeRoy Johnson, brought an action against the Southern Life Insurance Company of Georgia to recover the sum of $1,000, together with penalties for bad faith and attorney's fees. The material allegations of the petition as finally amended are substantially as follows: The defendant company, on June 6, 1952, issued a certificate under a group policy, insuring the plaintiff as an employee of the Strain Feed & Coal Company, Dalton, Georgia. A copy of the certificate of insurance is annexed to and made a part of the petition. Luvania S. Johnson, as the wife of the insured, was named as beneficiary in the policy. Mrs. Johnson predeceased the insured, leaving no designated beneficiary surviving the insured, and the benefits under the policy for which the plaintiff brings suit, are payable to the insured's estate. The insured came to his death on January 10, 1954, as the direct result of gun-shot wounds inflicted by Wilson Blaylock. The shooting and death of the insured was without cause, unprovoked, and was not foreseen by the insured in time to avoid it. The wound inflicted caused an external and violent injury which was evidenced by visible contusion and was from an accidental cause coming within the terms of the policy. The certificate of insurance was in full force and effect at the time of the insured's injury and death. The defendant insurance company has paid the plaintiff the sum of $1,000 as an amount due under the group policy as life insurance benefits. This amount was paid by the defendant and received by the plaintiff without jeopardizing or precluding the plaintiff's right to claim additional benefits under the policy for accidental death. Under the certificate and policy of insurance, the defendant insurance company is indebted to the estate of the insured in the amount of an additional $1,000 by virtue of the insuring agreements set forth under a portion of the policy captioned 'Nonoccupational accidental death, dismemberment, and loss of sight,' in which it is stipulated that in the event of the insured's death by a nonoccupational, accidental death, an additional $1,000 shall be paid under the terms of the certificate and policy. The insured's injury and death occurred at a time and place disconnected with his employment, and his injury and death were not, and are not, covered by workmen's compensation. The defendant insurance company had due notice of the insured's death and have been provided with proof of his death, and the plaintiff has otherwise performed all the conditions imposed upon him by the policy. The plaintiff has made due and proper written demands upon the defendant insurance company through its attorney. Payment to the plaintiff has been refused by the defendant in bad faith and the plaintiff is entitled to recover, in addition to the $1,000 for which suit is brought, 25 per cent of such sum as reasonable attorney's fees.

The defendant insurance company bases its defense upon the theory that the insured's death comes within one of the exclusions in the policy; namely, that 'No benefits shall be payable for any loss which results directly or indirectly, wholly or partly, from: * * * committing an assault or felony, * * *'

At the conclusion of all the evidence, the trial court on the motion of counsel for the defendant, directed a verdict for the defendant.

The plaintiff's motion for a new trial, based upon the usual general grounds and one special ground, assigning error upon the direction of the verdict, was denied, and the plaintiff excepts.

F. Kelly McCutchen, Dalton, for plaintiff in error.

Pittman, Kinney & Pope, Dalton, for defendant in error.

CARLISLE, Judge

The present suit is brought under the 'Nonoccupational accident death' agreement of the policy of insurance which provides: 'Subject to all the provisions of this policy, if the employee while insured hereunder, sustains one of the losses listed in the following table of benefits as the direct result of nonoccupational accidental bodily injury independently of all other causes, as evidenced by a visible contusion or wound on the exterior of the body * * * and the date of occurrence of such injury is not more than 90 days prior to the date such loss was sustained, the company, on receipt at its home office of due and and satisfactory proof of such loss, will pay to the employee if living on the date of the payment by the company for such loss, otherwise to the beneficiary of the employee, the amount shown for such loss in the table of benefits based on the full amount of insurance stated in the schedule of insurance.' (The table of benefits provides for the payment of the full amount of insurance in the event of loss of life.) This provision of the policy contains among others the following limitations: 'No benefits shall be payable for any loss which results directly or indirectly, wholly or partly, from: * * * committing an assault or felony.'

'When a verdict is directed for the defendant and exception thereto is brought to this court by the plaintiff, the direction 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. Johnson v. Aetna Life Ins. Co., 24 Ga.App. 431, 101 S.E. 134; Pruitt v. Progressive Life Ins. Co., 55 Ga.App. 483, 190 S.E. 435; Code, § 110-104. However, it is for the jury to determine whether or not death by being shot by another is an accident, where the evidence [together with all reasonable inferences to be drawn therefrom] is conflicting as to whether or not the insured's own wrongful conduct produced his death, or he voluntarily and intentionally committed acts form which he foresaw, or should have foreseen, that death or injury might result.' Riggins v. Equitable Life Assurance Soc., 64 Ga.App. 834, 840, 14 S.E.2d 182, 186.

The plaintiff assigns error on the trial court's direction of the verdict for the defendant on the ground that there were issues of fact for determination by the jury. To determine whether or not the trial court erred in its direction of the verdict for the defendant, it becomes necessary for us to answer two ancillary questions: (1) Did the plaintiff carry the burden required of him in showing that the insured's death was accidental? (2) Did the death of the insured come within the exclusion provision of the policy that no benefits would be paid for any loss which resulted directly or indirectly, wholly or partly, from the commission of an assault or felony by the insured?

In the Riggins case, supra, this court went thoroughly into the questions presented here in its consideration of a suit upon the accidental feature of a policy of insurance, containing an exclusion provision very similar to that contained in the present policy. In that case, this court stated, 'There can be no accident, as a matter of law, without proof of a fact or facts pointing to death through accidental means. It is incumbent on the plaintiff to show that in the acts or acts which preceded the injury alleged to have caused the insured's death something unforeseen, unexpected, or unusual happened. The test seems to be, did the insured appreciate that by doing the act he was putting his life and limb in hazard? Tabor v. Commercial Casualty Insurance Co., 104 W.Va. 162, 139 S.E. 656, 57 A.L.R. 971. Thus, even though his death might be considered accidental under the general accident clause in the policy, nevertheless if his death was caused by an 'assault or felony,' as stated in the policy, he could not recover. Generally speaking, under a life-insurance policy a prima facie case in favor of the plaintiff's right of recovery is ordinarily established by proving and introducing the policy and proving the fact of death and notice thereof to the company. 37 C.J. 635. However, under a life-insurance policy with an accident feature, in order to make out a prima facie case solely under the accident feature, there must be proof of the policy, proof of death, and further proof that the death occurred from accident or accidental means as defined in the policy. New York Life Insurance Co. v. Jennings, 61 Ga.App. 557, 559, 6 S.E.2d 431; Gaynor v. Travelers' Insurance Co., 12 Ga.App. 601, 77 S.E. 1072; Georgia Life...