Liberty Nat. Life Ins. Co. v. Liner

• Decision Date: 10 May 1966
• Docket Number: No. 41955,No. 1,41955,1
• Citation: 149 S.E.2d 523,113 Ga.App. 710
• Parties: LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Lucindia D. LINER
• Court: Georgia Court of Appeals

Page 523

149 S.E.2d 523

113 Ga.App. 710

LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Lucindia D. LINER.

No. 41955.

Court of Appeals of Georgia, Division No. 1.

May 10, 1966.

Rehearing Denied May 24, 1966.

Syllabus by the Court

Since the uncontroverted circumstantial evidence supported equally the inconsistent conclusions that the insured's death was accidental and that it resulted from his own felonious act, the plaintiff failed to carry the burden of proof of accidental death; therefore the verdict and judgment for the plaintiff were not authorized. The court erred in denying the motion for judgment n.o.v.

This is an action by the widow-beneficiary against the insurance company to recover the accidental death benefits under a life insurance policy insuring the plaintiff's deceased husband. It is alleged that the insured died on October 6, 1963, as a result of an accident, namely: suffocation from smoke inhalation while confined in jail. It is further alleged that the plaintiff had complied with the terms of the policy and that the defendant had refused to pay within 60 days of her claim and demand. The defendant filed its plea and answer, alleging that the insured's death was caused by his own misconduct in setting fire to the jail in an attempt to escape. The trial resulted in a verdict in favor of the plaintiff in the amounts of $1,000 principal, $250 penalty and $1,250 attorney's fee, and judgment was entered thereon. The defendant filed its notice of appeal from the judgments of the court overruling its motions for judgment n.o.v. and for a new trial. Appellant's enumerated errors are the judgments of the court overruling its motions for nonsuit, a directed verdict, judgment n.o.v. and a new trial.

Henry A. Stewart, Sr., Cedartown, for appellant.

Howe & Murphy, Don B. Howe, Tallapoosa, James I. Parker, Cedartown, for appellee.

FELTON, Chief Judge.

The plaintiff had the burden of proving her allegation that the insured's death resulted from accidental injury as defined by the policy. The policy defines accidental injury as 'bodily injury affected solely through external and accidental means' and provides that 'the benefit for natural death will be payable in lieu of the accidental death benefit: * * * (3) if the injury or death is caused or contributed to by * * * (d) participation in an assault or felony.'

The evidence showed substantially as follows: There were no eyewitnesses to the deaths of the insured and his brother, who were the sole occupants of the particular area of the jail in which they were confined on charges of driving under the influence and in which the fire started (a colored prisoner occupied and adjoining area, separated by a masonry wall). The area of their confinement was known as the 'bull pen,' within which were two individual cells. The insured was assigned to the back, or number 2, cell and his brother to the front, or number 1, cell. Both cells were unlocked, giving both prisoners free access to the whole area within the bull pen, including both cells. The ceiling of the bull pen was covered with strips of tin, approximately 29 to 36 inches by 6 feet in size. There was a window in the bull pen which had been boarded up from the outside. Both the window and the ceiling were intact when the prisoners were committed. Approximately an hour or an hour and a half before the fire started, the prisoner in the adjoining area heard, for about 5 minutes, a sound like 'a tin cup going across some bars' coming from within the bull pen. After the fire was brought under control, a strip of the ceiling tin, which came from the area just inside the main entrance to the bull pen, was found on the floor underneath the bunk in the insured's cell, along with a section of the wooden window sash. The fire started in the vicinity of the removed ceiling strip, either on or within the ceiling or in an empty room above, which had formerly been used for the storage of civil defense supplies. None of the witnesses, including an expert, knew the cause of the fire, although faulty wiring was said to be eliminated as the cause. There was speculation that the force of the fire hose might have knocked the window sash and even the tin ceiling strip off and that the water standing on the floor might have caused various objects to float around within the area. The deputy state fire marshal testified that the ceiling strips evidence a bending which indicated to him that attempts had been made to pry it loose. He also expressed the opinion that the tin strip found under the insured's bunk would have had to get there by...