Liberty Nat. Life Ins. Co. v. Power, 40895

• Decision Date: 11 March 1965
• Docket Number: 2,Nos. 1,No. 40895,3,40895,s. 1
• Citation: 111 Ga.App. 458,142 S.E.2d 103
• Parties: LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Lelia W. POWER
• Court: Georgia Court of Appeals

Page 103

142 S.E.2d 103

111 Ga.App. 458

LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Lelia W. POWER.

No. 40895.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 11, 1965.

Rehearing Denied March 31, 1965.

Syllabus by the Court

1. (1) All that is required to raise the presumption against suicide is to show the fact of death of a human being.

(2) While proof of the means producing death is usually necessary in order to bring the death within the coverage of the contractual terms of an insurance policy, proof of the means is not necessary in order to create the presumption.

(3) The presumption is one of fact and not of law.

(4) The presumption is subject to elimination by uncontradicted evidence, either direct or circumstantial, that the death was caused by suicide. In such a status, a verdict is demanded that death was suicidal.

(5) Where there is direct or circumstantial evidence, either or both on each side in any combination, showing or tending to show respectively that death was or was not produced by suicide, the presumption against suicide is not eliminated and a jury question is presented.

2. The evidence in this case demanded a finding that the insured came to his death intentionally by his own hand. The exclusionary provisions of the accident policy precluding the payment of benefits under the policy where loss results from selfdestruction, a verdict was demanded for the defendant.

This is an action upon an accident insurance policy brought by Lelia W. Power as the named beneficiary against Liberty National Life Insurance Company to recover benefits payable under the policy for the accidental death of the beneficiary's son, James Power, the named insured.

Upon trial of the case the insurer based its defense upon the theory that the insured's death was produced, not by accidental means as required by the policy, but by suicide. The jury returned a verdict for the plaintiff, and judgment was entered upon the verdict. The defendant excepts to the judgments of the trial court denying defendant's motion for judgment notwithstanding the verdict and overruling defendant's amended motion for new trial upon each and every ground of the motion.

Evidence adduced at the trial showed the following facts:

The insured, James Power, was a twenty-year-old 'fun-loving' youth, a 'big mixer' with a 'happy-go-lucky' disposition. He had played on the Roswell High School football team for four years, and had been captain of the team one year. While in high school he had won prizes for his accomplishments in woodworking. After high school he attended North Georgia College for two quarters, then quit college and obtained employment. At the time of his death he had worked for the Regal Paper Company for about a year and a half. His parents and his superintendent in his work testified that he was interested in his work. His mother's testimony showed that he had an ambitious attitude toward his future, and the testimony of his superintendent showed that he had opportunity for advancement in his employment with Regal Paper Company. Shortly before his death he had his parents were making plans to build a basement and workshop for their home, and he had indicated that he planned to join the Masons when he became twentyone. He had told his father that he expected to have to go into the Army and James Power 'dated' a certain girl on August 10, 1962, the first time, and thereafter on August 14, August 15, August 17, and August 19th. On August 19, they agreed to stop seeing each other, and did not meet again until August 31, the eve of James Power's death. The girl testified: 'He was getting so serious--I mean he had mentioned the fact that he wanted me to marry him, and I hardly knew him and I just couldn't go along with it, and that was just it.' During the brief time when they were seeing each other he had 'tried to have sexual relations' with her. On the night of his death 'he was again trying to mafke advances.'

that he 'wouldn't get married to no girl' until completion of his military service.

On August 31, James Power, his first cousin, and another young man drove in James' car to Norcross to see a football game between Roswell High School and Norcross High School, the first football game played that year by Roswell. Before meeting these other young men that evening, James had supper at home with his parents. At supper he was 'jolly,' and was 'laughing, joking, carrying on.' As he was leaving, he told his father that he would return home early that evening.

On their way to Norcross the three young men stopped and bought a half-pint of whiskey, from which they had 'two to three' drinks each, finishing the bottle at the football game during half-time.

James had not been brooding or despondent in the days or weeks preceding this evening, and at the game he behaved normally. Against his expectations Roswell won the football game, and this result put him into a happy mood. After the game he went out onto the field to congratulate the players, 'picking them up, sort of hugging them, shaked their hands, and all.' On the way back to Roswell the three boys talked about the game, and James said that he would not miss any of the games.

Back in Roswell, they stopped at the filling station where James worked part-time and where the three had gathered earlier that evening for the trip to Norcross. James and his cousin left the third boy at the filling station, and went on to the Dixie Dairy Bar for something to eat. While James was at the Dairy Bar, the girl whom he had been dating came in with some other girls. As she came in, James accosted her and told her that he wanted to talk with her. She did not then observe that he had been drinking. Afterwards they mingled with the other patrons, and he ate 'two or three Corn Dogs and Cokes and several different things.'

At approximately 11:30 James, the girl, his cousin, and another young man, left the Dairy Bar in James' car. James 'was cutting up. He was kidding or just carrying on normal conversation.' He drove the latter boy home, then drove his counsin to his cousin's car, which had been left parked near the service station. Before leaving, James told his cousin that he, James, would see the other the next day. James and the girl then went to a 'safety break' stand operated by the Jaycees for the Labor Day weekend. There James drank coffee or a Coca Cola. Upon leaving, James told another cousin, 'I will see you.'

James and the girl then drove to a new, vacant house on Wavetree Drive. In Roswell, and parked in the carport there. After parking, the girl smelled whiskey on James' breath, and he told her that he had been drinking that evening. He became sick, got out of the car and went to the back of it. It 'sounded like he was trying to' vomit. Coming back to the car, he got in on the right-hand side, and the girl slid under the steering wheel. When she asked him if he felt better, he replied, 'No, I don't. I feel like deathly sick.'

In the automobile with him that evening James had a .380 caliber automatic pistol. He had told his father that he had got the pistol in order to resell it for a profit. He had in fact tried to sell this pistol.

As to their conversation and the events in the minutes immediately preceding James' death, the girl testified: 'During the course of the evening I guess we talked about--he talked about one of his cousins who had been killed in a car wreck and how much he had thought of him, and, you know, what he would have done to prevent the accident. Also he talked about some other cousins of his, two little girl cousins that he was very fond of, and he told me that he would do anything for them, he would just give his life for them; then he started talking about that he thought so much of me and that he would also give his life for me, and all. You know, just kept going on like that; and he talked about some of his other girl friends, that was quite strange, it was quite a strange conversation, something you don't really talk about--* * * He seemed to think that nobody cared about him, that nobody cared what happened to him, what he did or anything of that nature * * * The he was talking about me, you know, and he wanted us to get married that night, and I wouldn't answer him, and he kept saying he just couldn't live without me. And I just had to marry him. So then he said if I didn't, he was going to shoot himself * * * He was not sitting when he got back in the car. He was laying on his stomach with his knees bent. He was laying on his stomach with one elbow over the back seat and the other elbow resting up against the dash of the car; he was just right next to me.' James then produced the pistol from under the front seat of the car. 'He said that if I didn't marry him, he was going to shoot himself. And he put the gun up to his head. * * * He told me that he was going to count to five, and I wouldn't answer him yes or no about whether I would marry him, because then I was pretty well petrified, I didn't take him serious and yet I didn't know, so I wouldn't answer him yes or no. So he kept telling me to answer him, if I said yes, we would get married, if I said no, he was going to shoot himself, and I wouldn't answer him either way. So he moved on over closer to me, he put his head right up against me, and he told me he was going to count to five, and if I didn't answer him, he was going to shoot himself. * * * I don't actually think he ever made the statement 'If you don't answer me,' he just kept telling me to answer him. * * * He kept clicking his fingernail on the trigger. And he was actually--he was tormenting me because he kept saying, 'Now, just listen to that now, when my finger touches the trigger it's going off,' and he was clicking his fingernail on the trigger * * * So he counted to five [slowly] and nothing happened. * * * I was real relieved and I thought, well, he had his joke. * * * So he said he was going to give...