Liberty Nat. Life Ins. Co. v. Morris

• Decision Date: 20 September 1974
• Docket Number: No. 49690,No. 3,49690,3
• Parties: LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Bertha MORRIS et al
• Court: Georgia Court of Appeals

Page 637

208 S.E.2d 637

132 Ga.App. 631

LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Bertha MORRIS et al.

No. 49690.

Court of Appeals of Georgia, Division No. 3.

Sept. 20, 1974.

Syllabus by the Court

1. Under the facts of this case, the jury was authorized to find that the insured's death resulted from 'bodily injuries effected solely through external, violent, and accidental means.'

2. Where an accidental death policy excludes coverage for death resulting from the insured's commission of a felony, or resulting from participating in a felony, the felonious activity must have a causal connection with the death in order for the exclusion to become operative.

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

Fudger & Foster, Arthur W. Fudger, Dallas, for appellees.

WEBB, Judge.

It was the first day on a new job for Dean Morris. This 38-year-old bechelor was taken by Joe Earl Hicks, his employer, at early morning on March 25, 1969 to a densely wooded area between Dallas and Yorkville in Paulding County where Hicks had a moonshine liquor still. They had with them some vienna sausage, pork and beans, crackers and cheese. About two o'clock Hicks went back to his house to get some more jugs, leaving Dean at the still alone. Neither had eaten lunch. When Hicks returned in about an hour he found Dean 'laying right in front of the dam where you put your radiator, face down . . . I shook him and seen that he was already dead then . . .' Hicks said he was scared, but he went ahead and called the sheriff anyhow. As it was Dean's first day, it also was his last!

Dean Morris had three accidental death policies from Liberty National Life Insurance Company, for $100 issued in 1951 for a weekly premium of 5 cents, for $2,000 issued in 1955 for a weekly premium of 10 cents, and for $500 issued in 1958 for a weekly premium of 35 cents. Bertha F. Morris and William R. Morris, his parents, were the beneficiaries. Each of the policies defined death from accidental means to be 'from bodily injuries sustained solely through violent, external and accidental means.' Each policy further provided that 'no such accidental benefit shall be payable if death resulted . . . from participating in an assault or felony, or directly or indirectly from bodily or mental infirmity or disease in any form . . .'

Two physicians testified by depositions. Dr. Samuel U. Brawley testified that he had treated Dean for cirrhosis of the liver and ulcers, and last saw him on an office visit on March 5, 1969. He testified that his office record contains no mention of any suspected heart condition, and that 'I have no memory suspecting that he had a heart condition.' He said Dean had a low hemoglobin, and he thought Dean was bleeding from the stomach or esophageal varices, for which he gave Dean iron. Dr. Brawley further testified that he did not have occasion to examine Dean Morris at the time of his death or perform an autopsy on his body.

The other physician testifying was Dr. John Covington, medical examiner for Paulding County. In such capacity he was taken by the sheriff to the death scene to examine the body of Dean Morris. '(W)hen we got there we found this still down along beside the creek they were actually making spirits . . . I guess you would call it. At the lower end of the still . . . it would come through the coil there was a bucket setting there at the end of a pipe and this pipe was in the creek, and there was a body (Dean Morris) laying face down right beside this bucket and his face was in the water * * * it was a completely deceased body without any evidence of any living activity, it was already cold by this time and it had a bluish discoloration of the face.' An ambulance was called to take the body to the hospital in Dallas where Dr. Covington performed an autopsy.

Dr. Covington further testified that in that area other than the still 'we noticed where the men had been working there, where they had brought in their own little snacks for eating. This consisted of such things as crackers, pork and beans, vienna sausage, and things of this nature, just little knickknacks. We also noticed several gallons of alcohol setting around in these gallon milk jugs, plastic milk jugs. And at the top of the hill we also found a barrel that had been filled approximately half full of alcohol.'

As to his autopsy, Dr. Covington testified: 'We examined the body completely, undressed the body and examined it for any evidence of external physical marks and this type of thing. The first thing of significance on the examination was that the abdomen was distended and there was coffee ground material in his mouth. I made a wide incision in a routine manner to open the chest and abdomen. On gross examination the lungs were found to be well aerated but on cross section a bloody liquid extruded from the cut section. The heart was not extremely enlarged but it seemed that the coronary arteries were not disturbed and they were sent along with the heart to the crime lab. The esophagus was examined and there were several esophageal varices but none were ruptured. Examination of the abdominal organs, I found the liver to be somewhat enlarged and somewhat hard and it had a yellowish discoloration. The remaining organs appeared to be normal. This was on the gross examination. I had the crime lab perform the pathological examination and the tissue would be sent to them. Blood also was drawn and sent to the pathology lab.' (Emphasis supplied.)

According to Dr. Covington, 'The coffee ground material' was 'just foreign debris that you normally don't see in a person's mouth . . . It was foreign to the body because on examination at the crime lab it was a non cellular structure . . . it wasn't viable material of any kind . . . it had to be ingested or injected from some other means than coming from the body itself.' (Emphasis supplied.) '(O)n the pathological study performed at the crime lab, the miscroscopic showed this type debris within the bronchia of the lungs.' (Emphasis supplied.)

Dr. Covington further testified that based on his examination, and autopsy performed on the deceased, he was of opinion that death was caused by 'anoxia, probably secondary to aspiration and regurgitation of foreign material,' that anoxia is the lack of oxygen, that food eaten such as he described as being present at the scene of death, and the coffee-like grounds, could have caused regurgitation, could have been the material that was aspirated into the lungs, and could have caused the death.

Dr. Covington also testified that preliminarily he showed the cause of death to be congestive heart failure, but that he reached the final conclusion that anoxia was the cause of Dean's death based on the result of examination by the State Laboratory, 'plus the stuff that was in his mouth.' He also testified that at the time of his examination there was no evidence of the deceased having been intoxicated, that 'there was no alcohol in his blood,' and that the operation of a whiskey still had nothing to do with the death of the deceased as 'this death could have occurred anywhere.' '(H)e did not suffer a heart attack. We have ruled that out as well as the esophageal varices.'

Hubert A. Martin, funeral director who went to the scene of the death to remove the body, testified that Dean Morris 'was laying face down in the edge of the stream and he was wet. I think he had possibly fallen in the stream.'

Sheriff J. K. Skipp, a witness for Liberty National, testified he had been called by Hicks, and that upon his arrival at the scene 'He (Dean Morris) was lying in the stream below what you call a hole of water that they use to condense the whiskey, and he was lying face down in this stream.'

Liberty National moved for a directed verdict, both at the conclusion of the evidence on behalf of the insured's parents and at the conclusion of all the evidence, on the grounds that the insured did not suffer an accidental death under the terms of the policies, and was in the commission of a felony. Each motion was denied. Following a verdict for the insured's parents and beneficiaries, Liberty National filed its motion for judgment notwithstanding the verdict and motion for new trial, both of which were denied. The denial of these motions constitutes Liberty National's enumeration of errors.

Liberty National's contentions, succinctly stated, are as relied upon in their motions, namely, (1) the insured did not suffer an accidental death within the terms of the policies, and (2) the insured was in the commission of a felony at the time of his death, contrary to the terms of the policies. Sustaining either ground would preclude recovery by the beneficiaries.

1. Liberty National's first contention is that the insured did not suffer an accidental death within the terms of the policies.

Counsel for both appellant and appellees suggest the scarcity of Georgia cases directly in point. The closest akin is that of Life and Casualty Co. of Tennessee v. Brown, first decided by this court (95 Ga.App. 354, 98 S.E.2d 68). The provision of the policy material to our consideration read in part: 'Upon due proof that the death of the insured occurred in consequence of bodily injury effected solely through external, violent and accidental means of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or would on the exterior of the body . . .' (Emphasis supplied.) The insured, while eating his noonday meal, experienced severe pain in the abdominal region, and his physician found he was suffering from acute but uncomplicated appendicitis. Approximately 7 hours later, he was prepared for an appendectomy. While being administered ether, he vomited and certain food particles in his stomach, which had not been digested and which had not been sufficiently masticated, lodged in his windpipe and stopped the flow of oxygen to his brain for such a length of time that...