Life & Cas. Ins. Co. of Tenn. v. Hulsey

• Decision Date: 08 January 1964
• Docket Number: No. 1,No. 40400,40400,1
• Citation: 134 S.E.2d 880,109 Ga.App. 15
• Parties: LIFE & CASUALTY INSURANCE COMPANY OF TENN. v. Lonnie T. HULSEY
• Court: Georgia Court of Appeals

Page 880

134 S.E.2d 880

109 Ga.App. 15

LIFE & CASUALTY INSURANCE COMPANY OF TENN. v. Lonnie T. HULSEY.

No. 40400.

Court of Appeals of Georgia, Division No. 1.

Jan. 8, 1964.

Rehearing Denied Jan. 28, 1964.

Syllabus by the Court

1. (a) It is a jury question whether or not the insured, under an accidental death policy, could have foreseen that threatening his wife with a rifle would ultimately result in his death where the evidence showed that he had so threatened her many times before.

(b) Where a party is given full benefit of a theory by the charge of the court and the jury does not return a favorable verdict, it is unnecessary for this court to pass on that theory as the jury verdict necessarily means that it did not apply under the evidence in the case.

2. The special grounds show no error.

This is a suit by the beneficiary, the insured's father, on two accidental death policies providing coverage: 'If the Insured * * * sustains drowning or bodily injury effected solely through violent, external and accidental means, and if such drowning or bodily injury is the direct, independent and proximate cause of the death of the insured * * * and if such death is not caused or contributed to by disease or infirmity * * *.'

The insured's death occurred when he and his wife were having a fight about the insured's drinking and playing poker. She protested his going out alone to do these things. The insured had been drinking. He brought out a rifle, held it to his wife's head, and told her he was either going out again or he would kill both of them. He had made similar threats and taken similar action before. The gun went off, a bullet striking the wife, and she blacked out for a minute. When she came to, she and the insured struggled over the rifle. The wife had the stock and the insured the barrel. During the struggle, the gun went off again and the insured was fatally injured. The wife was tried for murder and acquitted.

There was a verdict for the plaintiff beneficiary. The insurance company's amended motion for new trial was overruled and it excepts.

Hammond Johnson, Jr., Gainesville, for plaintiff in error.

Whelchel, Dunlap & Gignilliat, William P. Whelchel, Gainesville, for defendant in error.

EBERHARDT, Judge.

1. In arguing the general grounds, the defendant raises two issues which will be discussed separately.

(a) The first concerns accidental means within the policy provision quoted in the facts. The contention is that the insured's death is the natural and proximate result of his assault on the wife with a deadly weapon.

In dealing with the terminology 'accidental means' in insurance policies, the courts have generally approached assaults by an insured on the basis of whether the fate met by the insured was both foreseeable and the natural and probable consequence of the assault. Annot., 26 A.L.R.2d 399, § 2. Situations involving domestic quarrels have been treated somewhat differently with regard to foreseeability when there was a showing of a history of similar altercations, none of which involved serious results. Annot., 26 A.L.R.2d 399, § 5.

The Georgia cases follow this general rule, Riggins v. Equitable Life Assur. Soc., 64 Ga.App. 834, 14 S.E.2d 182, being a particularly strong example. In Riggins, the insured and his wife had often fought. On the night in question, the insured had fought with his wife and threatened her with a knife. The wife went home and the insured later attempting to force his way into the house, was shot when he broke in the door. Recovery was allowed on a double indemnity accidental death provision similar to that here but containing an additional provision excepting coverage where the insured participated in the commission of an assault or a felony. Compare Riggins with Carolina Life Ins. Co. v. Young, 99 Ga.App. 848(2), 856, 110 S.E.2d 67, quite similar factually but denying recovery where there was a family quarrel history but not with deadly weapons. See also, Nelson v. American Nat. Ins. Co., 67 Ga.App. 775, 21 S.E.2d 658 and Johnson v. Southern Life Ins. Co., 95 Ga.App. 625, 98 S.E.2d 382, for non-family deadly weapon cases equally as strong, both adopting the foreseeability rule.

We find the facts here clearly within the ambit of...