New York Life Ins. Co. v. Ittner

• Decision Date: 07 March 1940
• Docket Number: 27945.
• Parties: NEW YORK LIFE INS. CO. v. ITTNER.
• Court: Georgia Court of Appeals

8 S.E.2d 582

62 Ga.App. 31

NEW YORK LIFE INS. CO. v. ITTNER.

No. 27945.

Court of Appeals of Georgia, Division No. 2.

March 7, 1940

Rehearing Granted March 22, 1940.

Judgment Adhered to March 30, 1940.

Syllabus by the Court.

Mrs Ethel Bush Ittner filed suit against the New York Life Insurance Company upon a policy of life insurance in which she was designated the beneficiary, which policy provided that "upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external violent and accidental causes," the insurer agreed to pay to the beneficiary named in the policy, what is commonly called "double indemnity," and further provided that such double indemnity would not be paid "if the insured's death resulted from self destruction." The plaintiff alleged in the petition that on September 6, 1934 while the policy was in force her husband, the insured Arthur E. Ittner, died as a result of accidental causes, and that she was entitled to the double indemnity payment provided in the policy. The plaintiff alleged that while the defendant had paid the single indemnity provided in the policy, it had refused to pay the double indemnity, claiming that it was not liable therefor, and that this refusal was without cause and in bad faith. The plaintiff further alleged a due compliance with all the provisions of the policy relative to notice and proof of death. The plaintiff prayed for the double indemnity with interest, and for $145 as damages and $350 attorney's fees because of the alleged bad faith of the defendant in refusing to pay. The insurance company denied liability on the ground that the death of the insured was suicidal.

The case was tried before a jury and resulted in a verdict for the plaintiff. The motion for new trial filed by the defendant was overruled. The case was brought to this court upon exception to that judgment. The judgment of the trial court was reversed. New York Life Ins. Co. v. Ittner, 54 Ga.App. 714, 188 S.E. 920. Upon a second trial of the case a verdict was found against the insurance company, and the motion for new trial filed by it was overruled. To this judgment the insurance company excepted and sued out a writ of error to this court. This court reversed the judgment denying a new trial to the insurance company because the court erred in instructing the jury that the burden was upon the insurance company to prove by a preponderance of the evidence that the cause of the insured's death was suicide. New York Life Ins. Co. v. Ittner, 59 Ga.App. 89, 200 S.E. 522. The case came on for trial a third time. Under the view which this court takes of this case and the direction to be given thereto, it will be unnecessary to set forth the evidence adduced upon the trial at length or in detail. However, the evidence adduced upon this trial was substantially the same as that adduced upon the two former trials, and reference is made to the statements of facts accompanying the opinions rendered by this court in its two former decisions of this case referred to and cited above.

It appears from the evidence as follows: The insured left his home in Albany, Georgia, on September 6, 1934 in his automobile to make a business trip. The following day his abandoned automobile was discovered on a little used woods road some five or six miles from Fitzgerald, Georgia, and on September 8, 1934 the dead body of the insured was found lying face down in a small glade or open space within a dense forest and swamp some distance from where his automobile had been discovered. The insured had been dead for some time and his body was beginning to putrefy. There were numerous wounds, gashes, cuts, bruises and stabs upon his body. There were three deep and large cuts or gashes on his throat and a belt had been wrapped about his neck with a stick placed in a loop formed with the belt making a kind of tourniquet, and turns made with the stick so that the belt was drawn tightly about the throat of the insured. There were spots on the ground, indicating that some one had bled profusely. These spots began some little distance estimated at eighty odd yards, from where the body was discovered. The grass and leaves had been mashed and disturbed at these places and there were signs and marks in the earth, which were described by those who viewed them. The insured's shirt was found hanging in a nearby bush. One sock was off, but his shoe was upon his foot laced and tied. This sock was found nearby soaked with blood. A straight razor was found under or near a log a short distance from where the body lay. About $19 in money was in the wallet of the insured which was found upon his person. It appeared that the insured had some years previous been treated for "lues," that he had been a user of alcoholic beverages and at one time had become somewhat mentally unsound as a result of strong drink and a syphilitic condition, which mental derangement was accompanied with suicidal tendencies, and had been brought to an Atlanta hospital for treatment, and while there had slashed himself superficially with a safety razor blade. There was no evidence tending to establish any motive for the insured to have been slain by some mortal enemy.

The jury found for the plaintiff in an amount representing the indemnity provided in the policy and for the damages and attorney's fees prayed. The defendant moved for a new trial on the general grounds and by amendment added a number of special grounds, which are dealt with in the following opinion of this court. The motion for new trial was overruled, and to this judgment the insurance company excepted.

Geo. L. Sabados, of Albany, and Bryan, Middlebrooks & Carter, of Atlanta, for plaintiff in error.

Bennet & Peacock and Leonard Farkas & Walter H. Burt, all of Albany, for defendant in error.

STEPHENS, Presiding Judge (after stating the foregoing facts).

1. In the tenth ground of the amended motion for new trial, now before this court error is assigned on the admission by the court over objection by the defendant of the following testimony of the witness W. W. Sapp, to wit: "From the investigation that I made and from what I found, in my opinion, I do not think those wounds were self inflicted." It appears from the ground of the amended motion for new trial, designated "10 1/2," embodied in the first appeal of this case to this court, that error was assigned on the testimony of the witness, W. W. Sapp, identical with that assigned in the appeal now before the court, as follows: "The investigation that I made and from what I found, in my opinion, I do not think those wounds were self inflicted."

In the eleventh ground of the amended motion for new trial now before the court, the admission, over defendant's objection, of the following testimony of the witness, Dr. H. M. McKemie, is assigned as error: "From what I found there, in my opinion, I do not think those wounds or blows were self inflicted." Likewise, it appears from the twelfth ground of the amended motion for new trial, embodied in the first appeal of this case to this court, 54 Ga.App. 714, 188 S.E. 920, that the following testimony of this witness, admitted over objection of the defendant, was assigned as error: "From what I found there, in my opinion, I do not think those wounds or blows were self inflicted." This testimony of Dr. H. M. McKemie was identical with that embodied in the present amended motion for new trial upon which error is now assigned in this court.

In the twelfth ground of the amended motion for new trial now before this court error is assigned upon the admission over objection of the defendants of the following testimony of C. C. Ball, to wit: "Gentlemen, I do not believe an individual, and I have seen a good many people wounded, shot and cut--I do not believe a man with the wounds I seen on that gentleman, could have possibly covered the territory been to these different places where I seen something had been, the places where the blood was and the knife and the razor, and them other things, and then have the power and strength to have tied that stick and belt around his neck and laid down and died. I don't believe that he could have done all that." In the eleventh ground of the amended motion for new trial, embodied in the first appeal in this court, error was assigned upon the admission over objection of the defendant, of the following testimony of this witness, to wit: "Gentlemen, I do not believe an individual, and I have seen a good many people wounded, shot and cut--I do not believe a man with the wounds I seen on that gentleman could have possibly covered the territory been to these different places where I seen something had been, the places where the blood was, and the knife and the razor and them other things and then have the power and strength to have tied that stick and belt around his neck and laid down and died. I believe when he got that wound on the neck, that wound him up. I don't believe that he could have done all that--he never knew nothing after he got that lick." The testimony of this witness upon which error was assigned in the first motion for new trial is substantially the same as that upon which error is assigned in the motion for new trial now before the court.

The objections to the testimony of these witnesses and the error assigned upon the admission thereof were practically the same in this appeal, as they were on the first appeal.

The overruling of the first motion for new trial in this case complained of in the first appeal to this court was reversed by this court on the ground that the court erred in the rejection of certain testimony offered by the defendant on which error was specially assigned in ...