New York Life Ins. Co. v. Jennings

• Decision Date: 05 December 1939
• Docket Number: 27562.
• Parties: NEW YORK LIFE INS. CO. v. JENNINGS.
• Court: Georgia Court of Appeals

6 S.E.2d 431

61 Ga.App. 557

NEW YORK LIFE INS. CO. v. JENNINGS.

No. 27562.

Court of Appeals of Georgia, Division No. 1.

December 5, 1939

Rehearing Denied Dec. 20, 1939.

Syllabus by the Court. [Copyrighted Material Omitted]

Wilcox Connell & Wilcox, of Valdosta, and Ernest Wetherbee, Jr., and Richard Hobbs, both of Albany, for plaintiff in error.

Leonard Farkas & Walter H. Burt, of Albany, for defendant in error.

MacINTYRE Judge.

The plaintiff, Mrs. Ruby E. Jennings, brought suit against the defendant insurance company seeking to recover the sum of $3,000. It was contended that the defendant was liable to the plaintiff in that sum by reason of a double indemnity provision in the policy issued by the defendant company to Emmette B. Jennings, husband of the plaintiff. The pertinent portion of the double indemnity feature of the policy was: "Double Indemnity-Double the face of this policy 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 cause, and that such death occurred within sixty days after sustaining such injury." The accident alleged in the plaintiff's petition was "The cutting and killing by the said negroes was not provoked by any misconduct on the part of the said Jennings, and was not foreseen by him in time to have avoided it, but was wanton, causeless, unprovoked and unexpected by the insured." This allegation the defendant denies. The affirmative defense of the defendant company was "that it is not liable to the plaintiff for the double indemnity provided for by the policy upon which her suit is predicated, for that--(a) Emmette B. Jennings, the insured, was the aggressor in the fight in which he was stabbed and killed, and invited the risk to which he was subjected, and therefore his death did not result directly and independently of all other causes from bodily injury affected solely through external, violent and accidental cause, within the meaning of said policy. (b) The death of said insured resulted from a violation of law by him, to-wit: The unjustified assault made by him upon Willie Barlow Sr., who inflicted the wound from which he died." The jury returned a verdict in favor of the plaintiff in the amount of $3,000 plus interest at seven per cent. The defendant's motion for new trial as amended was overruled and it excepts.

1. Grounds 4 and 5. The first witness for the plaintiff was a white farmer who lived in an adjoining county and for his convenience was put upon the stand first and testified that Rodell Green, who was the only eye witness for the plaintiff to the occurrence and who was subsequently introduced, was seventeen or eighteen years of age. We recognize the rule which plaintiff in error seeks to invoke that "Evidence of character to support the credit of a witness is not receivable before impeaching evidence has been adduced. This general rule is not to be varied to serve the convenience of the supporting witnesses, or because their attendance on the court is voluntary, and they refuse to wait." Travelers' Insurance Company v. Sheppard, 85 Ga. 751, 756 (33) 12 S.E. 18, 20. We think however that the rule applicable in the instant case is that the age of this witness was relevant and admissible as a fact and circumstance which the jury might consider in weighing his testimony generally and its relevancy did not depend entirely upon the fact that it made probable his testimony later as to why he signed a former contradictory statement. In other words, if the witness had never signed a contradictory statement, his age would have been admissible as a circumstance which the jury could have considered in weighing his testimony as to what happened on the occasion in question.

2. The questions of the plaintiff in grounds 6, 7 and 8 were objected to by the defendant during the trial and were withdrawn by the plaintiff, with the permission of the court, and no reversible error appears.

3. Ground 9. The instant case being a suit on the accidental feature of the policy alone, if the plaintiff proves the death of the insured and then stopped, she would not have made out a prima facie case. To hold otherwise would be to allow the plaintiff, in order to make out her case, to base a presumption that death resulted from an injury on a presumption that the insured sustained an accidental injury, and such can not be done. The plaintiff must not only plead but she must also prove "Accident" as set forth in the policy in order to make out a prima facie case. To state it another way, it being a suit on the accident feature of the policy, the burden is upon the plaintiff to prove an accident such as is defined in the policy. Peppers v. Sovereign Camp W. O. W., 53 Ga.App. 851, 856, 187 S.E. 215. However, where the defendant in his answer asserts that "the death of said insured resulted from a violation of law by him, to-wit: the unjustified assault made by him upon Willie Barlow, Sr., who inflicted the wound from which he died," this is an assertion of an exception under the double indemnity feature of the policy (that is, death from any violation of the law by the insured) and the defendant insurer has the burden of pleading and proving it. This is only another way of contending that the death of the insured was not accidental within the definition in the policy.

In this case, where the plaintiff contends that the insured was stabbed and that the injury causing death was unforeseen by the insured, and not a result of any misconduct or provocation on his part, and having introduced evidence relating to the circumstances under which the wound was inflicted, from which evidence the jury would be authorized to find in favor of her contention, she had made out a prima facie case and comes within the rule laid down in Travelers' Insurance Company of Hartford v. Newsome, 147 Ga. 608, 95 S.E. 4, and then the defendant having asserted that the death of the insured resulted from an unjustified assault by the insured upon a third party who inflicted a wound from which he died, the burden was on the defendant to plead and prove the exception under the double indemnity feature of the policy in order to overcome plaintiff's case as made.

The court, having stated the contention of both the plaintiff and the defendant, instructed the jury that "all of these are matters for the determination of this jury under a preponderance of the evidence. [He had elsewhere explained or defined preponderance of the evidence]. Gentlemen of the Jury, in an action upon a policy insured against death resulting directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, the burden rests upon the plaintiff, in the first instance, to make out a prima facie case showing that the death resulted solely from external, violent and accidental cause. [I further charge you that, where it is apparent that the death of the insured resulted from external and violent cause, and the issue is as to whether it was due to an accident within the meaning of the policy, or to some excepted cause, the presumption is in favor of accident and against the existence of facts bringing the case within any of the exceptions contained in the policy. (I charge you that proof of death by external and violent causes raises a presumption that the insured's death was accidental, and this presumption is not destroyed by the fact that the evidence shows that the insured was killed by a third person.)]." (Brackets and parentheses ours.) In effect, the charge was saying that the fact of death does not of itself create any presumption, but that it must be proved to be the result of an accident as defined in the policy and part of the charge above quoted in brackets is not subject to the objection contained in ground 9 that it authorized the jury to find that the killing was accidental even though there was no proof to that effect and even though they believed it occurred in the manner as contended by the defendant. Under the evidence in the instant case, in order for the case to come within the exception under the double indemnity feature of the policy pleaded by the defendant, the insured would have had to have been guilty of an unjustified criminal assault upon the person inflicting the wound from which he died, and the law presumes innocence, not guilt. "Where a person receives an injury, the presumption is that it was accidental rather than the result of design." Gaynor v. Travelers' Insurance Company, 12 Ga.App. 601(6), 77 S.E. 1072. The excerpt of the charge complained of in grounds 9 and 10 in effect followed 1 C.J., § 278, p. 495, which is as follows: "The fact of death does not of itself create any presumption that it was the result of an accident; and where, in order to make out plaintiff's case, it is necessary to base a presumption that death resulted from an injury on a presumption that the insured sustained an accidental injury, no recovery can be had. Where however, it is apparent that the injury to or death of the insured was the result of external and violent means, and the issue is as to whether it was due to an accident, within the meaning of the policy, or to some cause excepted by the policy, the presumption is in favor of accident and against the existence of facts bringing the case within any of the exceptions of the policy, such as insanity of the insured, intentional injury inflicted by a third person, lack of due care and diligence, self-inflicted injuries, and suicide. These presumptions may, however, be overcome by facts and circumstances establishing the contrary." This was not reversible error.

4. The exception in ground 10 is to the part...