Riggins v. Equitable Life Assur. Soc. of United States

• Decision Date: 21 March 1941
• Docket Number: 28600.
• Citation: 14 S.E.2d 182,64 Ga.App. 834
• Parties: RIGGINS v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Georgia Court of Appeals

14 S.E.2d 182

64 Ga.App. 834

RIGGINS v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 28600.

Court of Appeals of Georgia, Division No. 1.

March 21, 1941

Rehearing Denied April 4, 1941.

Syllabus by the Court.

DeLacey Allen and James W. Smith, both of Albany, and Fraser, Irwin & Latimer, of Atlanta, for plaintiff in error.

MacDougald Troutman & Arkwright and Dudley Cook, all of Atlanta, for defendant in error.

MacINTYRE Judge.

Mahala Riggins, mother of the insured and beneficiary under the policy of insurance in question, brought suit against the Equitable Life Assurance Society of the United States on said policy for the double indemnity, the company having paid for death from natural causes, and this claim being under a provision for double indemnity if death or loss resulted "directly and independently of all other causes from bodily injuries caused solely by external, violent, and purely accidental means, provided such loss shall have occurred within ninety (90) days from the date of the accident." At the close of the evidence both the plaintiff and the defendant moved for a directed verdict. The judge directed a verdict for the defendant and the plaintiff excepted. The defendant contends that it is not liable on the accidental-death feature of the policy because the evidence demanded a finding that it was exempted from liability for accidental death by the following exception contained therein: "The insurance under this policy shall not cover accidental injury, death *** caused directly or indirectly *** by participating in or in consequence of having participated in the commission of an assault or felony." The question here presented is whether, under the evidence, this court can say as a matter of law that the insured was committing "an assault" on the person who killed him (his wife) at the time he was killed.

There can be no accident, as a matter of law, without proof of a fact or facts pointing to death through accidental means. It is incumbent on the plaintiff to show that in the act or acts which preceded the injury alleged to have caused the insured's death something unforeseen, unexpected, or unusual happened. The test seems to be, did the insured appreciate that by doing the act he was putting his life and limb in hazard? Tabor v. Commercial Casualty Ins. Co., 104 W.Va. 162, 139 S.E. 656, 57 A.L.R. 971. Thus, even though his death might be considered accidental under the general accident clause in the policy, nevertheless if his death was caused by an "assault or felony," as stated in the policy, he could not recover. Generally speaking, under a life-insurance policy a prima facie case in favor of the plaintiff's right of recovery is ordinarily established by proving and introducing the policy and proving the fact of death and notice thereof to the company. 37 C.J. 635. However, under a life-insurance policy with an accident feature, in order to make out a prima facie case solely under the accident feature, there must be proof of the policy, proof of death, and further proof that the death occurred from accident or accidental means as defined in the policy. New York Life Ins. Co. v. Jennings, 61 Ga.App. 557, 559, 6 S.E.2d 431; Gaynor v. Travelers' Ins. Co., 12 Ga.App. 601, 77 S.E. 1072; Georgia Life Ins. Co. v. McCranie, 12 Ga.App. 855, 863, 78 S.E. 1115.

In the instant case, the burden was on the plaintiff to prove that the death had resulted "directly and independently of all other causes from bodily injuries caused solely by external, violent, and purely accidental means;" this being the definition of accident contained in the policy. In Gresham v. Equitable Acc. Ins. Co., 87 Ga. 497, 505, 13 S.E. 752, 754, 13 L.R.A. 838, 27 Am.St. Rep. 263, our Supreme Court quoted approvingly from Harper's Adm'r v. Phoenix Ins. Co., 19 Mo. 506, 509, as follows: "Unless it is otherwise stipulated, the insurer takes the subject insured, with his flesh and blood and passions. The dangers to which the lives of men are exposed from sudden ebullitions of feeling are a lawful matter of insurance." But in the policy now under consideration the company has otherwise stipulated, and there is a clause, under a provision of the policy designated as "Limitations," a provision of which is that the insurance should not cover, among other things enumerated, death while the insured was "participating in or in consequence of having participated in the commission of an assault or felony." This exception the defendant sought to invoke, and the burden was then shifted to the defendant to show, as pleaded by it, that the death of the insured was brought about under circumstances which came within the exception to the double-indemnity feature of the policy. New York Life Ins. Co. v. Jennings, supra, 61 Ga.App. 560, 6 S.E. 2d 431; Travelers' Ins. Co. v. Wyness, 107 Ga. 584(2), 34 S.E. 113.

In a case like this, before a verdict for the defendant can be properly directed, the evidence must not only support the inference that the person charged with the killing killed the insured as contended by the defendant, but must also exclude any other reasonable inference. In such a case it seldom happens that under the testimony adduced it is proper for the court to say, as a matter of law, that the defendant has sustained the burden cast upon it. In nearly every instance the jury is the proper tribunal to draw inferences from the testimony. Linnen v. Commercial Cas. Co., 152 S.C. 450, 150 S.E. 127; Bounds v. Sovereign Camp W. O. W., 101 S.C. 325, 85 S.E. 770, 772, Ann.Cas.1917C, 589. The rule as laid down by the weight of authority may be stated as follows: Where the insured is innocent of aggression or wrongdoing and is killed in an encounter with another, his death is considered accidental, within the meaning of the usual accident policy. Interstate Business Men's Accident Ass'n v. Lester, 8 Cir., 257 F. 225, 168 C.C.A. 309. And even where the insured is the aggressor, if he could not reasonably anticipate bodily injury resulting in death to himself at the hands of another, the beneficiary may recover. Employers' Indemnity Co. v. Grant, 6 Cir., 271 F. 136, 20 A.L.R. 1118; See Newsome v. Travelers Ins. Co. of Hartford, 143 Ga. 785, 85 S.E. 1035. But where, in an assault, the insured is the aggressor, and knew or should have anticipated that the other might kill him in the encounter, the death is not to be considered accidental. Taliaferro v. Travelers' Protective Ass'n, 8 Cir., 80 F. 368, 25 C.C.A. 494. If a man deliberately assaults another with a lethal weapon in his hand, such as a knife, it cannot be said that the injuries he receives in the resulting struggle are accidentally received. The very act of assaulting another with a knife is an invitation to that other to resist unto death, and if the aggressor is killed it is a natural and logical sequence of his own voluntary act. Meister v. General Accident, Fire &c., Corp., 96 Or. 96, 179 P. 913, 4 A.L.R. 718, 722.

The Supreme Court of Arkansas in Gilman v. New York Life Ins. Co., 190 Ark. 379, 79 S.W.2d 78, 80, 97 A.L.R. 755, 756, 763, Accident Ins. Co. v. Bennett,

90 Tenn. 256, 16 S.W. 723, 25 Am.St.Rep. 685; Employers' Indemnity Corp. v. Grant, 6 Cir., 271 F. 136, 20 A.L.R. 1118, 1122.

The Supreme Court of South Carolina adopted the rule with reference to an identical provision in a policy that, even if the assured be the aggressor in an encounter in which he is injured or killed, still the insured does not forfeit his insurance if he could not reasonably anticipate that he would receive bodily injury or be killed; and that ordinarily makes a question for the jury. However, if only one reasonable inference can be drawn from the testimony, then it becomes a question of law to be passed on by the court. Hope v. New York Life Ins. Co., 186 S.C. 85, 195 S.E. 110, 112. See also Provident Life & Acc. Ins. Co. v. Peace, 175 Okl. 266, 52 P.2d 769, 772(3, 4). To illustrate: If A, without provocation, slapped B, or merely jerked him around, having nothing but his hand with which to injure B, and B then pulled from his pocket a pistol and killed A, A not knowing that B had a pistol or any other lethal weapon, and A having no cause to reasonably anticipate that he would be killed, or that they would otherwise engage in anything but a fist fight, a recovery by the beneficiary could be had under the double indemnity (or accident) feature of this policy.

It appears from the testimony of Mattie Riggins, the insured's widow (a witness for the plaintiff), that she was living with the insured at the time she shot him. "Andy [the insured] and I had fought many times before and my brothers got mixed up in it a couple of times too. He has beaten me many times and cut my arm and knocked me through a window once and blackened my eyes several times." It further appears from her testimony that on the night she shot the insured, he went down to a carnival with two carloads of men, and that later on she went to the carnival with her sister, Christine Talbot, Bob Crawford, and Florence White. "I saw him [the insured] at the carnival and he was with Grey Eyes' wife. I went up and said 'What's this?' And he said, 'It isn't anything,' and she said it was just a friendly act. He told me to go home...