Travelers' Ins. Co. v. Wyness

• Decision Date: 02 August 1899
• Parties: TRAVELERS' INS. CO. v. WYNESS
• Court: Georgia Supreme Court

34 S.E. 113

107 Ga. 584

TRAVELERS' INS. CO. v. WYNESS

Supreme Court of Georgia

August 2, 1899

Syllabus by the Court.

1. Where the vital question involved in the trial of an action for a death loss upon a policy of accident insurance was whether or not the slayer intended to kill the decedent, it was not erroneous to refuse to charge that a presumption of an intention to kill on the part of the slayer arose from mere proof that the homicide was committed with a weapon likely to produce death. Such a charge would, if given, have lacked an essential qualification, viz. that the proof must further show that the weapon was used in a manner calculated to cause death.

2. Where the policy in question on such a trial covered death resulting from bodily injuries effected through external violent, and accidental means, and did not cover death resulting from any other cause, but provided that "unless affirmative proof of death, *** and of [its] being the proximate result of external, violent, and accidental means," should be furnished the insurance company within a specified time after such accident "all claims based thereon" should be "forfeited to the company," it was not error to charge the jury as follows: "The plaintiff must prove her case; that is, she must prove the contract upon which she sues,--prove the death of the person who took out the policy,--and see that she makes proof of the death according to the requirements of the policy. When that is done, then the burden is upon the defendant to show that the death or injury, the result of which caused the death, for which the suit is now pending, did not come under the rule of the policy, but fell under some of the exceptions that are excluded by the policy; in other words, causes that the policy did not or does not cover."

3. Nor was it error, in such a case, to charge the jury: "If you find from the evidence that [K.] inflicted the injury from the result of which [the insured] died, and that the injury so inflicted was unexpectedly inflicted, and without cause or provocation whatever, so far as [the insured] was concerned, then you ought to find in favor of the plaintiff for the amount sued for, unless it further appears from the evidence that [K.] intentionally inflicted such injury; the burden being upon the defendant to satisfy the jury that such intent existed on the part of [K.] by a preponderance of the evidence."

4. There being evidence in the case which, if credited by the jury, was sufficient to authorize the verdict which they rendered, this court will not disturb their finding upon the ground that the verdict is contrary to the evidence.

Error from city court of Savannah; T. M. Norwood, Judge.

Action by Jeannie S. Wyness against the Travelers' Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Barrow & Osborne, for plaintiff in error.

R. R. Richards and Mercer & Mercer, for defendant in error.

FISH J.

It is alleged in the motion for a new trial that the court erred in refusing to charge the jury, at the request of counsel for the defendant, as follows: "While it is true that the jury will not presume, from the mere fact of death, that the insured was murdered, yet the use of a weapon likely to produce death raises the presumption that he who uses such weapon upon another intends to kill. The law raises this presumption from the use of a weapon likely to produce death." We do not think that the court erred in refusing to give this request in charge. Where one deliberately or intentionally uses upon another a deadly weapon, in a manner calculated to produce death, and death actually results in consequence of such use of the weapon, the presumption arises that the user of the weapon intended to kill. This is no more than saying that a man is presumed to intend the natural and ordinary consequences of his acts. But if a deadly weapon is used in a manner which, ordinarily, is not calculated to produce death, though, in the given instance, death in fact results, no presumption arises, from such use of the weapon, that the person using it intended to kill; or if the circumstances attending the use of the weapon show that the use was not intentional, but accidental, proof of the use of the weapon, under such circumstances, and of the death therefrom, would not raise a presumption that he who used it intended to kill. The plaintiff alleged that the insured was killed by a shot accidentally discharged from a pistol in the hands of one Kearney, and introduced evidence which, if credited, strongly tended to support this theory of the case. The charge requested entirely ignored this theory of the plaintiff, and sought to raise the presumption of an intention to kill on Kearney's part from the mere use of the deadly weapon, regardless of the manner in which, or the circumstances under which, it was used. This charge, if given without qualification, as requested, would have been unfair to the plaintiff, and the court properly refused to give it.

2. It is also alleged in the motion that the court erred in charging the jury as follows: "The plaintiff must prove her case; that is, she must prove the contract upon which she sues,--prove the death of the person who took out the policy and see that she makes proof of the death according to the requirements of the policy. When that is done, then the burden is upon the defendant to show that the death, or injury the result of which caused the death, for which the suit is now pending, did not come under the rule of the policy, but fell under some of the exceptions that are excluded by the policy; in other words, causes that the policy did not or does not cover." The assignment of error on this charge is that, by this language, "the court limited the duty of the plaintiff in proving her case to three things,--proof of the contract, death of...