Union Cent. Life Ins. Co. v. Cofer, 38557

• Decision Date: 20 February 1961
• Docket Number: No. 1,No. 38557,38557,1
• Citation: 119 S.E.2d 281,103 Ga.App. 355
• Parties: UNION CENTRAL LIFE INSURANCE COMPANY v. Jacquelyn M. COFER
• Court: Georgia Court of Appeals

Page 281

119 S.E.2d 281

103 Ga.App. 355

UNION CENTRAL LIFE INSURANCE COMPANY v. Jacquelyn M. COFER.

No. 38557.

Court of Appeals of Georgia, Division No. 1.

Feb. 20, 1961.

Rehearing Denied March 16, 1961.

Syllabus by the Court

1. Where, as here, the defendant admitted that the death of the insured was not suicidal, and that death resulted directly, independently and exclusively of all other causes from bodily injury, which injury was evidenced by visible contusions or wound on the exterior of the body of the deceased insured, and the death certificate, introduced in evidence, showing death to be the result of accident, a prima facie case of death by accident or accidental means is thereby established.

2. It is not harmful error to fail to charge a written request where the subject matter of the request was covered in the general charge with more precision and exactness, or the subject matter of the request was so inapplicable to the facts in the case as not to require the jury's instruction thereon.

Mrs. Jacquelyn M. Cofer sued Union Central Life Insurance Co., to recover $7,500 plus interest, penalties for bad faith in a specified amount, and attorneys' fees under the double indemnity agreement of a group accident insurance contract between the defendant and C. W. Farmer Co. of Macon, Ga., insuring the plaintiff's husband, as an employee of the C. W. Farmer Co. According to the allegations of the petition, as amended, the plaintiff's husband died of injuries sustained in an automobile collision, death resulting directly, independently and exclusively of all other causes from bodily injury received by him in said accident, said injuries having been effected solely through accidental, external and violent means; that the defendant refused to pay any benefits under the double indemnity agreement although the plaintiff properly reported such claim and requested payment thereunder. The defendant, either in its answer, or by stipulation, admitted that the plaintiff's husband's death resulted directly, independently and exclusively of all other causes from bodily injury, which injury was evidenced by visible contusions or wound on the exterior of the body of Ray P. Cofer, the deceased; that the policy agreement for indemnity for accidental death as certificate of insured was in full force and effect with the plaintiff Mrs. Ray P. Cofer as beneficiary when the accident occurred; that subsequent demand for payment on the indemnity for death by accidental means agreement was refused by the defendant; that the plaintiff's husband did not commit suicide and that at the time of his death he was an employee of the C. W. Farmer Co., but the defendant contends in its answer, however, that Ray P. Cofer, the deceased, was not entitled to the protection under the terms of the said accidental death clause of the policy because: '(9) Defendant shows that Ray P. Cofer's death did not result directly, independently and exclusively of all other causes from bodily injury effected solely through accidental, external and violent means because at the time of this death, he was drunk from excessive consumption of alcoholic beverages which he consumed of his own volition and as a result thereof was mentally and physically incapable of driving the automobile in which he was riding, and his collision with the automobile driven by Oscar Eugene Marin was caused by his own deliberate acts; (10) at the time and place of the collision between the automobile driven by Cofer and Oscar Eugene Marin, the said Cofer committed an assault and felony in that while driving at a rate of speed greater than allowed by law, on the left hand side of the road, while under the influence of intoxicating liquor with reckless disregard for human life, he killed Oscar E. Marin and Mrs. Frances R. Foss, who were riding in the automobile with which he collided.'

At the conclusion of the introduction of evidence by both parties the defendant made a motion for a directed verdict which the trial court overruled; the jury was charged by the court and subsequently returned a verdict in favor of the plaintiff for $7,500 principal, and $1,500 attorneys' fees. The defendant's motion for judgment non obstante veredicto, as well as its motion for new trial, as amended, were overruled, and it is to such judgment adverse to it that the defendant excepts.

Martin, Snow, Grant & Napier, T. Baldwin Martin, Macon, for plaintiff in error.

Bloch, Hall, Grover & Hawkins, Macon, for defendant in error.

NICHOLS, Judge.

1. The present case was brought under the double indemnity or accidental death agreement of the policy of insurance which provides:

'2. Accidental death. The amount of benefits payable upon the death of any person (hereinafter referred to as the insured) whose life is insured under this policy will be increased by the amount provided in Article 4 of this agreement if such death occurs under the following conditions: (a) Death must result directly, independently and exclusively of all other causes from bodily injury effected solely through accidental and violent means. (b) Such injury must be evidenced by a visible contusion or would on the exterior of the body except in the case of drowning or internal injury revealed by an autopsy. (c) Such death much occur within ninety days after the date of any such injury.

'5. Risks not assumed: Accidental death or dismemberment is not a risk assumed in this agreement if it results directly, or indirectly (a) from war, riot or insurrection or any act incident thereto, or from service in the military, naval or air forces of any country, combination of countries, or international organization at war, whether declared or undeclared, or (b) from travel of flight in any military or naval aircraft while the insured is in the military, naval or air forces of any country, combination of countries or international organization, or from travel or flight in any other kind of aircraft while he is a pilot, officer, or member of the crew of such aircraft, or while he is in any aircraft operated for aviation training, or (c) From any bodily or mental disease or infirmity or from any infection other than infection occurring simultaneously with and in consequence of a would caused by accidental, external and violent means, or (d) from any kind of poisoning or from the voluntary or involuntary inhalation of any kind of gas, or (e) from commission of an assault or felony by the insured, [Italics ours] or (f) from suicide while sane or insane, or (g) from injuries intentionally inflicted by the insured upon himself.'

Special grounds 1 and 6 of defendant's amended motion for new trial assign error upon certain excerpts from the charge to the jury wherein the jury, in the excerpt of the charge which is assigned as error in special ground 1, was instructed, as a matter of law, that the plaintiff had carried the burden of establishing, by a preponderance of the evidence the fact that the plaintiff's husband's death 'resulted directly, independently and exclusively of all other causes from bodily injury effected solely through accidental, external and violent means * * *' The defendant contends that such charge was erroneous and injurious because the pleadings and evidence in the case created an issue of fact to be determined by the jury as to whether the plaintiff's husband met his death by accidental means, or whether his death was caused by his voluntary consumption of an excessive...