Kennesaw Life &Amp; Accident Insurance Company v. Templeton., 102 Ga. App. 867, 118 S.E.2d 247 (1960)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 38477

Parts: Action on insurance policy; presumption against...

Linked as:

Summary

Reversed. Felton, C. J., Townsend, P. J., Carlisle and Jordan, JJ., concur. Nichols and Frankum, JJ., dissent.

Summary

Reversed. Felton, C. J., Townsend, P. J., Carlisle and Jordan, JJ., concur. Nichols and Frankum, JJ., dissent.

Text

Buchanan, Edenfield & Sizemore, Newell Edenfield, Wyatt & Morgan, Lewis R. Morgan, contra.Smith, Field, Ringel, Martin & Carr, Sam F. Lowe, Jr., for plaintiff in error.

1. (a) Where an insurance policy provides for benefits in case of death by external, violent and accidental means, where the means producing death were external and violent, there is a presumption, in the absence of evidence to the contrary, that the means were also accidental.

  (b) The evidence in this case, while it might have authorized an inference that the death of the insured was a result of suicide, is also sufficient to authorize the inference that the death was not the result of intentional self-destruction. The motion for a new trial on the general grounds was without merit.

2. (a) In a suit under an insurance policy which provides for benefits in case of death by external, violent, and accidental means where the means producing death were external and violent, and where the defense is based on suicide, where no evidence is introduced as to the cause of death, the presumption against suicide and in favor of accident will carry the plaintiff's prima facie case.

  (b) In such a suit, where evidence is introduced which "points indifferently" to either result, this basically means no evidence at all, and the presumption will again apply and will make out a prima facie case for the plaintiff.

  (c) Where the plaintiff relies solely on the presumption against suicide and has not abandoned it by introducing evidence tending to show affirmatively that the decedent did not die by self-destruction, so that the evidence which the plaintiff has introduced shows only that the decedent died as a result of violent and external means, and the defendant introduces evidence tending to show that death occurred by suicide,

  (1) if the plaintiff offers further evidence which, if believed by the jury, would impeach the witness offering the testimony for the defendant tending to show suicide, the trial judge, after charging the jury properly on impeachment, would be authorized to instruct the jury that if they found the defendant's witness offering the testimony tending to show suicide to have been impeached, the verdict should be awarded to the plaintiff; or

  (2) the trial judge would be authorized to instruct the jury that if they disbelieved the defendant's evidence tending to show suicide, the verdict should be awarded to the plaintiff.

With respect to (c) (1) and (2), in instructing the jury under either of them, the trial judge should not use the phrase "presumption against suicide."

  (e) (1) Where the presumption against suicide has vanished, the fact on which the presumption rests, that a person prefers life to death, must itself be proved in each case as applying to the individual whose demise is in question before the jury may be authorized to consider it.

  (2) The fact on which the presumption rests having been proved as a fact standing alone without reference to the presumption, it is proper for the jury to consider it.

  (3) But where the basis is separately proved, it is erroneous to permit the jury to consider it in its relation to the presumption where the presumption has disappeared.

  (4) With respect to (e) (1), (2), and (3), it is erroneous for a trial judge to mention to the jury the existence of a presumption where it is not existing but has vanished in the face of rebutting evidence. Thus, where elements forming the basis of the presumption against suicide have been properly proved, it is erroneous to mention to the jury that these elements form the basis of the presumption where the presumption has vanished.

3. The cases of Mutual Life Ins. Co. v. Burson, 101 Ga. App. 211 (113 S. E. 2d 228), the insured was found dead almost in the middle of an unpaved roadway near his mother's house, with a bullet wound from his 22-caliber pistol entering about an inch over the right ear and exiting a little in back of the left ear. The pistol was in his hand and, according to the positive testimony of one witness, his thumb was on the trigger; there were powder burns on the right temple; the insured was married and living with his wife; he had no quarrels or domestic difficulties; he had entered into partnership in a new business within the past two weeks; he was very light-hearted and jovial; he always carried a pistol with him; he liked to drink, had begun drinking on Sunday night and on Monday was drunk. On Monday he was seen lying on the ground under a tree by a witness, and he offered the witness a drink. He was also drunk Monday afternoon; Tuesday morning he got up and drank some coffee about 6:30 in the morning; he had no breakfast, asked for his pistol, left the house at 8:30, and was found lying in the road later that morning with an empty whisky bottle near him. This court held that the facts of that case did not, especially in the absence of any reasonable motive for self-destruction, preclude as a matter of law the theory of accident, and it was, therefore, error for the court to grant a judgment for the defendant notwithstanding the verdict.

The evidence here sufficiently supports the jury verdict which found that the insured met his death by accidental means, and the motion for a new trial on the general grounds was with-out merit. The jury formulated its conclusions from the evidence, and we cannot say that they were wrong.

2. The essence of the objections to the charge of the trial court as raised by special grounds 5 through 10 of the amended motion for new trial is that under Georgia law there is no presumption of accidental death or against suicide, or that if there is one, it disappears when evidence is introduced by the defendant which would authorize the inference that the death of the insured was due to suicide and that here the defendant had introduced evidence from which the jury would be authorized to infer that the death was due to suicide and that the court erred in instructing the jury that the plaintiff is aided by the presumption that the death of the insured was not due to suicide. The trial court's instruction to the jury on this aspect of the case, which embraces completely all of the charge objected to by special grounds 5 to 10 inclusive, is, in sequence, as follows: [Note: Although we quote this portion of the trial court's charge in full and in sequence, by interspersed brackets we shalt identify the portions objected to by the various special grounds of the amended motion.] ". . . The burden which rests on the plaintiff to prove her case by a preponderance of the evidence, which includes the burden to prove that the death resulted from an accidental cause, remains on the plaintiff after the defendant has introduced evidence which would authorize the inference that the cause of death was suicide and this burden remains on the plaintiff throughout the trial. There is no burden on the defendant to prove by a preponderance of the evidence that the cause of death was suicide.

"In this same connection, I charge you, gentlemen, that in a suit to recover upon a policy of life insurance where the insurance company defends upon the ground that the insured's death was caused by suicide, the burden of proof is upon the plaintiff to show by a preponderance of the evidence that the death of the insured was caused by external, violent or accidental means within the terms and provisions of the policy. [Begin ground 5] The burden of proof which rests upon the plaintiff to show that the death of the insured was caused by the external, violent and accidental means and that the defendant is liable under the terms of the policy is aided by the presumption that the death of the insured was not due to suicide. [End Ground 5, begin Ground 6] where there is evidence that the cause of death was from external, violent or accidental means and the evidence is conflicting as to whether death was due to accident or to suicide and the evidence is consistent with the reasonable hypothesis that the death was due to accident rather than suicide, there is a presumption that the cause of death was accidental and was not caused by suicide. Whether the death of the insured in this case, Lawrence H. Templeton, was due to accidental means or was due to suicide is a question of fact for you gentlemen of the jury to decide.

"I charge you further that where the physical facts, the surrounding circumstances and the consideration of all the evidence in this case leaves the question of suicide in doubt in your mind, the plaintiff would be entitled to recover on the presumption of accidental death. [End Ground 7]

[Begin Ground 8] "I charge you further that the amount of evidence sufficient to overcome the presumption that death was from natural causes or accident rather than suicide is purely a question for you gentlemen of the jury to determine. [End Ground 8, begin Ground 9] And in this connection, I charge you further that a conflict in the evidence would not destroy the presumption against suicide, but that presumption remains throughout the case and is overcome only by evidence which excludes with reasonable certainty any hypothesis or theory of death by accident. [End Ground 9]

[Begin Ground 10] "In a suit on a policy which provides for indemnity where death results from bodily injury effected through external, violent and accidental causes, where the plaintiff has produced enough evidence which, together with the so-called presumption against suicide, is sufficient to authorize the jury to find for the plaintiff upon the issue of accidental or suicidal death, it is then incumbent upon the defendant to produce only evidence in rebuttal, or denial, of the presumption such as evidence which would authorize the jury to find that death was due to suicide and not to accident. The burden on the defendant is not the burden of proof to establish suicide by a preponderance of the evidence hut is the burden only to go on with the evidence. In the parlance of checker players, it is the defendant's move. The burden still remains on the plaintiff to make out her case by a preponderance of the evidence, which includes the burden of showing accidental death by a preponderance of the evidence. This burden, notwithstanding the defendant has introduced such rebuttal evidence, remains on the plaintiff throughout the entire trial." [End Ground 10]

The defendant especially attacks that portion of the charge which says there is a presumption that the cause of death was accidental, contending that as a matter of law there does not exist in this State any presumption that the cause of death in any case was accidental. With this contention we do not agree, for in a case such as this where death occurred externally and violently from the discharge of a double-barreled shotgun and where suicide is the defense, the language in the charge which says there is a presumption that the cause of death was accidental merely states in reverse and is synonymous with the relevant presumption against suicide. See New York Life Ins. Co. v. Jennings, 90 Ga. App. 791, 792 (6) (84 S. E. 2d 696). The case of Liner v. Travelers Ins. Co., 50 Ga. App. 643, 645 (5) (180 S. E. 383), seems to imply that where the insurer waits six months after proof of loss and then refuses payment, a jury question arises as to whether the refusal to pay was in bad faith or not. In the present case there was a similar delay, but we feel the present case is distinguishable from the Liner case because there it does not appear that the insurer had any reasonable grounds for defending the insured's demands, while here there was evidence introduced from which the jury, if it had been so inclined, could have returned a verdict of suicide, which would have been a defense to the insurer under the Georgia law. The trial court having erred in its charge relating to penalties and attorney's fees, this ground of the amended motion for new trial is meritorious.

5. There having been evidence to support the verdict as discussed and determined in division 1 of this opinion, the trial court did not err in overruling the motion for a judgment notwithstanding the verdict.

The judgment of the trial court overruling the amended motion for a new trial is

NICHOLS, Judge, dissenting.

In a case like the one sub judice where death by external, violent and accidental means has been established, a presumption against suicide arises, and such presumption is not rebutted, as a matter of law, merely by the introduction of any evidence that would tend to show suicide. To the contrary such presumption remains in the case until the close of all the evidence and (1) a finding of suicide is demanded, or (2) the trior of facts, a jury in the case before us here, determines, under proper instructions from the trial court, that the presumption has been successfully rebutted by a preponderance of the evidence as to such question. In other words the mere introduction of testimony tending to show suicide, which testimony the trior of facts determines to be successfully impeached, does not remove the presumption against suicide from the case, and, under such circumstances, where a jury is the trior of facts, the trial court is required to instruct the jury as to the rule of law regarding such presumption.

I am authorized to say that Judge Frankum joins with me in this dissent.

ON MOTION FOR REHEARING.

1. In her motion for rehearing the defendant in error vigorously protests that this court has patently confused evidence pointing "indifferently" to either accident or suicide with "no evidence" in stating in division 2 of the opinion that the correct rules ". . . to be gathered from the Georgia cases would authorize the trial judge to charge upon the presumption against suicide and in favor of accident only in the cases involving a defense of suicide . . . (b) where evidence is introduced which 'points indifferently' to either result which basically means no more than no evidence at all, in which event the presumption will again apply and would make out a prima facie case for the plaintiff." This confusion, it is urged, is made obvious by the decision of the Supreme Court in Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 802 (12 S. E. 18).

Mr. Justice Bleckley, in delivering the opinion for the Supreme Court in the Sheppard case, at p. 802 (29), stated: "Where the fact of death is established, and the evidence points equally or indifferently to accident or suicide as the cause of it, the theory of accident rather than of suicide is to be adopted." In New York Life Ins. Co. v. Ittner, 59 Ga. App. 89 (200 S. E. 522), beginning on page 93, this court considered the quoted statement from the Sheppard case exhaustively. Without repeating what was said in the Ittner case, we adopt it subject only to the exceptions noted in the main opinion here. Accordingly, we reassert that where there is evidence authorizing a finding that a particular person took his own life, a jury is not authorized to disregard this testimony by the carte blanche process of adding to whatever evidence there is that the person did not commit self-destruction the ex parte fact that people generally prefer to live rather than to die. But we do say that a jury, in connection with other facts tending to show that the person did not take his own life, may consider proved facts which show that the particular person involved had no apparent reason for taking his life and that he loved life and preferred to live rather than to die.

One other thing might be said with reference to the statement in the Sheppard case as applied to the contention of the defendant in error in her motion for a rehearing, and that is that if we were to construe the language to mean that the evidence points with equal consistency to two opposing conclusions, we would then run head-on into the rule of law that where such a situation exists the party having the burden of proof cannot prevail. We do not go this far. See Taylor v. State, 44 Ga. App. 387, 417 (161 S. E. 793) and the many subsequent civil cases following the principle.

Furthermore, in the Sheppard case the court was discussing the propriety of the denial of a nonsuit, and we are convinced ,that this court in the Ittner case correctly construed the statement in the Sheppard case, and there correctly stated the law with the exceptions which we have noted in this opinion.

2. The crux of the decision in this case is that upon the submission of evidence by the defendant which would authorize a finding of suicide, the presumption vanishes as a substantial matter which the jury may take into consideration or use as an aid in evaluating either the evidence of the defendant seeking to establish suicide or that of the plaintiff seeking to establish accident. It is in this sense only that the words, "vanishes" or "disappears," are used throughout this opinion with relation to the presumption-with only one exception. This one exception is that the presumption is totally obliterated and vanishes completely where a plaintiff abandons the presumption by introducing additional evidence as to the cause of death other than the mere fact of death by violent and external means.

The respective motions for rehearing filed by the parties are denied.

1960