*1 Company Wiley. Family Life Insurance Fund 35245. (whom plaintiff) Wiley shall call the we J. Dell P. 1. Wessie Gardner, (here- Company Life Insurance an action defendant) generally known inafter called the required double-indemnity policy. to show The as a directly independently of of the insured resulted “That the death through violent, external other cause of bodily infirmity indirectly or or from means and not accidental any only question the evi- is whether not form.” The disease plaintiff. in favor of the to sustain the verdict dence is sufficient came to questioned if that the insured evidence showed by suffocation, recover was entitled to his death policy. The burden was $450 ultimate The insured from that died suffocation. show mo- The filed a in favor of the defendant returned verdict only. statutory grounds tion for a new trial on the which showed that introduced the death assigned as the cause death. coroner accidental suffocation See facie on behalf of the made out case Woodruff App. 554, 560 American Mutual petition alleged Paragraph 4 of the See also Code 88-1212. occur on that death of James L. did “Petitioner shows said day January, 1951, external, and the 31st deceased, meaning policy, in of said this wise: dental within Wiley, of a date on the seat cushion James L. did the said lie down press asleep therein, nostrils and while did his tightly against and into said cushion and the back cushion of said truck therebetween, unable so that 'deceased became oxygen being position off of mouth because suffocated, alleged, did and nostrils which deceased become witness, coroner, then and die.” The introduced as a testi- there regarding that who fied the death certificate and testified doctor prior treating approximately been the insured five months had of the death the death testified that the cause testi- insured was suffocation. The coroner testified that because of the coroner) (the mony doctor, he stated the certificate Holland, physician above death was caused suffocation. Doctor mentioned, was sworn a witness at the trial. He testified patient position of insured was a of the witness. He described body body vehicle, physician the deceased in the as the found the opinion he at the He in his arrived vehicle. testified that died from He the time deceased further testified suffering pulmonary insured he was from advanced tuberculosis died mellilus; as a and that the insured was known diabetic from a could died coma induced diabetes. There was evidence prior night he the effect that to the death whisky drank some with a friend. This friend testified that the insured walk, could but that the friend into the assisted the insured vehicle then vehicle. doc- closed the windows of the On cross-examination the things. tor testified that the insured have died a number of could He “He from an atom bomb. testified: could have died As medical expert way I I think was suffocation from the saw it without being study other detailed made.” 3. Counsel for the defendant call our attention to rule that where facts equally they prove are consistent with either of two theories neither. many Supreme There are decisions and this Court court cited *2 necessity enumerating no defendant. We see them here. Under case, all the this facts circumstances of were authorized to return a verdict for the denying The court did not err in motion for a new trial. Judgment JJ., Carlisle, Townsend and concur. affirmed. rehearing September Decided Adhered to 1954 December 27, 3, Wm. F. Stone, Stone & for in error. Buchanan, Phillip P. Z. Gee?’, Sheffield, contra. Rehearing.

On When in question this case was decision petition whether stated a cause action general (Wiley v. demurrer Insurance Co., 88 Life App. 381, Ga. 76 setting S. E. 2d this 733), court, out the “By said: pleadings, amendment, attached her to petition copy certified insured’s Department Director of the State Public Health also signed by Early County, the Coroner stated, which heading Death,’ complication ‘Cause of condition directly leading to death was ‘Accidental Suffocation.’ The de fendant demurred much sought to so to recover policy on, feature of the sued ground allege showing of James L. resulted and independently of bodily injuries all other causes, solely external, means. The court sustained the portions demurrers and struck the which referred excepted pendente death as accidental. The lite ruling, excepted to this judgment also to the final in her policy.” favor for the face amount of the “ The full opinion of the court follows: ‘In order for a double-indemnity provision recover under a of an resulting, independently for death other causes, external violent,

227 him means, show that incumbent it is and accidental injury alleged have caused preceded the act un- unexpected, or something “unforeseen, Metropolitan Co., 19 Ga. v. Insurance Fulton usual occurred.” (2) (91 228); Johnson v. Aetna App. S. E. 127 Life Casualty Co. 134); (101 E. Continental App. 431 S. Co., 24 Ga. (179 Na- App. 269); S. E. American 694, 695 Rucker, v. 50 Ga. (181 App. 829 Chappelear, 826, 51 Ga. Co. tional Insurance 57 Mathews, Co. Casualty Insurance 808); Commercial S. Asso. v. (195 887); Accident S. E. Atlanta App. Ga. 452 446, (30 Mutual 939); United S. E. States 104 Ga. 709 Alexander, (9 Sup. 755, L. ed. 100 Ct. 33 Barry, Asso. v. U. Accident 60).’ App. Metropolitan Ins. Green v. Life principle of law is well settled, S. E. depends presented determination of proper alleged in the application this law to the facts as upon the *3 asleep in a alleged while “It here that is tightly the crevice into pressed his mouth nostrils so the truck that he was and back cushions of between the seat oxygen off, and he died of was unable to part involuntary of act was of unexpected, and Coun- unforeseen, unusual. insured, and it was brief, the occur- contends in sel for the defendant unforeseen, and not preceding the death was unusual, rence judicially that, should notice be but that expected, angles right the crevice between with the line of one’smouth absolutely hu- unless cushions, impossible, ‘suffocation is aBut be like head an ant-eater.’ man head constructed properly pleaded allegations demurrer admits the truth (Code 81-304); and whether not it was in the § alleged in the manner physically impossible for insured to die jury’s determination, plead- for a under would be a allegations raise ings are sufficient to and evidence. The by which met his question to whether unusual, unexpected, and hence unforeseen, death were involuntarily pressing his mouth and nose dental. The insured’s brought back cushions into between the seat and -his force to close application of external about the nostrils, thereby suffocating according him, allegations does not show that the guilty insured was would take the conduct that incident category out of the accidental means. death “The showed that death the insured came provisions within the and the sustaining erred in allegations court demurrers to seek- ing recovery thereunder.” (Ann. (Ga. Supp.) 242)

Code L. pp. 236, 88-1118 reads: filed Chapter “Certificates of this prima shall be facie evidence of the stated therein.” We carefully studied rehearing, this case and we are of the opinion that the decision rendered when the case was before law of the case. When the death certificate was intro duced, it made out a facie case for the

Many are called cases to our attention counsel for the to the effect that the relies on circumstantial evidence to show an accident in- sured and relies such circumstances prove causing a fact such as an death, accident base he cannot one upon prove another inference to an accidental death. The plaintiff, we have stated introduced hereinabove, gave cause suffocation. This is not an inference an inference. direct evidence.

The defendant introduced no evidence, or other witness but relied on facts which he out cross-examination of rvitnesses for the

doWe not construe the evidence in accordance with the views of counsel for the is, defendant, that were circumstances *4 on an based kept inference. It must be mind that, as this court stated when the case was before, jury question, is a determined evidence introduced was sustain the verdict. The trial court approved finding jury. We think correctly so.

Judgment adhered rehearing. to on Townsend and Carlisle, JJ., concur.