19 Ga. App. 127 | Ga. Ct. App. | 1917
Mrs. Fannie J. Fulton filed suit against the Metropolitan Casualty Insurance Company and alleged, that she was the widow of Abraham J. Fulton, that the defendant issued to him an accident policy, under the terms and stipulations of which he was insured for $3,000 against the effects of bodily injury sustained directly, solely, and exclusively through accidental means, and that for loss of life so resulting the defendant contracted and obligated itself to pay that sum to the beneficiary named in the policy, the plaintiff in this action; and that he died on September 12,1915, “directly, solely, and exclusively through accidental means, to wit, by the accidental straining of his physical body through the exertion of pushing and pulling a boat from dry land into water, and also from the accidental straining due to the casting of a seine net, from the result of which straining a blood vessel in the stomach became ruptured and death ensued.” The defendant in its answer denied the paragraph of the petition above quoted as to the cause of the death of the insured. Other defenses set up in the answer are not material to this decision. On the trial of the case the judge, at the conclusion of the plaintiff’s evidence, sustained a motion to nonsuit.
1. During the progress of the case the plaintiff sought to prove by three witnesses certain statements made by the deceased as to his physical condition and as to the cause thereof; and in each instance the court excluded the testimony offered. The plaintiff excepts to these rulings. These exceptions will be treated together. The evidence ruled out involves an identical principle of law. The answers excluded may be stated as follows: “I hurt myself in getting the boat out of the mud to go casting; I strained myself in lifting the boat out of the mud.” These statements were made some sixteen hours after the occurrence to which they related. There was no error in excluding this testimony. W. & A. R. Co. v. Beason, 112 Ga. 553 (37 S. E. 863).
2. The policy in this case insured against the effects of bodily injury sustained “directly, solely, and exclusively” through accidental means. There is an apparent and perhaps actual conflict in the decided cases, both English and American, in construing the clause contained in this policy and quoted above. Many of
In the case of the Continental Casualty Co. v. Pittman, 145 Ga. 641 (89 S. E. 716), the Supreme Court decided as follows: “It appearing from the evidence, on the trial of an' action upon a policy of accident insurance, that the insured died from sunstroke which overcame him as he was performing his ordinary duties as fireman on a locomotive engine on a hot summer day, and nothing appearing to show that the sunstroke was due to ‘external, violent, and accidental means,’ within the meaning of these terms as used in the policy, the verdict in favor of the beneficiary therein was unauthorized.” One clause in the policy under construction in the case last cited provides for the payment of indemnities set forth for bodily injuries caused through external, violent, and purely accidental means, and another clause reads as follows: “If sunstroke, freezing, or hydrophobia, due in either case to external, violent, and accidental means, shall result, independently of all other causes, in the death of the insured
It will be seen that, if there is a seeming conflict between the Cobb ease and the Alexander case, supra, the Pittman case,- supra, decided by the Supreme Court on August 18, 1916, recognizes the rule which we have adopted in the second headnote in the instant case. The rule which seems to reconcile the cases involving a construction of this, or a similar clause, in an accident policy of insurance, is that when the facts show that no unforeseen, unexpected, unusual, unintentional, or involuntary muscular effort or exertion occurred in the doing of the act which preceded the injury, the injury can not be regarded as resulting from accidental means; but where the circumstances under which the injury was sustained were such as to call for a severe effort or exertion, in the course of which the insured may have been placed in a position where some unforeseen, unexpected, unusual, unintentional, or involuntary movement produced a physical injury, it is a question of fact for the jury whether the injury was caused by such involuntary strain; in which ease the means are accidental.
It is not suggested that all of the decisions of the American courts can be harmonized upon the rule stated, but, applying the same to the Cobb case, ■ supra, it will be seen that the facts precluded the reasonable probability that any unintentional or involuntary strain or demand was made upon the plaintiff, while in the Alexander ease, supra, the insured was using a hammer which he intended to use, and in a way in which he intended to use it,
3. The conclusion stated in the third headnote requires no elaboration. The plaintiff relied entirely on circumstances to prove the cause or means of injury alleged to have been sustained by the insured, and the proved facts do not meet the requirements of the rule of circumstantial evidence as applied to civil cases. The judge did not err in granting a nonsuit.
Judgment affirmed.