55 Ga. App. 272 | Ga. Ct. App. | 1937
Mrs. Elaine Neese Bentley filed suit against tbe Jefferson Standard Life Insurance Company, upon an ordinary-life policy issued on the life of plaintiff’s son, William Daniel Bentley. It provided for the payment of $1000 in a specified way, “immediately upon receipt of due proof of death of the insured,” and further provided in this connection that “in the case of self-destruction committed, whether sane or insane, within two full years from the date hereof, the extent of recovery hereunder shall be the premiums paid.” In consideration of an additional premium paid by the insured, the policy further provided that if death “results from bodily injuries effected directly and independently of all other cause through external, violent, and accidental means, where . . there is a visible contusion or wound on the exterior of the body, and which independently and exclusively of all other causes result in the death of insured within ninety days from the date of accident,” an additional $1000 would be paid by the company, but provided in this same connection that “these provisions do not apply . . in case death results from . . self-destruction or any attempt thereat, whether sane or insane.” The petition alleged that “on or about the 10th day of February, 1936, . . William Daniel Bentley was accidentally killed by a gunshot wound, to wit, a pistol wound in his left chest; that deceased at the time of his death was alone in an upstairs room of the home; that the windows of said room were closed; that there were only five other persons in the house at said time, besides deceased, three■ besides deceased being upstairs; that the
The defendant filed a demurrer and an answer. The demurrer was substantially: (1) The allegation that deceased was accidentally killed by a gunshot wound etc., was a conclusion of the pleader and “does not show in what manner said insured was accidentally killed.” (2) It does not appear in the petition “whether insured shot himself or whether he was shot by another.” (3) The allegation, “nor was his death the result of a criminal act of a third person, nor intentional act of his own,” is a conclusion of the pleader. The answer denied liability, (1) because within two years from the date of the policy the insured “destroyed himself by shooting himself through his heart with a pistol;” (2) because the insured made material false representations in the application on which the policy was issued, in that in- answer to a question therein he stated he had not within the five years immediately preceding the date of the application, used alcoholic stimulants, on which representation the insurer relied and issued the policy. The demurrers were overruled. Issue was joined, and the trial resulted in a verdict for the plaintiff. Exceptions are to the overruling of the defendant’s motion for new trial, and to the overruling of the demurrers.
The plaintiff’s petition alleged: “5. That on or about the 10th of February, 1936, . . the insured . . was accidentally killed by a gunshot wound, to wit, a pistol wound in his left chest, that deceased at the time of his death was alone in an upstairs room of the home, that the windows of said room were closed,
These demurrers are without merit. The allegation that the insured was found alone in Ms room on the bed, with a pistol wound in his chest, which caused instant death, authorized the allegation that the death was accidental. From these facts the law presumes the death to have been accidental, and therefore it is legitimate so to allege. To hold that the allegations of the petition can not be aided by the presumption would be tantamount to a ruling that the pleader must allege facts which in fact prove the presumption. That presumptions do apply to pleadings, see Edenfield v. Bank of Mitten, 7 Ga. App. 645 (67 S. E. 896); Wilson v. Sprague Mowing Machine Co., 55 Ga. 672; Cribb v.
By virtue of the defendant’s answer it became an issue before the jury whether the insured had made to the defendant company a false representation, material to the risk, stating that he had not, in the five years immediately preceding the date of the application, made use of intoxicating liquor. Under the view we take of it, we need not go into the materiality of such a representation when made in an application for life insurance, and we omit the many citations of authorities on the subject contained in the brief of counsel for plaintiff in error. Stated briefly, our view is that the jury were at liberty to believe that the representation was true. Therefore we do not agree with the sweeping statement contained in the brief, that the undisputed evidence disclosed that the representation was untrue. The defendant company produced two witnesses on this issue, Mrs. Joseph N. Elliot and W. C. Caraway. Mrs. Elliot testified that she had known the insured since 1931. “The reason I remember him so well, I was coming out of the door at 387 Boulevard, and had a small child in my hand, who was only seven months old, and he was coming in the building and almost knocked me down. He did not make any apology whatever. He ran into me and kept on staggering on, and didn’t apologize. . . I did not see him drinking whisky but he always acted as if he had been drinking. . . I would say in my opinion that up to November, 1935, William Daniel Bentley
However, we must view the evidence in the light of that produced by plaintiff on this issue. To begin with, the plaintiff introduced Mrs. T. Bothman, and Mrs. M. L. Sawyers, who both testified that they knew Mrs. Elliot, knew her general reputation, and that they would not believe her under oath. It is provided in our Code, § 38-1804, that “A witness may be impeached by evidence as to his general bad character.” Whether or not a witness has been successfully impeached is a question for the jury (Huff v. State, 104 Ga. 531 (3), 30 S. E. 808; Williams v. State, 69 Ga. 11 (38), 14; Rice v. Eatonton, 15 Ga. App. 505 (4), 83 S. E. 868); and where an attempt has been made to impeach a witness and the jury becomes mentally convinced that he is unworthy of credit, they are at liberty to reject the testimony of such witness. Rudulph v. State, 16 Ga. App. 353 (3) (85 S. E. 365); Code § 38-1806. In detailing his knowledge of the insured’s habits of using intoxicants, W. C. Caraway testified that he had been in the home of the insured and seen him drink in the presence of. his mother, the plaintiff in this action. The plaintiff denied this, and testified that she had never seen her son take a drink, had never smelled it on his breath, and had never seen him under the influence of intoxicating liquor. In this connection our Code further provides: “A witness may be impeached by disproving the facts
W. C. Phlieger, brother-in-law of the insured, testified that he had known the insured about eight years, and during that time had seen him both day and night, had never seen him under the influence of intoxicants, and had never smelled whisky on his breath. To this same effect was the testimony of his sister, Mrs. Phlieger. Mrs. J. E. Starr testified that the insured was a friend of her son, and that she had seen him in her home many times, and had never smelled intoxicants on his breath. Frank Starr testified that he was a friend of the insured, knew him about five years, and saw him nearly every day and lots of times at night, and had never seen him drink or under the influence of intoxicants. Woodrow Dale testified that he knew the insured approximately four years, and lived at the same address in 1933 and 1934. He had seen him often during that time, but never saw him take a drink or smelled it on his breath. Arthur Joseph Bremer knew the insured above five years, and “ran around” with him, but never smelled liquor on him, and never saw him take a drink. J. J. Hill knew the insured about six months, let him have a space in his place of business to run a radio shop, never smelled whisky on him or saw him take a drink. Mrs. T. Bothman knew the insured nine or ten years. He frequently came to her home. She never saw him under the influence of intoxicants or smelled liquor
Yiewing the evidence most favorably to the plaintiff, it appears that the insured, an eighteen-year-old boy, was living with his mother in a two-story duplex apartment, with the bedrooms upstairs. On the night of his death he came home about 8:30. When he came in, there were present his mother, the plaintiff, his sister and her husband, Mr. and Mrs. Phlieger, a friend of his mother, Mr. Edwards, and Mrs. Clara Gillette, a friend of the family. The insured asked for something to eat, and was told that there were some sandwiches in the kitchen. He went back to the kitchen, and in a few minutes came back to the front, laughing and talking to the family. He turned on the radio, and danced with Mrs. Gillette. She was quite drunk. He remarked that he was tired and was going to bed. His mother asked him to get in some coal and wood before retiring, which he did. He seemed to be in very good spirits. In the meantime Mr. and Mrs. Phlieger had retired to their bedroom. A short while after
Presumptions of law, as is the presumption against suicide and in favor of accident, are conclusions and inferences which the law draws from given facts. “Doubtless all presumptions of law not originating in statutes were once presumptions of fact, and gradually developed into presumptions of law by a process of evolution; and most probably many inferences and conclusions destined to become presumptions of law in the future, are now in the formative stage, passing and repassing through the jury-box. Before any presumption not manufactured by the legislature can mount to the bench, it has to serve for a long season on the jury, and be trained for judicial administration.” Kinnebrew v. State, 80 Ga. 232, (5 S. E. 56); Dyer v. State, 6 Ga. App. 390 (65 S. E. 42). A presumption of law, such as the presumption against suicide, duration of life for seven years, of innocence, of a mental state once proved to exist, and similar presumptions may be rebutted by proof. Code, § 38-118. Such a presumption is merely a circumstantial inference selected by the law as the most rational hypothesis from given facts, and may or may not be rebutted according to the quality of evidence introduced. It yields to direct, positive, and uncontradicted evidence, i. e. it gives way to proved facts. Hamby v. Crisp, 48 Ga. App. 418 (6 a) (172 S. E. 842); National Life &c. Co. v. Hanherson, 49 Ga. App. 350 (7) (175 S. E. 590). It will yield to a contrary conclusion, where the circumstances supporting such contrary conclusion exclude the presumption as a reasonable hypothesis by a preponderance of the evidence. Georgia Railway & Electric Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076). Thus it was said in Hodnell v. Ætna Life Ins. Co., 17 Ga. App. 538 (87 S. E. 813), “ There being no conflict in the evidence as to the physical facts connected with the death of the insured, and these fads, with all reasonable deductions and inferences therefrom, overcoming the presumption of law that he did not kill himself, or that his death was accidental, and demanding a finding that he came to his death by his own hand. and intentionally, and the life-insurance contracts sued upon containing the special provision that they should
In the present ease the insured was found alone in his room, lying on his bed, clothed in his pajama pants and an undershirt, with a pistol wound through his chest and a pistol near by on the bed, with a discharged cartridge therein. The presumption of law is that the death was accidental. It was the duty of the insurer, in order to defeat a recovery, to rebut this presumption with counter-evidence, not merely its duty to go forward with the evidence. In the present case we have no witness who attempted to testify positively that the insured did commit suicide. There exists no direct, positive testimony that contradicts the presumption, and the evidence introduced does not point clearly and unequivocally to death by suicide. We do not attempt to try to analyze exactly how the insured came to his death; that is, whether he pulled the trigger thinking the gun was not loaded, or whether he was trying to fix the gun in any way and accidentally pulled the trigger. It is enough to say that the evidence does not disclose facts clearly inconsistent with these theories. There was not the slightest evidence of preparation by the insured for such an event. Here we have a young man of good health, blessed
From what we have said with reference to the presumption against suicide and in favor of accident, under the facts of this case, it is evident that we do not think the judge erred in charging the jury on this presumption. See Mutual Life Ins. Co. v. Burson, supra. “It is not error that the court should tell the jury what the legal effect of evidence is. On the contrary, it is his duty to do so. He must not say or intimate what is or is not proved, but if facts be proved, then he may and should say what effect the law gives to the proof of such facts.” Hagar v. State, 71 Ga. 164. See also Hamby v. Collier, 136 Ga. 309 (71 S. E. 431), where the court held that it was error for the court to refuse a requested charge to the effect that the law presumes that all public officers and authorities do their duty as prescribed by. law. '“In charging on the subject of the impeachment of wit
Judgment affirmed.