12 S.E.2d 202 | Ga. Ct. App. | 1940
Lead Opinion
1. In order for the payment to a creditor of a sum less than the original debt to become an extinguishment in full of the entire debt, as provided by the Code, § 20-1204, it must appear that it was so understood, and that the creditor, whatever be the extent of the unpaid balance or the rights released, was moved to forego the unpaid balance by the fact that he was then receiving the actual cash; otherwise, any agreement to receive such lesser sum is without consideration, and is nudum pactum. A receipt marked in full for all claims arising under an insurance policy may not be pleaded as an accord and satisfaction in full, where it further appears that the sum actually paid was an amount which the company had already admitted owing and stood ready to pay in discharge of provisions of the contract other than those which are the basis of the recovery sought. Especially is this true where there is no evidence that the beneficiary moved knowingly and heedlessly to liquify his claims, whatever the consequent injury or destruction to his remaining rights under the contract might be.
2. Where a policy of life insurance provides for double indemnity in the event of death from accidental injuries received within the terms of the contract, but provides further for non-liability when the injuries are intentionally inflicted by another person, such proviso is an exception and must be proved by the insurer by a preponderance of the evidence and, where circumstantial, by evidence which must be such "as to reasonably establish the theory relied upon, and to preponderate to that theory, rather than to any other reasonable hypothesis," when "the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions." Georgia Railway Electric Co. v. Harris,
The jury returned a verdict for the defendant. The case is before this court on assignments of error presenting two questions which we think merit consideration; first, whether the court erred in charging the law of compromise on the issue whether the defendant had settled all claims arising under the policy when it paid to *114 the plaintiff the face amount of the policy and received a receipt that the payment was in full settlement of all claims arising thereunder; and, second, whether there was sufficient evidence legally to support the verdict.
The evidence material to a consideration of these questions was substantially as follows: George E. Matthews was insured with the defendant in the sum of $420 payable in the event of death. The plaintiff, father of the insured, was the beneficiary. The policy carried a double-indemnity feature providing for the payment of a like sum in the event the injury causing death was "solely by external, violent, and accidental means [where] evidenced by a visible wound or contusion on the exterior of the body, . . independently and exclusively of all other causes, [provided such] additional sum shall not be payable if the insured's death [resulted from] bodily injury inflicted by the insured himself, while sane or insane, or intentionally by another person." The company, in the person of its local superintendent, on July 2, 1937, advised the beneficiary: "I was in the district office Thursday and at that time talked with the manager with reference to your claim. He states that the company is perfectly willing to meet all claims and make payments exactly as our contracts call for, and under the circumstances we are liable only for $420. If it is proven that the death occurred accidentally we will be only too glad to pay double the above amount." Thereafter, in September, 1937, the company took the following receipt, which the beneficiary admitted signing: "Received from the Gulf Life Insurance Company of Jacksonville, Florida, the sum $420, the same being in full and final settlement of all claims under the within policy terminated by death." According to the beneficiary: "Agreement was when I signed it, it was just for the other to give them more time. . . I signed this on the policy. It is for the payment of $420. That is the face amount of this policy. They did not pay me any more than $420. . . Mr. Terrell was asking me about who I had arrested, not at any time did they pay me anything for any double indemnity on that policy."
The insured was killed about 10 o'clock, a. m., May 21, 1937, by a pistol or rifle when traveling the Blue Creek Road and about three miles from Hogansville, when at that time he was supposed to have in his bill-fold $75 or $80. Further, according to the plaintiff: *115 "I don't know how long he had been dead when I got to him. I imagine he had been dead over 40 minutes. I got there immediately after he died. When I got there I found the car in the ditch, which showed he had taken the ditch. . . He took the ditch as he gradually came down and the car started to going on the right-hand side to the ditch about the distance from here to the wall and it just gradually taken the ditch. And he was lying over on the right-hand side on his back. He was on the left side and laying over on the right side, which showed his hands had just come loose from the steering wheel, and he had his right foot hung between the gear lever and the accelerator and his left foot hung on the gear clutch. That was near a creek." A short distance after he crossed the creek "He just began to drift to the ditch about as far as from here to that wall before it went in the ditch. I found a wound on him. The wound seemed to be through his heart. It was a bullet wound. . . When I raised him up he bled free. . . I thought that the car was wrecked, but there was no bruises on it from running in the bank. . . I pulled his vest and shirt back and found the bullet wound. I do not know whether it was a rifle or a pistol that the bullet came from. The bullet went through him. It lodged in the car. It hit the left-hand door. He was shot from the right-hand side of the automobile." The plaintiff and others looked for a gun, but found none, either in the car or around the car, or around the edge of the road or about the creek. "It was a mighty ragged wound in his chest. There wasn't either door open. . . I didn't find any bruises about his face. His lips had a kind of bruised place. . . I remember pulling [the shirt] back and finding the bullet wound. I found his change purse in his left-hand pants pocket, . . about $7 in change. I didn't find his pocket book. I didn't find his bill-fold. Pierce Smith handed his bill-fold to me. I don't know where he found it [which] was empty when he handed it to me . . was closed up. . . $75 or $80 . . was the amount of money that customarily he would have had in the bill-fold at that time. . . Sometimes is wasn't in the bill-fold." The plaintiff could not definitely say as to the bruises on the lip or face, or whether the bruised places were made by one's fist or metal or a stick, or by the steering wheel. The plaintiff tried unsuccessfully to prosecute two men for the murder of his son. "I had warrants issued. . . *116 I charged these two men with murder on suspicion. . . They were seen with him last. I do not think they had any motive for killing my son. I didn't know that their motive for killing my son was robbery. . . As to my thinking it was any accidental killing, well, that is something I have never learned, something I am trying to find out the hardest in the world." The two men were released on commitment hearing for want of evidence. "We couldn't get the evidence against any one. . . No one has ever been indicted by the grand jury."
The defendant introduced as documentary evidence paragraph 3 of the original petition (later stricken by amendment) which we quote in the material part as follows: "The said insured . . was suddenly and without notice or warning by a party or parties unknown, and plaintiff charges on information and belief for the sole purpose of robbing the said George E. Matthews, deceased, and that the said insured was accidentally and unintentionally shot with a pistol or rifle in the hands of unknown parties without fault of insured."
1. "A life-insurance policy is a contract by which the insurer, for a stipulated sum, engages to pay a certain amount of money if another shall die within the time limited by the policy." Code, § 56-901. The payment of the amount named in the face of the policy, in the event of the death of the insured within its terms, is the prime purpose of the contract.Farrow v. State Mutual Life Insurance Co.,
The evidence disclosed that the beneficiary suspected two men last seen with the insured, of his death, but was unable to produce any evidence to that effect, or to connect any one with the crime of shooting the deceased. Under the good faith in which the company indicated it would act, it delayed paying the death benefit only by about three and a half months, apparently in the meantime making investigations to determine whether it could be "proven" that the death occurred accidentally within the terms of the policy, in order that it might pay "exactly" according to its terms that which it would be "only too glad" to do. But upon making payment of the $420 in exact amount of the deathclaim, its admitted and unquestioned obligation, it took the receipt on the back of the policy to read: "Received from the Gulf Life Insurance Company of Jacksonville, Florida, the sum of $420, the same being in full and final settlement of all claims under the within policy terminated by death." This receipt, to show accord and satisfaction, is not conclusive. Rhodes Son Co. v. Outcault Advertising Co.,
Code, § 20-1204, provides: "An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration." In King v. LibertyNational Life Insurance Co.,
The evidence, considered in its interrelation, demands a finding that at the time of the payment of the money and execution of the receipt there was no agreement by the one to pay, and the other to receive, the sum of $420 in final and complete extinguishment of all claims under the policy. Accordingly, any provision of the receipt, pleaded as accord and satisfaction and as satisfaction of the double-indemnity claim, was without consideration and must be treated as nudum pactum. We think the well-considered language in Pan-American Life Insurance Co. v. Bagley,
2. The policy provided, in addition to indemnity in the event of death, for a further sum equal to the face of the policy should the insured die from injuries received solely by external, violent, and accidental means where they were evidenced by visible wounds or contusions on the exterior of the body, and where the death by accident was independent and exclusive of all other causes, provided, however, the injuries were not inflicted by the insured while sane or insane, or intentionally by another person. Under the evidence it appears that the insured died from injuries, independent of all other causes, inflicted by a pistol or rifle; that the wound was visible on the exterior of the body, and that the means by which it was inflicted were external and violent. But we look to the evidence to determine whether, literally, the wound was made on the body of the insured, either by the intentional aim and design of another, or by the accidental shooting of the weapon in the hands of another without any intention to shoot the insured. There was no witness who saw the shooting to testify as to its character of occurrence. There was no pistol or gun found at or in the vicinity of the shooting. There was, however, an empty bill-fold of the insured, found near the car, which was not known to have contained money. If the insured was robbed, it does not appear that the killing took place in order that the assassin might rob the insured, as it does not further appear that the robbery, if any, was not committed by another immediately subsequent to the shooting, without any connection therewith. It does not appear that the insured was not accidentally or carelessly killed by one hunting along the creek, or otherwise discharging his gun without reference to the insured or his presence along the road. All evidence indicating the literal character of the shooting, whether intentional or accidental, was circumstantial.
The provision of the policy absolving the defendant from liability should the insured be intentionally killed by another person is an exception to the principal provision providing for indemnity in the event of accidental death. The burden was on the insurer to prove the death intentional and within the exception. Pan-American *121 Life Insurance Co. v. Bagley, supra, 610, 614; Gaynor v. Travelers Ins.Co.,
Accordingly, we hold that there was no evidence to support the defense of intentional shooting by another, and this, notwithstanding the allegation of the plaintiff that the shooting was "unintentional" or notwithstanding the original allegation, subsequently stricken, that to the best of plaintiff's information and belief the insured was shot accidentally by unknown parties with intent to rob. The allegation that the shooting was unintentional by another did not relieve the defendant of the necessity of proving the same as an exception to the principal provision rendering it liable in the event of accidental death. The rule would have been different had it been necessary, to support a cause of action, that this allegation should have been made in support of the principal provision as to the accidental death, and not in support of the exception to this provision. The evidence of the defendant that the plaintiff had originally pleaded that the purpose of accosting the insured was robbery, though the actual shooting was accidental, did not serve to support and establish the defense of intentional shooting where there were yet no facts on which to base this element of the shooting. *122
The evidence demanded a verdict for the plaintiff (except as to damages and attorney's fees), and the court erred in overruling the motion for new trial. Under our view the remaining assignments of error are without merit.
Judgment reversed. MacIntyre, J. concurs.
Dissenting Opinion
I think that the verdict was authorized by the evidence, and that the judgment should be affirmed.