59 Ga. App. 89 | Ga. Ct. App. | 1938
Lead Opinion
Mrs. Ethel Bush Ittner sued New York Life Insurance Company to recover an amount alleged to be due under a policy of life insurance issued to her husband, Arthur E. Ittner, by the defendant, in which the plaintiff was beneficiary, under the double-indemnity provision in the policy which provided for the payment of an indemnity upon receipt of due proof that the “death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental cause,” where such death occurred within ninety days after the injury was sustained. In the petition it was alleged, among other things, that the death of the insured, which occurred on or about an alleged date, resulted directly and independently of all other causes from bodily .injury effected solely through external, violent, and accidental causes, and that the death occurred within ninety days after the alleged injury was sustained. The defendant denied liability solely on the ground that the death of the plaintiff’s husband did not result from bodily injury effected solely through external, violent, and accidental cause, but alleged specifically that the death resulted “from self-destruction, that is
Without going into the mass of evidence in detail, it is sufficient to state that it appears from the evidence that the plaintiff’s husband, on or about the date alleged, was found dead at a lonely-spot, with a number of wounds'upon his body. There is no direct evidence tending to establish the cause of death. From the mass of evidence describing the nature of the wounds and the circumstances under which the .body was found, and other evidence, including evidence that the deceased had on a former occasion attempted to kill himself, the inference was authorized that the death of the deceased was not due to an injury received from an accidental cause, but was due to his own suicidal act. It was contended by the plaintiff that the deceased met death from a violent, external injury resulting from accidental cause, that he was murdered, and that such was the proper inference to be drawn from the evidence. While the evidence clearly established that the death of the deceased was due to violence, it did not clearly and unequivocally establish whether it was due to external and accidental causes, such as murder, or whether it was due to the suicidal act of the deceased. The evidence would authorize either inference.
The jury found for the plaintiff in an amount representing the indemnity provided in the policy, and in an amount as damages and attorney’s fees. The defendant moved for a new trial on the general grounds that the verdict was without evidence to support it and was contrary to law, and on the special grounds that the court erred in refusing to give in charge certain special written requests to charge, in giving certain matters in charge to the jurjq and in rejecting certain evidence offered. There was also in the motion for new trial an exception to the refusal of the court to charge the jury that they would not be authorized to return a verdict for the plaintiff for damages or attorney’s fees. To the judgment overruling the motion for new trial the defendant excepted. The defendant also excepted to the judgment as being illegal in so far as it provided for interest on the sum found in the verdict as principal where no amount was found in the verdict for interest. See a former report of this case in New York Life Ins. Co. v. Ittner, 54 Ga. App. 714 (188 S. E. 920).
Chief Justice Bleckley in Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 801, 802 (29) (12 S. E. 18), said: “The plaintiff must make out her case, but in so doing she can use the presumption against suicide which the law recognizes as arising out of the instincts of nature, one of which is the love of life. 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.” This rule means, at least, that on proof of a violent death, where there is no evidence from which it can be inferred whether the death was accidental or suicidal, and, therefore,-the evidence points equally either way, the so-called presumption that the death was not caused by suicide obtains and comes to the aid of the plaintiff, and the jury is authorized to find that the death was due to accident. In addition to this rule’s application to such a situation, does it go further and have application to a situation where there is conflicting evidence as to whether the cause of death was accidental or suicidal, and the jury would be authorized to infer from the evidence either way, that is, that the cause of death was accidental, or that the cause of death was suicidal, and where the jury, after weighing all the evidence and determining its probative value, are in doubt and are unable to conclude from the evidence alone whether the causé of death was accidental or suicidal, does the presumption against suicide still prevail, and would the jury then be authorized on the basis of the presumption, to find that the death was caused from accident? In other words, is the rule laid down by Judge Bleckley applicable only where the evidence is such that no inference can be drawn therefrom as to whether the cause of death was accidental or suicidal, or does it also apply where the evidence, whether direct or circumstantial is such as to authorize conflicting inferences as to
There is a difference between circumstantial evidence which “points equally or indifferently to accident or suicide as to the cause” of death, and circumstantial evidence which authorizes a jury to infer that the death was due to either one of these causes, —that is, to infer that death was due to accident rather than suicide, or to infer that death was due to suicide rather than accident. Under evidence of the former character, the jury would be authorized to find nothing as to the cause of death, while under evidence of the latter character the jury would be able to determine the cause of death.
In New York Life Ins. Co. v. King, supra, it is stated by Judge Hill as follows: “But it is well established that the fact of death by accident is not to be established by conjecture or presumption, unless there is no evidence whatever as to the cause of death. The presumption of death by accident is prima facie only and is rebuttable, and, as said by several of the decisions, easily rebuttable by physical facts in evidence, and this presumption [i. e., the presumption against suicide] prevails only when the cause of death is unknown. It does not prevail where there are facts bearing upon
As stated by Professor Thayer in the Storr’s Lectures in 1896, before the law school of Yale University, “A presumption itself contributes no evidence, and has no probative quality. It is some
The Supreme Court of Pennsylvania in Watkins v. Prudential Life Ins. Co., 315 Pa. 497 (173 Atl. 644, 95 A. L. R. 869), held that “the so-called ‘presumption against suicide’ is not a presumption but merely a permissible consideration of the non-probability of death by suicide.” Elaborating on this ruling, the court stated that '“as they deliberated on this case the jurors had the right to. bear in mind the fact that to the average human being, life is more attractive than death. They were thus entitled to consider, on an. even balance of the evidence as .between accidental
As stated in the beginning of this opinion, in a suit to recover a sum representing the additional amount payable under a life-insurance policy, where the death of the insured resulted from bodily injury “effected solely through external, violent, and accidental means,” the burden of proof is on the plaintiff to establish by a preponderance of the evidence that the death of the insured resulted from bodily injury effected solely through external, violent, and accidental cause. Mutual Life Ins. Co. v. Burson, supra. Upon proof of a violent death, where the “evidence points equally or indifferently to accident or suicide as the cause” of death, and is therefore insufficient to authorize an inference that the death was due to suicide, the theory of accident rather than of suicide is to be adopted. Here, the presumption against suicide would avail the plaintiff, and the jury would be authorized to And that the death was due to accident rather than to suicide. It is therefore incumbent on the defendant, at this juncture, to produce evidence,
The presumption against suicide is a mere' ephemeral thing, a phantom, something without substaliee, which immediately vanishes and disappears upon the advent of any evidence sufficient to authorize a contrary inference. Evidence which would authorize an inference contrary to that authorized by the presumption, and which would therefore extinguish the presumption, must neces-' sarily outweigh and preponderate over the presumption. The expression contained hi many decisions that, in a case where the presumption against suicide prevails in favor of the plaintiff, the burden is on the defendant to show by a preponderance of the' evidence that the death was due to suicide, properly construed, means no more than that the burden is on the defendant to over-' come the presumption against suicide by producing evidence which would authorize a finding that the death was due to suicide. Such evidence must ’ necessarily outweigh and preponderate over the presumption against suicide. In the case of Mutual Life Ins. Co. v. Burson, supra, and Standard, Aciddent Ins. Co. v. Kiker, 45 Ga. App. 706 (4) (165 S. E. 850), it was not held that the burden is on th'e defendant to establish suicide’ by a preponderance of the evidence, but it was held only that the presumption against suicide must be overcome by evidence. Such evidence of course necessarily' outweighs the presumption. Where the defendant has produced evidence in rebuttal of the presumption against suicide, and the
After- the presumption against suicide has been made to disappear on the production of evidence which would authorize the jury to find that the death was due to suicide, it does not follow that the burden of proof is on the defendant to prove the fact of suicide by a preponderance of the evidence. While there are expressions, which are obiter only, in a number of Georgia cases to the effect that in suits on life-insurance policies, the burden of proof is on the defendant to show by a preponderance of the evidence that the cause of the death was due to suicide, these expressions are in cases where the policies insure against death generally but provide for an exemption from liability where it is shown that the death was the result of suicide. In these cases the defense of suicide was an affirmative defense, predicated on the provision in the policy which excepted death by suicide from the operation of the policy. Such are the cases of Gem City Life Ins. Co. v. Stripling, supra, New York Life Ins. Co. v. King, supra, Hodnett v. Aetna Life Ins. Co., 17 Ga. App. 538 (87 S. E. 813), and Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (72 S. E. 295).
.There is quite a distinctive difference between the liability of an insurance company under a life-insurance policy which insures against death generally but with an exception where the death is caused from suicide, and a policy which insures against death which occurs under certain definite restricted conditions, as where the death is caused from injury received from a violent, external, and accidental cause. While, in a suit to recover under the first policy it might be that the burden of proof would rest on the defendant to establish by a preponderance of the evidence the fact that the cause of death was suicide, and therefore there was no liability under the polic3q it does, not follow that in a suit on the latter polic3q to recover for a death which resulted only from a specially designated restricted cause, as a death from injuries resulting from a violent,
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, if not demand, the jury to find for the plaintiff upon the issue of accidental or suicidal death, it is then incumbent on the defendant to produce only evidence in rebuttal, or denial of, the presumption, such as evidence which would authorize the jury to find that the 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 but is the burden only to go on with the evidence. In the parlance of checker players it is the defendant's move. The. burden of proof still remains on the plaintiff to make out his 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 throirghout the entire trial. See Hawkins v. Davie, 136 Ga. 550 (71 S. E. 873); Strickland v. Davis, 184 Ga. 76 (3) (190 S. E. 586); Hyer v. Holmes & Co., 12 Ga. App. 837 (3, 4) (79 S. E. 58).
As persuasive authority, see the following cases: New York Life Ins. Co. v. Gamer, supra, Jefferson Standard &c. Co. v. Clemmer, supra, Fidelity & Casualty Co. v. Driver, 79 Fed. (2d) 713. In the Clemmer case, supra, it was held that “When unexplained death by violence is shown in an action on an insurance policy, the defendant who seeks to avoid liability on the ground of suicide has the burden of going forward with the evidence thereof, or the issue of suieide will go against him, but if he offers such evidence, the
The burden of proof was on the plaintiff throughout the. trial to shoAv accidental death by a preponderance of the evidence. The burden of proof was not on the defendant to show by a preponderance of the evidence that the death was due to suicide. The court therefore erred in charging the jury as folloAvs: “I charge you that the defendant in this case denies liability . . , where a death has been sIioavh to your minds and satisfaction, and that it is by external, violent means—no one knows just hoAV it happened —then the burden, the defendant contending that it is a case of suicide rather than homicide, would shift and rest upon the defendant to establish such contention or theory by a preponderance
The defendant insurance company, now the plaintiff in error, complains of the failure of the trial court to give in charge four separate and distinct requests to charge. Two of these requests,, those contained in the 9th and 10th grounds of the motion for new trial, were covered by the general charge in substantially the same language as that contained in the requests. It was not error to fail to give these requests in charge. The requests to charge 'contained in the 7th and 8th grounds of the motion for new trial, while perhaps they were not correct in the precise form in which they were framed, were generally to the effect that the burden of proof rested on the plaintiff to show that the death was due to accident rather than to suicide. In view of the ruling herein made that such burden of proof rested on the plaintiff, and ■the reversal of the judgment in this case is on the ground that the court erred in charging the jury that the burden of proof was on the defendant to establish by a preponderance of the evidence that the death of the insured was due to suicide, it is not necessary to pass on the assignment of error on the court’s refusal to give in charge these requests. The matter will doubtless be taken care of on another trial. ■ ' . • ■
The defendant offered in evidence a written extra-judicial statement, made by the sheriff of Wilcox County to the defendant, in which the sheriff narrated the result of his investigation of the death of the deceased, reciting the facts which he found concerning the death of the deceased, and his own conclusion therefrom that it did not appear to him that the deceased was murdered. The defendant also offered in evidence the testimony of members of the coroner’s jury to the effect that 'the verdict of the coroner’s jury, that the death of the deceased was'at the hands of unknown parties, did not speak the true sentiments of the jurors, but that the jurors were of the opinion at the time of the rendition of the verdict that the cause of the death of the deceased was suicide, but that, -out of
“The good or-bad faith of an insurance company in refusing to pay after demand is to be determined by the evidence adduced at the trial upon the.merits of the .controversy, and not by ex parte affidavits produced to the company as preliminary proof or for the company's information to induce voluntary payment." Held in Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (4), 765 (12 S. E. 18). The court in the opinion in that case stated that, “in refusing payment after due demand according to the statute, the company would act at its peril, a peril neither increased nor diminished by the amount of information it might have or obtain, but only by the weakness or strength of its defence as manifested at the trial, any weakness in the plaintiff's case being, of course, counted as part of the strength of the defence, A defence going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defence to the action. " On the other hand, any defence not manifesting. such reasonable and probable cause, would expose the company to-the imputation of bad faith and to the assessment of damages therefor under section 2850 of the Code. It would be a dangerous practice to let one party pelt the other with ex parte affidavits at will, and then bring these affidavits in at the trial to raise or1 support the charge of bad faith.'' Of course the same would apply
As a new trial is granted to the defendant, it is not necessary to pass on the exception in the motion for new trial to the court’s refusal to charge a request to direct the jury to find against the plaintiff for damages and attorney’s fees, or to pass on the exception to the judgment.
Judgment reversed.
Concurrence Opinion
concurring specially. I concur in all that is said in the foregoing opinion. I am also of the opinion that a verdict for the plaintiff was not authorized by the evidence. The burden of proof was on the plaintiff. The uncontradicted facts presented two equally consistent, opposing theories, giving the plaintiff’s evidence and contentions the most favorable interpretation possible (and even then it is extremely doubtful that they are as reasonable as the suicide theory). In such a situation the party having the burden of proof fails to sustain his position. The verdict in this case can not be sustained by unauthorized consideration of the fact that the deceased up to the time of his death had not attempted suicide, and generally loved life too well to take his own. The jury could not logically consider facts which apply to a normal man when the uncontradicted evidence shows that the deceased was not a normal man so far as his attitude toward taking his life was concerned. The jury was confined to the evidence in the case, which excluded the idea of the deceased’s love of life as a normal man as determined by the evidence outside the circumstances attending his death.