19 Ga. App. 264 | Ga. Ct. App. | 1917
Lead Opinion
The plaintiff’s evidence showed that the death of the insured was caused by a visible and external wound in his chest, which had been inflicted by some sharp instrument. No other fact or circumstance as to how the wound was caused was shown, except the statement (contained in a letter written by the plaintiff and addressed to the defendant, notifying it of the death of the insured) that the insured “died . from being stabbed by a negro on the streets.” This statement by the plaintiff must be taken as being prima facie true, as against her interests. Fair v. Metropolitan Life Insurance Co., 5 Ga. App. 708 (63 S. E. 812); Hill v. Ætna Life Insurance Co., 150 N. C. 1 (63 S. E. 124). It is clear that, in the absence of the statement just quoted, the plaintiff’s proof, 'together with the presumption of accident arising therefrom, and the admissions in the defendant’s answer as to the proof of death, etc., was sufficient to carry the case to the jury, nothing having been shown except that the death of the insured was caused by violent and external means. The case then narrows to this question: Did the additional proof, that the death of the insured resulted from his “being stabbed by a negro on the streets,” overcome and destroy the presumption of law that the wound causing his death was accidentally, and not intentionally, inflicted? A little reflection will, in our opinion, show that the question must be answered in the negative. It is entirely possible that the negro stabbed the insured without intending to do so. He may have been standing or walking upon the street, with an open knife in his hand, and have accidentally fallen, or been shoved, aganist the insured, or he may have stabbed the insured, without any provocation on the part of the latter, mistaking him for some one else. In either of such' events the stabbing would have been an accident within the meaning of the provisions of the insurance policy. Newsome v. Travelers Insurance Co., supra; Travelers Insurance Co. v. Wyness, supra; Gaynor v. Travelers Ins. Co., 12 Ga. App. 601 (4) (77 S. E. 1072).
The fact that the petition contained averments that a negro stabbed the insured, mistaking him for another person, and intending to injure that person and not the insured, and that the insured had done nothing to provoke the negro’s act, did not obligate the plaintiff to sustain these averments by proof, as they were
In our judgment the court erred in awarding a nonsuit.
Judgment reversed.
Rehearing
ON MOTION ROE REHEARING.
No principle of law is better known than that the plaintiff must recover, if at all, upon the case as made by his pleadings. And ordinarily, to recover, he must prove all the material allegations made in his petition; and though he may have gone into unnecessary details in stating his case, he must nevertheless, as a general rule, prove the details set out in the petition. These last rules, however, do not apply to that class of cases where a presumption of law arises in favor of the plaintiff on proof of certain facts. In such cases, when these facts are proved, the plaintiff need not prove the other material allegations in his petition, for the facts already shown by him have raised a presumption of law in his favor against the defendant, and this presumption, to
