24 Ga. App. 487 | Ga. Ct. App. | 1919
Lead Opinion
This was a suit upon a .policy of insurance which covered “bodily injury sustained during the term of this policy through accidental means . . resulting directly, independently, and exclusively of all other causes in death.” The material allegations of the petition are as follows: “Deceased was^ttacked with
In conclusion the insurer contends that even if the insured’s death was caused by accidental means, it did not result “directly, independently and exclusively of all other causes in death.” It is a settled rule that policies of insurance are to be construed most liberally in favor of the insured and most strongly against the insurer. Massachusetts Benefit Life Asso. v. Robinson, 104 Ga. 256 (2) 277 (30 S. E. 918, 42 L. R. A. 261). If the contention of the insurer in this particular is correct, or if the contract in this case is given an absolute literal meaning,, the clause “resulted directly, independently and exclusively of all other causes,” would mean nothing to the insured, with the result that the writing was no contract at all, for, as was said by Russell, C. J., in the Hall case, supra, “To hold in any case that a contract which stipulates that the loss for death should be payable only when the loss results solely and exclusively from an injury, would be to hold that death must, in every case, be instantaneous and the immediate effect of the injury in question, for it is a matter of common knowledge that almost every human being has some weak spot in his organisms which might to a larger or smaller degree contribute to bring about death in a particular way in that particular case, although another person under the same circumstances might not have died. Except
As suggested above, we are constrained to hold that the petition set out a cause of action, and the trial judge did not err in overruling the demurrer.
Judgment affirmed.
Dissenting Opinion
dissenting. The writer has been unable to satisfy himself that the conclusion reached by the majority of the court on the difficult question presented by this case is the correct one. If, under the statements contained in the petition, the proximate cause of the death can properly be taken to be the involuntary slipping by the insured from his pillow while lying in bed, then the mere fact that the dangerous open wound caused by the previous operation for appendicitis might have accelerated or even contributed to the fatal efect of such an accident would not preclude a recovery. In the Hall case, cited in the opinion, this court held that where the death of the insured had resulted from a fall upon a street pavement, the mere fact that the decedent was already afflicted with an incurable malady which would necessarily and within a short time have terminated his life would not furnish a valid reason whv the insuring company would not be liable for his death, when actually brought about by such accidental cause, even though the antecedent disease might not only have accelerated but even contributed to the death. The Supreme Court decided the Thornton case, also cited in the opinion, on this same theory. The