30 S.E.2d 411 | Ga. Ct. App. | 1944
1. The evidence sustained the verdict in so far as the principal amount of the policy, both as to death benefits and as to accident benefits, are involved. As to whether evidence is positive or negative is not the only consideration with which the jury is concerned in weighing it. Credibility of witnesses is also involved.
2. A conversation between an attorney for the beneficiary and a proper official of the company is admissible for the purpose of illustrating, if it does, good or bad faith of the company in refusing to pay the amount claimed, where the evidence negatives an effort to compromise.
3. The burden was on the plaintiff to show, by a preponderance of the evidence, that the death of the insured was caused by the burning of the house in which his body was found. The evidence was sufficient to sustain the finding of the jury as to this fact, if indeed it did not demand it.
4. To be under the influence of intoxicating liquors to any extent is to be intoxicated from the use of intoxicating liquors. This is true whether one's normalcy is swayed by a lesser or larger degree of intoxication.
5. A penalty and attorney's fees will not be sustained under the Code, § 56-706, where the evidence demands a finding that the insurance company did not act in bad faith in its refusal to pay.
The following is a general resume of the evidence: The insured, Schley Howard Smith (husband of the plaintiff) died on March 14, 1943. The plaintiff called at the company's office on March 22, 1943, for the purpose of collecting on the policy, and was informed by the company that it would have to investigate the death of the insured. She was not requested to sign any claim papers. In about two weeks she called the company on the telephone and asked for payment, and was informed that when she was at the office the company had overlooked having her sign a claim, and that if she would again call by the office they would likely have the information that they desired, and pay her. On April 14 following, she again called at the office for payment, and payment was refused. After payment was refused she declined to sign a claim. On April 19, 1943, she employed Mr. Seals Aiken to represent her in collecting the alleged amount due on the policy. On the day that the attorney was employed he wrote to the company informing it that he had been employed by the plaintiff and demanded the payment of $500. The letter further called to the attention of the company the provisions of law concerning a penalty where the company acted in bad faith, and further stated that the plaintiff had informed counsel that the company had refused to pay her on the ground that her husband's death resulted from his having been drunk. The letter further stated that the undertaker had informed the company concerning the accidental means which produced the death of the insured, and that any person informing the company that the insured was drunk at the time of his death would be called on to prove it. The company replied to this letter *159 stating that the plaintiff had refused to file "claimant's statement as required by the policy," and that she stated that she would not sign anything unless her attorney was present. The company also enclosed claim forms to Mr. Aiken, stating that when these were completed the company would be in a position to pass on the case. The company further stated to the attorney that judging from the contents of his letter he had been misinformed and was not being furnished with all the facts regarding the death of the insured, and suggested that he make some investigation of his own at Conyers, Georgia, where the death occurred, to determine the true facts, and further stating that when the claim was filed the company would show the attorney its entire file. The company stated further that it desired to pay its just claims at all times. A few days later the attorney, with the plaintiff, called at the company's office. As to just what happened between the attorney and the company's officers the evidence is in conflict, and is also in conflict as to whether at the time of his death the deceased was under the influence of intoxicating liquors. We will deal more specifically in the opinion with these and other questions as they arise. At any rate, no payment was made, and after the expiration of sixty days suit was filed. 1. General grounds: As to the simple death benefit of $250, we are not here concerned except as to the penalty and attorney's fees, with which we will deal later, since this amount was tendered, as above stated.
On the night of March 14, 1943, about three-thirty or four o'clock a. m., the dwelling house of the insured was consumed by fire. No one was occupying the dwelling that night save the insured. His wife and children were spending the night away from home. The evidence is conflicting as to why his family was not there. The evidence for the plaintiff sustaining her contention was that they were merely visiting friends, while the evidence for the company sustaining its contention was that the insured had come home about nine o'clock under the influence of intoxicating liquors and had driven his family away. The evidence for the company was sufficient, if the jury had so found, to sustain the *160
contention of the company that the insured, from about five or six o'clock in the afternoon before the burning until about midnight or after of the same night, was drinking, and was under the influence of intoxicating liquors. But the evidence for the plaintiff is sufficient, in view of all the facts and circumstances of the case and the evidence produced, to sustain the conclusion that the insured was not under the influence of intoxicating liquors. We are duly considering the argument of able counsel for the company that as to the condition of the insured the evidence of the company is positive, whereas that of the plaintiff is negative. We have given this feature our best consideration and have reached the conclusion that although the evidence of the company, coming from what we consider respectable and unimpeached sources, strongly inclines one to the view of the company in this respect. But on the other hand, when we take into consideration the time of the fire, the evidence for the plaintiff, and all the circumstances which come within the peculiar province of the jury to decide, we are without authority to conclude, as a matter of law, that the evidence demanded a finding that at the time the house was consumed by fire, the insured was under the influence of intoxicating liquor within the meaning of the insurance policy to such an extent as to show a causal connection between his death and the fire which consumed the building. Then, too, in this connection we might call attention to the case of Warrick v. State,
2. Special ground 1: Error is assigned on the ground that the attorney for the plaintiff was permitted, over objection, to testify substantially that on the day he visited the company's office the officer in charge informed him that the insured was drunk at the time of his death and burned himself alive in the house, and that the company refused to pay any amount except to return the premiums. This witness further testified that he did not make any offer to the company, did not go there for that purpose, but went there to collect the full amount of $500. This evidence was objected to in that (a) it was an attempt to compromise; (b) it was an unlawful attempt to prove bad faith; (c) it was injecting an issue into the case which was not raised by the pleadings; (d) it was highly prejudicial and hurtful and inadmissible under the Code, § 38-408. In our opinion the testimony was admissible to illustrate to the jury whether or not the company acted in bad faith in refusing to pay both the death benefit and the accidental indemnity benefit. The jury were authorized to believe the witness to the effect that no compromise was the purpose of the visit and discussion. This ground is without merit.
3. Special ground 2: Error is assigned on the following charge of the court: "The plaintiff contends that her husband met his death by being burned in a house in Conyers, Rockdale County, Georgia. No effort, gentlemen, has been made and there is no evidence in this case as to how the fire started, what caused the fire, and the plaintiff has not attempted to show how the fire occurred. No evidence in the case has indicated how the fire started. So under such circumstances, gentlemen, I charge you that where it has been shown by the plaintiff that the death of the insured resulted from an external and violent cause, and violent injury, and there being no evidence showing in what manner such external and violent cause was produced, and the issue is as to whether the death is due to an accident within the meaning of the policy of insurance under consideration, I charge you, gentlemen, that the presumption is in favor of an accident, and against the existence of facts bringing the cause within the exceptions contained in the policy. The fact of death by accident, gentlemen, is not to be established by presumption unless there is no evidence whatever as to the cause of that death." The assignments of error are: "(a) Because it was unauthorized by the evidence, there being *162
no evidence in the case showing from what causes the insured died, whether from natural or accidental causes. (b) Because it took away from the defendant its contractual right, in that the policy provided that the death must be solely by external, violent, and accidental means. This charge instructed the jury that the plaintiff could recover without proof of death by external, violent, and accidental means. (c) Because it instructed the jury that there was a presumption of violent and accidental death drawn from the fact that the body was found in a burning building, and relieved the plaintiff from showing that the insured met his death by external, violent, and accidental means." It is the general rule in this State that where nothing but the fact that burning appears it is presumed that the fire resulted from accidental or providential cause. Williams v.State,
4. Special ground 3 complains because the court charged: "I charge you that the term `under the influence of narcotics or intoxicating liquors' as used in this policy of insurance which will excuse the insurance company from liability for injuries which resulted in death which happened while the insured was under the influence of narcotics or intoxicating liquors. That means, gentlemen, such influence as really amounts to intoxication. The insured must have drunk enough to have disturbed the action of the physical or mental faculties so that they are no longer in their natural or normal condition, in order to excuse the company from liability on the issue. In other words, gentlemen, let me put it this way: That in order for the defendant to be excused from liability on this issue, it means that the insured must be under the influence of narcotics or intoxicating liquors to such degree as would materially impair insured's ability to care for himself and guard against casualties, such degree, gentlemen, being equivalent to intoxication in the ordinary meaning of that word. Now, if you believe in this case, gentlemen, that this insured met his death while under the influence of narcotics or intoxicating liquors as I have defined that term to mean, in its relations to this insurance policy, then, gentlemen, there could be no recovery in this case, and it would be your duty to find a verdict for the defendant." The exceptions to this charge are: "(a) Because it disregards the provisions of movant's policy and places the burden on it to prove that the insured was under the influence of narcotics or intoxicating *165
liquors to the extent of being intoxicated, while the policy provides that the insured has only to be under the influence of narcotics or intoxicating liquors. (b) Because it took away from movant its contractual rights and authorized the jury to find a verdict against movant unless it proved that the insured was under the influence of narcotics or intoxicating liquors to such a degree as would materially impair insured's ability to care for himself and guard against casualties, while the contract provided that the insurer was not liable if the insured was under the influence of narcotics or intoxicating liquors. (c) Because the charge put a burden of proving that the insured was in a state of intoxication at the time of his death, and then in connection therewith instructed the jury that if they believed this they should find a verdict for the defendant, when defendant movant was admitting an indebtedness of $250. This not only placed a burden of proof beyond the terms of the contract, but also placed the burden on movant of convincing the jury that the plaintiff was not entitled to recover any sum, and a verdict must be for the defendant." The third exception to this charge as set out in subsection (c) is to the effect that in so charging the court failed to take into consideration the fact that the company in its answer had admitted liability to the extent of $250 for the death benefit. We can not agree with this contention for the reason that the trial court in the beginning made it plain to the jury that there was no controversy as to this item, and therefore we can not conceive how the jury could have applied the charge as relating to this item so as to confuse it with the double-indemnity benefit feature. This contention in this portion of the special ground is not tenable. The other portion of the exceptions to the effect that to be under the influence of intoxicating liquors is a different state from (a) having "drunk enough to have disturbed the action of the physical or mental faculties so that they are no longer in their natural or normal condition;" or, (b) "that the insured must be under the influence of narcotics or intoxicating liquors to such degree as would materially impair insured's ability to care for himself and guard against casualties, such degree, gentlemen, being equivalent to intoxication in the ordinary meaning of that word." These exceptions have given us considerable concern. To state the question differently: Is there any material difference in being under *166
the influence of intoxicating liquor to any extent, or in being intoxicated from the use of intoxicating liquor to the extent that one is no longer in a natural or normal condition considering the word `intoxication' in its ordinary meaning? Counsel for the plaintiff in error argue with much persuasiveness that there is quite a difference, — that the definition of the term as given in the charge by the trial court increased the contractual obligations of the company. The term used in the policy, "while under the influence of narcotics or intoxicating liquor" is substantially the same as the term used in our Code, § 68-307, "while under the influence of intoxicating liquors or drugs." Section 20-704 (2), provides: "Words generally bear their usual and common signification." The expression of the court in the charge under consideration, "being equivalent to intoxication in the ordinary meaning of that word" is substantially the provisions of the Code section. In 29 Am. Jur. 763, § 1010, we find this statement: "The words `intoxicated,' `intoxicants,' and `narcotics' mean the use by the insured of liquors or drugs to such an extent as to disturb the action of his mental or physical faculties and substantially to impair his judgment in the exercise of the faculties essential to his safety." Under the same section the same authority cites the decisions of many courts concerning this question and makes this statement: "Some courts have accordingly construed the clause `under the influence of intoxicating liquors' to be equivalent to intoxication and not to apply to an insured who has taken a few drinks but is in full possession of his faculties." Webster's Collegiate Dictionary treats "intoxication" and "drunk" as synonymous. In the same authority under the word "drunk" we find "Synonym: drunk, drunken, intoxicated, inebriated . . intoxicated may be exactly synonymous with drunk, but is often applied more or less euphemistically to one who is but slightly under the influence of liquor;" See Roget's Thesaurus of English Words and Phrase, § 959, wherein the word "intoxicated" is shown to be a synonym of the word "drunk," and the two words in their variation of usage is also shown. In 22 Words and Phrases, p. 435, under the heading, "Under the influence of intoxicating liquor," we find: "`Intoxication' is an abnormal mental or physical condition due to the influence of alcoholic liquors. Frisvold v. Leahy,
In Kea v. State,
5. Special ground 4 concerns the penalty of $125 and attorney's fees of $200. Regarding the death benefit of $250, the company admitted in its answer that this was due, and pleaded a previous tender and a continuing tender. The evidence as to whether or not any previous tender had been made is in sharp conflict, and the jury found in favor of the plaintiff. So far as this $250 death benefit is concerned, we feel unauthorized to disturb the finding of the penalty and the attorney's fees concerning this item. As to the double-indemnity benefit of $250, under the evidence and record of this case we are firmly convinced that the company was within its rights in having a jury pass upon the question as to whether or not at the time the insured met his death he was under the influence of intoxicating liquors. The question of whether we are authorized to divide the penalty and the attorney's fees as between the two items, rather than reverse the whole case, seems to be novel, but after consideration we are of the opinion that we are authorized to do so. So far *169
as this feature of the case is concerned we approve the penalty of twenty-five per cent., that is, $62.50 and $100 attorney's fees as applied to the death benefit, but disapprove the penalty of $62.50 and $100 attorney's fees as applied to the double-indemnity benefit. It is clear that the penalty of $125 was the maximum as applied to each item. We think, therefore, we are correct in reasoning that the jury arrived at $200 attorney's fees applying it equally to each item of $250. It does not appear to us that the refusal of the company to pay the double-indemnity benefit was "frivolous and unfounded." Life Casualty InsuranceCo. v. Jordan,
Judgment affirmed, with direction. Broyles, C. J., andMacIntyre, J., concur.