Summary
In Hulsey, the Georgia court interpreted its prior decision in Young to apply only when there is no history of quarrels with deadly weapons.
Summary of this case from John Hancock Mut. Life Ins. Co. v. DuttonOpinion
40400.
DECIDED JANUARY 8, 1964. REHEARING DENIED JANUARY 28, 1964.
Action on insurance policies. Hall City Court. Before Judge Blackshear.
Hammond Johnson, Jr., for plaintiff in error.
Whelchel, Dunlap Gignilliat, William P. Whelchel, contra.
1. (a) It is a jury question whether or not the insured, under an accidental death policy, could have foreseen that threatening his wife with a rifle would ultimately result in his death where the evidence showed that he had so threatened her many times before.
(b) Where a party is given full benefit of a theory by the charge of the court and the jury does not return a favorable verdict, it is unnecessary for this court to pass on that theory as the jury verdict necessarily means that it did not apply under the evidence in the case.
2. The special grounds show no error.
DECIDED JANUARY 8, 1964 — REHEARING DENIED JANUARY 28, 1964.
This is a suit by the beneficiary, the insured's father, on two accidental death policies providing coverage: "If the Insured . . . sustains drowning or bodily injury effected solely through violent, external and accidental means, and if such drowning or bodily injury is the direct, independent and proximate cause of the death of the insured . . . and if such death is not caused or contributed to by disease or infirmity. . ."
The insured's death occurred when he and his wife were having a fight about the insured's drinking and playing poker. She protested his going out alone to do these things. The insured had been drinking. He brought out a rifle, held it to his wife's head, and told her he was either going out again or he would kill both of them. He had made similar threats and taken similar action before. The gun went off, a bullet striking the wife, and she blacked out for a minute. When she came to, she and the insured struggled over the rifle. The wife had the stock and the insured the barrel. During the struggle, the gun went off again and the insured was fatally injured. The wife was tried for murder and acquitted.
There was a verdict for the plaintiff beneficiary. The insurance company's amended motion for new trial was overruled and it excepts.
1. In arguing the general grounds, the defendant raises two issues which will be discussed separately.
(a) The first concerns accidental means within the policy provision quoted in the facts. The contention is that the insured's death is the natural and proximate result of his assault on the wife with a deadly weapon.
In dealing with the terminology "accidental means" in insurance policies, the courts have generally approached assaults by an insured on the basis of whether the fate met by the insured was both foreseeable and the natural and probable consequence of the assault. Annot., 26 ALR2d 399, § 2. Situations involving domestic quarrels have been treated somewhat differently with regard to foreseeability when there was a showing of a history of similar altercations, none of which involved serious results. Annot., 26 ALR2d 399, § 5.
The Georgia cases follow this general rule, Riggins v. Equitable Life Assur. Soc., 64 Ga. App. 834 ( 14 S.E.2d 182) being a particularly strong example. In Riggins, the insured and his wife had often fought. On the night in question, the insured had fought with his wife and threatened her with a knife. The wife went home and the insured later attempting to force his way into the house, was shot when he broke in the door. Recovery was allowed on a double indemnity accidental death provision similar to that here but containing an additional provision excepting coverage where the insured participated in the commission of an assault or a felony. Compare Riggins with Carolina Life Ins. Co. v. Young, 99 Ga. App. 848 (2), 856 ( 110 S.E.2d 67), quite similar factually but denying recovery where there was a family quarrel history but not with deadly weapons. See also, Nelson v. American Nat. Ins. Co., 67 Ga. App. 775 ( 21 S.E.2d 658), and Johnson v. Southern Life Ins. Co., 95 Ga. App. 625 ( 98 S.E.2d 382) for non-family deadly weapon cases equally as strong, both adopting the foreseeability rule.
We find the facts here clearly within the ambit of Riggins and other domestic quarrel cases. The wife related something of the frequency of family arguments a number of times and then testified that: "[H]e said [when he placed the rifle against my head] `I am going to kill you right here or I am going and you are not going,' and I said, `Well, go ahead, if you want to, if that is the way you feel, because he had done it before time after time — he put the rifle up against me and told me he was going to kill me' and I didn't believe it because he had done it before so many times. . ." (Emphasis added). Since the evidence clearly discloses that on numerous occasions similar incidents had occurred in which the insured had made threats on the life of his wife with the rifle, none of which resulted in harm to him because she sought to repel him in like manner, a jury question was raised as to whether he should have foreseen the result that ensued on this occasion.
(b) The second contention on the general grounds is that the defendant's drinking or being under the influence of alcohol was a "disease or infirmity" causing or contributing to the insured's death within the policy provision quoted in the statement of facts. The court charged the jury that "If you find that the insured was inebriated and that his death was caused or contributed to by this infirmity, you will find for the defendant." Thus the jury could not have rendered a verdict for the plaintiff if the defendant's contention was found by them to be true. The defendant had the fullest benefit of his theory before the jury but those "doctors of doubt" resolved it against the company. This treatment makes it unnecessary to decide the correctness of the theory (Cf. Union Central Life Ins. Co. v. Cofer, 103 Ga. App. 355, 357 (1), 119 S.E.2d 281), but see Code Ann. § 56-3005 (11) allowing a specific exclusion "for any loss sustained or contracted in consequence of the insured being intoxicated. . ."
The general grounds of the motion for new trial were properly overruled.
2. The special grounds: (a) Special grounds 1 and 2 complain of the court's failure to give certain charges on request. There is no exception to failure to give the charges in their exact language (See Butler v. Reville, 107 Ga. App. 345 (2) 130 S.E.2d 161) and we find the requested propositions of law to have been generally covered in the charge as given.
(b) Special ground 3 assigns as an unsound abstract principle of law a charge requiring the plaintiff to prove that the wife had no intention to shoot the insured as well as that the death resulted from something unforeseen, unexpected or without foresight and from accidental means. The charge was favorable to the defendant in adding the intention factor, and any error in it is harmless. Leverett, Hall Christopher, Ga. Procedure Practice, 486, § 22-4 (4) n. 77.
Judgment affirmed. Felton, C. J., and Russell, J., concur.