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Lawskills.com Georgia Caselaw
WILEY v. FAMILY FUND LIFE INSURANCE CO.
34605.
Action on life insurance contract. Before Judge Bonner. Blakely City Court. February 17, 1953.
SUTTON, C.
In an action on a life-insurance policy, where it was alleged in the petition that the insured, while asleep in a pickup truck, pressed his mouth and nostrils so tightly into the crevice between the seat and back cushions of the truck that, being unable to breathe and with his supply of oxygen cut off, he died of suffocation, the petition showed an involuntary act preceding the death of the insured, which was unforeseen, unusual, and unexpected, and thus showed that the death of the insured came within the provisions of the policy for the payment of double-indemnity benefits if the death of the insured resulted directly and independently of all other causes, from bodily injuries sustained solely through violent, external, and accidental means.
Wessie D. Wiley brought this action against Family Fund Life Insurance Company on a policy of insurance issued by the defendant company upon the life of James L. Wiley. The policy provided for double-indemnity benefits if the death of the insured "resulted directly and independently of all other causes, from bodily injuries sustained solely through violent, external and accidental means, and within ninety days of such injury." The 4th paragraph of the petition was as follows: "Petitioner shows that the death of said James L. Wiley did occur on the 31st day of January, 1951, solely through violent, external and accidental means within the meaning of said policy, in this wise: deceased, James L. Wiley, did on the said date lie down on the seat cushion of a pickup truck, and, while asleep therein, did press his mouth and nostrils tightly against said cushion and the back cushion of said truck and into the crevice therebetween, so that deceased became unable to breathe, his supply of oxygen being cut off because of the position of his mouth and nostrils as alleged, from which deceased did become suffocated, and did then and there die."
By an amendment, the plaintiff attached to her petition a copy of the insured's death certificate, certified by the Director of the State Department of Public Health and also signed by the Coroner of Early County, which stated, under the heading "Cause of Death," that the condition or complication directly leading to death was "Accidental Suffocation."
The defendant demurred to so much of the petition as sought to recover on the double-indemnity feature of the policy sued on, on the ground that the petition did not allege facts showing that the death of James L. Wiley resulted directly and independently of all other causes, from bodily injuries sustained solely through violent, external, and accidental means. The court sustained the demurrers and struck the portions of the petition which referred to the death as accidental. The plaintiff excepted pendente lite to this ruling, and also excepted to the final judgment in her favor for the face amount of the policy.
J. "In order for a plaintiff to recover under a double-indemnity provision of an insurance policy for death resulting, independently of all other causes, from bodily injuries caused solely by external, violent, and accidental means, it is incumbent upon him to show that in the act which preceded the injury alleged to have caused the death of the insured something 'unforeseen, unexpected, or unusual occurred.' Fulton v. Metropolitan Insurance Co., 19 Ga. App. 127 (2) (91 S. E. 228); Johnson v. Aetna Life Insurance Co., 24 Ga. App. 431 (101 S. E. 134); Continental Casualty Co. v. Rucker, 50 Ga. App. 694, 695 (179 S. E. 269); American National Insurance Co. v. Chappelear, 51 Ga. App. 826, 829 (181 S. E. 808); Commercial Casualty Insur- ance Co. v. Mathews, 57 Ga. App. 446, 452 (195 S. E. 887); Atlanta Accident Asso. v. Alexander, 104 Ga. 709 (30 S. E. 939); United States Mutual Accident Asso. v. Barry, 131 U. S. 100 (9 Sup. Ct. 755, 33 L. ed. 60)." Green v. Metropolitan Life Ins. Co., 67 Ga. App. 520, 525 (21 S. E. 2d 465). This principle of law is well settled, and a proper determination of the question here presented depends upon the application of this law to the facts as alleged in the petition.
It is alleged here that the insured, while asleep in a pickup truck, pressed his mouth and nostrils so tightly into the crevice between the seat and back cushions of the truck that he was unable to breathe, his supply of oxygen was cut off, and he died of suffocation. This was an involuntary act on the part of the insured, and it was unforeseen, unexpected, and unusual. Counsel for the defendant contends in his brief, not that the occurrence preceding the death was unusual, unforeseen, and not to be expected, but that this court should judicially notice that, with the line of one's mouth at right-angles to the crevice between the cushions, "suffocation is absolutely impossible, unless the human head be constructed like the head of an ant-eater." But a demurrer admits the truth of all properly pleaded allegations in the petition (Code 81-304); and whether or not it was physically impossible for the insured to die in the manner alleged would be a question for a jury's determination, under the pleadings and evidence. The allegations are sufficient to raise a jury question as to whether the means by which the insured met his death were unusual, unforeseen, and unexpected, and hence accidental. The insured's involuntarily pressing his mouth and nose into the crevice between the seat and back cushions brought about the application of external force sufficient to close his mouth and nostrils, thereby suffocating him, according to the allegations of the petition. The petition does not show that the insured was guilty of any conduct that would take the incident out of the category of death by accidental means.
The petition showed that the death of the insured came within the double-indemnity provisions of the policy, and the court erred in sustaining the demurrers to the allegations seeking a recovery thereunder.
Wm. F. Buchanan, Stone & Stone, contra.
P. Z. Geer, Jr., Phillip Sheffield, for plaintiff in error.
DECIDED MAY 27, 1953 -- REHEARING DENIED JUNE 12, 1953.
Saturday May 23 04:29 EDT


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