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THE LIFE & CASUALTY INS. CO. OF TENN. v. BENION.
33202.
Complaint on accident policy; from Fulton Civi1 Court-- Judge Parker. May 26, 1950.
FELTON, J.
1. The terms of an accident insurance policy insuring against injuries received by the insured by any accident to any motor-driven automobile in which he is riding or driving covers injuries received by the insured while driving in a stock car race, there being no limitation in the policy restricting the use of the automobile driven by the insured.
2. The negligence of the insured does not prevent an injury from being accidental unless so provided in the policy where the insured has no intention of producing the injury.
3. A petition, seeking recovery for accidental death of the insured under an accident policy, is defective if it fails to allege that the death was accidental under the terms of the policy sued on. The allegation here that the insured lost control of the automobile which he was driving does not necessarily allege an unintentional loss of control.
Anna Newsome Benion sued The Life & Casualty Insurance Company of Tennessee to recover, as beneficiary, for the death of an insured under the terms of an insurance policy issued by the defendant. The petition alleged, in addition to the issuance of the policy, that on November 6, 1949, the insured was driving a privately owned 1939 model Ford coupe automobile in a stock car race in Chattanooga, Tennessee; that he lost control of said automobile and struck a guardrail of the racetrack, upsetting the automobile, causing damage to the automobile and certain injuries to the insured from which he died; that the plaintiff has demanded payment under the policy and the defendant refuses. A copy of the policy was attached to the petition as Exhibit A. The provisions of the policy necessary for a consideration of the case are: "The Life and Casualty Insurance Company of Tennessee hereby insures the person named in said schedule against the result of bodily injuries received during the time this policy is in force, and effected solely by external, violent and accidental means strictly in the manner hereafter stated, subject to all the provisions and limitations hereinafter contained, as follows: . . . by the collision of or by any accident to any private horse drawn vehicle or private motor driven automobile in which insured is riding or driving; . . . For loss of Life - - - One Thousand Dollars ($1,000.00)." The defendant filed a general demurrer which the court overruled and the defendant excepts.
2. If the petition had, in addition to the facts alleged, alleged that the insured lost control of the machine unintentionally and accidentally, it could not be said that engaging in a stock car race is so dangerous as to take the misfortune of the insured out of the realm of accident or accidental means. In the absence of a provision in the policy so declaring, "recovery on an accident insurance policy is not defeated by the mere fact that negligence of the insured contributed to the injury." 29 Am. Jur. 715, 942. "Voluntary exposure to danger by the holder of an accident insurance policy will not defeat recovery for an injury caused by accidental means, where such exposure is not an exception in the policy, and the insured has no intention of producing the injury received." Ib. 716, 944. The cases cited by the insurance company to sustain its contention that the death was not accidental or due to accidental means are not to our minds analogous to the instant case. In those cases the injury to the insured was considered by the courts to be almost the inevitable consequence of the insured's voluntary and intentional act, and the acts were regarded as so wanton as to amount to intentional self-inflicted injury. The cases cited are as follows: Ford v. Standard Life Ins. Co., 12 C.C.H. Life Cases, 7 (a) 89 (where the insured died as a result of a snake bite while voluntarily handling a rattlesnake during a religious ceremony); Metropolitan Life Ins. Co. v. Anglin, 66 Ga. App. 660 (19 S. E. 2d, 171) (where the insured was killed by one whom he had threatened with a loaded revolver); Peoples Loan & Investment Co. v. Travelers Ins. Co., 151 Fed. 2d, 437 (where the insured was killed by an officer whom he had assaulted after attempting to escape); Thom v. Metropolitan Life Ins. Co. (La.) 2 So. 269 (where the insured was killed by his son after the insured had choked his wife and chased the son for several blocks with a revolver); Sellars v. John Hancock Mutual Life Ins. Co. (Mo.) 149 S. W. 2d, 404 (where the insured was killed while attempting to escape from Federal officers); Zuliskey v. Prudential Ins. Co. of America, 159 Pa. Super. 363 (48 Atl. 2d, 141) (where the insured deliberately jumped from a motor car traveling at a speed of about twenty-five miles an hour); Kinavey v. Prudential Ins. Co. of America, 149 Pa. Super. 568 (27 Atl. 2d, 286) (where the insured, while intoxicated, climbed over the railing of a bridge and fell while performing stunts which caused him to lose his balance and fall and drown). We do not mean to intimate that we agree with the holding in every one of the outside cases above cited. We mention them only to show the theory upon which the courts decided them.
3. The petition is subject to general demurrer because it does not allege that the death was by accident or accidental means. While it may be contended that under the facts alleged in the petition a presumption would arise that the insured did not intentionally lose control of the automobile, presumptions and inferences cannot be invoked in aid of pleadings unless the presumptions or inferences necessarily and absolutely follow from the facts alleged, and such is not the case here. The mere fact of loss of control does not necessarily mean accidental loss of control in a construction of the petition against the pleader. In an action on such a policy as we have here, the petition must allege death, not only from violent and external means, but it must allege that it resulted from accidental means as well. Newman v. Benefit Assn. of Railway Employees, 173 Ga. 881 (162 S. E. 122); Guardian Life Ins. Co. of America v. McMichael, 74 Ga. App. 53 (38 S. E. 2d, 689).
The court erred in overruling the general demurrer.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.
Bill A. Shirley, Ruby S. Poole, contra.
William F. Buchanan, Marc J. Nelson, for plaintiff in error.
DECIDED OCTOBER 6, 1950. REHEARING DENIED OCTOBER 28, 1950.
Saturday May 23 06:19 EDT


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