Opinion
31248.
DECIDED JUNE 6, 1946. REHEARING DENIED JULY 5, 1946.
Complaint on life policy; from Fulton Superior Court — Judge A. L. Etheridge. March 6, 1946. (Application to Supreme Court for certiorari.)
Powell, Goldstein, Frazer Murphy, for plaintiff in error.
James A. Branch, Thomas B. Branch Jr., contra.
1. Allegations that an insured came to his death by accidentally falling to the ground from the fourth floor of a hotel, and that his death "resulted directly and independently and exclusively of all other causes from bodily injuries effected solely through external, violent, and accidental means," are allegations of ultimate fact and are not conclusions of the pleader. Grounds 1 and 3 of the demurrer were properly overruled.
2. Ground 2 of the demurrer should have been sustained for the reason stated in the opinion.
DECIDED JUNE 6, 1946. REHEARING DENIED JULY 5, 1946.
Mrs. Julia M. McMichael brought suit against Guardian Life Insurance Company on a supplemental agreement attached to a life-insurance policy on the life of Robert Lee McMichael Jr. Insofar as is material to a determination of the case the supplemental agreement provided: "If said policy shall become a claim by the death of the insured, while said policy and this supplemental agreement are in full force and effect and before the insured shall have attained the age of sixty-five years, and before the end of the endowment period, if said policy is on the endowment plan, and due proof shall be furnished to the company at its Home Office that such death resulted directly and independently and exclusively of all other causes from bodily injuries effected solely through external, violent, and accidental means, of which (except in the case of drowning or internal injuries revealed by an autopsy) there is as evidence a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days from the date of such bodily injuries, then the company agrees to pay the sum of $1000 in addition to any amount otherwise payable under said policy." The amount payable under the life-insurance-policy contract is not involved, and the suit is solely upon the supplemental agreement.
The material allegations of the petition are substantially as follows: (4) On December 12, 1944, the plaintiff's husband, Robert Lee McMichael Jr. came to his death by accidentally falling to the ground from the fourth floor of the Hotel Rueger in Richmond, Virginia. (5) The death of the plaintiff's husband resulted directly and independently and exclusively of all other causes from bodily injuries effected solely through external, violent, and accidental means within the meaning of the provisions of the policy. (6) Due proofs were furnished the defendant by the plaintiff showing that the death of the plaintiff's husband resulted directly and independently and exclusively of all other causes from bodily injuries effected solely through external, violent, and accidental means. (7) Demand has been made upon the defendant for payment as beneficiary. (8) The defendant has failed and refused to make payment. (9) The defendant denies that it is liable to the plaintiff.
The defendant filed a demurrer to the petition "on the following grounds: (1) Because it sets forth no cause of action. (2) Demurs to paragraph 4 of the petition because it is too indefinite, meager, and uncertain in detail in describing the nature of the alleged accidental falling; it is not alleged whether the decedent fell through a door, or through a window, or down a fire escape or stairway or otherwise; if he fell from a window, it is not shown what size or shape the window was, how high from the floor it was, or other circumstances to show the possibility or impossibility, the reasonableness or unreasonableness of his accidentally falling from it, or what other circumstances surrounded the alleged fall. (3) Demurs specially to the 5th paragraph of the petition because it merely alleges a conclusion of the pleader without facts being alleged to support it." The court overruled the demurrer on all of its grounds, and the defendant excepts to this judgment.
1. In this State it is a fundamental rule of pleading that a petition must allege unequivocally the ultimate facts necessary to constitute a cause of action. This means facts the existence of which must be found by the court or jury from evidence introduced on the trial of the case. Such facts are necessarily conclusions and inference from other proved facts as distinguished from conclusions of law. Allegations of conclusions of law must be supported by facts justifying them, but allegations of ultimate facts need not be supported by the allegation of evidentiary facts by which the ultimate facts are to be proved. Watts v. Rich, 49 Ga. App. 334 ( 175 S.E. 417). The ultimate facts must be alleged and allegations of evidentiary facts will not suffice unless they demand the inference of the ultimate fact. Bivins v. Tucker, 41 Ga. App. 771 ( 154 S.E. 820), and cases cited. The policy in this case provides for payment in the event of a particular kind of accident, to wit, one resulting directly and independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means, etc. Paragraphs 4 and 5 of the petition allege that the insured's death was accidental as defined by the policy. It was not necessary to again specifically negative such causes as were not contemplated by the provisions of the policy, as to do so would have been unnecessary repetition. We think that the ruling in Newman v. Benefit Assn. of Ry. Employees, 173 Ga. 881 ( 162 S.E. 122), by its necessary implications, settles the question as to whether this petition states a cause of action and whether the allegations are conclusions of the pleader. The case of Mutual Life Insurance Co. v. Burson, 50 Ga. App. 859 ( 179 S.E. 390), is also supporting authority. In that case the ultimate fact of accidental death was alleged. The allegations of further evidentiary facts which would have authorized an evidential inference would not have been sufficient without the allegation of the ultimate fact except insofar as they demanded the inference of the ultimate fact. The same is true of the case of Jefferson Standard Life Insurance Co. v. Bentley, 55 Ga. App. 272 ( 190 S.E. 50). The ultimate fact was also alleged in that case and was sufficient without the additional evidentiary facts alleged. See also Western Travelers' Accident Association v. Munson, 73 Neb. 858 ( 103 N.W. 688, 1 L.R.A. (N.S.) 1068); Fraley v. Business Men's Accident Assn., 213 Ill. App. 463; Healey v. Mutual Accident Assn. of the Northwest, 133 Ill. 556 ( 25 N.E. 52, 9 L.R.A. 371, 23 Am. St. 637); Business Men's Assur. Co. v. Richardson, 234 Ky. 838 ( 29 S.W.2d 563). See also Gray v. Bradford, 194 Ga. 492 ( 22 S.E.2d 43), where it was held that an allegation of ownership of land is not a conclusion of law. Grounds 1 and 3 of the demurrer were properly overruled.
2. A part of ground 2 of the demurrer should have been sustained. This ground, insofar as it calls for allegations of evidentiary facts by which the accidental fall is to be proved, is without merit. Jackson v. Sanders, 199 Ga. 222 ( 33 S.E.2d 711). We do think, however, that if the facts are known to the plaintiff, she should allege with more particularity from what part of the fourth floor the deceased fell, whether from the roof, window, stairway, etc. It would seem that this much would be necessary to give the defendant sufficient information to enable it to adequately make its defense.
The court did not err in overruling grounds 1 and 3 of the demurrer, but erred in overruling ground 2, as indicated above.
Judgment affirmed in part, and reversed in part. Sutton, P. J., and Parker. J., concur.