Opinion
28012.
DECIDED FEBRUARY 29, 1940.
Complaint on accident policy; from Floyd superior court — Judge Porter. July 29, 1939.
Maddox Griffin, for plaintiff.
Wright Willingham, for defendant.
On the trial of an action on a policy of life insurance containing a clause for the payment of double indemnity on proof that the death of the insured was the result of bodily injuries sustained solely through external, violent, and accidental means, and providing that no accident benefit would be paid if the death of the insured was a result of suicide, where it was inferable from the evidence that the death of the insured was from accidental causes, it was error for the court to direct a verdict for the insurance company.
DECIDED FEBRUARY 29, 1940.
Mrs. Margaret Hall filed suit against Progressive Life Insurance Company, in which she sought to recover on a policy which had been issued by the defendant on the life of her husband. The policy provided for the payment of double indemnity in the event the insured should die as a result of bodily injuries sustained solely through external, violent, and accidental means, and further provided that "no accidental-death benefit will be paid if the death of the insured is a result of suicide." The plaintiff alleged that on May 19, 1938, her husband died as a result of "accidental drowning," and "that said drowning was caused by said deceased falling from the bridge across the Oostanaula River at Fifth Avenue in the City of Rome and into the waters of said river." The defendant denied liability, and alleged that the death of the insured was caused by his suicide, "that is, the taking of his own life by leaping from the Fifth Avenue bridge in the City of Rome into the Oostanaula River and drowning as a result thereof."
The evidence introduced by the plaintiff was substantially as follows: John William Selman testified that on May 19, 1938, he was crossing the Fifth Avenue bridge over the Oostanaula River; that when he had reached about half the distance over the bridge he paused, and some man came from the other side close to where the witness was standing, got on the railing and sat down; that he was only seven or eight feet away; that the railing was three and one half to four feet high; that the man was a stranger to the witness, and was sitting "sideways" to the view of the witness; that he sat there "pretty steady and straight until he commenced going over . . leaning his body over slowly forward, with his head down," that he kept going over that way "until he kind of slid off from where he was sitting;" that he struck the water "flat," struggled some and then sank; that he rose again and only his head came to the surface; that the hearing of the witness was reasonably good and he did not hear this person say anything at all; that had the deceased said anything, "even in a conventional tone of voice," the witness would have heard it; that the witness was closer to him than anybody else; that the deceased just simply went off into the water without saying a word or doing anything at all; and that the witness was present at the coroner's inquest and saw the body of a man there and it was the same man he had seen sitting on the bridge. The witness further testified that from the way the man struck the water it looked as though the force would have knocked the breath out of him; that as he went over he did not straighten up or scream out, — "just like a man that would have been asleep;" and that he looked just like a person asleep.
The plaintiff testified that she was the widow of the deceased; that she and the deceased had one child, a girl; that there was nothing wrong with her husband's health; that at the time of his death he was employed at the Anchor Duck Mills; that she had never heard him say anything about losing his job; that he did not have any troubles that she knew of; that their married life was happy; that there were no serious difficulties between her husband and herself; that when the deceased left her to go to work there were no differences of any kind between them; that she did not know of anything that would have caused the deceased to take his own life; that he was a light-hearted type of man, never seemed to worry and was always in a good mood, and that he was very fond of their little girl.
R. M. Hall, a brother of the deceased, testified that he saw the deceased on the day of his death; that the deceased came by his place of business, and they were talking; that witness told the deceased to wait and he would take him home in his automobile; that the place of business of the witness was near the river, and that when the witness finished with some business which he was transacting, Joe Medlock and H. D. Casie came into his place of business and told him that his brother was in the river; that this was some ten or fifteen minutes after he had talked with the deceased; that when he talked to him there was nothing about his manner or demeanor, or the way he acted, that was any different from his ordinary way of acting; that he looked sleepy, and the witness told him he ought to go to bed; that he had worked that night; that so far as the witness knew the married life of the deceased was a happy one; that the deceased was not in any financial difficulties; that there was nothing wrong with the health of the deceased.
Joe Medlock testified for the plaintiff that he saw the deceased sitting on the railing of the bridge, and the deceased "just sloughed off;" that the deceased had his hands on the railing, and from where the witness was he couldn't say that the deceased jumped or not; and that he saw the deceased about an hour before he saw him on the bridge, and so far as his manner and demeanor then were concerned there wasn't anything wrong with him.
J. S. Davis testified for the plaintiff that he saw the deceased go out on the bridge that morning; that he just happened to notice him standing there with his hands on the banister and looking up the river, and that the deceased backed up and sat down on the banister "and by the time he did that it was over; . . he held his hands out like that, as he went down, like a bundle of something;" that the deceased did not put his feet over the outside rail, "he just spring up against it, had his back up the river and never did turn around and get his feet up the river." The witness testified that from the looks of it he wouldn't say the deceased jumped over in the river, but that he jumped up on the banister and he went right over in the river, and that he did not sit on the railing ten minutes. Other witnesses testified for the plaintiff that they had talked with the deceased on the morning of his death and that there had been nothing unusual about the way he acted.
Turner Johnson testified for the defendant that he saw the deceased when he went into the river; that shortly before that the deceased passed him as the witness was going across the bridge; that after the deceased passed him he heard the rails rattle and looked back and the deceased was sitting on the rail; that he stopped and looked at him; that his feet were over the outside of the railing and he was facing up the river; that as the witness looked at him the deceased stuck his hands out and said, "Tell my friends all goodbye," and he went over and held his hands out all the way down; that the deceased came up one time and the crown of his head could only be partly seen, and he gradually went down. The witness further testified that the deceased did not jump but just went right off the railing.
T. W. Taylor testified for the defendant that he knew the deceased and remembered the morning of his death; that the deceased rode with him in his taxicab; that the deceased said that "the law down on lower Broad Street" had told him to get a cab and get out from down there, and they were going to get him if he didn't leave, and when he got out of the cab the deceased said to the witness, "You have seen me around here a long time, but you wouldn't see me any more," and said, "Tell my friends goodbye," and he got out of the cab; and thereafter he heard that the deceased had "jumped in the river." The witness further testified that the deceased "looked to be pretty sleepy;" that he did not say why the law said for him to get out from down there, and, "Outside of apparently being sleepy, I did not notice anything at all being out of the way with him."
At the conclusion of the evidence the judge directed a verdict for the defendant. The plaintiff moved for a new trial on the general grounds and on the ground that the court erred in directing a verdict. To the judgment overruling the motion the plaintiff excepted.
The burden is on the plaintiff to show accidental death. That is, the burden is on the plaintiff to show that the death was not suicidal. Suicide is intentional self-destruction. If the evidence points equally to suicide or accident, and the jury could not infer from the evidence whether the death was accidental or suicidal, the presumption against suicide would avail the plaintiff, and he would have carried the burden of proof that the death was not suicidal. If the evidence is sufficient to authorize an inference either way, that is, that the death was suicidal or was not suicidal, then, of course, the evidence is not conclusive that the death was suicidal and the evidence would authorize a verdict for the plaintiff. The only evidence tending to show that the death of the deceased was suicidal was that, while he was sitting on the rail of the bridge he said to tell his friends goodbye, and held out his hands and dropped into the river, and a statement by the deceased, on the morning of his death, to the driver of a cab in which he had been riding, to the effect that the driver would not see him around any more, that the deceased told the driver to tell his friends goodbye, and that thereafter the driver heard that the deceased had "jumped in the river." Another witness testified that he was present when the deceased fell off the bridge and was closer to the deceased than anybody else, and that the deceased, without saying a word or doing anything at all, "commenced going over, leaning his body over slowly forward with his head down," and went off into the river. There was therefore presented an issue of fact as to whether the deceased, when he went off the bridge, made any statement, such as to tell his friends goodbye, and whether he had a suicidal intent. As to the statement testified to as having been made by the deceased to the driver of the taxicab, that the driver would not see him around any more, and to tell his friends goodbye, it could be inferred that the deceased had reference to leaving as a result of having been told by the police to go away or they would arrest him. Therefore it does not appear conclusively and undisputed from the evidence that the deceased jumped off the bridge, or that he went off the bridge with suicidal intent, or that he otherwise expressed an intention to kill himself.
There was evidence tending to show that the deceased was in good health, of even temperament, with no marital or financial difficulties, and with no motive to take his own life; that he was a man who loved his family and seemed contented with life; and that he had worked during the entire previous night, and on this particular morning appeared, not only to his brother, but to other witnesses, to be "sleepy." An eyewitness testified that the deceased "went over . . just like a man that would have been asleep," and that he looked just like a person asleep. There was evidence that both the insured and others were in the habit of sitting on the rail of the bridge in the manner in which the deceased was sitting at the time he tumbled, dropped, or fell therefrom into the river. There was some testimony that the deceased struggled when he first hit the water. There was testimony to the effect that he hit the water "flat." A jury could have drawn an inference from the evidence that the deceased did not intentionally drop or fall from the bridge, but that, while waiting for his brother to carry him home in his automobile, he sat on the railing, as he had done on previous occasions, and on account of his fatigued and drowsy condition, from having worked all night, dropped off to sleep, and slipped from the bridge into the river; and that the force of his striking the water "flat" knocked the breath from his body and prevented him from struggling as ordinarily he might have done, and that therefore the death of the deceased was from accidental causes.
The evidence was therefore sufficient to authorize a finding that the deceased met his death by accident, and not by suicide, and the court erred in directing a verdict for the defendant.
Judgment reversed. Sutton and Felton, JJ., concur.