Opinion
41251.
ARGUED APRIL 5, 1965.
DECIDED APRIL 29, 1965.
Action on insurance policy. Fulton Civil Court. Before Judge Camp.
Smith, Ringel, Martin Lowe, Sam F. Lowe, Jr., Edward F. Kern, for plaintiff in error.
Sanford R. Karesh, contra.
1. There is sufficient evidence in the record to authorize a finding that the death of the 14-year-old insured under a policy of life insurance containing a double indemnity provision was not suicide although the gun exploded and killed the deceased while it was in his exclusive possession.
2. Under the evidence the death was either suicide or accidental injury resulting from violent, external and accidental means.
ARGUED APRIL 5, 1965 — DECIDED APRIL 29, 1965.
The deceased, George Plumstead, was the holder of a life insurance policy issued by the defendant and making Mrs. Anne Plumstead, his mother, the beneficiary. A double indemnity clause was conditioned "upon receipt of due proof that the death of the insured occurred as the result, directly and independently of all other causes, of bodily injury caused solely by external, violent, and accidental means." The defendant paid the face amount of the policy but refused to pay the double indemnity. Upon the trial, before the judge sitting without a jury, it appeared that the insured was a 14-year-old boy of normal to above average intelligence with a cheerful, playful and energetic disposition who had neither expressed nor showed any despondency or thoughts of self-violence. He had been at church the day before his death and seemed happy at that time. Monday, March 25, 1964, he went to school and after school engaged in a track meet. Between five and six a friend drove him to his grandmother's house. On the way he discussed his performance which seemed to please him but he made the remark that he would try a little harder and do better at the next meet. He seemed cheerful "as always," and was laughing at a joke when he left. He watched a television show at his grandmother's, and seemed "just a normal boy" and "just as happy as could be." He then went home, decided to cook a hamburger, and called his grandmother asking how it should be cooked. At 7:30 he talked to his mother on the telephone, told her about the track meet, and assured her that he intended to come in first at the meet the following week. He asked her if he could buy some shorts for a school activity the following Friday and she gave her consent. He then called a girl of about his own age with whom he was friendly and talked for some time. He left the telephone two or three times and told her he was cooking a hamburger, which he subsequently ate. He talked with her about the track meet, again stating he was going to be first the next week, and also discussed a Teen Time dance being televised the following week to which he had invited her and told her he was picking out his own bermuda shorts for a school activity. He seemed to be kidding and jolly. Both young people had tuned their radio to the same station and were commenting on the records being played. He told her that he was cleaning his gun, and that he was fixing a hamburger. She further testified that "every time he would call he would say something, play a joke" and so forth. Between 8 and 8:30 p. m. he said, "I think I'll shoot myself." The witness was accustomed to his joking and expected him to do or say something silly every time he called, so she, taking it as a joke, said, "Oh, really," and he replied, "No, not really, I am just kidding." He then said he would count to three, and he did in fact count to two. She then heard a muffled noise like a firecracker, and although she held the phone for another ten minutes she heard nothing further.
At about nine o'clock the deceased's mother returned and found him dead. He was sitting at a chair by the kitchen table. The telephone was off its receiver. One foot was on the floor, another up on an adjoining chair, and his combination rifle-shotgun was between his knees pointing at his throat, in which there was a large wound. Powder burns established the muzzle of the gun to have been 3.5 inches from the point of impact. No gun cleaning materials were in evidence.
It was also brought out that the deceased was interested in autographs, had written but not mailed letters to numerous well known people asking for their autographs, and had also written an inquiry as to where there might be a local gun club which he could join. His father who had given him the rather unusual firearm for Christmas, had died about six weeks previously. The boy insisted on keeping the gun in his room and cleaned it frequently but usually kept it unloaded. A day or two previously he had said that he thought it good protection around the house and his mother, who was afraid of guns, pointed out that she would not be able to load it in case of an emergency. He had a Scout book and assured her that although he had read the safety rules he would study them again.
The trial court entered judgment in favor of the plaintiff beneficiary under the double indemnity clause of the insurance policy and the case is here on the general grounds of a motion for a new trial.
1. This court has twice held in cases involving accidental death clauses in insurance policies where the defense of suicide was urged, that the presumption of fact against suicide disappeared from the case, and the Supreme Court has twice reversed the holding. Templeton v. Kennesaw Life c. Ins. Co., 216 Ga. 770 ( 119 S.E.2d 549); Belch v. Gulf Life Ins. Co., 219 Ga. 823 ( 136 S.E.2d 351). In Belch, among the facts stated as necessary to be considered in raising an inference contrary to that of suicide, is whether the deceased is a person who is likely to be joking rather than serious, whether shortly before the death he was making plans for the future which would be carried out only if he were alive, whether, if he is shown to have had the intention, there was time for him to abandon it, and so on. All of these things may make a conflict in evidence, and the presumption against suicide is itself "evidence going to support a verdict of accident."
A contrary result is not required by Liberty Nat. Life Ins. Co. v. Power, 111 Ga. App. 458 ( 142 S.E.2d 103) both because the division of the court in that case is such that it has no value as a precedent, and because the facts are different. Here the deceased, a 14-year-old boy, stated that he was joking immediately before the gun went off. It was not shown that he was despondent or upset at any time, and all the evidence showed him to be the sort of boy who would not voluntarily take his own life. He was wrapped up in plans for his immediate future and felt happy about them. He was a boy who normally enjoyed joking and playing tricks. He was having no serious disagreement with the girl he was talking to at the time as Power had. There was a vast difference in the maturity of the two lads as shown by the fact that one was 14 and the other 20. The evidence here amply authorizes the finding that the death was not suicide.
2. Additionally, the plaintiff in error contends that, even if not suicide, the death did not occur by accidental means and the plaintiff is not entitled to recover. This is the same policy clause with which the Supreme Court was dealing in Belch and Templeton, supra. In both these cases the deceased pulled the trigger of his firearm in such manner that the resulting shot must necessarily result in his death. In both cases the Court of Appeals held the beneficiary of the policy was not entitled to recover, and in both cases the Supreme Court reversed. If the fact that the insured pulled the trigger of the gun unintentionally would result in the death not being through accidental means, then the Supreme Court would necessarily have affirmed the judgment of this court although for a different reason. In Belch the Supreme Court noted this policy provision in its opinion. In Templeton, it left undisturbed the first division of the opinion in the same case ( 102 Ga. App. 867, 118 S.E.2d 247). It was there stated, citing 12 ALR2d 1250: "According to the great weight of authority, in determining whether or not the insurer is liable under these circumstances, where the policy provides for benefits in case of death by external, violent and accidental means, where the means producing death were external and violent, there is a presumption, in the absence of evidence to the contrary, that the means were also accidental." See also Schneider v. Metropolitan Life Ins. Co., 62 Ga. App. 148 ( 7 S.E.2d 772).
To be an accident, this death must not have been the result of intent on the part of the deceased. "Very clearly, to our minds, a death by accident does not come within the description of dying by one's own hand. There must be an intent to commit suicide. Even though it be but the intent of a drunken man, however, it is none the less an intent." Equitable Life Assur. Soc. v. Paterson, 41 Ga. 338, 367. If not done by his intent, it is, as to him, an accident. As pointed out in Thompson v. Prudential Ins. Co. of America, 84 Ga. App. 214 ( 66 S.E.2d 119) one may shoot oneself under such circumstances that the death is neither suicide (intentional self-murder) nor accident, as where one intentionally pulls the trigger of a revolver knowing one of six cylinders to contain a live bullet, on the theory that under the law of statistical averages he will not shoot himself. "Accidental means" was defined in that case as including an intentional act affecting an unusual or unexpected consequence; where injury results from a voluntary act as to which some slip or mishap occurs.
In the present case the shotgun was resting on the floor between the insured's knees, pointing directly at the insured's neck, the end of the muzzle 3.5 inches away. It could only be fired by pulling the trigger. If the gun was in working order and loaded with a live cartridge and the trigger pulled in that position, at that distance, then the only result possibly to be anticipated was that the bullet would blast through the insured's neck and kill him. Under these circumstances there are only two alternatives: the insured intended to pull the trigger or he did not so intend. He had sufficient mind to form the intention, and sufficient knowledge to know the inevitable consequences of this act. Therefore, if he designed pulled the trigger, the act was suicide. If he did not pull the trigger intentionally, whatever act he did was attended by the unforeseen consequences that the trigger was released and the shot exploded; that is, his movements, whether voluntary or not, resulted in the unexpected slip or mishap of the trigger being moved and the firing pin exploding the cartridge. The only alternatives possible are suicide or an accidental injury inflicted by violent, external and accidental means.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. Felton, C. J., and Jordan, J., concur.