Newsome v. Travelers Insurance , 19 Ga. App. 264 ( 1917 )

Broyles, P. J.

The plaintiff’s evidence showed that the death of the insured was caused by a visible and external wound in his chest, which had been inflicted by some sharp instrument. No other fact or circumstance as to how the wound was caused was shown, except the statement (contained in a letter written by the plaintiff and addressed to the defendant, notifying it of the death of the insured) that the insured “died . from being stabbed by a negro on the streets.” This statement by the plaintiff must be taken as being prima facie true, as against her interests. Fair v. Metropolitan Life Insurance Co., 5 Ga. App. 708 (63 S. E. 812); Hill v. Ætna Life Insurance Co., 150 N. C. 1 (63 S. E. 124). It is clear that, in the absence of the statement just quoted, the plaintiff’s proof, 'together with the presumption of accident arising therefrom, and the admissions in the defendant’s answer as to the proof of death, etc., was sufficient to carry the case to the jury, nothing having been shown except that the death of the insured was caused by violent and external means. The case then narrows to this question: Did the additional proof, that the death of the insured resulted from his “being stabbed by a negro on the streets,” overcome and destroy the presumption of law that the wound causing his death was accidentally, and not intentionally, inflicted? A little reflection will, in our opinion, show that the question must be answered in the negative. It is entirely possible that the negro stabbed the insured without intending to do so. He may have been standing or walking upon the street, with an open knife in his hand, and have accidentally fallen, or been shoved, aganist the insured, or he may have stabbed the insured, without any provocation on the part of the latter, mistaking him for some one else. In either of such' events the stabbing would have been an accident within the meaning of the provisions of the insurance policy. Newsome v. Travelers Insurance Co., supra; Travelers Insurance Co. v. Wyness, supra; Gaynor v. Travelers Ins. Co., 12 Ga. App. 601 (4) (77 S. E. 1072).

The fact that the petition contained averments that a negro stabbed the insured, mistaking him for another person, and intending to injure that person and not the insured, and that the insured had done nothing to provoke the negro’s act, did not obligate the plaintiff to sustain these averments by proof, as they were not necessary to set out a cause of action. It is true that • the Supreme Court, when this case was before it (143 Ga. 785), on exceptions to the judgment sustaining a general demurrer to the petition, ruled that the petition (which contained such averments) was not subject to general demurrer, but it did not hold that the petition, without these allegations, would have been so subject. In such a case a cause of action is set out when the plaintiff shows that the death of the insured was caused by external and violent means; such proof, together with the presumption of accident arising therefrom, and the further presumption that the accident occurred in the manner stated in the declaration, is sufficient to carry the case to the jury, and it is not necessary to prove the facts and circumstances surrounding the injury or death of the insured, even though such facts and circumstances are set forth in the petition. The burden is then upon the defendant to show that the injury was intentionally inflicted. 1 Corpus Juris, 489, 490, 491, 493, 495, 497, 498. See also the other authorities previously cited. In other words, the legal presumption of accident that arose when the plaintiff showed that the death of the insured was caused by external and violent means was not neutralized or overcome by proof of the mere additional fact that death resulted from his being stabbed by a negro, on the streets, as no legal presumption then arose that the stabbing was intentional.

In our judgment the court erred in awarding a nonsuit.

Judgment reversed.

JenJcins and Bloodworth, JJ., concur.