Family Fund Life Insurance v. Wiley , 91 Ga. App. 225 ( 1954 )

Gardner, P. J.

1. Wessie Dell Wiley (whom we shall call the plaintiff) brought an action against Family Fund Life Insurance Company (hereinafter called the defendant) on an insurance policy, generally known as a double-indemnity policy. The policy required the plaintiff to show “That the death of the insured resulted directly and independently of all other cause of bodily injuries sustained through violent, external and accidental means and not directly or indirectly from bodily infirmity or disease in any form.” The only question is whether or not the evidence is sufficient to sustain the verdict in favor of the plaintiff. It is not questioned that, if the evidence showed that the insured came to his death by accidental suffocation, the plaintiff was entitled to recover $450 under the provisions of the policy. The ultimate burden was on the plaintiff to show that the insured died from suffocation. The jury returned a verdict in favor of the plaintiff. The defendant filed a motion for a new trial on the statutory grounds only.

2. The plaintiff introduced the death certificate, which showed that the coroner assigned accidental suffocation as the cause of death. This made out a prima facie case on behalf of the plaintiff. See Woodruff v. American Mutual Insurance Co., 67 Ga. App. 554, 560 (21 S. E. 2d 298). See also Code § 88-1212. Paragraph 4 of the petition alleged “Petitioner shows that the death of said James L. Wiley did occur on the 31st day of January, 1951, solely through violent, external, and accidental means within the meaning of said policy, in this wise: deceased, James L. Wiley, did on the said date lie down on the seat cushion of a pickup truck, and while asleep therein, did press his mouth and nostrils tightly against said cushion and the back cushion of said truck and into the crevice therebetween, so that 'deceased became unable to breathe, his supply of oxygen being cut off because of the position of his mouth and nostrils as alleged, from which deceased did become suffocated, and did then and there die.” The coroner, introduced as a witness, testified regarding the death certificate and testified that the doctor who had been treating the insured for approximately five months prior to the death of the insured, testified that the cause of the death of the insured was suffocation. The coroner testified that because of the testimony of the doctor, he (the coroner) stated in the certificate that the death was caused by suffocation. Doctor Holland, the physician above mentioned, was sworn as a witness at the trial. He testified that the insured was a patient of the witness. He described the position of the body of the deceased in the vehicle, as the physician found the body when he arrived at the vehicle. He testified that in his opinion the deceased died from suffocation. He further testified that at the time the insured died he was suffering from advanced pulmonary tuberculosis and that the insured was known as a diabetic mellilus; that the insured could have died from a coma induced by diabetes. There was evidence to the effect that on the night prior to the death of the insured he drank some whisky with a friend. This friend testified that the insured could walk, but that the friend assisted the insured into the vehicle and then closed the windows of the vehicle. On cross-examination the doctor testified that the insured could have died from a number of things. He testified: “He could have died from an atom bomb. As a medical expert I think it was suffocation from the way I saw it without any other detailed study being made.”

Townsend and Carlisle, JJ., concur. Decided September 27, 1954 Adhered to on rehearing December 3, 1954. Wm. F. Buchanan, Stone & Stone, for plaintiff in error. P. Z. Gee?’, Phillip Sheffield, contra.

3. Counsel for the defendant call our attention to the rule that where facts are equally consistent with either of two theories they prove neither. There are many decisions of the Supreme Court and this court cited by the defendant. We see no necessity of enumerating them here. Under all the facts and circumstances of this case, the jury were authorized to return a verdict for the plaintiff.

The court did not err in denying the motion for a new trial.

Judgment affirmed.