American National Insurance v. Nelson , 69 Ga. App. 537 ( 1943 )

I concur in the judgment and in the opinion as written, except in paragraph 3. I concur in the conclusion therein stated, that the court did not err in failing to give the requested charge. In my opinion the request does not state a correct proposition of law, and for that reason it was not error to refuse it. The rule applicable to a case of this kind, which is a suit to recover under a policy for the death of the insured, resulting from an injury effected solely through external, violent, and accidental means, and not from any violation of law by him, is stated in Gaynor v.Travelers Insurance Co., 12 Ga. App. 601 (4) (77 S.E. 1072), as follows: "Where one person injures another, and the injury is not the result of misconduct or participation of the injured party, but is unforeseen by him, it is, as to him, accidental, although it may be intentionally inflicted by the other party." This rule is stated in somewhat different language in New YorkLife Insurance Co. v. Jennings, 61 Ga. App. 557 (6 S.E.2d 431), as follows: "Even where the insured is the aggressor, if the insured could not reasonably anticipate bodily injury resulting in death to insured at the hands of another, the beneficiary may recover." These two excerpts from these two decisions were cited with approval in the opinion in this case at its former appearance, as reported in 67 Ga. App. 775 (supra). Under this rule, where the insured is the aggressor, and is under the influence of intoxicating liquor at the time or is drunk, he can not as a matter of law be held to the same standard in anticipating bodily injury from the other person who killed him as he would be were he sober. A sober man in possession of his faculties might anticipate bodily harm from a person whom he assaults, while an assailant whose brain is beclouded might not anticipate as readily as a sober man the reaction which the person assaulted might make to the assault.