DocketNumber： 23873
Judges： Stephens
Filed Date： 3/1/1935
Status： Precedential
Modified Date： 11/8/2024
1. An allegation in the petition in a suit to recover on a life-insurance policy, that the gun which deceased had in his hand was accidentally discharged and that the load of shot went into his left chest, causing instant death, is sufficient as showing how the death of the deceased resulted from bodily injury received and effected solely through external, violent, and accidental means. The court did not err in overruling the demurrer on the ground that the allegation was defective in that it did not show “how the gun in the hand of” the deceased “was accidently discharged.”
3. Upon the trial of such a suit, where the evidence authorized the inference that the death of the insured was due to violent or accidental means, in that death was caused from a gunshot wound, and where the evidence authorized conflicting inferences as to whether the death was due to accidental means or to suicide, and the evidence was consistent with the reasonable hypothesis that death was caused by accidental means rather than from suicide, it was not error, on the ground that the presumption does not obtain except where the cause of death is unknown, for the court to instruct the jury that where the death of a person is shown, the law does not presume that such death was caused by suicide, but presumes that it was caused from accidental or natural causes. It was also not error for the court to charge that a conflict in the testimony does not destroy the presumption against suicide.
4. An excerpt from the charge of the court in the language of section 5746 of the Civil Code of 1910, “that the burden of proof generally lies upon the party asserting or affirming a fact,” etc., contained a correct principle of law applicable to the issues made by the pleadings and the evidence, and was not subject to the objection that the court in giving this language in charge, erred in not instructing the jury that the burden of proof rested upon the plaintiff to establish the allegations of the petition that the death of the insured resulted directly from bodily injury independently and exclusively of all other means, and that such bodily injury was effected through external, violent, and accidental means.
5. It was not error, in the absence of a special request, for the court to fail to charge that the burden of proof rested upon the plaintiff to establish by a preponderance of the evidence the allegations which the
6. Since where the presumption against suicide exists, as in this case, this presumption must be rebutted and overcome by the evidence or from inferences deducible from the evidence, it was not error, on the ground that the charge placed an unrequired burden upon the defendant, for the court to charge that if the evidence points equally and indifferently to the theory of death by accident, or to death by a wound intentionally self-inflicted, the theory of death by accident is to be adopted rather than that of suicide. Travelers Insurance Co. v. Sheppard, 85 Ga. 751 (12 S. E. 18) ; New York Life Insurance Co. v. King, 28 Ga. App. 607 (112 S. E. 383) ; Standard Accident Insurance Co. v. Kiker, 45 Ga. App. 706 (165 S. E. 850).
7. A charge that where the physical facts and the surrounding circumstances left the question of suicide in doubt, the plaintiff could recover on the presumption of accidental death, was not error upon the ground that it excluded from the jury a consideration of all the evidence. A consideration of the physical facts and the circumstances is a consideration of all the evidence.
8. The charge that a conflict in the evidence would not destroy the presumption against suicide, but that the presumption remains throughout the case, and is overcome only 'by evidence which excludes with reasonable certainty any hypothesis or theory of death by accident, was not error upon the ground that it excluded from the jury the question whether the presumption against suicide had been overcome, where the court elsewhere instructed the jury that the amount of evidence sufficient to overcome the presumption that death was from natural causes or accident was purely a question for the jury to determine.
9. Testimony was not inadmissible, as a conclusion of the witness, that he had observed, at the place where the body of the deceased was found, some stove wood scattered wound, some pine limbs, and a rock, over which a person could stumble or trip. The evidence, if it is an opinion of the witness, is based upon the fact of the character and nature of the objects observed, and is no more than a description of a situation coming-under the witness’ observation. It is not inadmissible as being an opinion of the witness without any basis in fact. Where the situation of the ground at the place where the deceased’s body was found was as described by the witnesses, and where inferably the deceased was killed by a gunshot wound in his side, inflicted by his own gun, which was lying within his reach by his body, the evidence that a person could have stumbled or tripped over the objects which the witnesses described as being on the ground is not irrelevant and inadmissible because there is no evidence that the deceased tripped or stumbled at this place.
10. Whether or not it was error to exclude the proffered testimony of a witness, who was not a physician or surgeon but a druggist, and who had examined the dead body of the deceased, that the gun which killed the deceased was “mighty close to the body when it was fired, or else
11. The testimony of a wife who had been with her husband all day prior to the time of his death, that during that time she saw nothing -wrong with him, is not inadmissible as being a conclusion, since necessarily the facts and circumstances upon which the witness bases this opinion are such that they can not be detailed and described so as to enable any one but the witness herself to form an intelligent conclusion therefrom. It was not error to admit this testimony. Even if the testimony was inadmissible, its admission was harmless to the defendant and could not have influenced the verdict. Mayor &c. of Milledgeville v. Wood, 114 Ga. 370, 373 (40 S. E. 239).
12. Where by a statutory enactment evidence which is in the nature of hearsay, and is otherwise inadmissible as possessing no probative value, is given the force and effect of direct and positive testimony in the courts, and is sufficient as prima facie evidence of the facts stated, under certain conditions as provided in the statute, the provisions of the statute must be complied with as a condition precedent to the admissibility of the evidence for the purposes provided. Where by an act approved August 17, 1914 (Ga. L. 1914, p. 157 et seq.), it is provided that there shall be, under the State Board of Health, an official designated as the State Registrar of Vital Statistics, and that under prescribed conditions a coroner or other proper officer whose duty it is to hold inquests on the body of any deceased person shall make a certificate “as to the means of death and whether (probably) accidental, suicidal or homicidal,” and, where this certificate is filed with the State Registrar of Vital Statistics, that any “copy of the record of . . death when properly certified by the State Registrar shall be prima facie evidence in all courts and places of facts therein stated,” and where an act approved August 22, 1927 (Ga. L. 1927, p. 353 et seq.), which is largely a re-enactment of the act of 1914, contains the same provisions, a death certificate required by virtue of the provisions of these acts, which makes the statements therein as to the cause of death prima facie evidence in the courts of this State of the facts therein stated, is not admissible in evidence in any court unless certified to by the State Registrar as in these acts provided, or by some person or persons upon whom the law confers such authority. Where the State Board of Health, as created under existing laws, and the powers, duties, and functions of the Board of Health are transferred to and vested in the “Department of Public Health” under the management and control of a “director” as provided in the act approved August 28, 1931 (Ga.
13. The court did not abuse its discretion in overruling the defendant’s motion to declare a mistrial upon the ground of certain alleged prejudicial remarks made by counsel for plaintiff when addressing the jury, to the effect that the world war was fought on the idea of making the world safe for democracy when in fact it was fought to make the world safe for the international bankers, railroads,- and insurance companies who had invested funds in foreign securities, and that this brought on the war, and that “in order to protect these securities we sent our boys like Jim Burson [the deceased] across the sea to be made cannon fodder of,” where the court thereafter instructed the jury that the remarks of counsel were withdrawn from the jury’s consideration and that they should not consider them, that the remarks about soldiers fighting and the war being brought on by any person and being fought or not fought for democracy to protect people formed no part of the case, and instructed plaintiff’s counsel by name not to repeat the remarks, but to stay inside the evidence. It thus appeared that the court complied with his mandatory duties as prescribed by section 4957 of the Civil Code of 1910, both by rebuking the counsel for the use of the remarks complained of, and by properly instructing the jury in regard thereto, which having been done, this court is unable to hold as a matter of law that the judge thereafter abused the discretion vested in him as to whether he would or would not grant a mistrial.
14. The evidence does not conclusively establish as a matter of law that tlie death of the plaintiff’s husband was the result of suicide.
15. The evidence authorized the verdict for the plaintiff, and no error appears. Judgment affirmed.