Davison v. National Life & Accident Insurance
Davison v. National Life & Accident Insurance
Opinion of the Court
1. Where the clerk of the superior court transmitted to this court a supplemental certificate filed
2. The verdict was properly directed for the defendant, for as was said in Life & Cas. Ins. Co. v. Brown, 213 Ga. 390, 391 (2) (99 SE2d 98), “Insurance against death by accident is usually, as here, afforded for a small premium and the coverage is correspondingly narrow. The liability is guarded by carefully chosen words, and a court has no more right by strained construction to make the policy more beneficial by extending the coverage contracted for than it would -have to increase the amount of the insurance. Deliberately to do either would be a judicial wrong.” There can be no accident, as a matter of law, without proof of facts pointing to death by accidental means. Johnson v. Aetna Life Ins. Co., 24 Ga. App. 431, 432 (101 SE 134). In cases where the facts proven show that the insured met his death by external and violent means which resulted in visible wounds or contusions on the exterior of the body, there is a presumption of accident as opposed to suicide (Templeton v. Kennesaw Life &c. Ins. Co., 216 Ga. 770, 771, 119 SE2d 549), but where there is no showing of external violent means producing visible wounds or contusions, if there is a presumption at all, it is that death was due to natural causes, and the burden is on the plaintiff to affirmatively prove accident. Johnson v. Aetna Life Ins. Co., supra, p. 432; Continental Cas. Co. v. Pittman, 145 Ga. 641 (891 SE 717). In order to authorize a recovery under an accident policy such as here involved, before the plaintiff is aided by a presumption as to accident
Judgment affirmed.
070rehearing
1. In their motion for rehearing counsel for plaintiff in error place much emphasis upon the proposition that a death certificate which was introduced in evidence contained the following statements: “Part I, Death was caused by: Immediate cause (a) ‘Anoxio,’ [sic] Due to (b) ‘asphyxiation,’ Due to (c) Overdose NO* [properly N2O;] Part II, Autopsy— 'Yes’, Accident (x). How did injury occur? ‘Overdose N2O2.’” It is insisted that the death certificate was prima facie evidence of the facts stated therein, as is provided in Code Ann. § 88-1118.
The certificate was signed by Wm. P. Martin, M.D.M.G., dated July 6, 1960, and filed in the office of the local registrars on July 8, 1960. The date of death is stated in the certificate and in plaintiff’s petition to have been July 1, 1960, and there was testimony that the insured’s body was found on that date.
It is provided in Code Ann. § 88-1116, as amended (Ga. L. 1945, pp. 236, 242; 1953, pp. 140, 145; 1960, pp. 1009, 1019), “(1) Filing of certificate. The person in charge of interment shall file, with the local registrar of the district in which the death occurred or the body was found, a certificate of death within 72 hours after death or the body is found. (2) Personal data. In preparing a certificate of death, the person in charge of interment shall obtain and enter on the certificate the personal data required by the Board from the persons best qualified to supply them. He shall present the certificate of death to the physician last in attendance upon the deceased who shall thereupon
By Ga. L. 1960, pp. 1009-1013, amendatory of Chapter 88 of the Code, provision is made for instances such as we here deal with where a body is found dead and there is no attending physician, and the cause of death is not immediately apparent, for the holding of an autopsy or post mortem examination, and if demanded an inquest, and further provides that: “Coroners shall require post mortem examination and/or autopsy to be performed and inquest in their respective counties as follows:
“(1) When any person shall die as the result of violence, or suicide, or casualty, or suddenly when in apparent health, or when unattended by a physician, or within 24 hours after admission to the hospital without having regained consciousness, or in any suspicious or unusual manner; provided, however, no inquest shall be held under the following circumstances:
“ (a) When upon the completion of the post mortem examination and/or autopsy, the peace officer in charge and medical examiner are satisfied that, even while death resulted from violence, no foul play is involved. In this event, the peace officer in charge and medical examiner shall make a written report of their investigation and findings to the State Crime Laboratory as set forth in section 4 of this Act, and upon their recommendation, the coroner shall make and file a proper death certificate. . .
“ (d) When upon the completion of the post mortem examination and/or autopsy, the medical examiner and peace officer in charge are sufficiently satisfied that death resulted from natural causes and the medical examiner or coroner is willing to and does sign and file a proper death certificate, and no demand for an inquest, is made within thirty (30) days thereafter, no inquest shall be held.
“ (e) In all cases of hidden cause of death which do fall under the jurisdiction of the coroner, and after full and complete
It does not appear from the record or from the certificate itself that Dr. Martin was a “Medical Examiner.” He was not the attending physician. The certificate was not signed by the coroner. It was neither made nor filed by the person in charge of interment with the local registrar’s within 72 hours after the death of the insured, Dr. Davison, or the finding of his body. Thus, the certificate was not made or filed “under the provisions of” Chapter 88 of the Code, as amended, and it is not prima facie evidence of the statements therein contained, though it was admitted in evidence without objection. Bituminous Cas. Corp. v. Elliott, 70 Ga. App. 325, 330 (28 SE2d 392); Aetna Cas. &c. Co. v. Pulliam, 99 Ga. App. 406 (1) (108 SE2d 823); Troup County v. Henderson, 104 Ga. App. 29, 35 (121 SE2d 65).
2. But, if the death certificate had been made “under the provisions” of Chapter 88 of the Code in all respects, it would still not show that the insured, Dr. Davison, died from accidental means, as is required by the terms of the policy. The statement on the certificate is to the effect that he died from asphyxiation due to an overdose of NO and that it was an accident. The import of this statement is that the result was accidental, but there is absolutely nothing on the certificate as to what slip, mischance, mishap or accidental event happened in the administration of the gas to bring about the untoward result. There is likewise nothing in the other evidence admitted upon the trial to show or indicate either directly or circumstantially, that there was anything accidental in the means by which the insured met his death. There is no evidence that the oxygen controls or tubes became stopped, clogged or shut
“It is generally held that death or injury caused by unconsciously or unintentionally inhaling gas or noxious fumes is an accident or results from external, violent and accidental means.” (Emphasis supplied). 29A Am. Jur. 407, Insurance, § 1277. Examples cited are where the insured inhaled a leaking gas while asleep in a room, or while working in a well. There are no such circumstances here.
It has long been the rule in Georgia that to come within the coverage of a policy provision such as we here deal with the insured’s death must result from accidental means rather than as an accidental result from usual, ordinary means voluntarily employed. Cobb v. Preferred Mut. Acc. Assn., 96 Ga. 818 (22 SE 976); Fulton v. Metropolitan Cas. Ins. Co., 19 Ga. App. 127 (91 SE 228). And see American Nat. Ins. Co. v. Chappelear, 51 Ga. App. 826, 832 (181 SE 808), where it was said that “The accidental happening must inhere in the act which causes the physical injury which results in the death of the insured.” And see Thompson v. Prudential Ins. Co., 84 Ga. App. 214 (66 SE2d 119).
The burden -of proving that the insured’s death resulted from accidental means, and was thus within the provisions of the policy, rested upon the plaintiff. New York Life Ins. Co. v. Jennings, 61 Ga. App. 557 (3), supra. There being no evidence in the records by which the jury might have found that the insured’s death resulted from accidental means, the direction of a verdict for the defendant was proper.
Motion denied.
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