Pruitt v. Progressive Life Insurance , 55 Ga. App. 483 ( 1937 )

Felton, J.

(After stating the foregoing facts.) When the plaintiff showed that her husband’s death was caused by a broken' neck and back, a prima facie case of accidental death /was made out, especially in view of the presumption in favor of accidental death against suicide. The evidence of the defendant points solely to intentional death by drowning, and death while under the influence of intoxicants. While recognizing the undisputed rule of law, that where the uncontradicted evidence as to the physical facts and circumstances connected with the death of the insured demands a finding that the death was by suicide, the direction of a verdict is proper, we do not think the evidence in this case measures up to this standard. The only positive evidence as to the cause of death shows that it was not from drowning, as the defendant seeks to show by circumstantial evidence, and therefore was not produced in the way insured is claimed to have expressed his intention to destroy himself. The evidence is unquestionably conflicting as to whether the insured was under the influence of intoxicating liquor, as to whether he tried to swim out of the water, as to whether there had been any trouble between him and his wife, and as to whether he said he was going to drown himself. These conflicts, considered with the fact that the insured halloed after he got into the water, certainly take this case out of the category of those where the facts demand the finding of suicide. The defendant sought to overcome the proved fact of death by a broken neck and back by circumstantial evidence of intentional drowning; and since the evidence did not absolutely exclude every other reasonable hypothesis save intentional drowning, the jury should have been permitted to pass on the issues involved. New York Life Insurance Co. v. King, 28 Ga. App. 607 (112 S. E. 383); Georgia Life Insurance Co. v. McCranie, 12 Ga. App. 855 (78 S. E. 1115); Mutual Life Insurance Co. v. Durden, 9 Ga. App. 797 (72 S. E. 295); Standard Accident Insurance Co. v. Kiker, 45 Ga. App. 706 (165 S. E. 850). Mutual Life Insurance Co. v. Burson, 50 Ga. App. 859 (7, 8) 861 (179 S. E. 390); Taylor v. State, 44 Ga. App. 387 (161 S. E. 793); Sovereign Camp Woodmen of the World v. Simmons, 33 Ga. App. 566 (126 S. E. 891). The court erred in directing a verdict for the defendant insurance company.

Judgment reversed.

Stephens, P. J., concurs. Sutton, J., dissents.