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Action on insurance policy. Atkinson Superior Court. Before Judge Hodges from Waycross Circuit.
FELTON, Chief Judge.
Where there is no substantial conflict in the evidence, which is all circumstantial, and the only reasonable deductions and inferences from the facts proved point to death by suicide, the question is one of law and the court erred in overruling the insurance company's motion for a judgment notwithstanding the verdict.
Both of these motions were overruled and the defendant insurance company except. By cross bill the plaintiff excepts to the admission in evidence of the contents of a note allegedly written by the deceased insured, which was found on the automobile seat beside him at the time of his death, on the ground that the execution of the note was not proved. Briefly, the evidence showed: Plaintiff's husband, George T. Belch, the assured in the policy of insurance, operated a whiskey store next door to a beer tavern operated by one John Tomlinson. George T. Belch died on Monday, February 26, 1962. On Saturday, preceding his death on Monday, George T. Belch was sent home by Tomlinson because he had been drinking too much. After Belch was sent home, someone, presumably his brother-in-law, Ralph Mullis, put a padlock on the door of the whiskey store. On Monday morning, Belch came down to the store, but he wasn't drunk that morning. The padlock had been taken off the door. He told Tomlinson, "I can't stay here and I can't stay at the house and I am going to get me some liquor and get drunk." He came out in front of the building and talked with his sister, the wife of Ralph Mullis, sitting in a pickup truck, for some time. On Sunday morning, before he died on Monday, he went to the home of J. H. O'Brien, a very good friend, and asked O'Brien if he knew who had locked up his whiskey store. At that time he appeared to be upset about his store. He told O'Brien it was closed up after he left there on Saturday. O'Brien did not see him any more on Sunday. On Monday, O'Brien saw him about 8 o'clock in the morning at the Miami Restaurant. O'Brien asked if his store was open and he said, "No, but I found out about it, and it will be pretty quick." About 3 p.m. on Monday, George T. Belch came to where J. H. O'Brien was at O'Brien's brother's house. Belch went over and opened the glove compartment of O'Brien's truck. He assumed Belch was looking for liquor, and he told him there was none in his truck. Later he saw Belch looking under the seat and finally Belch came over and asked O'Brien, "Where is that little old gun," saying he wanted to borrow it. O'Brien told him it was not in the truck but was up at his house. O'Brien went with him to O'Brien's house; Belch kept mentioning the little old gun, finally O'Brien told him it was in his truck back at his brother's and they went back to the brother's where O'Brien gave Belch the gun. Belch remarked, "It's loaded," and O'Brien said, "Yes, you can get hurt with them things and they can cause you trouble." Belch got in his car and told O'Brien, "I will see you later." While he was out at O'Brien's he acted like he was upset, worried and upset about something. O'Brien testified that all he could get out of him was that he needed some help about his business. He said, "I have always paid my debts and I am going to pay these." O'Brien said he knew that Belch was having financial troubles and was behind with some debts he could not pay. O'Brien had previously gone on Belch's bond. On cross examination, O'Brien testified to a previous occasion when Belch was in financial difficulties and O'Brien went on his bond. O'Brien said that Belch seemed more worried than he had on any other occasion that he knew. Belch left O'Brien and drove away with O'Brien's gun and about forty-five minutes later O'Brien received word that Belch had shot himself. Between 4 and 4:30 p.m. on Monday, George T. Belch drove by a filling station where his good friend, J. C. Relihan, an undertaker, was sitting in a chair talking to the proprietor. Belch waved to Relihan to come down to Relihan's funeral home. Relihan got in his car and followed Belch's car, but was stopped by traffic and Belch had driven into the rear yard of the funeral home before Relihan got there. While Relihan was stopped at the corner on account of traffic, he heard two shots from the direction of the funeral home. Relihan drove on and stopped on the street just outside the rear of the funeral home. Mrs. Melvin Davis was standing beside a car in the street just to the rear of the funeral home, and she saw Belch drive into the yard. She was watching his car and she saw his arm come out of the window and heard a shot and then another shot which was more muffled. The arm came out of the left side of the car, which would be the driver's side. No other person was around Belch when the two shots were fired. At the second shot, she ran across the street to the window of the sheriff's office and summoned him. Sheriff Bryant Taft came across to where the Belch car was, and where J. C. Relihan was waiting. They both went to the automobile and found Belch under the wheel on the driver's side, slumped down just a little bit with a wound in the center of his chest which
was bleeding. A gun was on the seat on his right side next to Belch, and there was a note, a piece of paper, lying on the seat. Relihan picked up the gun, a 22-pistol, and handed it to Sheriff Taft. Two shots had been fired from the gun. Relihan also gave the note to the sheriff. The sheriff said he could almost quote the note, which said, "All my life I have tried to pay my debts. God bless all of you, George," and it said, "P. S. No sitting up at J. C.'s." Sheriff Taft brought the note and gun to his office, later returned the gun to O'Brien, and kept the note for awhile, but could not account for it at the time of the trial. He testified that several relatives of Belch read the note, including his sister, daughter, nephew and others. Sheriff Taft was a first cousin to the deceased, George Belch. The sheriff further testified that it was customary in the community for friends to sit up with the body when a person died, either at the home or at the funeral parlor. J. C. Relihan testified almost exactly as Sheriff Taft about hearing the shots, finding the pistol and the note, and he testified to the contents of the note, "I have always paid my debts. God bless all of you, signed George, or George Belch," and at the bottom a P. S. that said, "No sitting up at J. C.'s." He further testified that it was customary for friends to sit up with the body, and further that he, Relihan, was generally known to his friends as "J. C." All of the above evidence was offered by the defendant, and it is undisputed. The plaintiff also introduced the evidence of Francis Corbitt that the deceased came by his place of business 'and used the telephone to make an appointment with somebody in Waycross for the next morning and that this was about forty-five minutes before he got shot. This witness said the deceased usually came by two or three times a week, and he testified, "so this time he came in and he seemed a little bit upset." The sheriff also testified that the note was written with a pencil on a half of an old envelope; that he did not know who wrote the note and that he wouldn't swear that it was in the handwriting of the deceased insured. The evidence also showed that the direction of the 22 bullet which killed the deceased was downward from the chest of the deceased.
1. The court did not err in admitting in evidence testimony showing the contents of the note found in the deceased insured's automobile. "The execution of a written instrument may be shown by circumstantial . . . evidence." Fay v. Burton, 147 Ga. 648 (4) (95 SE 224); Proctor & Gamble v. Blakely Oil Co., 128 Ga. 606 (3) (57 SE 879); Campbell v. Sims, 161 Ga. 517 (8), 522 (131 SE 483); Deaderick v. Deaderick, 182 Ga. 96 (1) (185 SE 89); Sharp v. Autry, 185 Ga. 160, 168 (194 SE 194); Fowler v. Latham, 201 Ga. 68, 72 (38 SE2d 732); Wofford Oil Co. v. Strickland Motor Co., 56 Ga. App. 876, 877 (194 SE 228); Pacific Selling Co. v. Albright-Prior Co., 3 Ga. App. 143, 145 (59 SE 468). A note was found beside the deceased in his automobile immediately after he was shot, together with a pistol borrowed by the deceased. There was no other person in or near the deceased's automobile at the time. In the absence of other evidence to the contrary, these facts demand the conclusion as a matter of law that the deceased wrote the note. While there is slight evidence that the deceased did not intend to commit suicide that day, the above facts are so overwhelming as not to permit of any reasonable doubt that the deceased wrote the note. The court did not err in admitting testimony of its contents in evidence.
2. (a) The court erred in overruling the defendant insurance company's motion for a judgment notwithstanding the verdict. The evidence demanded a finding that the deceased insured committed suicide. We have held in Division 1 that in the absence of sufficient evidence to the contrary the appearance of the note lying beside the deceased next to a pistol which he had borrowed, and the absence of other people from the scene at the time of the tragedy, demand the finding that the deceased was the author of the note. There was not sufficient evidence to disprove this fact. With this fact established, together with the fact of the despondency of the deceased and together with the contents of the note, the conclusion that the death was a suicide is demanded. The contents of the note clearly show' such intention; the mention of debts, the "God bless you all" and the request that no one sit up with the body at the funeral home seem to exclude every other reasonable hypothesis. The only slight evidence to the contrary is consistent with the theory of suicide, that the deceased was not despondent, that he told one witness he would see him later and the making of an engagement for the next day in another town. The conclusion that the deceased wrote the note is the greatest determining factor in the conclusion reached. Without this conclusion the contents of the note could not be considered in throwing light on the deceased's intent. The plaintiff introduced no evidence to rebut the prima facie proof that the deceased wrote the note. The conclusion that he did write it is reinforced by the fact that no single relative who saw the note was produced to show that the note was not in the handwriting of the deceased. Presumably the deceased's daughter and sister knew his handwriting. They were not produced as witnesses and their absence was not accounted for. While the failure to produce the strongest evidence does not give rise to a presumption of law under Code 38-119, and it is generally a jury question whether the presumption applies or not, in this case the circumstances demand the conclusion that the deceased wrote the note irrespective of the fact of the failure to produce the witnesses, but the failure to produce them strengthens the basis for the conclusion that the deceased wrote the note.
The defendant in error contends that the case of Templeton v. Kennesaw Life &c. Ins. Co., 216 Ga. 770 (119 SE2d 549) requires the conclusion that in every such case as this the questions of accident or suicide are exclusively questions for the jury. We do not so construe the ruling in that case. In that case the evidence authorized a finding either way. The court there did not intend to say that if the evidence demanded a finding of suicide the question was one for the jury. The court did not intend to rule that where the evidence in such a case excluded every other reasonable hypothesis except suicide, the court would not direct a verdict accordingly. While the ruling in Gem City Life Ins. Co. v. Stripling, 176 Ga. 288 (168 SE 20) is not a full-bench decision, we think it states the correct principles of law applicable to conclusions to be reached in cases of circumstantial evidence where there is no material and substantial conflict in the evidence. We believe the court in Templeton did not repudiate Stripling as it would have done if it had intended the ruling as contended for by the defendant in error. If the defendant in error is correct, there could never be a correctly directed verdict in a case involving the question whether a death was suicide or accident, regardless of what the evidence showed if a plaintiff showed an external and violent death as a prima facie case and stopped. Presumptions of law and fact are rebuttable. Bryan v. Walton, 20 Ga. 480; Black v. Thornton, 31 Ga. 641 (2); Lee v. State, 57 Ga. App. 164 (2) (194 SE 846). See Code 38-114 for conclusive presumptions of law. We cannot believe that the Supreme Court intended to rule that a non-conclusive presumption of law or fact can not be overcome as a matter of law by direct or circumstantial evidence in which there is no material conflict. See Code Ann. 110-104, catchwords "Conflict" and "Prima Facie Case." The rationale as to rulings that a directed verdict is proper where a prima facie case is not rebutted is the same as where a prima facie case of suicide is made and there is no rebuttal. If the ruling in Kinnebrew v. State, 80 Ga. 232 (5 SE 56), cited in Templeton, is subject to the construction that the conclusiveness of a presumption of fact is solely a jury question and not reviewable, such a ruling was obiter dictum. The question in that case was whether a charge expressed an opinion as to what had been proved. The court did not rule that the inference there involved was final and not reviewable. The writer, speaking for himself alone, is of the opinion that in Kinnebrew the court did express an opinion and make a ruling as to what inference could be drawn if certain facts were proved and that the court was correct in so charging, even in a criminal case. A jury's principal function is to ascertain facts. Where facts are in dispute the court must of necessity leave the application of the law to the jury to be based on the facts found. This is not intended to be prohibited by Code 81-1104. The question here involved is similar to a proof of negligence by the invocation of the doctrine of res ipsa loquitur. In such a case where the doctrine is sought to be rebutted a jury finding of negligence is not immune from review and reversal. Judge Lamar says for the court in Chenall v. Palmer Brick Co., 117 Ga. 106 (43 SE 443), on pages 108 and 109, that there is no such thing in the law as an absolute presumption of negligence, and that statement means that a jury's finding of negli-
gence, if the presumption is rebutted, is not final but is subject to review, and reversal, if wrong. There is still another reason why we think that in Templeton the Supreme Court did not intend to rule that in no case could a finding of accidental death be reversed and that is that it did not intend to make such a radical departure from the overwhelming weight of authority in America. Making the departure, alone, is almost beyond credulity, but to say that a jury in any case can find against suicide regardless of what the evidence is, is completely beyond grasp. As recent as the annotation in 158 ALR 747, 748, the great weight of authority is that the presumption against suicide is not evidence and vanishes upon the admission of evidence of suicide. Even on the other side of the question an opposite ruling in some states is based on statutes.
(b) Under the foregoing ruling the verdict for penalty and attorney's fees was unauthorized and a finding for the defendant was demanded. The defendant in error contends that since the ordinary death benefit was paid sixty days from the time of demand and after the filing of the motion, part of the verdict for bad faith was authorized. At the time of the filing of the action none of the amounts claimed had been paid. After the suit was filed the company paid the ordinary life benefit in full and the amount was accepted by the plaintiff without qualification or exception. The only question of damages and attorney's fees submitted to the jury was that concerning the payment of the accidental death benefit and the jury found damages and attorney's fees on that basis and no sum as damages or fees was based on the failure to pay the regular death benefit within sixty days after demand. It follows that the motion for judgment notwithstanding the verdict should have been sustained as none of the findings of the jury were authorized.
The court erred in overruling the motion for a judgment notwithstanding the verdict. The judgment is reversed with direction that judgment be entered in accordance with the motion.
Bennett, Pedrick & Bennett, Larry E. Pedrick, Vickers Neugent, for plaintiff in error.
Friday May 22 22:17 EDT

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