1. Under the facts of this case, there was some evidence to authorize the verdict, and this court will not undertake to pass on the weight, but on the sufficiency of the evidence, while ruling on the general grounds of the motion for a new trial.
2-4. There was no reversible error in the charge complained of in special grounds 4, 6 and 7 of the amended motion for a new trial, for reasons stated in the body of the opinion.
5. A charge which placed upon a party a greater burden of proof than that required by law was erroneous.
6. Under the evidence of this case, there was a reasonable and probable cause for the insurance company to refuse to pay the benefits provided by the policy which made a justiciable controversy as to the facts. It was error in submitting to the jury the question of bad faith so as to authorize the award of attorney's fees.
Katherine Thornton, the beneficiary of an accident policy on the life of her brother, Luther Jenkins, filed this action in the Superior Court of Troup County against the Independent Life & Accident Insurance Company, the insurer. The petition alleged that Luther Jenkins was killed through external, violent and accidental means as the result of a gunshot wound accidentally inflicted on October 11, 1958, by a person or persons unknown. The insurance company filed a defense that the insured's death came within one of the exceptions of the policy, hereinafter described, whereby it was not liable for payment. At the trial, evidence was introduced that on the same date the shooting occurred, the deceased and Ernest Copeland had an altercation at Robert Adams' house, but thereafter the two left the house together, and Adams further testified, "I thought everything was all right."
Various witnesses testified they heard two, three, or four shots, which, from the record, was after Jenkins and Copeland had left Adams' house. A next door neighbor of Luther Jenkins heard the shots, and immediately thereafter, saw Ernest Copeland walking away from the scene, but she did not see Ernest Copeland's son, Calvin, or anyone else along the road outside her house, and, in her opinion all the shots came from the same gun.
Verline Adams testified that she, Calvin Copeland, Ernest Copeland, and Katherine Copeland were walking down the road toward Manchester when the shooting happened, and that she and Katherine were some distance behind Ernest and Calvin, and that she heard the shots but didn't see anybody shot. There was testimony that the shooting happened at approximately 8 p.m., and that it was dark. The insured was found near the chimney of his house with one bullet wound near the heart, and an agent of the Georgia Bureau of Investigation testified that he found a bullet hole and a bullet on the porch of a house down the hill and diagonally across the street from Luther Jenkins' house. The bullet hole in the deceased and the one across the street accounted for two shots. No other bullet marks were found.
There was no gun, knife, or other instrument found near the body of the deceased when he was found dead.
George Cheney testified that he had lived next door to Luther Jenkins for six or seven years; and that he had never known the deceased to have a gun. The plaintiff testified that she "never know he owned any gun," and further, "I never remembered him having one."
The jury returned a verdict for the face amount of the policy of $5,500, plus 25% attorney's fees, $1,375.00.
1. The policy provides: "The agreement as to benefit under this policy shall be null and void if the insured's death or injury results, directly or indirectly, from any of the following causes: (a) from the insured's . . . committing or attempting to commit, while sane or insane, assault or . . . (f) from intentional homicide or as a result from the intentional act or acts of any person or persons. If it can be proven to the satisfaction of the company that the insured was not the aggressor, exception (f) will be waived." The defendant, through its counsel, argues that there is no evidence to support the verdict, and the verdict is against the weight of the evidence. The foundation of this contention is that the evidence demanded a finding that the insured was either committing or attempting to commit an assault or was killed by an intentional act of a person or persons.
As to the first contention, the only evidence to show an actual assault by the insured on Ernest Copeland was the testimony of Ernest Copeland's nine-year-old son, Calvin. The substance of Calvin's testimony was that just at nightfall he accompanied his father as they walked along a road toward Manchester. As they approached Luther Jenkins' house, the insured fired two shots from a pistol at Calvin's father. Ernest Copeland pulled a gun and fired one shot at the insured. Thereafter, Luther Jenkins ran across to the opposite side of his house near the chimney, where he fell.
Stow v. Hargrove, 203 Ga. 735(8) (48 S. E. 2d 454); Lewis v. Patterson, 191 Ga. 348 (4) (12 S. E. 2d 593). Such facts distinguish the instant case from Frazier v. Georgia R. & Bkg. Co., 108 Ga. 807 (33 S. E. 996); Neill v. Hill, 32 Ga. App. 381 (123 S. E. 30).
In Bibb Cigar & Candy Co. v. McSwain, 95 Ga. App. 659
, 661 (98 S. E. 2d 128), the court held: "In a case like the one here under consideration, where the evidence is in sharp conflict and much of it was subject to being impeached if the jury so believed, the evidence must be construed in that light which will uphold the verdict of the jury, for, ' "In passing on the general grounds of a motion for new trial, this court passes not on the weight but on the sufficiency of the evidence. It is our duty to determine whether the verdict as rendered can be sustained under any reasonable view taken of the proofs submitted to the jury." Ingram v. State, 204 Ga. 164
, 184 (48 S. E. 2d 891).' Farlow v. Brown, 208 Ga. 646
, 648 (68 S. E. 2d 903)." The rule is not whether one party's theory of the case is the most probable theory, but whether the theory accepted by the jury is supported by any evidence. There is evidence to support the verdict, and it is this court's duty to affirm the judgment of the trial court denying the motion for new trial on the general grounds.
2. Special ground 4 of the amended motion for a new trial complains of the following charge: "Therefore, Gentlemen of the jury, the burden is upon the insurance company to prove to you by a preponderance of the evidence that the injury resulting in death was not accidental, but came within an exception in the policy that the death resulted from the insured's engaging in a felony or the insured's committing or attempting to commit, while sane or insane, assault, or from intentional homicide, or as a result from the intentional act or acts of any person or persons."
Counsel for the insurance company concede that the last portion of the charge complained of was a correct statement of law, but insist that the first portion of the charge cast upon the defendant a heavier burden of proof than that required by law, that is, the defendant would be required to prove that the death was not accidental. However, the first portion of the charge cannot be taken without the latter part, and vice versa. It is obvious that the trial court made a slip of the tongue in stating that the defendant must prove the death was not accidental, but the latter portion of the sentence clearly indicates that the court was endeavoring to instruct the jury that the defendant had the burden to prove an affirmative defense. The latter portion of the sentence in the charge referred to and defined what the trial court meant by the expression that the "burden is upon the insurance company to prove . . . that the injury resulting in death was not accidental."
The court also instructed the jury: "I charge you, Gentlemen of the jury, that the plaintiff must prove her case; that is, she must prove the contract upon which she sues; prove the death of the person who took out the policy and see that she makes proof of death according to the requirements of the policy. When that is done, then the burden is upon the defendant to show that the death or injury, the result of which caused the death, for which the suit is now pending, did not come under the rule of the policy, but fell under some of the exceptions that are excluded by the policy; in other words, causes that the policy did not or does not cover."
Considering the charge as a whole, it is clear that the trial court instructed the jury that the plaintiff had the burden of proof to establish a prima facie case of liability against the defendant, but the insurance company had the burden to show an affirmative defense that the company was not liable under one of the exceptions of the policy. Southern Ry. Co. v. Hurst, 144 Ga. 699 (87 S. E. 1020). See Independent Life &c. Ins. Co. v. Hopkins, 80 Ga. App. 348, supra.
3. There is no merit to special ground 6, and as it is dealt with in Division 1 of this opinion, no further elaboration will be made.
4. Special ground 7 assigns as error the following charge: "Therefore, in determining whether Luther Jenkins was the aggressor, you would have to determine whether, at the time immediately prior to his death, he was doing something from which he could reasonably foresee that death might occur. If he was not doing some act from which he could foresee that death might occur, then he would not be the aggressor."
" 'Policies of insurance will be liberally construed in favor of the object to be accomplished, and the provisions therein will be construed strictly against the insurer.' " Fokes v. Interstate Life &c. Ins. Co., 59 Ga. App. 680
, 681 (2 S. E. 2d 170). An aggressor is the one who does the first act of hostility or begins an attack. No act on the part of the deceased could be termed "aggressive" so as to defeat recovery under the policy, unless, under the facts and circumstances, it can be inferred that the insured could reasonably infer that death or injury would result. The principle involved is the same as in those cases where the participation of the insured in an assault is excluded from the risks of the policy. In those cases, the courts have held that the insured must apprehend that he is putting his life or limb in danger by committing the assault. See Life &c. Ins. Co. v. Lingerfelt, 100 Ga. App. 477
(111 S. E. 2d 724); Carolina Life Ins. Co. v. Young, 99 Ga. App. 848
(110 S. E. 2d 67); Johnson v. Southern Life Ins. Co., 95 Ga. App. 625
(98 S. E. 2d 382); Riggins v. Equitable Life Assurance Society of the U. S., 64 Ga. App. 834
(14 S. E. 2d 182). By parallel reasoning, the deceased in the instant case must have apprehended danger to his life or limb from his acts before such acts would be considered aggressive. Unless there is such apprehension, the death would be an accident as to the insured, because it is an unexpected, violent and external cause resulting in death. Carolina Life Ins. Co. v. Young, 99 Ga. App. 848
5. The insurance company complains of the trial court's charge, to wit: "I charge you further, that in order for the death of an insured to come within the exception of the policy to the effect that this policy shall be null and void if the death results from the intentional act or acts of any person or persons," it must be proven to your satisfaction that the assailant, in this case, Ernest Copeland, not only intended to shoot the deceased, Luther Jenkins, but it must also be proved that he intended to kill him. In other words, the defendant must prove to you, not only that the act of shooting was intended, but also that the result was intended, that is, the death of Luther Jenkins was intended." We agree with counsel that this charge was probably taken from Independent Life &c. Ins. Co. v. Hopkins, 80 Ga. App. 348, supra. However, the intent of this policy was to insure the life of Luther Jenkins from accidental death. Excluded from liability for payment for accidental death is that death caused by the intentional acts of any person or persons, unless it can be shown that the insured did not precipitate such act or acts by his own aggressive action. In other words, the intentional acts of a third party resulting in death would be an accident as to the insured if the insured was not the aggressor. See Gaynor v. Travelers Ins. Co., 12 Ga. App. 601, supra. Therefore, whether or not the defendant proved that Ernest Copeland actually assaulted and killed the insured would not demand a finding for the defendant because, under this policy of insurance, it is the acts and intentions of the insured that are germane to the policy's exceptions and not those of the person killing; but such proof would be pertinent to require the plaintiff to go further in her proof to show that the insured was not the aggressor. Consequently, the insurance company need show only that an intentional homicide or an intentional act by any person or persons caused the insured's death. The above charge requires that the insurance company prove a specific intent to kill (when one is implied by law, Gaynor v. Travelers Ins. Co., 12 Ga. App. 601, supra) where only proof of an intention to shoot the insured was necessary. Matthews v. Gulf Life Ins. Co., 64 Ga. App. 112 (12 S. E. 2d 202). The trial court's charge would undoubtedly be correct if the weapon used to inflict the mortal wound had been one not normally considered as a deadly weapon. Independent Life &c. Ins. Co. v. Hopkins, 80 Ga. App. 348, supra. Therefore, this charge placed on the insurance company an additional burden of proof, which is not required by law, before the insurance company could claim under the exception that relieved it from liability. The charge is, therefore, erroneous and harmful.
6. Special grounds 8 and 9 raise the question as to whether or not the charge on the claim for attorney's fees under Code 56-706 was error, and whether or not the award of attorney's fees was authorized. The rule in this State is that bad faith will be implied from any frivolous and unfounded refusal to pay the benefits of such insurance policy within sixty days after demand. Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220. Should the insurance company show a reasonable and probable cause for refusing to pay, the company's good faith would be a complete defense to the action. Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (12 S. E. 18).
Applying the above rules to the instant case, the charge was erroneous relative to the question of attorney's fees for bad faith of the insurance company. Had the jury believed the defendant's version of the case, a verdict in its favor would have been authorized.
ON MOTION FOR REHEARING.
Counsel for the plaintiff in the motion for rehearing strenuously insists that the instant case is controlled by Independent Life &c. Ins. Co. v. Hopkins, 80 Ga. App. 348, supra. Counsel states: "It should be recalled that the Hopkins case and the instant case are virtually identical in almost every respect. There are no material differences in the policy provisions and there are no differences in the facts material to the comparison of these two cases, other than the fact that a 'hack cutter' was used in the Hopkins case and a pistol was used in the instant case." We agree with counsel that this seems to be the only material difference; however, we direct attention to the language in the Hopkins case as follows: "There is nothing to indicate that it [hack cutter] is such a weapon as would normally be expected to cause death even when used in the manner in which the jury was authorized to find it was used in this case." It could hardly be argued that a loaded pistol fired in the direction of the insured is not such a weapon as would normally be expected to cause death when used in the manner described. As lucidly stated in Gaynor v. Travelers Ins. Co., 12 Ga. App. 601, 605, supra, "It is rarely ever possible to prove an intent by direct evidence. Intent is something which exists in the human mind and can be manifested only by external acts from which an inference of intent will arise. If one discharge a pistol, under circumstances which indicate that it was not accidental, there is a conclusive inference that he intended to fire it; and if he pointed at another and fired and hit him, there is a conclusive inference that he intended to hit him, in absence of something to rebut such an inference. Now if death does not result, there is ordinarily no such inference that death was intended; but if death does result, an inference of an intent to kill arises, and becomes conclusive, unless it is met and overcome by other circumstances showing the absence of such intent. Where a particular injury is inflicted, there is a conclusive inference that such injury was the probable consequence of the act which inflicted it, and there is, also, a conclusive inference that the person inflicting the injury intended the natural consequence of the act."
Accordingly, the motion for rehearing is denied.