Jackson v. National Life & Accident Insurance

202 S.E.2d 711, 130 Ga. App. 208, 1973 Ga. App. LEXIS 1278

• Court: Court of Appeals of Georgia
• Decided: September 27, 1973
• Docket: 48350
• Status: Published

Opinions

Clark, Judge.

Is a death from "acute narcotism, heroin,” occurring "suddenly following an injection of narcotics” within the coverage of a life insurance policy providing benefits when there is a "death by accidental means”?

Plaintiff, mother of the insured, sued as beneficiary under three life insurance policies. Each of these policies carried the same language reading: "Upon receipt of due proof that the death of the insured resulted directly, and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means, the Company will pay the additional benefit hereinafter defined . . .” The insured died following an injection of heroin which contained such a massive dose that the cause of death was stated in the autopsy report to be "sudden” and ascribed to "acute narcotism, heroin.” The autopsy report of many needle marks on the insured’s arms leaves no doubt that he had previously taken drugs.

After stipulating there was no issue of material fact both parties moved for summary judgment. Plaintiff’s motion was denied and defendant’s motion was granted. Plaintiff has taken this appeal.

As the Hon. Joel J. Fryer rendered an opinion which is in accordance with previous cases by the Supreme Court and our court we adopt that opinion. It reads as follows:

"I too believe that it is the understanding of the average policyholder which is to be accepted as a court’s guide to the meaning of words, with the help of the established rule that ambiguities and uncertainties are to be resolved against the insurance company. Landress v. Phoenix Ins. Co., 291 U. S. 491, 499 [54 SC 461, 90 ALR 1382, 78 LE 934].

"The insured’s death may certainly have been an accident; but, I doubt that it was caused by 'accidental means.’

"Georgia makes the distinction between 'accident’ and 'accidental means.’ Davison v. National Life &c. Co., 106 Ga. App. 187, 193 (126 SE2d 811); Johnson v. National Life &c. Ins. Co., 92 Ga. App. 818 (90 SE2d 36); Cobb v. Preferred Mutual Accident Assn., 96 Ga. 818 (22 SE 976); Fulton v. Metropolitan Cas. Ins. Co., 19 Ga. App. 127 (2) (91 SE 228); American National Ins. Co. v. Chappelear, 51 Ga. App. 826 (2) (181 SE 808); and Thompson v. Prudential Ins. Co., 84 Ga. App. 214 (66 SE2d 119). It must therefore appear that the insured’s death arose by means used which were accidental. 'Where an unusual or unexpected result occurs, by reason of the doing of an intentional act, with no mischance, slip or mishap occurring in doing the act itself, the ensuing injury or death is not caused by accidental means.’ 44 AmJur2d § 1221.

"Regrettably, in today’s society with the number of people who use heroin, under the circumstances which they use it (i. e. dirty needles, dirty places, and dirty utensils) unable to adequately determine the strain of the substance used or appropriately measure the amount used, death is a common experience and the user may reasonably expect it. Death when it occurs can neither be 'unexpected,’ 'unusual,’ 'nor unforeseen.’ Johnson v. National Life &c. Ins. Co., supra.”

Although this case is the first involving drug addiction overdose, we note that among the decisions cited by Judge Fryer the similarity of the facts in Johnson v. National Life &c. Ins. Co., supra. There the insured died as a result of a penicillin injection with this court stating at page 820 that "The injection was the act which preceded the injury, and was intentionally done by the consent of the insured. This injection was not an unforeseen, unexpected, unusual, or unintentional act; therefore, the injury did not result from accidental means within the terms of the insurance policies.” We must also note that Thompson v. Prudential Ins. Co., supra, involved "Russian roulette.” Indeed, the heroin user plays a form of Russian roulette substituting a needle for a pistol.

Appellant’s exhaustive brief cites many cases from other jurisdictions. Generally they differ from our ruling herein because they have obliterated the distinction between "accidental injury” and "injuries from accidental means.” See 52 ALR2d 1083 for annotation entitled "Death or injury resulting from insured’s voluntary act in taking overdose of medicine, drugs, or the like as caused by accident or accidental means.”

Argued July 10, 1973 Decided September 27, 1973 Rehearing denied November 8, 1973 Lefkoff & Hanes, Joseph Lefkoff, Henry L. Young, George M. Fox, for appellant. Alston, Miller & Gaines, R. Neal Batson, Ben F. Johnson, III, for appellee.

Judgment affirmed.

Bell, C. J., Eberhardt, P. J., and Quillian, J., concur. Hall, P. J., and Deen, J., concur specially. Pannell, Evans and Stolz, JJ., dissent.