I think that the evidence establishes conclusively that the death of the insured was not by accidental means, and that as a verdict in favor of the defendant was demanded as a matter of law the court did not err in directing such verdict and in overruling the plaintiff's motion for new trial. The conduct of the insured amounted to an assault upon Jackson. While an assault is defined in the Code, § 26-1401, as "an attempt to commit a violent injury on the person of another," it has been held by the Supreme Court and this court that "to constitute an assault no actual injury need be shown, it being only necessary to show an intention to commit an injury, coupled with an apparent ability to do so." Dorsey v. State,108 Ga. 477, 479 (34 S.E. 135); Thomas v. State, 99 Ga. 38 (26 S.E. 748); Harrison v. State, 60 Ga. App. 610 (4 S.E.2d, 602). Armed with an exposed pistol and under the influence of liquor, to Jackson's entreaty that he go away and avoid trouble, the insured answered: "I have got mine; you get yours." It could not reasonably be contended that by that remark he was doing otherwise than challenging *Page 782 Jackson to a mortal combat and was apparently in a position to inflict a deadly injury. He was bound to know or anticipate that Jackson, in the fears of a reasonable man, would do what he could to avoid injury or death, and might properly conclude that the only way to save himself from death was to "beat him to the draw," and not hazard an escape from the first shot of the insured.
In Riggins v. Equitable Life Assurance Society, 64 Ga. App. 834,836 (14 S.E.2d 182), it was said: "The rule as laid down by the weight of authority may be stated as follows: Where the insured is innocent of aggression or wrongdoing and is killed in an encounter with another, his death is considered accidental, within the meaning of the usual insurance policy. Interstate Business Men's Accident Asso. v. Lester, 257 Fed. 225 (168 Cow. C. A. 309). And even where the insured is the aggressor, if he could not reasonably anticipate bodily injury resulting in death to himself at the hands of another, the beneficiary may recover. Employer's Indemnity Co. v. Grant (C.C.A.), 271 Fed. 136 (20 A. L R. 1118). See Newsome v. Travelers Insurance Co.,143 Ga. 785 (85 S.E. 1035). But where, in an assault, the insured was the aggressor, and knew or should have anticipated that the other might kill him in the encounter, the death is not to be considered accidental. Taliaferro v. Travelers Protective Asso., 80 Fed. 368 (25 C.C.A. 494). If a man deliberately assaults another with a lethal weapon in his hand, such as a knife, it can not be said that the injuries he receives in the resulting struggle are accidentally received. The very act of assaulting another with a knife is an invitation to that other to resist unto death; and if the aggressor is killed, it is a natural and logical sequence of his own voluntary act. Meisterv. General Accident c. Cor., 92 Or. 96 (179 P. 913, 4 A.L.R. 718, 722)." In the Meister case cited above, the court uses language which is quoted from another case and which is equally applicable to the facts of the present case: "From the inception of the difficulty the deceased appears to have been the aggressor. He was the first to draw a deadly weapon, accompanying that action with the exclamation that he `must have revenge; . . put yourself in shape.' This can be regarded in no other light than an invitation to a deadly encounter, in which the deceased voluntarily put his life at stake, and deliberately took the chances of getting killed. Where a person thus invites another to a deadly encounter, and *Page 783 does so voluntarily, his death, if he sustains a mortal wound, can not be regarded as `accidental' by any definition of that term which has heretofore been adopted."
The only reasonable inference to be drawn from the facts of the present case, in my opinion, is that the insured was bound to anticipate that because of his conduct he would be killed by Jackson in the fears of a reasonable man, and under the law his death can not be said to have been caused by "accidental means."
The evidence shows that the insured had been in Jackson's store a few minutes before the occasion on which he appeared at the door and the conversation leading up to the fatal shooting ensued. All the testimony indicates that though not drunk he was under the influence of intoxicating liquor and in a belligerent mood. He was resentful of his ejection from the store, and apparently he regarded his brother Olan as having effected his removal. It is stated in the majority opinion that a witness testified that "McCain called his brother Olan's name in the vocative when he said for some one to get his gun." If thereby is meant that the witness was testifying to a remark made by the deceased when Jackson was facing him just before the fatal shot I can not agree to that interpretation of the evidence. This witness, presumably E. O. Bolt, testified: "He told Olan to [get his gun], but Olan wasn't there. I know he was talking to Olan. He called his name. He called his name first, but Mr. Jacksonwas back in the store." (Italics mine.) The evidence shows without contradiction that Jackson was in the rear of the store, back of a candy counter, when the insured appeared at the door. So manifestly it follows that if the insured "called his brother Olan's name in the vocative," it was not on the occasion when Jackson, after leaving the candy counter, and proceeding to the door and remonstrating with the insured, shot the insured upon the latter making the remark "I have got mine; you get yours." The evidence shows that at that time Jackson was facing the insured at the door. The insured was evidently not so drunk as not to be aware of the identity of an old acquaintance, Jackson, and I think it would be a strained construction of the evidence to say that the remark of the insured, "I have got mine; you get yours," was then intended for the ears of his brother. Jackson knew of the bad mood of the insured. The insured knew that Jackson knew this. He had only a short time *Page 784 before been ejected from the small store by some one other than Jackson. So, notwithstanding that up until the night of the tragedy these two men had apparently been on good terms, there was nothing to prevent the insured from thinking that Jackson would regard him, an armed and belligerent man, as anything less than dangerous or that, under the fears of a reasonable man, Jackson would do what he regarded as necessary for his own protection. When, therefore, with Jackson facing him, the insured made the statement, "I have got mine; you get yours," I think that it would be unreasonable to say that he did not know or should not have anticipated that thereby his life was placed in peril at the hands of Jackson. What Jackson did was not something that was "unforeseen, unexpected, or unusual." Therefore the insured's death was not brought about by accidental means. I think the judgment of the trial court should be affirmed.