Continental Assur. Co. v. Rothell

• Decision Date: 11 May 1970
• Docket Number: No. 44962,Nos. 1,2,3,44962,s. 1
• Citation: 121 Ga.App. 868,176 S.E.2d 259
• Parties: CONTINENTAL ASSURANCE COMPANY v. Jewell E. ROTHELL
• Court: Georgia Court of Appeals

Page 259

176 S.E.2d 259

121 Ga.App. 868

CONTINENTAL ASSURANCE COMPANY v. Jewell E. ROTHELL.

No. 44962.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 11, 1970.

Rehearing Denied June 5, 1970.

Certiorari Granted Sept. 15, 1970.

Gambrell, Russell, Moye & Killorin, Charles A. Moye, Jr., Sewell K. Loggins, E. Smythe Gambrell, Atlanta, for appellant.

V. D. Stockton, Clayton, McClure, Ramsay & Struble, Robert B. Struble, Toccoa, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Jewell English Rothell, appellee, brought an action against Continental Assurance Company, appellant, seeking recovery, as beneficiary, of accidental death benefits under a policy of insurance issued by the appellant which provided: 'If an insured as a result of bodily injury caused solely by accident occurring while insured under the policy, shall suffer, directly and independently of all other causes within ninety days from the date of the accident, any of the losses described below the company will pay the amount specified in the following Schedule of Indemnities for such loss.' While there were exclusionary provisions in the policy, there is no contention by the insurance company that they apply. To be shortly stated, the evidence showed conclusively that the insured died of a broken neck caused by a severe trauma. He was found slumped on a sidewalk and when admitted to the hospital was suffering from partial paralysis the up until the time of his death was unable to explain how he received his injuries. The insurance company appealed from the denial of its summary judgment with a proper certificate therefor as well as from the granting of a summary judgment for the plaintiff appellee, and enumerated as error the overruling of its motion for summary judgment and the granting of the summary judgment in favor of the appellee. A motion was made to dismiss the appeal. Held:

1. The appeal is from an order and judgment entered on September 22, 1969, overruling defendant's motion for summary judgment and granting a summary judgment in favor of the plaintiff. The order and judgment described were signed and dated on September 22, 1969, but were not entered (filed with the clerk of the lower court) until September 23, 1969. The motion to dismiss the appeal for insufficient description of the order appealed from is denied. Insurance Company of North America v. Jewel, 118 Ga.App. 599, 602, 164 S.E.2d 846.

2. A defendant, on whom the burden of proof at the trial does not lie, and who on motion for summary judgment in its favor does not pierce the issues made by the pleadings, or, under our present practice, disprove one or more of the essential elements of the plaintiff's case, does not carry the burden of such a movant merely because the evidence submitted fails to prove the plaintiff's case even though it be wholly or in part the deposition or affidavit of the plaintiff itself. There is no burden on the plaintiff to come forward with proof of his case until the evidence adduced prima facie disproves an essential element of plaintiff's theory of recovery. Moore's Federal Practice, Vol. 6, par. 56.15(3), p. 2347, n. 46; Shadix v. Dowdney, 117 Ga.App. 720, 162 S.E.2d i45. Accordingly, the evidence adduced on the defendant's motion for summary judgment not affirmatively disclosing that the insured's death was other than accidental, the trial court did not err in denying the defendant's motion for summary judgment. This is so even should we assume the evidence failed to prove the plaintiff's side of the issue, that is, that the death was accidental. Merely because under the evidence adduced the defendant movant for summary judgment might be entitled to a directed verdict on the trial under the same evidence, does not necessarily authorize a summary judgment for the defendant. See Southern Bell Telephone & Telegraph Co. v. Beaver, 120 Ga.App. 420(3), 170 S.E.2d 737.

3. Where a death occurs and none of the causative factors are known, it will be presumed to be from natural causes (New York Life Ins. Co. v. King, 28 Ga.App. 607, 610, 112 S.E. 383), and where the only factor known is that the insured died as the result of a violent and external injury, the cause is presumed accidental. Gaynor v. Travelers Ins. Co., 12 Ga.App. 601(6), 77 S.E. 1072; New York, Life Ins. Co. v. King, 28 Ga.App. 607, 112 S.E. 383, supra. In New York Life Ins. Co. v. Jennings, 61 Ga.App. 557, 561, 6 S.E.2d 431, this court in approving a charge complained of said: 'The excerpt from the charge complained of in grounds 9 and 10 in effect followed 1 C.J. § 278, p. 495, which is as follows: 'The fact of death does not of itself create any presumption that it was the result of an accident; and where, in order to make out plaintiff's case, it is necessary to base a presumption that death resulted from an injury on a presumption that the insured sustained an accidental injury, no recovery can be had. Where, however, it is apparent that the injury to or death of the insured was the result of external and violent means, and the issue is as to whether it was due to an accident within the meaning of the policy, or to some cause excepted by the policy, the presumption is in favor of accident and against the existence of facts bringing the case within any of the exceptions of the policy, such as insanity of the insured, intentional injury inflicted by a third person, lack of due care and diligence, self-inflicted injuries, and suicide. These presumptions may, however, be overcome by facts and circumstances establishing the contrary.' This was not reversible error.' Accordingly, under the evidence adduced, a prima facie case for recovery under the policy was proven and, nothing to the contrary appearing, the trial court did not err in granting the plaintiff's motion for summary judgment.

We are not here concerned with cases where additional evidence was submitted as to the cause of the injury resulting in death or stated otherwise, as to the cause of death, such as that the death was intentionally inflicted by another, which may come within an exclusionary clause of the policy (Gaynor v. Travelers Ins. Co., 12 Ga.App. 601, 77 S.E. 1072; New York Life Ins. Co. v. King, 28 Ga.App. 607, 112 S.E. 383, Supra), or where there was some evidence of a fight between the insured and others which may bring the death within an exclusionary clause in the policy (Riggins v. Equitable Life Assurance Society of the United States, 64 Ga.App. 834, 14 S.E.2d 182); nor cases where a fall was the cause of the injury and there was no evidence as to the cause of the fall, that is, whether the fall was accidental or caused by bodily infirmity or disease, such as was the case in Overstreet v. Metropolitan Life Ins. Co., 69 Ga.App. 459, 26 S.E.2d 115) and cases cited therein; United Ins. Co. of America v. Monroe, 115 Ga.App. 747, 156 S.E.2d 99; McCarty v. National Life & Accident Ins. Co., 107 Ga.App. 178, 129 S.E.2d 408. Nothing to the contrary is ruled in Davision v. National Life & Accident Ins. Co., 106 Ga.App. 187, 126 S.E.2d 811; Life & Casualty Ins. Co. of Tennessee, v. Brown, 213 Ga. 390, 99 S.E.2d 98; Travelers Ins. Co. of Hartford v. Newsome, 147 Ga. 608, 95 S.E. 4; Power v. Liberty National Life Ins. Co., 221 Ga. 305, 144 S.E.2d 389; Liberty National Life Ins. Co. v. Power, 111 Ga.App. 458, 142 S.E.2d 103, for in these cases no presumption arose, or if it did, there was evidence in rebuttal.

Judgment affirmed.

JORDAN, P.J., and DEEN, WHITMAN, and EVANS, JJ., concur.

BELL, C.J., HALL, P.J., EBERHARDT and QUILLIAN, JJ., dissent.

EBERHARDT, Judge (dissenting).

While I agree that the denial of the defendant's motion was not error, Southern Bell T. & T. Co. v. Beaver, 120 Ga.App. 420(3), 170 S.E.2d 737, I cannot agree that it was proper to grant plaintiff's motion for summary judgment.

This is a suit on an accident insurance policy which provides for the payment of benefits thereunder '(i)f an insured, as a result of bodily injury caused solely by accident occurring while insured under the policy shall suffer, directly and independently of all other causes within ninety days from the date of the accident * * * for loss of life' the sum of $5,000.

The insured was seen at approximately 1:45 p.m. May 30, 1967, apparently suffering from no physical problems. At 12:40 a.m. May 31, 1967, he was admitted to Grady Hospital with a broken neck-posterior fusion of C-4, 5, 6 and 7, and a dislocation at C-5 and 6.

The hospital records, which plaintiff submitted in evidence in support of her motion and in opposition to defendant's motion for summary judgment, relate that the insured 'was picked up by the policy today (May 30, 1967) because of drinking and? what else-complained of pain in shoulders and numbness and weakness in arms and legs. He states that he can't remember when this started; can't remember when he was picked up-thinks he woke up this was in the jail.'

Dr. Skorapa, a consulting physician, entered on the records: 'This patient was admitted to the hospital for a dislocation of C-5, C-6 due to an unknown cause.'

On the surgeon's operative record is the statement that 'this 59 year old white male was found slumped on a sidewalk May 30, 1967,' following which are details of the operative procedure.

In answer to an interrogatory seeking details as to how the insured was injured plaintiff-beneficiary asserted that 'The exact details of the accident are unknown.'

The death certificate listed as the cause of death: 'Traumatic neck injury' and that it was a 'trauma of undermined etiology.'

There is no other evidence of any kind in the record which throws any light on the cause of death, or of how his neck injury came about.

While there is a presumption against suicide, Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 802, 12 S.E. 18, and a presumption of accidental rather than intentional injury, Gaynor v. Travelers Ins. Co., 12 Ga.App. 601(6), 77 S.E. 1072, '(t)he...