Gulf Life Ins. Co. v. Braswell, 38010

• Decision Date: 28 January 1960
• Docket Number: No. 2,No. 38010,38010,2
• Citation: 101 Ga.App. 133,112 S.E.2d 804
• Parties: GULF LIFE INSURANCE COMPANY v. H. H. BRASWELL
• Court: Georgia Court of Appeals

Page 804

112 S.E.2d 804

101 Ga.App. 133

GULF LIFE INSURANCE COMPANY v. H. H. BRASWELL.

No. 38010.

Court of Appeals of Georgia, Division No. 2.

Jan. 28, 1960.

Syllabus by the Court

1. The evidence was in dispute as to whether the insured suffered from the disease of diabetes, for which reason a finding of fact was not demanded that the amputation of the insured's leg resulted from diabetic gangrene so as to exclude the loss from the coverage afforded by this accident insurance policy.

2. It was not error for the trial court to instruct the jury that the insurance policy in question was, in case of doubt, to be construed most strongly against the insurer who prepared it.

3. Where a policy of accident insurance excludes any loss resulting from injury which is caused or contributed to by illness, disease, or any bacterial infection other than that occurring in consequence of accidental injury on the exterior of the body, a pre-existing disease not related to the injury will preclude recovery where the disease so aggravates the consequences of the injury as to cause the loss, and without the disease the loss would not have occurred. The instruction complained of in the corresponding division of this opinion was error.

Hugh Braswell filed an action in the City Court of Bainbridge against Gulf Life Insurance seeking benefits under an accident policy issued him by the defendant which provided monthly benefits of $100 for total disability for a 24-month period and $500 reimbursement of medical expenses. The policy insured against specified losses 'resulting directly, and independently of all other causes, from accidental bodily injury sustained while this policy is in force' and excepted loss as a result of any injury 'which is caused or contributed to by illness, disease, or any bacterial infection other than that occurring in consequence of accidental injury on the exterior of the body.' The plaintiff rubbed a blister on the toe of one foot which within a few days became infected; gangrene set in and two toes were amputated; the gangrene persisted and it was necessary to perform another operation amputating the leg below the knee joint. Disability and medical expenses were proved. The jury hearing the case found in favor of the plaintiff. The defendant's motions for new trial and for a judgment notwithstanding the verdict were denied, and error is assigned thereon.

Tindall & Tindall, J. F. Kemp, Atlanta, for plaintiff in error.

Bruce W. Kirbo, Bainbridge, for defendant in error.

TOWNSEND, Judge.

1. In both the general grounds of the motion for new trial and in the motion for a judgment notwithstanding the verdict it is contended that a verdict in favor of the defendant was demanded by the evidence for the reason that the evidence conclusively established that the plaintiff's loss of his limb was due, not to the blister which constituted his accidental bodily injury, but to diabetic gangrene, or at least that a finding was demanded that the diabetes so contributed to the loss as to preclude recovery. The danger of the development of gangrene in the lower extremities in diabetic cases as a result of arteriosclerosis resulting from the disease is commonly recognized. Encyclopedia America, Vol. 9, p. 54; Colliers Encyclopedia, Vol. 6, p. 437. Courts have held that in such case the loss is not due to accidental means independent of all other causes. Roeper v. Monarch Life Ins. Co., 138 Pa.Super. 283, 11 A.2d 184; Romanoff v. Commercial Travelers Mutual Accident Ass'n, 243 App.Div. 725, 277 N.Y.S. 291. The medical testimony here, both of the physician testifying for the plaintiff and the physician testifying for the defendant agreed that diabetes renders one prone to circulatory disorder and resulting infection and gangrene in the bodily extremities, and also that diabetes is an incurable disease the symptoms of which do not disappear. However, the doctor testifying for the claimant who examined him after the amputation found he had no diabetes, took him off of insulin and placed him on antibiotics, under which his condition changed for the better, and tested him twice thereafter for diabetes with negative findings. When asked why the claimant, if he did not have diabetes, had an abnormal healing period he replied that he had poor circulation; whether this would be due to hardening of the arteries he could not say, it is usually caused by poor circulation and the failure to heal is, in the witness' opinion, inherent in him because of poor circulation. The jury was authorized to find from this testimony that the admitted condition which led to gangrene and to abnormally slow healing, was not the result of diabetes but the result of an inherently poor...