Hartford Acc. & Indem. Co. v. Grant

• Decision Date: 02 June 1966
• Docket Number: No. 41964,No. 1,41964,1
• Citation: 113 Ga.App. 795,149 S.E.2d 712
• Parties: HARTFORD ACCIDENT & INDEMNITY COMPANY v. Reuben GRANT
• Court: Georgia Court of Appeals

Page 712

149 S.E.2d 712

113 Ga.App. 795

HARTFORD ACCIDENT & INDEMNITY COMPANY v. Reuben GRANT.

No. 41964.

Court of Appeals of Georgia, Division No. 1.

June 2, 1966.

Syllabus by the Court

1. The evidence authorized a finding that the insured sustained disability compensable under the policy.

2. The evidence authorized a finding that the insured filed proof of loss. It also authorized a finding that there was a waiver of proof of loss in the event the jury found that no proof of loss was filed.

3. Where the verdict awarded the insured a specific amount, 'of which $1,500 is attorney fee,' and the foreman of the jury answered in the negative to the court's inquiry, upon receiving the verdict, as to whether there was any penalty award, the award of attorney's fees was not authorized.

Reuben Grant brought an action against the defendant insurer to recover benefits under an accidental bodily injury insurance policy. The petition as amended alleged substantially that the policy, issued on November 8, 1959, covered accidental bodily injuries which result in continuous total disability; that on April 2, 1963, the plaintiff sustained a back injury which aggravated an existing injury, incurred on March 15, 1962, and resulted in continuous total disability; that on April 26, 1963, the plaintiff furnished the defendant proof of loss and otherwise performed all of the policy's conditions; that the insurer had wilfully, maliciously and without just cause refused the plaintiff's claim for more than sixty days after the proof of claim was furnished. The defendant filed an answer in which it denied the allegation of the filing of the proof of loss and compliance with the policy requirements. On the trial of the case before a jury, the defendant's timely motion for a directed verdict was overruled. The jury returned a verdict in favor of the plaintiff 'a total of $5,056. of which $1,500 is attorney fee,' and judgment was entered accordingly thereon. The defendant's motion for judgment n.o.v. and alternative motion for a new trial as amended were overruled and it appeals from the judgment of the court overruling the 'plaintiff's' motion for a new trial.

Merritt & Pruitt, Glyndon C. Pruitt, Buford, for appellant.

Cheeley & Merritt, Joseph E. Cheeley, Buford, for appellee.

FELTON, Chief Judge.

1. Although the record is complicated by the involvement of two different insurance policies and at least three separate injuries during the policy periods, there was evidence which authorized the finding that the insured sustained an injury on April 2, 1963, which was compensable under the accidental injury policy on which the action was brought. The insured testified that on that date he fell out of an automobile onto the ground, twisting his back, rendering him unconscious and causing pain in his lower back. Although the various medical testimony was somewhat conflicting as to whether the insured was totally disabled following the alleged injury of April 2, 1963, Dr. Kells Boland, who treated the insured on and after said date and whose deceased brother had treated him for previous injuries, testified that, in his opinion, the insured was already totally disabled before said date; that the x-rays and objective findings indicated a somewhat worsened condition, including muscle spasm and sprain, following the alleged injury; that, although such condition could have been caused partially by arthritis, it was consistent with an injury such as the insured described; that such an injury would make the insured more likely to have the muscle spasm he found.

The policy provides for coverage '(w)ith respect to accidental bodily injuries sustained by the Insured while this policy is in force from which loss results directly and independently of all other causes, hereinafter called accidental bodily injuries.' The evidence showed that the insurer, prior to the alleged injury of April 2, 1963, had already completed payment to the insured of the full amount of compensation under the policy for partial disability resulting from a previous injury. The insurer had paid the plaintiff's claims arising from two previous injuries, both of which involved injuries or re-injury to the back, and had continued this same policy in force over a period of several years. The jury might, therefore, find that the insurer did not intend to exclude an injury such as the alleged one of April 2, 1963, but that it considered each one as a new injury. Nor would the fact that the plaintiff had symptoms of arthritis necessarily bar his claim. "An accident insuring agency is not required to accept every person as a risk, and in preparing its policies it may exclude any risk as to any individual, but, unless it clearly points out the risks not assumed, it seems only logical that it accepts the risks of infirmity which are generally considered normal to mankind at the various stages of life, and therefore, that osteo-arthritis, which in common parlance may be considered normal from that which would be considered abnormal, cannot be considered as a concurring cause of disability. * * * ' If every bodily weakness resulting from the normal wear and tear of living is such an infirmity as may 'contribute to' a loss (i.e., death or disability) caused by accidental injury it is obvious that accident insurance benefits would substantially disappear except in cases where instant death resulted, a fact which the ordinary purchaser of an accident insurance policy does not intend as a part of his contract.' Businessmen's Assurance Co. of America v. Tilley, 109 Ga.App. 529, 534(2), 136 S.E.2d 514, 517. Contracts of insurance are to...