Interstate Life & Acc. Ins. Co. v. Upshaw

• Decision Date: 10 March 1975
• Docket Number: No. 1,No. 50173,50173,1
• Court: Georgia Court of Appeals
• Parties: INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Anclee UPSHAW

Page 675

214 S.E.2d 675

134 Ga.App. 394

INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Anclee UPSHAW.

No. 50173.

Court of Appeals of Georgia, Division No. 1.

March 10, 1975.

Rehearing Denied March 31, 1975.

Shaw & Shaw, George P. Shaw, LaFayette, for appellant.

Hatcher & Daniel, Ross L. Hatcher, III, Rossville, for appellee. Syllabus Opinion by the Court

WEBB, Judge.

Death came to Lewis H. Upshaw on September 7, 1968, but whether his beneficiary in a 40 cents weekly premium accidental death policy is entitled to payment thereunder is still pending for final determination. The question has been in litigation since August 8, 1969. The first trial resulted in a verdict and judgment for the insurer; the beneficiary moved for and was granted a new trial on the general grounds; the insurer appealed to this Court, contending that the grant of a new trial was error as the verdict was demanded by the evidence; this Court held that the verdict for the insurer was not demanded, and affirmed the decision of the court below (Interstate Life &c. Ins. Co. v. Upshaw, 127 Ga.App. 858, 195 S.E.2d 287); and the case was tried anew, resulting in a verdict and judgment this time for the beneficiary for $3700 principal, $925 as bad faith penalty, $2500 as attorney fees, 7% interest as provided by law, and costs. It is from this judgment that the insurer again appeals.

The facts are tersely stated in this Court's previous decision: 'Eyewitnesses saw the deceased fall from a log truck to the ground, a distance of about eight feet. He died a very short time thereafter of a coronary embolism. The only evidence of injuries was a scratch or slight bruise on the forehead, and the coronary embolism. The evidence was in dispute as to whether the fall was accidental, or was caused by the coronary embolism. The evidence was also in dispute as to whether the fall, if accidental, could have dislodged a blood clot or thrombus and caused the embolism.' The policy sued on provides: 'Indemnity for death by accidental means, as defined herein: Upon receipt of due proof that during the continuance of this policy in force, the insured has sustained bodily injuries effected solely through violent, external and accidental means, and that such bodily injuries have directly and independently of all other causes, caused death of the insured within ninety days from the time such injuries were so sustained, the company will pay to the beneficiary named in the schedule the principal sum . . .' and no indemnity shall be payable if death results 'directly or indirectly from bodily or mental infirmity or disease in any form . . .' (Emphasis supplied.)

The death certificate, the autopsy report, and the physician's statement attached to the 'proof of death' furnished to the insurer, each gave the cause of death to be 'Embolism left coronary artery' and that death was 'immediate.' The autopsy report reads that 'there was not a bruise of any description on the body. On opening the chest a examination of the heart revealed a large embolism of the left coronary artery.' Dr. Richard C. Shepherd, who had performed the autopsy, testified that the decedent's fall was caused by the embolism and he was probably dead when he was falling, that the embolism originated from a thrombus; that the thrombus had been in the man's artery probably three or four years and had not given him any trouble, that he died immediately when the embolus broke loose from the thrombus, and that the force of a blow would not have had anything to do in causing the thrombus to move and produce the stoppage of the artery and cause his death; that the embolus killed him immediately.

Dr. Moore J. Smith, Jr., who never saw the insured dead or alive, and the only other expert witness, testified on cross-examination 'A man that fell from a standing position and was found to have an embolus in the coronary artery, presumably obstructing it, and no evidence of any injury to the body, I would have to say the most likely cause of death was from the obstruction in the coronary artery.'

The coroner, Harry C. Millard, testified that he examined the decedent's lower extremities, limbs, feet, legs, hips, arms, the head, looked into the mouth, the eyes, nose, ears, and throat, his entire body, and that there were no broken bones nor any bruises about him anywhere.

The insurer's motions for judgment notwithstanding the verdict, judgment notwithstanding the verdict for penalty and attorney fees, and for new trial all were denied. Its seventeen enumerated alleged errors on appeal are condensed to nine postulations in the presentation of argument. We posit only one basic thesis which, in our judgment, in itself is dispositive of this case, to wit: under the terms of the subject accident policy the insurer is not liable if the death of the insured was due wholly or in part to a pre-existing disease or bodily infirmity, notwithstanding an accident may have precipitated his death. Harris v. Metropolitan Life Ins. Co., 66 Ga.App. 761, 19 S.E.2d 199; Gulf Life Ins. Co. v. Braswell, 101, Ga.App. 133, 112 S.E.2d 804; Prudential Ins. co. of America v. Kellar, 213 Ga. 453, 457, 99 S.E.2d 823 and citations; 10 Mer.L.Rev. 88; 21 Mer.L.Rev. 167.

In Metropolitan Life Ins. Co. v. Abbott, 118 Ga.App. 587, 588, 164 S.E.2d 859 the contract covered death "as a result, directly and independently of all other causes, of bodily injuries sustained . . . solely through violent, external and accidental means,' and excluded death 'caused wholly or partly, directly or indirectly, by disease, or bodily or mental infirmity.'' The language in the policy sub judice is strikingly identical. The evidence...