Interstate Life & Acc. Ins. Co. v. Upshaw, No. 47573

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPANNELL; QUILLIAN
Citation195 S.E.2d 287,127 Ga.App. 858
PartiesINTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Anclee UPSHAW
Docket NumberNo. 2,No. 47573
Decision Date23 January 1973

Page 287

195 S.E.2d 287
127 Ga.App. 858
INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY
v.
Anclee UPSHAW.
No. 47573.
Court of Appeals of Georgia, Division No. 2.
Jan. 23, 1973.

[127 Ga.App. 861] Shaw & Shaw, George P. Shaw, LaFayette, for appellant.

Gleason, Hatcher & Daniel, Frank M. Gleason, Ross L. Hatcher, III, Rossville, for appellee.

Syllabus Opinion by the Court

[127 Ga.App. 858] PANNELL, Judge.

Judgment was for appellant in an action against appellant insurer by appellee beneficiary

Page 288

on an [127 Ga.App. 859] accidental death policy containing the following insuring and exclusion provisions: '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 the 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 less any amount paid or payable on account of the same injuries under the provision for indemnity for specific losses, but subject to the exceptions below.' 'Exceptions: No indemnity for hospitalization or death by accidental means shall be payable if hospitalization or death results. . . . (f) directly or indirectly from bodily or mental infirmity or disease in any form, or medical or surgical treatment therefor.' The trial judge granted a new trial on the general grounds and the appellant insurer appealed contending such action, although the first grant of a new trial, was error as the verdict found was demanded by the evidence. See in this connection: Southern Rwy. Co. v. Winn, 25 Ga.App. 438, 103 S.E. 733; Fenner & Beane v. Calhoun, 56 Ga.App. 823, 194 S.E. 51; Turner v. Pearson, 93 Ga. 515(2), 21 S.E. 104; Cheatham v. Lightfoot, 144 Ga. 758, 87 S.E. 1036.

1. Where, as in the present case, after the filing of a notice of appeal, one of a number of orders extending the time for filing of the transcript is signed within the time required, but appellant delays for ten days after the time a previous order expired before filing the order in the office of the clerk of the lower court, and such delay in filing causes no delay in the transmission of the appeal to this court, the appeal will not be dismissed on the ground that the appeal is a stale one because of the late filing of such order. The motion to dismiss the appeal is denied.

2. The order granting the motion for new trial was dated September 7, 1971, and entered September 10, 1971. The [127 Ga.App. 860] enumeration of error was to 'the...

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2 practice notes
  • Interstate Life & Acc. Ins. Co. v. Upshaw, No. 50173
    • United States
    • United States Court of Appeals (Georgia)
    • March 10, 1975
    ...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......
  • United Ins. Co. of America v. Walton, No. 47569
    • United States
    • United States Court of Appeals (Georgia)
    • January 23, 1973
    ...857 UNITED INSURANCE COMPANY OF AMERICA v. Mary D. WALTON. No. 47569. Court of Appeals of Georgia, Division No. 1. Jan. 23, 1973. [127 Ga.App. 858] Walton Hardin, Washington, for Orr & Kopecky, Melvin P. Kopecky, Washington, for appellee. Syllabus Opinion by the Court [127 Ga.App. 857] BELL......
2 cases
  • Interstate Life & Acc. Ins. Co. v. Upshaw, No. 50173
    • United States
    • United States Court of Appeals (Georgia)
    • March 10, 1975
    ...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......
  • United Ins. Co. of America v. Walton, No. 47569
    • United States
    • United States Court of Appeals (Georgia)
    • January 23, 1973
    ...857 UNITED INSURANCE COMPANY OF AMERICA v. Mary D. WALTON. No. 47569. Court of Appeals of Georgia, Division No. 1. Jan. 23, 1973. [127 Ga.App. 858] Walton Hardin, Washington, for Orr & Kopecky, Melvin P. Kopecky, Washington, for appellee. Syllabus Opinion by the Court [127 Ga.App. 857] BELL......

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