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

• Decision Date: 23 January 1973
• Docket Number: No. 2,No. 47573,47573,2
• Court: Georgia Court of Appeals
• Parties: INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Anclee UPSHAW

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.

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

PANNELL, Judge.

Judgment was for appellant in an action against appellant insurer by appellee beneficiary on an 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 enumeration of error was to 'the order . . . dated December 7, 1971, and filed September 10, 1971, ordering, adjudging and decreeing of a new trial be . . . granted to the appellee. . . . (R 37-38).' An examination of the record referred to reveals the correct month was September. The enumeration of error was not too vague and indefinite to be the subject of review by this court.

3. 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. Under these circumstances the verdict for the appellant insurer was not demanded. See in this connection: Davison v. Nat'l Life and Accident Ins. Co., 106 Ga.App. 187, 126 S.E.2d 811; Life & Casualty Ins. Co. v. Brown, 213 Ga. 390, 391(2), 99 S.E.2d 98; Johnson v. Aetna Life Ins. Co., 24 Ga.App. 431, 432, 101 S.E. 134; Templeton v. Kennesaw Life & Accident Ins. Co., 216 Ga. 770, 771, 119 S.E.2d 549; Continental Casualty Co. v. Pittman, 145 Ga. 641, 89 S.E. 716; New York Life Ins. Co. v. Jennings, 61 Ga.App. 557, 6 S.E.2d 431; Liberty Nat'l Life Ins. Co. v. Liner, 113 Ga.App. 710, 149 S.E.2d 523; Overstreet v. Metropolitan Life Ins. Co., 69 Ga.App. 459, 26 S.E.2d 115; Gulf Life Ins. Co. v. Moore, 82 Ga.App. 136, 60 S.E.2d 547; Riggins v. Equitable Life Assurance Co., 64 Ga.App 834, 835, 14 S.E.2d 182; Schneider v. Metropolitan Life Ins. Co., 62 Ga.App. 148, 7 S.E.2d 772; ...