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

• Decision Date: 09 January 1974
• Docket Number: 2,48703,Nos. 48702,Nos. 1,3,s. 48702,s. 1
• Citation: 204 S.E.2d 755,130 Ga.App. 850
• Parties: INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Lucy BROWN. INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Inez HUTCHINGS
• Court: Georgia Court of Appeals

Page 755

204 S.E.2d 755

130 Ga.App. 850

INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Lucy BROWN.

INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Inez HUTCHINGS.

Nos. 48702, 48703.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Jan. 9, 1974.

Rehearing Denied Feb. 12, 1974.

Anderson, Walker & Reichert, John W. Collier, Macon, for appellant.

J. Sewell Elliott, Macon, for appellees.

Syllabus Opinion by the Court

HALL, Presiding Judge.

Interstate Life and Accident Insurance Company (hereinafter, 'the company') appeals from an adverse jury verdict in a suit for double indemnity death benefits. Brown and Hutchings, plaintiffs-appellees, were beneficiaries under two policies issued by the company to one John Grady. Upon his death the company paid basic death benefits, but refused the double indemnity benefit. In their suit against the company, appellees sought and were awarded by the jury attorney fees for bad faith refusal to pay, in addition to the policy benefit payable for death 'through external, violent, and accidental means . . .' The company appealed.

1. The question here is whether the plaintiffs have carried their burden of proving that death occurred 'through external, violent, and accidental means' under the circumstantial evidence rule. 'Where a plaintiff in a civil case supports his case solely by circumstantial evidence, before he is authorized to have a verdict in his favor the testimony must be such as to reasonably establish the theory relied on. There must be more than a 'scintilla' of circumstances to carry the case to the jury. It is for the court to say whether the circumstances reasonably establish the hypothesis relied on by the plaintiff. If the evidence meets this test, it is then for the jury to say, either that the plaintiff has not carried his burden of proof because the evidence equally supports his hypothesis and some other reasonable hypothesis, or that the plaintiff has carried his burden of proof in that the evidence preponderates to his hypothesis as against all other reasonable but less probable hypotheses.' McCarty v. National Life and Accident Ins. Co., 107 Ga.App. 178(2), 129 S.E.2d 408; Accord, Old Colony Ins. Co. v. Dressel, 220 Ga. 354, 358, 138 S.E.2d 886; Pippin v. Mutual Life Ins. Co. of New York, 108 Ga.App. 741, 750, 134 S.E.2d 446. See also Continental Cas. Co. v. Rucker, 50 Ga.App. 694, 179 S.E. 269.

The trial evidence showed that Grady appeared to be in good health; on July 4, 1970 he was incarcerated in the Atlanta City Jail on 'drunk' charges; he did not appear intoxicated to a witness; he was sitting on the end of a wooden bench two or three feet high; he began to 'doze' or to drop off to sleep; no one touched him; he fell sideways off the end of the bench to the left, hitting his head on the concrete floor; his head began to bleed profusely, 'squirting' so that the exact site of the injury could not be seen; he began to shake somewhat as if he were trying to get up; he did not get up; he was quickly removed and taken to the hospital but was dead on arrival there; no autopsy was performed; the death certificate recited as the cause of death 'sudden death; cause, non-violent but otherwise undetermined;' the medical examiner who completed the death certificate died before trial.

The evidence supports the verdict and the trial court did not err in denying defendant's motion for a judgment n.o.v. or its motion for a new trial on this ground.

2. Assuming without deciding that the admission of the Doctor's testimony as to the cause of death was error, it was harmless because his similar testimony is found in other parts of the transcript without objection. Smith v. Smith, 125 Ga.App. 257(7), 187 S.E.2d 330; Eiberger v. Martel Electronic Sales, Inc., 125 Ga.App. 253(6), 187 S.E.2d 327.

3. The court erred in authorizing the jury to award attorney fees for bad faith refusal to pay. The evidence was circumstantial and did not demand a finding for the plaintiff. Boston-Old Colony Ins. Co. v. Warr, 127 Ga.App. 364(2), 193 S.E.2d 624; Home Indemnity Co. v. Godley, 122 Ga.App. 356, 363, 177 S.E.2d 105. Though the evidence indicated that Grady could have died from a blow to the head, nonetheless the reason for his falling off the bench prior to suffering the blow remains unexplained.

We therefore direct that the attorney fees be written off.

Judgments affirmed with direction.

BELL, C.J., and QUILLIAN, CLARK and STOLZ, JJ., concur.

DEEN, J., concurs in Divisions 1 and 2 and in the judgment.

EBERHARDT, P.J., concurs in Divisions 2 and 3 and in the judgment.

PANNELL, J., concurs in Division 2 and in the judgment.

EVANS, J., concurs in Divisions 1 and 2 and dissents from Division 3.

EVANS, Judge (dissenting in part).

I dissent from Division 3 of the majority opinion, which overturns the jury's verdict as to attorney fees. And what reason does the majority give for this finding? It states that: 'The evidence was circumstantial and did not demand a finding for the plaintiff.' (Emphasis supplied.) Hn. 3. In other words, unless the plaintiff was entitled to a directed verdict on the main issue, there could be no legal finding in his favor as to bad faith of the insurance company, whereby penalty and attorney fees might be awarded.

The majority opinion finds support for its position in numerous recent decisions of this court, such as Home Indemnity Co. v. Godley, 122 Ga.App. 356, 363, 177 S.E.2d 105, and Boston-Old Colony Ins. Co. v. Warr, 127 Ga.App. 364(2), 193 S.E.2d 624, which cases are cited in the present majority opinion.

The law which requires an insurance company to pay attorney fees and penalty if it acts in bad faith in refusing to pay a claim of its insured has been on the statute books for more than one hundred years. See Ga.L.1872, p. 43. This same law exists in comparable form today, and is known as Code Ann. § 56-1206 (Insurance Code of 1960; Ga.L.1960, pp. 289, 502; 1962, p. 712). This law seems plain and unambiguous so that interpretation by the courts is unnecessary. The first sentence reads as follows: 'In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 25 per cent. of the liability of the insurer for the loss and all reasonable attorney's fees for the prosecution of the case against the insurer.' This court has construed the statute contrary to all statutes as to evidence and as to burden of proof, and as to how a fact may be proven in the courts of this State. It is much easier to convict one of murder than to convict an insurance company of bad faith under the rulings of this court. In a murder case, a defendant must be proven guilty beyond a reasonable doubt. But in an insurance case, 'bad faith' must not only be proven beyond all reasonable doubt, it must be proven so that the plaintiff is entitled to a directed verdict and if any one witness (any employee of the insurance company) testifies in favor of the insurer on that issue, his testimony rubs out the testimony of a host of witnesses testifying on plaintiff's side (see Home Indemnity Co. v. Godley, 122 Ga.App. 356, 363, 177 S.E.2d 105, supra), and no legal verdict for bad faith can be returned. In a murder case, the defendant may be convicted no matter how many witnesses testify that he did not commit the crime. Why should it be easier to convict a murderer than to prove bad faith against an insurance company?

This court has held that no verdict for bad faith (penalty and attorney fees) can be rendered in any one of the following situations:

'1. If the insurance company has 'reasonable grounds' to defend the suit. Royal Ins. Co. v. Cohen, 105 Ga.App. 746(3), 125 S.E.2d 709.

'2. If the evidence authorized a finding for defendant, although the jury did not accept defendant's version, and rendered a verdict against that version and in plaintiff's favor. Old Colony Ins. Co. v. Dressel, 109 Ga.App. 465(3), 136 S.E.2d 525.

'3. If there was 'reasonable and probable cause' for denying plaintiff's claim. Ga. Farm Bureau Mut. Ins. Co. v. Boney, 113 Ga.App. 459(3), 148 S.E.2d 457.

'4. If there is a bona fide dispute between claimant and his insurer as to the amount of the loss. Ga. Farm Bureau Mut. Ins. Co. v. Boney, supra.

'5. If the interpretation of the policy presents a close question (even though the insurer's lawyers wrote the policy, studied it and should know it forward and backward, and even though all ambiguities must be construed most strongly against the insurer.)

U.S. Fidel. &c. Co. v. Woodward, 118 Ga.App. 591(2), 164 S.E.2d 878.

'6. If the case presents a question of law that is intricate and difficult. Fireman's Fund Ins. Co. v. Standridge, 103 Ga.App. 442(5), 119 S.E.2d 585.

'7. If some particular provision of the policy has not been heretofore construed by the Georgia courts. Life Ins. Co. of Ga. v. Burke, 219 Ga. 214(1), 132 S.E.2d 737.

'8. If the insurer's refusal to pay is not both 'frivolous and unfounded.' Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 316, 127 S.E.2d 454. (Formerly the language was 'frivolous or unfounded.' Cimarron Ins. Co. v. Pace, 212 Ga. 427, 431, 93 S.E.2d 593; Metropolitan Life Ins. Co. v. Lovett, 50 Ga.App. 763, 768, 179 S.E. 253; American Nat. Ins. Co. v. Holbert, 50 Ga.App. 527, 528, 179 S.E. 219.

'9. If the plaintiff does not recover every penny that he sues for (even though the insurance company denies any indebtedness whatever). See Great American Indem. Co. v. Kennedy, 94 Ga.App. 567, 570, 95 S.E.2d 742; Firemen's Ins. Co. v. Larsen, 52 Ga.App. 140(3), 182 S.E. 677.' State Farm &c. Ins. Co. v. Harper, 125 Ga.App. 696, 702, 188 S.E.2d 813, 818.

The foregoing are some, but by no means all, of the conditions that have been engrafted onto Code Ann. §...