Life Ins. Co. of Georgia v. Dodgen

• Decision Date: 23 January 1979
• Docket Number: No. 56846,56846
• Parties: LIFE INSURANCE COMPANY OF GEORGIA v. DODGEN.
• Court: Georgia Court of Appeals

Page 629

252 S.E.2d 629

148 Ga.App. 725

LIFE INSURANCE COMPANY OF GEORGIA v. DODGEN.

No. 56846.

Court of Appeals of Georgia.

Argued Oct. 30, 1978.

Decided Jan. 5, 1979.

Rehearing Denied Jan. 23, 1979.

Dickey, Whelchel, Miles & Brown, Richard A. Brown, Jr., Brunswick, for appellant.

Hutto, Palmatary & Magda, J. S. Hutto, Brunswick, for appellee.

BIRDSONG, Judge.

Suit to recover double indemnity on accidental death. The facts of this case show that appellee, Mrs. Dodgen is the widow of the insured James Dodgen. Dodgen was employed by the Georgia Power Company as an electrician. On the day of his death, Dodgen was working on an electrical transformer standing on an A-frame approximately eight to ten feet off the ground. The transformer had three power lines each normally carrying 2400 volts. Two were disconnected and one apparently was still charged. Dodgen was working on the two uncharged lines, disconnecting them from the transformer. There is a dispute in the evidence as to whether he came into close vicinity of the third charged line and might have been exposed to a charge of some degree by being in the field surrounding that wire. There was no evidence of a high voltage shock manifested by burns. Dodgen was heard to utter a cry or scream. Witnesses close to him saw him either straighten up or from an upright position make clutching grasps at the A-frame without success and fall from the A-frame to a gravel surface. One witness stated Dodgen fell on his feet but crumpled. Another simply saw Dodgen fall and after losing sight while trying to come to his support, saw Dodgen lying face down on the gravel. Dodgen apparently was alive for a time after the fall. He was observed to inhale several deep breaths. During mouth-to-mouth resuscitation and when oxygen was being administered by a rescue unit, Dodgen seemed to regain some color. Efforts at resuscitation proved fruitless, including direct injection into the heart by needle of a stimulant in the emergency room at the hospital.

After death, an autopsy was performed on Dodgen and it was determined that he had died of a cardiac tamponade. This involved the leakage of blood from the ascending aorta directly into the pericardial sac. The presence of blood in the pericardial sac so constricted the space available to the heart that the heart was unable to constrict and relax thus thwarting the pumping function of the heart. A quantity of blood also was found in the pleural cavity wherein are contained the lungs. At a point where the ascending aorta exits the pericardial sac, evidence of a hemorrhagic condition was found. The physical evidence was consistent with a dissecting aneurysm. At the point of the hemorrhage, evidence of fatty plaques was found, indicating a weakness in the aorta. There was testimony that such a condition, i. e., plaques in the inner lining of the aorta, was evidence of an on-going disease, arteriosclerosis. There was other testimony that at Dodgen's age of 58 years the presence of plaques was consistent with the aging process. The doctor performing the autopsy, based on symptomology, believed there was a dissecting aneurysm, and that the cause of death was a cardiac tamponade resulting from a dissecting aneurysm. Inasmuch as a dissecting aneurysm was not positively manifested, the aorta was removed from the body of the deceased and forwarded to the examiner's superior for microscopic study. Following the microscopic study, the pathologist telephoned the result of his examination to a co-employee who had witnessed the autopsy. The co-employee reduced the contents of that conversation to a letter and forwarded the same to the doctor who performed the autopsy and prepared the death certificate. That letter became a part of the files of the case. The letter indicated that in the opinion of the pathologist, the microscopic study of the aorta did not disclose a dissecting aneurysm. The blood in the pericardial sac could have resulted from the needle prick, from leakage, or from an aneurysm. There was also evidence offered that an aneurysm could have resulted from arteriosclerosis as an on-going disease, from a weakened condition of the aorta caused by old age, or by ripping or tearing caused by deceleration force occurring when Dodgen struck the ground or floor from a height of 8-10 feet. There was other evidence that Dodgen had undergone fairly frequent periodic physicals, none of which disclosed a circulatory disease other than an elevated blood pressure. The appellee, Mrs. Dodgen, offered evidence that her husband was a strong, healthy individual who had never given any evidence of disease or physical infirmity or pain. The appellant, Life Ins. Co. of Ga. admitted liability as to the life insurance portion of its coverage and remitted the same but denied the double indemnity portion based upon accidental death. Following demand by Mrs. Dodgen, this suit was filed for the $25,000 additional accidental death coverage. The jury found for Mrs. Dodgen and that verdict was made the judgment of the court. Life of Ga. brings this appeal enumerating nine alleged errors. Held :

1. In its first enumeration of error, Life of Ga. argues that the trial court erred in denying its motion for directed verdict at the conclusion of evidence by Mrs. Dodgen. Appellant's second enumeration relates to the denial of a motion for judgment n.o.v. Both enumerations involve a determination of whether there was any evidence which made a factual issue to be passed upon by the jurors. The trial judge has no right whatever to weigh the evidence, nor to decide any issue of fact. Before he could legally direct a verdict for the defendant, he must find from the evidence that there was no evidence of any kind supporting plaintiff's position. Montgomery v. Pacific etc. Co., 131 Ga.App. 712, 714, 206 S.E.2d 631. The evidence authorized but did not demand the jury to find that the cardiac tamponade was caused by application of external, violent and accidental force (i. e., the fall), and that Dodgen's death was not caused directly or indirectly, wholly or partly, by any bodily infirmity or disease. Evidence, although strongly supportive of appellant's contentions, was disputed, and the law is settled that evidence strongly supporting, but not demanding, a particular finding does not warrant a directed verdict. Jenkins v. Gulf States Mtg. Co., 138 Ga.App. 835, 227 S.E.2d 522; see E-Z Go Car Div. of Textron v. Kuhlke Const. Co., 141 Ga.App. 711, 234 S.E.2d 339. These two enumerations are without merit.

2. In its third enumeration of error, appellant urges that the trial court erred in allowing any evidence of a dissecting aneurysm as to either the presence or the absence thereof. This enumeration is based upon an argument that in her admissions, Mrs. Dodgen admitted that death was caused by a cardiac tamponade secondary to a dissecting aneurysm and she therefore could not offer evidence to dispute this admission. Mrs. Dodgen, on the other hand, contended that her admission only extended to the language contained in the autopsy and did not admit that the autopsy "spoke the truth." It is clear that the sole issue in the case was whether death resulted solely from or in combination with a diseased aorta involving a dissecting aneurysm, a leakage of blood resulting from a weakness of the aorta caused by the aging process, an aneurysm caused by deceleration force in the fall, or the needle prick, or an electrical shock, and provided such force amounted to an external violent, accidental force within the terms of the policy of insurance. Thus, it is indisputable that the evidence was most relevant and competent, if not otherwise prohibited by the asserted admission.

The question of the intent of the parties in the request for and the ultimate admissions by Mrs. Dodgen was in dispute and that dispute was resolved by the trial court. We will not substitute our judgment for that exercised by the trial court where there is some support for the trial court's conclusion. The object of all legal investigations is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest sources. Code Ann. § 38-101. Questions of relevancy of evidence are for the court. Johnson v. Jackson, 140 Ga.App. 252, 255, 230 S.E.2d 756. The trial court did not err in allowing this evidence. This enumeration is without merit.

3. Enumerations 4 and 5 urge error by the trial court in allowing the oral findings of the pathologist, relayed by letter through an intermediary to the physician who conducted the autopsy. It is urged that the findings of the pathologist are "double hearsay."

The facts show that none of the three parties involved, the examining physician who performed the autopsy, the intermediary who was...