Mutual Ben. Health & Acc. Ass'n of Omaha v. Hickman

• Decision Date: 09 September 1959
• Docket Number: No. 1,No. 37715,37715,1
• Citation: 111 S.E.2d 380,100 Ga.App. 348
• Court: Georgia Court of Appeals
• Parties: MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION OF OMAHA v. Jennie HICKMAN

Page 380

111 S.E.2d 380

100 Ga.App. 348

MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION OF OMAHA v. Jennie HICKMAN.

No. 37715.

Court of Appeals of Georgia, Division No. 1.

Sept. 9, 1959.

Rehearing Denied Oct. 8, 1959.

Syllabus by the Court

1. Where the pleadings and evidence form issues of fact, which might be resolved in one party's favor, the opposite party is not entitled to a judgment notwithstanding the verdict, nor the grant of a new trial on the ground that the verdict is not supported by evidence.

2. The opinion of an expert witness may be given in response to a hypothetical question based on facts placed in evidence either by the testimony of other witnesses or by competent evidence of any nature.

3. A ground of a motion for new trial that complains of an excerpt from the judge's charge must in order to show error assign a valid reason why the charge is incorrect.

4. Where a party desires that the consideration of evidence be limited to the purpose for which it is admitted, a written request that he so instruct the jury should be presented to the judge.

Mrs. Jennie Hickman filed suit in the Superior Court of Burke County seeking to recover $3,000 from Mutual Benefit Health & Accident Association of Omaha on a policy issued on the life of her husband, Walter A. Hickman.

The petition, as amended, alleged that on October 13, 1957, Walter A. Hickman was seriously injured while driving his pick-up truck over his farm, when the left front wheel accidentally plunged into a deep stump hole, the accident throwing him violently into the steering wheel and throwing his head violently against the windshield, from which injury he died 15 minutes later.

The plaintiff attached to her petition a copy of an insurance policy issued by the defendant, the first paragraph or 'insuring clause' reading as follows: 'Mutual Benefit Health & Accident Association, Omaha (herein called association) does hereby insure Walter A. Hickman (herein called the insured) of City of Girard, State of Georgia, against loss of life, limb, sight or time, resulting directly and independently of all other causes, from bodily injuries sustained during any term of this policy through purely accidental means * * *.' Part A of the insurance policy under 'Accident Indemnities--Specific Losses' provides: 'If the insured shall sustain bodily injuries as described in the insuring clause, which injuries shall, independently and exclusively of disease and all other causes, continuously and wholly disable the insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the association will pay for loss of life $3,000.

The only other clauses of the policy which are pertinent to the facts as they are alleged and as they developed at the trial are Standard Provision 8 and Additional Provision (b), which reads as follows: 'Standard Provision 8--The association shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law. Additional Provision (b) Strict compliance on the part of the insured and beneficiary with all the provisions and agreements of this policy, and the application signed by the insured, is a condition precedent to recovery and any failure in this respect shall forfeit to the association all right to any indemnity, and the insured shall as a condition precedent to recovery hereunder furnish the Association every thirty days with a report in writing from his physician stating the condition of the insured and the probable duration of the disability.'

The defendant filed its answer admitting that the insurance policy was in force and the premiums had been paid, but denying that the death of Walter A. Hickman was an event insured against and defending on the ground that the plaintiff had not performed all the conditions of the contract of insurance, but on the contrary had refused and still refused to allow the defendant the opportunity to make an autopsy on the body of Walter A. Hickman, although the contract of insurance contains a condition precedent giving to the defendant such a right.

The defendant also filed both general and special demurrers to the petition, which demurrers were not renewed after the petition was amended and which are not insisted on in this court.

On the trial it developed that Mr. Hickman was a policy holder of the defendant in good standing at the time of his death. The evidence revealed that Mr. Hickman left his home in Girard, Georgia, at about 5 p. m., on Sunday, October 13, 1957, apparently feeling well, to visit his nearby farm in a pick-up truck. There was evidence that there was on the farm a hole where a stump had been removed, which hole was several feet in diameter and two and one-half or three feet deep. The left front wheel of Hickman's truck was found in the hole with the left side of the vehicle's chassis resting on the ground.

Mr. Hickman was next seen by Ruby Carter, a daughter of a tenant who lived in a house on Mr. Hickman's farm about 300 yards from the place where the pick-up truck was stuck. She testified that Mr. Hickman walked up to the door of her mother's house and called. He said that he had become stuck in a stump hole and asked for a shovel. He then asked Ruby Carter if she would go to another tenant house which was nearby and ask the 'boys' who were there to come and get him out of the stump hole, which she did.

Mr. Hickman did not borrow the shovel but sat down on a cedar tree root to await the arrival of help. Nettie Carter, Ruby Carter's mother, returning home, found Mr. Hickman sitting in front of her house. He told her that his truck was stuck in a stump hole and that he had sent Ruby for help. Nettie Carter looked toward the house to which Ruby had been sent and said, 'Here they come in now, coming in with their lights on.' Nettie Carter testified that Mr. Hickman arose and walked around the tree as if to look to see the approaching help 'and when he walked around a little piece, he set down and when he set down he laid down * * * and my sister called him but he didn't answer.' When Mr. Hickman didn't answer, the boys were sent for help and it was discovered that Mr. Hickman was dead. It was estimated that Mr. Hickman died about 15 minutes after arriving at the Carter house.

Mrs. Jennie Hickman testified in part: 'I am the widow of Walter A. Hickman, Walter had an insurance policy with the Mutual Benefit Health & Accident Association, Policy No. 50-A-5911. Walter carried this policy at the time of his death. He was in good standing with this policy at the time. He had an accident on his farm on Sunday afternoon about 5 o'clock. He seemed perfectly well, when he left home. He made no complaint whatever. As far as I could tell and as far as his looks and attitude, he was perfectly alright when he left home. I reported this accident to the insurance company and they sent me a letter dated October 24, 1957, and some forms to fill out in regard to it. Filled out those forms and carried out their instructions. On November 18, 1957, I mailed the filled out forms back by registered mail. After they got those forms and made an investigation, they wrote me another letter dated February 26, 1958, refusing payment.'

Ralph E. Crowe testified in substance: 'I am a mortician, my address is Fletcher Funeral Home, Millen, Georgia. I handled the body of Walter A. Hickman when he died and embalmed his body. I found that there was a little hemorrhage at the mouth, not so profuse, but some, and the usual amount of blood in the vessels and a lot in the stomach. I am pretty well experienced in handling bodies, but I am not a doctor. I have been an undertaker for about 23 years. I wouldn't say what was the cause of Mr. Hickman's death, because I really don't know. I am not a doctor and there could have been several different reasons for his death, either hemorrhage or could have been from a blow or it could have been from ruptured blood vessels or several causes, or heart attack. I have prepared bodies of persons who died in bed of heart attacks and have discovered blood in the mouth and nose of such bodies. As a rule, you don't, but you do in some cases.

Dr. J. M. Byne, Jr. gave the following evidence: 'I am a practicing physician in Waynesboro and have been practicing there for 30 years. I graduated from the University of Georgia.' In reply to the question as to whether the described accident could have caused the insured's death, the witness replied: 'I cannot answer without knowing how fast the truck was going and I must have some idea of the force with which the man was thrown against the steering wheel. In answering the hypothetical question, I would have to know if the car slowly fell into the hole or how much force was the man struck with to cause the ultimate outcome of the case. I think that would have to be in your hypothetical question. You only say a truck went into a hole. I would feel that it would be drawing a conclusion--I couldn't draw a conclusion on those facts. The depth of the hole, it doesn't seem to me would effect the hypothetical question. It would be the force with which the man fell. If he had an exceptionally large abdomen, of course, the inner thoracic pressure within his lungs would certainly be increased if he was hit with a great force because a force against the abdomen increases the pressure into the chest itself, but I think to say 'went into a hole' is not enough. I have to know, to express an opinion, you certainly would have to know the amount of force.' In answer to the question 'Suppose the man was driving 15 to 20 miles an hour, what could be the outcome of that?' he testified: 'What it could be, yes, because a man could go into a hole with no apparent damage to himself at all and yet we do...