Prudential Ins. Co. Of Am. v. Herndon, (No. 19722.)

• Decision Date: 13 December 1929
• Docket Number: (No. 19722.)
• Citation: Prudential Ins. Co. Of Am. v. Herndon, 151 S.E. 399, 40 Ga.App. 692 (Ga. App. 1929)
• Parties: PRUDENTIAL INS. CO. OF AMERICA. v. HERNDON.
• Court: Georgia Court of Appeals

40 Ga.App. 692

151 S.E. 399

PRUDENTIAL INS. CO. OF AMERICA.

v.HERNDON.

(No. 19722.)

Court of Appeals of Georgia, Division No. 2.

Dec. 13, 1929.

Rehearing Denied Jan. 28, 1930.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by F. E. Herndon against the Prudential Insurance Company of America.Judgment for plaintiff, and defendant brings error.Reversed.

This was a suit on a policy of accident insurance, which provided for compensation on account of injuries "effected solely through external, violent, and accidental means."According to the pleadings and the testimony of the plaintiff, he suffered the loss of the sight of an eye, which became infected as the result of wiping his face on a towel furnished by his employer, upon which were gonococci germs, or some other disease germs, left there by some other employee.A verdict and judgment were rendered in favor of the plaintiff, and exception is taken to the refusal of the court to grant the defendant's motion for a new trial.Plaintiff in error contends that it could only be liable under the terms of the policy, where the proof of loss, as provided by the terms of the policy, shows on its face liability, and that in the instant case the proof of loss not only did not show liability, but affirmatively showed that the loss of sight did not result within ninety days from the time of the alleged injury, as stipulated by the policy, and that therefore the defendant is not liable, irrespective of any testimony by the defendant at the time of the trial contradicting the terms of the proof of loss.Plaintiff in error further contends that there was no evidence introduced authorizing the jury to find that the injury to the eye resulted in the manner and from the cause set forth, in that there was a total absence of evidence that the towel had been infected with gonococci germs, or that any other person infected with such germs had ever used the towel, and that the only evidence relied upon by the plaintiff to explain the cause of his injury, which was to the effect that he used the towel and that about two hours thereafter his eye began to burn, amounted to a mere surmise.It is further contended by the plaintiff in error that under the pleadings and the proof the plaintiff failed to show that the injury complained of was "effected solely from external, violent, and accidental means, " within the meaning of the policy sued on.

Spalding, MacDougald & Sibley, of Atlanta, for plaintiff in error.

J. Wightman Bowden and J. C. Bowden, both of Atlanta, for defendant in error.

JENKINS, P. J.(after stating the foregoing facts).Pretermitting any discussion of the...