Prudential Ins. Co. of America v. Kellar

• Decision Date: 04 March 1957
• Docket Number: No. 36473,No. 2,36473,2
• Citation: 98 S.E.2d 90,95 Ga.App. 332
• Parties: PRUDENTIAL INSURANCE COMPANY OF AMERICA v. Lemma B. KELLAR
• Court: Georgia Court of Appeals

Page 90

98 S.E.2d 90

95 Ga.App. 332

PRUDENTIAL INSURANCE COMPANY OF AMERICA v. Lemma B. KELLAR.

No. 36473.

Court of Appeals of Georgia, Division No. 2.

March 4, 1957.

Rehearing Denied March 19, 1957.

Syllabus by the Court.

Under the provisions of a double-indemnity life policy with additional benefit if the insured died 'as a result, directly and independently of the other causes, of bodily injuries effected solely through external, violent and accidental means' but excluding death resulting 'directly or indirectly from bodily or mental infirmity or disease in any form,' if the insured has a pre-existing physical impairment which contributes to the injury in whole or in part, directly or indirectly, there can be no recovery. If, however, the physical impairment does not contribute to the injury but merely aggravates the consequences of the occurrence, recovery is not thereby precluded as a matter of law.

The defendant, the Prudential Insurance Company of Amercia, issued a group insurance contract to the Louisville & Nashville Railroad Company under which Mr. John C. Kellar, a locomotive engineer and employee of the railroad, was issued a certificate on October 1, 1941. The certificate provided for $3,000 in life insurance and an additional accidental death benefit in the amount of $3,000 payable to the plaintiff as the named beneficiary, if the insured died 'as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent, and accidental means, * * * provided, however, that no accidental death benefit shall be payable if such death resulted * * * directly or indirectly from bodily or mental infirmity or disease in any form.' In her action to recover for the accidental death benefit (the life insurance having already been paid), the plaintiff alleges that the insured died on January 14, 1956, and seeks to recover the accidental death benefit for which provision is made in the policy. The defendant denied that the insured died as the result of accidental injuries in such manner as to come within the terms of the policy. The issues involved in the case were by stipulation before trial reduced to the questions of whether or not the insured died from enumerated injuries sustained by him when he was struck by a motor vehicle on November 7, 1955, or whether his death was directly or indirectly the result of bodily infirmity or disease.

The only evidence introduced by the plaintiff was the testimony of the insured's personal physician. The only evidence introduced by the defendant was a certified copy of the certificate of death filed by such physician with the Georgia Department of Health.

At the close of the evidence, the defendant made a motion for a directed verdict which the trial court denied. The jury returned a verdict for the plaintiff and the defendant made a motion for new trial, based upon the usual general grounds and four special grounds, and, also, made a motion for judgment notwithstanding the verdict. These motions were denied and the defendant has brought the case here assigning error upon those judgments.

It appears from Section 22 of the certificate of death introduced in evidence by the defendant, that the cause of death was: '1. Disease or condition directly leading to death: (a) Myocardial infarcation Antecedent Causes due to: (b) Hypertensive cardiovascular disease. 2. Other significant conditions. Conditions contributing to the death but not related to the disease or condition causing death: Fracture neck left femur.'

The testimony of the insured's personal physician was that the insured was a man aged 67 who was admitted to the hospital on November 7th after having been struck by a truck in which he sustained a wrist fracture and a fracture of the neck of the left femur; that the insured was discharged from the hospital on November 18th in a generally good condition; that the insured was required to return to the hospital on November 28th to re-position the fracture of the left femur; that this repair was made on November 30th and the insured would have been discharged from the hospital on December 7th save that on December 6th he suffered a severe myocardial infarction and was transferred to Emory University Hospital under the care of a cardiologist; that he stayed for three weeks and was sent home with a guarded prognosis because of the severity of the infarct and his general cardiovascular condition; that in spite of this, the insured was progressing and was sitting up and beginning to move his leg slightly, but died suddenly on January 14th when his heart stopped beating. It is insisted by the plaintiff in error that this evidence demands a verdict in favor of the insurer.

Paul F. Akin, Warren Akin, Cartersville, Spalding, Sibley, Troutman, Meadow & Smith, Griffin B. Bell, Harry C. Howard, Jr., Atlanta, for plaintiff in error.

Pittman & Greene, Cartersville, for defendant in error.

TOWNSEND, Judge.

The prima facie cause of death as shown by the death certificate may be paraphrased as follows: 'The condition which directly produced the death was a myocardial infarction. The fracture of the femur (direct result of plaintiff's accident) contributed to the death, but was not related to the myocardial infarction which brought about the death.' In his testimony the medical witness stated: 'I do not believe that the accident and subsequent surgery was the cause of the heart attack, but in my opinion it was certainly an aggravating factor both in the attack and in its course. * * * As to what,...