Thornton v. Travelers' Ins. Co.
| Decision Date | 07 August 1902 |
| Citation | 42 S.E. 287,116 Ga. 121 |
| Parties | THORNTON v. TRAVELERS' INS. CO. TRAVELERS' INS. CO. v. THORNTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A judgment granting a first new trial will never be reversed unless the law and the facts demanded the verdict rendered and this is true notwithstanding the grant of a new trial may have been based upon a single ground in the motion, and though this ground may not have been well taken. But where in such a case, the defendant in error brings a cross-bill of exceptions, the assignments of error therein relating to matters which will probably arise at another hearing will be decided.
2. A judge of a city court, who has, under the act creating the court, "power and authority to hear and determine all civil cases of which the said court has jurisdiction," when no demand for a jury is made within a given time, may hear all such cases without a jury; but he is not required to do so, and he may, in his discretion, submit any civil case to a jury, though no demand for that form of trial may have been made by either party.
3. When an accident insurance company seeks to avoid liability under a clause in a policy providing that the "insurance shall not cover *** accident, nor injuries, nor death, nor loss of limb or sight, resulting, wholly or partly, directly or indirectly, *** from hernia," and the insured had, at the time of the injury for which indemnity is claimed, an existing hernia in his system, it is incumbent upon the company, after it has been prima facie shown that an injury to the plaintiff resulted from an accident within the meaning of the policy, to show that the existence of the hernia at that time was a substantial contributing cause, which wholly or partly, directly or indirectly, brought about the injury resulting from the accident; and liability under the policy is not defeated by showing simply that the existence of the hernia rendered more serious the consequences resulting from the accident. Lumpkin, P.J., and Little, J., dissenting.
4. Where, in a policy of insurance, there is an express stipulation that "no agent has power to waive any condition of this policy," the insured, by an acceptance of the policy, is estopped from relying upon any agreement made with an agent having the effect of waiving one of the conditions enumerated in the policy.
5. In a suit brought upon a policy of accident insurance to recover an indemnity for loss of time during a period of total disability, it is error to allow an amendment setting up a claim under the policy for indemnity for a partial disability for a period of time following the period of total disability, when the amendment does not allege that proper proof of such claim was made within the time required under the policy. A refusal on the part of the company to pay a claim for a total disability or a denial of liability on its part for such indemnity, would not have the effect of relieving the insured from the necessity of making the proof necessary to establish his additional claim for a partial disability.
6. Such of the assignments of error as are not referred to in the preceding notes which relate to matters which may arise upon another trial are dealt with in the opinion.
Error from city court of Americus; C. R. Crisp, Judge.
Action by W. J. Thornton against the Travelers' Insurance Company. Judgment for plaintiff for a part of the amount paid, and both parties bring error. Judgment on the main bill of exceptions affirmed. Cross-bill reversed.
J. H Lumpkin, for plaintiff.
E. A. Hawkins, for defendant.
Thornton sued the insurance company in the city court of Americus upon a policy of accident insurance, and recovered a verdict. The defendant filed a motion for a new trial, which was granted, the judge stating in the order sustaining the motion that a new trial was granted for the reason that under the contract contained in the policy and the evidence produced at the trial he did not think the plaintiff was entitled to recover, and that a new trial was granted for this reason alone. To this judgment Thornton excepted. and the insurance company, by a cross-bill of exceptions, assigns error upon various rulings made during the progress of the case, and upon the refusal of the court to grant a new trial upon all of the grounds contained in the motion therefor.
1. This was the first grant of a new trial, and, as the verdict rendered was not demanded under the law and the facts of the case, an affirmance of this judgment necessarily results. Carter v. Dunson, 113 Ga. 374, 38 S.E. 830, and cases cited. As the effect of this affirmance is to leave the case to be tried again in the court below, it is necessary to decide such of the questions raised in the cross-bill of exceptions as relate to matters which will likely arise at the next trial. Civ. Code, § 5527; Holmes v. Langston, 110 Ga. 862, 36 S.E. 251 (7).
2. The plaintiff failed to make a demand for a jury trial at the first term, but such a demand was made in writing at the next succeeding term. The court submitted the case to a jury, over the objection of the defendant, and upon this ruling error is assigned. The fourteenth section of the act creating the city court of Americus is as follows: "The judge of said city court shall have power and authority to hear and determine all civil cases of which the said court has jurisdiction, and to give judgment and issue execution thereon: provided, always, that either party in any case shall be entitled to a trial by jury in said court upon entering a demand therefor by himself or his attorney in writing on or before the call of the docket at the term to which the cause is returnable, in all cases where such a party is entitled to a trial by jury under the constitution and laws of this state." Under this act the judge of the city court of Americus has authority to try without a jury all civil cases in which no demand for a jury trial is made at the first term; but he is not required to do this, if, in his discretion, a jury trial is to be preferred. Railroad v. Gleason, 69 Ga. 201 (3).
3. The present suit was brought for loss of time resulting from an injury received by Thornton while riding as a passenger upon a railway train using steam as a motive power. The contract of insurance contained a stipulation indemnifying the insured against loss of time "resulting from bodily injuries effected during the term of this insurance through external violent, and accidental means which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation." It also indemnified against loss of time from partial disability under certain circumstances. The policy contained a stipulation in the following language: "This insurance shall not cover *** accident, nor injuries, nor disability, nor death, nor loss of limb or sight, resulting wholly or partly, directly or indirectly, *** from hernia." The insured was at the time of the injury, and had been for years before that time, afflicted with what is called by the medical experts who testified in the case a "reducible hernia," and at the time of the injury this hernia was of such a character as to require the insured to wear a truss. While traveling as a passenger upon a railway train, the insured arose from his seat, and walked along the aisle of the car for the purpose of obtaining a drink of water, and while thus walking in the car a sudden lurch of the train threw him violently to one side, and the truss which he was wearing struck against the arm of one of the seats, and the blow thus received produced what is termed by the medical experts "a strangulated hernia." It was necessary, in order to relieve this strangulated hernia, that a surgical operation should be performed, and, as a consequence of the injury received by the insured, he was totally disabled from work for some weeks, and after this total disability ceased he was partially disabled for an additional time, consisting of several weeks. Upon this state of facts the defendant contends that it is not liable to the insured, for the reason that, while the injury was a "bodily injury effected through external, violent, and accidental means," the loss of time did not result from this injury independently of all other causes, but was partly, if not wholly, and indirectly, if not directly, the result of the hernia which existed in the system of the insured at the time of the accident. On the other hand, the insured claims that he is entitled to recover, for the reason that the hernia which existed in his system at the time of the accident was not the proximate cause of the injury; that the injury would have resulted even if he had been a perfectly sound man, and altogether free from the bodily infirmity resulting from hernia; that the company is liable to him for the reason that he was injured as the result of an accident, within the meaning of the policy; and that the mere fact that his injuries might have been aggravated by the existence of the hernia at the time of the injury does not defeat his right to recover under the contract. There can be no question that the insured's injuries were the result of an accident within the meaning of the policy. The question to be determined is whether the fact that the insured had at that time a hernia existing in his system would preclude him from recovering on the policy, when the effect of the injury resulting from the accident was to change the character of the complaint from which he was suffering from that of a reducible hernia, which seems not to be necessarily of a serious nature, to that of a strangulated hernia, which seems to be in some cases of a dangerous, and...
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