Wabash Life Ins. Co. v. Jones

CourtUnited States Court of Appeals (Georgia)
Citation248 S.E.2d 536,147 Ga.App. 254
Docket Number56164,Nos. 56163,s. 56163
Decision Date21 September 1978

Hatcher, Stubbs, Land, Hollis & Rothschild, Howell Hollis, Columbus, for appellant.

John D. Allen, Grogan, Jones, Layfield & Agnew, Michael Agnew, Columbus, for appellees.


Appellant-Wabash Life Insurance Company's insured was shot to death while a life insurance policy issued by appellant was in full force and effect. The company denied the appellees-beneficiaries' application for double indemnity accidental death benefits on the basis of an exclusionary clause excepting such benefits when the insured's death is attributable to "violence intentionally inflicted by another person," and legal proceedings ensued. This appeal follows the grant of appellees-beneficiaries' and the denial of appellant-insurance company's respective motions for directed verdict.

1. At trial, plaintiff produced evidence which showed that the deceased was found dead in an alley in New York City. It was stipulated that the cause of death was multiple

gunshot wounds. No other evidence was offered. The defendant Wabash rested after introducing, over objection, a certified copy of an autopsy performed on the insured by the Chief Medical Examiner of the City of New York. The autopsy report described four gunshot wounds causing the insured's death: a contact wound through the head behind the right ear; two wounds to the upper torso; and one wound to the thigh and buttock. Appellees submit, citing Interstate Life &c. Ins. Co. v. Wilmont, 123 Ga.App. 337(2), 180 S.E.2d 913, that the verdict was properly directed in their favor. We disagree.

While the evidence submitted by the beneficiaries would have authorized a jury verdict in their favor (see Interstate Life &c. Ins. Co. v. Wilmont, supra, Divisions 2 and 6), it did not demand one. Continental Assur. Co. v. Rothell, 227 Ga. 258, 181 S.E.2d 283. Accordingly, the directed verdict in favor of the beneficiaries must be reversed.

2. Wabash asserts that the trial court erred in denying its motion for directed verdict made at the close of all the evidence.

A. In a cross appeal, cross appellants-beneficiaries argue that the autopsy report was improperly admitted into evidence and that, absent such evidence, a directed verdict in favor of the insurance company could not be granted. The denial of the directed verdict cannot be sustained for the reason assigned.

Cross appellants did not object to preliminary proof of the autopsy report. See, e. g., Interstate Life &c. Ins. Co. v. Whitlock, 112 Ga.App. 212, 221(3), 144 S.E.2d 532 as to preliminary proof. See Redd v. State, 240 Ga. 753(3), 243 S.E.2d 16 as to waiver of objection to certification. Rather, after calling the court's attention to the necessary foundation, counsel argued that conclusions and diagnostic opinions in the autopsy report rendered the whole document inadmissible unless the foundation was laid. In support of this contention, cross appellants cite Dennis v. Adcock, 138 Ga.App. 425, 428, 226 S.E.2d 292, 294: " 'If a (medical) record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i. e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.' (Cits.) Exactly the same rule applies to any inadmissible testimony contained in the . . . record, including hearsay, and '(medical) records admitted in toto rather than through selected relevant portions . . .' " See also Norman v. Allen, 118 Ga.App. 394(2), 163 S.E.2d 859.

In addition to a statement of the cause of death (the cause of death was stipulated in this case), the autopsy report labeled the death a " homicide."...

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5 cases
  • Nusser v. State, A05A1010.
    • United States
    • United States Court of Appeals (Georgia)
    • October 18, 2005
    ...of the physician's conclusions on the ground of improper foundation cannot be waived. See, e.g., Wabash Life Ins. Co. v. Jones, 147 Ga.App. 254, 255-256(2)(a), 248 S.E.2d 536 (1978) (discussing Dennis and holding that party waived its objection to conclusions contained in autopsy report by ......
  • Transamerica Ins. Co. v. Thrift-Mart, Inc., THRIFT-MAR
    • United States
    • United States Court of Appeals (Georgia)
    • September 22, 1981
    ...have authorized a verdict in favor of Transamerica but we cannot say that such a verdict was demanded. See Wabash Life Ins. Co. v. Jones, 147 Ga.App. 254(1), 248 S.E.2d 536 (1978). Accordingly, we find no error in the denial of Transamerica's motion for judgment 3. Urging that the trial cou......
  • Security Life Ins. Co. of Georgia v. Blitch
    • United States
    • United States Court of Appeals (Georgia)
    • September 2, 1980
    ...merit. Interstate Life & Acc. Ins. Co. v. Wilmont, 123 Ga.App. 337(2, 6), 180 S.E.2d 913 (1971). See also Wabash Life Ins. Co. v. Jones, 147 Ga.App. 254, 248 S.E.2d 536 (1978). Appellant's argument is, in effect, that appellees did not negate that Blitch's death was the result of suicide or......
  • Armstrong v. Vallion, s. 75865
    • United States
    • United States Court of Appeals (Georgia)
    • June 2, 1988
    ...174 Ga.App. 420, 421(1), 330 S.E.2d 134; Brantley v. Heller, 101 Ga.App. 16, 18(1), 112 S.E.2d 685; Wabash Life Ins. Co. v. Jones, 147 Ga.App. 254, 256(2A), 248 S.E.2d 536. Thus, as some portions of the approximately 160-page hospital record were admissible the trial court did not err at tr......
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