124 Ga. App. 854 | Ga. Ct. App. | 1971
Mrs. Dorothea M. Hammock, the plaintiff, had been under the care of a gynecologist for a number of years for amenorrhea (absence or suppression of menstrual period); and had developed menometrorrhagia from time to time. In 1957 an operation commonly known as a "D & C” was performed to stop the excessive uterine bleeding (menometrorrhagia), at which time the doctor noted that she was suffering from first degree cystocele (hernia of urinary bladder) and a slight rectrocele (hernia of the rectum), known as anatomical defects. He did not advise her of this condition. She was again operated on in 1962, when another "D & C” was performed. On or about November 30, 1966, Mrs. Hammock applied for a hospitalization policy with the defendant in which she listed the 1962 "D & C” operation. A policy was issued to the plaintiff excepting and excluding pregnancy, certain mental and nervous disorders and by special endorsement any thyroid disorder or disorder of the ears was specifically excluded (apparently since Mrs. Hammock had had a thyroid operation as well as the "D & C”). No exclu
Thereafter, Mrs. Hammock filed suit against Allstate Insurance Company, the insurer, for the amount claimed and sought reasonable attorneys fees of $1,200 by reason of the refusal to pay in accordance with the terms of the policy which she alleged to be frivolous, unfounded and in bad faith. The defendant denied any liability under the policy and again, in its second defense, referred to the above clause, claiming that "such sickness for which claim is made first manifested itself prior to the expiration of such 30 day period.” The case came on for trial and the sole issue for determination was whether or not the various female troubles from which the plaintiff was suffering could be said to be manifested before the insurance became effective. The medical expert who testified gave a history of his treatment of Mrs. Hammock for a number of years and that the decision to do the hysterectomy was the result of s'everal factors, namely menometrorrhagia as well as her pelvic relaxation, and particularly the pain in her lower abdomen which was something that she had not told the doctor about previous thereto and as to which the doctor did not remember whether he had recommended an operation previously. The plaintiff testified that this was the first time the hysterectomy operation had been recommended. The medical expert also testified that the operation uncovered the fact that Mrs. Hammock had endo
The defendant filed a motion for judgment notwithstanding the verdict premised on its motion for directed verdict previously made before the jury returned its verdict. Defendant also filed a motion for new trial which was thereafter amended to add six special grounds. Thereafter the court granted the motion for judgment notwithstanding the verdict, thereby vacating and setting aside the jury verdict and dismissing and discharging the defendant with all costs cast upon the plaintiff, and, in conformity with § 50 of the CPA (Code Ann. § 81A-150 (c); Ga. L. 1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248), conditionally granted the motion for new trial on the general grounds thereof should its judgment in favor of the defendant be thereafter vacated or reversed in accordance with this statute. The appeal is from the final judgment granting defendant’s judgment notwithstanding the verdict or in the alternative from the grant of a new trial, with error enumerated as to each of the two rulings by the lower court. Held:
Plaintiff applied for the hospitalization policy about November 30, 1966, and as required by the policy, she truthfully disclosed her medical history for the five years immediately prior thereto. The policy did not contain any specific exclusion against female troubles, but did contain the following general exclusion: "Sickness means sickness or disease that first manifests itself after the coverage under which claim is made has been in force 30 days for the family member whose sickness is the basis of the claim.”
Plaintiff was hospitalized in February, 1967, and an operation was performed. Defendant contends that her operation resulted from
Therefore, we reverse the trial court in granting defendant’s motion for judgment notwithstanding the verdict. The evidence authorized, but did not require, a verdict for plaintiff, and as this is the first grant of motion for new trial, and is therefore within the trial judge’s discretion, we affirm this first grant of a motion for new trial. Code § 6-1608, as amended (Ga. L. 1959, pp. 353, 354); Dunn v. Gilbert, 217 Ga. 358 (122 SE2d 93); Kroger Co. v. Perpall, 105 Ga. App. 682 (4) (125 SE2d 511).
Judgment reversed in part; affirmed in part.