*1 Rapid (3),supra; v.Atlanta R. &c. Co. Atlanta supra; 481,492, Mills Hillside Cotton Transit (1), supra. Ellis, present 2. case was sufficient evidence The express implied finding an of either to authorize a public by use two of the land owners dedication to through ran, the road one which was which ample predecessor There was also in title. defendant’s express in June of occurred evidence that dedication impliedly accepted county 1960, had and that cutting maintaining new road dedication 1974. from 1960 the time of trial in to Judgment JJ, Webb, concur. Evans affirmed. Argued September 7, 1974. Decided October Bobby ap- Farrington,
Hill, Hill, L. & for Jones pellant. Attorney, appellee. Underwood,
John for W. District LIFE 49363. MUTUAL INSURANCE COMPANY OF et NEW YORK v. BISHOP al. Judge.
Deen, Bishop, employee of Michael L. an the Carolina Cartage Company, became insured Mutual Life group Company York Insurance New under hospitalization policy, insurance June effective family of his as well as The covered members hospitalized July from himself. wife was to His cyst. hospital 1972 for the removal an ovarian The company was to the insurance for bill submitted pay ground payment, it declined to on charges coverage specifically for these was excluded excluding coverage charges policy provision under for injury required bodily disease, "sickness, during the months care or treatment three medical immediately Bishop’s] preceding [Mr. date of effective insurance.” against brought hospital Mr. suit impleaded charges the insurance he its
recover party company The case came defendant. as a third hospital stipulated parties that the for trial and sought against judgment Mr. in the amount entitled to Bishop. *2 against Bishop party claim of The third jury. company At the close then tried was insurance of all of the evidence each party a directed moved for company was denied of the insurance verdict. The motion granted, jury, by Bishop was and the and that of Mr. direction, against company for the a verdict returned Appellant hospital charges, with interest. amount of judgment n.o.v., Ann. under Code then moved for a (b), denied. Held: 81A-150 and that motion was § demonstrating that a fact 1. The burden exclusionary of an within the clause situation comes insurance policy Independent &c. is on the insurer. Life (115 835); App. Thornton, 285, 290 102 Ga. SE2d Ins. Co. v. App. Coleman, 510, 512 &c.Co.v. Ga. Farm Bureau 351); App. Lies, 70 SE2d Atlas Assur. Co. v. 791); Ga., SE2d Burke Ins. Co. Georgia law, Where, SE2d under policy necessary, from construction of the is "exclusions coverage against the insurer and in favor are construed providing indemnity sought.” Dorsey v. State of Mutual Life Assur. Co. of FSupp.
Worcester, Mass., 391. employee’s group hospitalization
2. The insurance policy plaintiffs under which the wife was covered its bodily injury sickness, disease or terms excludes "a during required care or treatment three months medical immediately preceding effective date of specifically individual’s insurance” but does not exclude period ending "a three-month while the individual during ... which he incurred no medical care insured infirmity. expenses or treatment in connection with” the May Bishop’s employment 1, 1972; the commenced on wages premium withheld from his and the insurance policy, was arrived, a commencement date of when it carried Coverage 24. under this exclusion for June was denied Bishop was first treated for this stated reason that "Mrs. coverage not was condition on June Since until effective June no benefits are payable.” The uncontradicted evidence is that Mrs. consulted her family physician September, at the time of her marriage; he found her in good health except for a weight problem, put her on a diet and ovulation pills. She 6; went back for a checkup on June at that time the physician suspected that her stomach enlargement was due to pathological one of two causes and told her to come in testing on June 20. She underwent various on tests this date as a result of which a decision operate made; on hospitalized she was 22-pound and a ovarian tumor subsequently removed. This latter date was two after the days became effective.
Did the examination
on June 6 and the tests
administered
June 20 constitute
"medical care and
treatment” within three months
inception
date so
as to exclude coverage? These words generally refer to
something done in
application
arts,
of the curative
whether by drugs or other therapy, with the end in view
of alleviating
Thus,
a pathological condition.
surgery,
*3
sense,
its extended
may constitute "care and treatment”
when a mere examination or evaluation does not. It was
held in
Fisher v. Rhoades Construction
insurer evidence, introduced in a statement of the physician which in part: reads Bishop "Mrs. came our 6,1972, office on June for a routine examination and not because of any complaint sickness, disease, referable to or bodily injury. 20, 1972, She was not seen on June for any medical sickness, disease, care or any treatment for or bodily injury. The latter was an evaluation began Technically, findings. surgery treatment her incidental 28, 1972. It be June should her on with 20, 1972, for visit on June was understood that preoperative on for the treatment evaluation January Having office on 28,1972. seen her in this June prescription Ovulen, 4,1972, for routine visit for having time, no at that I have no evidence of disease patient any way, aware, to feel that reason of any problem time of visit to health at the her her June, 1972.” me agrees testimony with the of Mrs.
This statement why physician Bishop. factually It iterates reason procedures up appointment he and the set followed. disregarded, It mere to be is not a conclusion complete knowledge only he has of what for doctor doing The insurer did or his for it. offered reasons produced to contradict it. and no evidence was statement Accordingly, verdict the direction favor third-party plaintiff is without error. Judgment Bell, J., Quillian, C. Evans affirmed. Eberhardt, Pannell, J.,
Webb,JJ., J.,P. P. Clark concur. Stolz, JJ., dissent. September Argued May 1974 Decided Rehearing 8, denied October
Troutman, Sanders, Ashmore, & Allen E. Lockerman appellant. Jeffrey Lockerman, Nickerson, R. for appellees. Jr., Walters, Scott dissenting. Presiding Judge, Eberhardt, attending physician, Wilson, Dr. asserted he letter that found examined disproportionately
her to be extended as abdomen *4 compared 'Tquestioned her to her extremities. about this. patient I satisfied that this was unaware that there am problem her was a in her abdomen at time of only examination, had and her observation been weight questioning did not to lose in her that she seem quickly as as At the time abdomen elsewhere. pelvic examination, examination revealed abdominal diagnosis in The differential the abdomen. of acites fluid cyst Subsequent versus ovarian was made. evaluation Package SMA-12, CBC, with that this was indeed most Urine and Liver indicated likely cyst, an ovarian and she surgical was advised to have removal. She was scheduled preoperative for examination on June at which complete pre- time examination was carried out in paration surgery. surgical She underwent removal for cyst 28, of the ovarian on June 1972. regard summary, specific
"In in to the more questions you Bishop raised, have came to our 6,1972 examination, office on June for a routine and not any complaint sickness, because of referable to disease or bodily injury. any 20, She was not seen on June 1972 for any sickness, medical care or treatment for disease or bodily injury. The latter was an evaluation of incidental findings. Technically, began her treatment with her surgery 28, on June 1972. It should be understood that preoperative her visit on June 20 was for evaluation for treatment on June "Having January 4, seen her in this office on prescription having for a routine Ovulen, visit for a time, no evidence of disease at that I have no reason to patient any way, any aware, feel that problem in her health at the time of her visit to me in June, 1972.” questions raised enumerated error 1 are may, interpret language effect,
whether a doctor policy providing of an insurance an exclusion from coverage; language whether of the exclusion is phrased words, in technical art, or words of what the "required” means, word language in the exclusion whether purely interpretation by
of the exclusion is courts, and whether introduction of the doctor’s letter estoppel against the defendant works an it to contend that the contact which Dr. Wilson had with Mrs. June and June 24 was "medical care and contrary treatment” to the doctor’s assertions. giving legal opinion is, 1. If effect, the doctor interpreting goes in the letter for contract, use beyond permissible testimony limits of and should not be considered. See Plaza Hotel Co. v. Fine Products
821
372).
(74
App.
all
Construction of
462
SE2d
Ga.
ambiguous
court,
one, is for the
and
contracts, even an
applies
well
to others.
contracts as
as
to insurance
(2)
Co.,
This court declared that in insurance is 'a the seriously, or ailment such a disease of character as to affect
general system soundness and of the healthfulness indisposition temporary
and not a mere which does not tend undermine or weaken the constitution ” meaning, insured,’ of the and further in surgical law, attention,” insurance in of "medical or as used question application controversy, is, in the in "had plaintiff, signing application, of before received surgical medical or of such a character as to affect the attention for an or an illness accident
general soundness and system seriously? healthfulness It does not mean temporary indisposition a mere not does tend to .” undermine or weaken the constitution of the insured. . things We note two in connection with that case. — by by First, the construction done was the court not doctor, a and thus the court did not deem words to exposition Secondly, be technical or words of art. light the court affords some as to the nature the illness something or disease which the to; contract refers it is indisposition a nature serious and not a mere which is temporary question in nature. can There be no but Bishop’s temporary indisposition was not a mere cyst nature; that it in serious or tumor tends malignant character, to be in and is not trivial matter — certainly magnitude. not one of this Preston v. Nat. (26 Co., & Acc. Ins. 235 Ga. SE2d Life phrase The "medical or attention” in the same context drew the same construction in Federal Life v. Summergill, Ins. Co. App. 54); SE Minter, v. Equitable Society Assur. App. Ga. Life White, Southern Ins. v. 229); Co. Life 849); however, SE2d these were dis- approved Court, Supreme insofar as applying insurance, them to in representations application for Co., Preston v. Nat. & Acc. Ins. supra. involved, No misrepresentation is here for the — phrase appears an exclusion in the policy not in a question application an to be answered applicant. (5th
In Barkerding Aetna Life Ins. 82 F2d 358 Cir.) the late Judge court, Samuel H. Sibley, wrote for the dealing with a case from Louisiana and involving an exclusion in an accident an injury "which is the direct or indirect result of medical treatment.” Plaintiff suffered a serious burn from heat at applied the instance chiropodist treating foot, a calloused as a result of which he had amputation an of his toe and then his foot. Judge Sibley asserted that "In construing the policy, we pay but little mind to the statutes of Louisiana regulating and defining the practice of medicine chiropody. *7 policy statutes, makes no reference to these and its words are given to be their ordinary meaning in common speech. Medical and surgical treatment mean what is done by a physician any recognized or type by a surgeon of in diagnosing bodily ailment and seeking alleviate ” or cure it. (Emphasis supplied.)
No reference is made in the policy here to the statutes of Georgia regulating practice of medicine or surgery. The facts disclose that Bishop, at the urging of her husband mother, and of her sought out the advice and help of Dr. in Wilson determining or diagnosing what might trouble in abdomen, be her and in the interest of her health to it. treat The Barkerding case has been cited and followed in jurisdictions, other holding, all as case, did the court in that the words "medical or surgical attention,” or "medical surgical treatment,” or are not technical words and are to be construed court in relation to the insurance law given and "to be their ordinary meaning common speech,” or "not being of peculiar nature, or technical shall be taken in Bryant ordinary plain v. and usual sense.” or
their Montgomery (Mo. App.) Co., 416 SW2d Ward & meaning employ- ordinary legal words "[T]he be taken into contract] must [in ed an insurance Ins. Co. v. British & Mercantile consideration.” North 110). (1) (58 Tye, meaning 'treatment’ as used "The of the word given scope. It includes not must a reasonable be surgical operation merely in a case or the also the the actual nonsurgical giving prescription case, in a may, preliminary . . . The treatment examination stages: Preliminary, generally does, three main include patient usually done to the or and final. Whatever is physician surgeon in administered to him a skilled or stages properly any one of these is included under the though may 'treatment,’ not be an term indispensable even prerequisite.” (Emphasis supplied.) Order 55, Shane, v. 64 F2d of United Commercial Travelers (8th Cir.), citing approval with International Travelers (Tex. App.) Yates, Flint v. 29 SW2d v. Assn. (Tex. App.) Travelers Ins. Civ. SW to like effect. legal meaning [of
"Within such the term 'medical only treatment’] must be included not what physician surgeon treatment, is, views as the things physical
done in an effort to relieve or cure a
infirmity,
things performed
disease or
but also all of the
surgeon
body
patient
by a doctor or
on the
of the
in preparation
(Emphasis
diagnosis
cure.”
supplied).
Hutson,
Provident Life & Accident Ins. Co. v.
1443),
(Tex.Civ.App.)
840 ALR2d
SW2d
cited
approvingly in Dinkowitz v. Prudential
Ins. Co. of
613).
Super.
America, 90 N. J.
A2d
See also
Ford,
Hester
3. The insurance became effective June *9 826 Bishop fact, appears did, in receive that Mrs.
and it period the three-month treatment within medical care or subsequently very prior which the condition thereto for pound operation brought 22 of the for removal the on cyst, for some had suffered condition she from which diagnosed her 6 and her June time. Dr. Wilson saw undergo surgery that she should and advised condition for removal examination, preoperative complete cyst after a of the surgery, 20, preparatory on June the to legal disputed. construction Under the is not 1972. This policy terms, care or treatment it was medical of the meaning exclusion, neither the within surgery procedures expenses which nor for for those coverage. followed was within apprehend insurance the defendant 4. We company showing from Dr. Wilson for the letter introduced had, fact, had seen him and
that Mrs. by 6 20 of June him on the occasions been attended operation. malady precipitated the which part that these were not a conclusion doctor’s Bishop, treatment afforded of the medical care or exclusionary apparent clause effort to construe in an of hearsay. qualified policy, not unto He was is like opinion give an on that or to to construe the physical give opinion subject. physician A "can his facts, he can not determine the medical facts or as to the legal Co. v. of such facts.” Travelers Ins. classification 678). (2)(46 Thornton, of the 455 SE Construction 119 Ga. expert court, even an for the and not contract is a matter may testify language meaning used applied, or as which the courts have different from that by contrary that made the the which is to a construction courts. The defendant conclusion by more bound insurer is no opinion as to the construction or of the doctor company language here than is a of the contract of the adjusters agents its bound statements meaning legal conclusion as to have the effect of a policy. portion see In this connection effect of a App. Givens, 43, 43 v. Ga. Health & Ins. Co. Bankers’ Life (4) (157 906); v. & Accident Ins. Co. National 50 SE Life (19 409); App. Parker, 1, SE2d Sherwin-Williams 67 Ga. 8 App. Paul-Mercury 298, Co., 299 97 Ga. Indem. Co. v. St.
827 (102 919); App. Co., v. & SE2d Fields Fire Cas. Ins. (114 540); Metropolitan 561, 562 Wells v. Ins. SE2d Life 634); App. Bryant Co., 107 Ga. SE2d v. (3b) 905); App. Corp, Ins. SE2d Motors (2d) Co., v. Ga. Coastal States Ins. Sasser (147 SE2d "testimony merely
Further, which is conclusion of probative value,” a witness is without Patterson v. Cotton 320), Mut. States Ins. Ga. SE2d (1) (112 citing Dougherty Dougherty, 153 *10 454); Hagan Engine Blanchard, & Humber Co. v. Gas cfee. 538, judgment be reversed. should Presiding Judge
I am authorized state that Judges and Clark Pannell and Stolz concur this dissent. COMPANY, A & D & BARREL DRUM INC. et
al. v. FUQUA. Presiding Judge. Eberhardt, procedural presented by appeal The novel issue this following plaintiff from arises facts: The filed a complaint personal injuries against defendants, July 1971. The defendants answered on denying jurisdictional allegations all save complaint. deposition discovery by the interrogatories After plaintiffs sides, made both attorney attorney sent defendants’ a letter dated appendix 13,1972 December is set out in an to opinion, urges and which he was sufficient to meet the statutory requirements Request for Admissions. "[Paragraphs'4,’ '6,’ 7,’ '5,’ '8,’ '9,’ TO’ of Plaintiffs Complaint,” answer, which were denied in defendants’ proof alleged are essential elements of of defendants’ negligence damage. letter, On the same date of the plaintiffs attorney it in filed the Clerk’s Office Superior County, signed Court, Fulton certificate copy However, of service thereon. of the letter