57 Ga. App. 657 | Ga. Ct. App. | 1938
Lead Opinion
This is the second appearance of this case in this court. See 55 Ga. App. 248 (189 S. E. 914). The plaintiff seeks a recovery of disability benefits under three insurance policies issued to him by the defendant insurance company. The petition alleged in substance that in October, 1933, plaintiff became disabled within the meaning of the provisions of the policies sued
Dr. Williams, who treated the plaintiff and operated on him at the time he was shot, testified substantially as follows: "I attended the plaintiff, . . at one time for a broken or fractured leg. That was October 22, 1933. We reduced the dislocation and removed some particles of bullet and little shives of bone. His injury was a gunshot wound on the femur. It was what we call a compound, comminuted fracture. . . He consulted me in April of this year. He consulted me in April. I probably prescribed something for his pain. I decided it was mostly neuritis causing his discomfort. I did not think at the time that had anything to do with the wound. I later, on September 26, 1935, examined Mr. Bradford. I had an x-ray made. . . The x-ray was made by Dr. W. A. Cole. . . I made an examination of Mr. Bradford independently of the x-ray. From my experience with a fractured femur and the result of the treatment I don’t see any reason why Mr. Bradford should not be able to perform some services. He could develop other conditions and cause him to be crippled, but, as far as the bone is concerned, it looks to me like it is in good position and healed thoroughly; and in other cases I have seen they have gone back to work in three or four months. I have never had an injury of this kind that did not go back to work in three or four months. In my opinion Mr. Bradford is
Dr. Cole, who made an x-ray of plaintiff’s knee and right femur, testified substantially: “It [the femur] was well healed, with good alignment, but apparently with slight shortening. . . The femur below the fracture is normal as is also the right knee joint. My examination reveals that the bones are completely united, and the alignment is good. . . I did not notice whether or not there was any swelling of the knee. . . Neuritis is something that can not be shown by x-ray examination. . . From my examination, I see no reason why Mr. Bradford should be either totally or permanently disabled. . . If he had been engaged in farming and his duties were confined to supervising the work of his hands and laborers and doing some small amount of farm work, based on my examination, there is no reason why he could not perform these usual and customary duties as well as before his injury. I confined my examination altogether to the x-ray pictures made of the leg or knee. I have no knowledge of his other ailments whatever. I know nothing from any other standpoint than that of the bony condition revealed by the x-ray examination. As to anything other than that, I have no knowledge and could not say.” Dr. A. C. Branch testified, that he had occasion to treat Mr. Bradford pro
We are of the opinion that the evidence for the plaintiff was sufficient to authorize the jury to find that he was totally disabled within the meaning of that term as fixed by the decisions in this State. See New York Life Insurance Co. v. Thompson, 50 Ga. App. 413 (178 S. E. 389), and cit. The evidence was sufficient to support a finding that the insured had a continuing total disability although its original cause, the leg fracture, might have been properly healed. We are not prepared to hold that the evidence of physicians of the objective symptoms, as described, as well as the subjective symptoms, as described by the plaintiff himself, and the effects caused thereby, were not sufficient to authorize a jury to make the finding they did. It was not successfully disputed that the plaintiff suffered as he claimed, irrespective of whether the leg fracture caused the suffering or whether it was caused by bad teeth, tonsils, alcoholism or otherwise. The plaintiff testified that he was not able to perform manual labor, and whether or not he was thereby prevented from performing all of the substantial duties.of his ordinary occupation of farming, was, under the evidence, a question peculiarly for determination by the jury.
2. We are unable to say that the jury was unauthorized to find a verdict for reasonable attorney’s fees. The company placed its refusal to pay, or stoppage of payments, upon the ground that its investigation showed that plaintiff’s condition had so changed that he was no longer disabled under the terms of the policies. No medical examination was had or asked for prior to filing the suit, although plaintiff was insistent that he was still disabled. The jury refused to agree with the contention that plaintiff had recovered from his disability, whether the cause was rheumatism, neuritis, or the gunshot wound. The bad faith which authorizes a recovery of attorney’s fees under Code, § 56-706, is not the equivalent of “having acted in bad faith,” under Code, § 20-1404. Whether or not the defendant acted in bad faith in stopping disability payments and 'in refusing to continue them was for the jury.
The judge did not err in overruling the motion for new trial.
Judgment affirmed.
Dissenting Opinion
dissenting. In my opinion, the admission of the evidence complained of in special ground 5 of the motion for new trial was reversible error. Furthermore, under the evidence adduced, a verdict in favor of the defendant would have been amply authorized; and there was no evidence authorizing a finding that the defendant had acted in bad faith in defending the suit. It, follows that the court erred in submitting to the jury the questions of bad faith and attorney’s fees.