108 Ga. App. 741 | Ga. Ct. App. | 1963
Plaintiff in error here, and plaintiff in the court below, Elizabeth M. Pippin, brought an action against the Mutual Life Insurance Company of New York, as beneficiary named in the life insurance policy issued on the life of plaintiff’s mother, Mary Morrison, seeking to recover double indemnity for accidental death. The policy sued upon contained the following provisions: “The double indemnity will be payable upon receipt of due proof i¡hat the insured died as a direct result of bodily injuiy effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and of which, except in the case of drowning or asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after the date of such injury; provided that the Double Indemnity shall not be payable if death resulted from self-destruction, Whether sane or insane, or from military or naval service in time of war, or from any act incident to war, or from engaging in riot or insurrection, or from committing an assault or felony, or from participation in aeronautics, or directly or indirectly from disease or bodily or mental infirmity.” (Emphasis supplied).
After answering the petition the defendant filed its motion for summary judgment attaching thereto a certificate of death, signed by Dr. Agostas and dated November 11, 1961, showing that the insured died on October 14, 1961, and that the cause of death was as follows: “Part 1. Death was caused by: Immediate cause (a) bronchial pneumonia - Interval between onset and death—3 days,” and, under “Conditions which give rise to above cause (a) stating the underlying cause last,” the death certificate shows, “ (6) Due to hemorrhagic acute esophagitis, severe—Interval between onset and death—24 hours,” and then “Due to (c) perivascular atrophy of the brain—interval between onset and death—2-3 months,” and under Part 2, “Other significant conditions contributing to death but not related to the terminal disease'condition given in Part 1 (a) Fracture, left hip.”
Also attached was an affidavit of Mrs. Willie Mae Waters as follows: “My name is Mrs. Willie Mae Waters. I am a practical nurse in Sylvania and Screven County, Georgia. I nursed Mrs. W. T. Patrick from July 30, 1961, on almost every night thereafter through October 11, 1961. During the time that I nursed her she was almost uncontrollable most of the time. She talked wildly, she was nervous, and it usually required two people to hold her in order to give her a shot to calm her down. At about 4:30 or 4:45 a.m. on the morning of October 12, 1961, Mrs. Patrick awoke after having been asleep under prescribed medication consisting of 25 milligrams of Liertene and 25 milligrams of Phenergan. She awoke and indicated to me that she wanted to go to the bathroom. I assisted her from the right side of the bed by supporting her by putting my hands under her armpits. It was my plan to walk her around the foot of the bed to the bathroom, which was opposite the left-hand side of the bed. We were in the process of beginning to walk when she suddenly whirled out of my arms to the right and fell to the floor on her left hip. I got assistance in putting her back into the bed.”
Plaintiff introduced in evidence at the summary judgment hearing the depositions of Dr. William Agostas, who filed the death certificate. His testimony showed that he first saw the deceased on October 12, 1961, and that at the time of his initial examination of the deceased she was in a semi-stuporous state
The trial judge granted the defendant’s motion for summary judgment and the case is before this court on exception to such judgment.
The defendant relies upon the following cases as establishing rules of proof which, when applied to the evidence in this case, would demand a finding in favor of the defendant insurer. These cases are: Prudential Ins. Co. of America v. Kellar, 213 Ga. 453 (99 SE2d 823), overruling Prudential Ins. Co. of America v. Kellar, 95 Ga. App. 332 (98 SE2d 90); Miller v. Life & Cas. Ins. Co. of Tenn., 102 Ga. App. 655 (117 SE2d 237); and, Harris v. Metropolitan Life Ins. Co., 66 Ga. App. 761 (19 SE2d 199). The plaintiff relies upon certain cases which he contends establish different rules of proof and which are applicable to- the present case, and when applied to the evidence in the case would authorize a finding by the jury in favor of the plaintiff. These
An examination of the above cited cases discloses that in order to properly answer the questions presented it is necessary first to determine what might be the rules of proof applicable under the insuring and exclusion clauses of the policy in the instant case. 'We will not concern ourselves with the underlying facts in the cases but with rules of evidence or proof only, as these may be derived from the language of the policy. These cases seem to group themselves into three categories: (1) where there is an insuring clause only, insuring against injury or death caused solely by accidental means; (2) those cases with an exclusion clause excluding injuries or death caused directly or indirectly, in whole or in part, by disease, or particular disease, or mental infirmity; and, (3) those cases excluding injury or death caused or contributed to by disease or infirmity.
In Thornton v. Travelers Ins. Co., 116 Ga. 121, supra, 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, the Supreme Court held “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 sub
In the Prudential Ins. Co. case, 213 Ga. 453, the Supreme Court followed the rule set forth in the Harris case, even though the language, “or contributed to,” was not in the exclusion provision of the policy as was true in the Harris case, the exclusion provision of the policy in the Prudential Ins. Co. case being very
This court, in McCarthy v. Nat. Life &c. Ins. Co., 107 Ga. App. 178 (2) (129 SE2d 408), decided a case involving a motion by defendant for summary judgment by holding that the evidence authorized the submission of the case to the jury, and said: “Where a plaintiff in a civil case supports his case solely by circumstantial evidence, before he is authorized to have a verdict in his favor the testimony must be such as to reasonably establish the theory relied on. There must be more than a ‘scintilla’ of circumstances to carry the case to the jury. It is for the court to say whether the circumstances reasonably establish the hypothesis relied on by the plaintiff. If the evidence meets this test, it is then for the jury to say, either that the plaintiff has not carried his burden of proof because the evidence equally supports his hypothesis and some other reasonable hypothesis, or that the plaintiff has carried his burden of proof in that the evidence preponderates to his hypothesis as against all other reasonable but less probable hypotheses.”
Irrespective of which of these cases might be controlling as to the construction to be placed upon the insuring and exclusion clauses of the policy sued upon, and irrespective of the degree
The defendant insurer contends that the affidavit of the practical nurse that during the time she nursed the deceased (July 30, 1961, to October 11, 1961), the deceased was almost uncontrollable most of the time, that she talked wildly, was nervous and it usually required two people to hold her in order to give her a shot to calm her down; and that while she was assisting the deceased to the bathroom the deceased “suddenly whirled” out of her arms to the right and fell to the floor on her left hip, demands a finding that the fall was caused by the mental and physical condition of the insured. This evidence does not conclusively establish that the sudden whirling caused the fall or that the sudden whirling was caused by disease or infirmity.
There is no dispute that pneumonia was the immediate cause of death. There is a dispute as to the cause of the pneumonia. The insurer contends that the pneumonia was caused by vomiting, which, in turn, was caused by a mental infirmity inducing a semi-stuporous state which the insured had at the time of a fall in which she broke her hip. The beneficiary under the policy contends that the pneumonia was not caused by the vomiting but by bed rest necessitated by the breaking of the hip. Two problems, therefore, are presented: (1) Does the evidence in the case authorize the factual conclusions contended by the beneficiary, and, if so, (2) do these factual conclusions authorize a verdict for plaintiff under the terms of the policy?
“ ‘An expert may aid the jury, but he cannot perform the functions of a juror and, under the guise of giving testimony,
While under the terms of Section 18 of the Act of 1945 (Ga. L. 1945, pp. 236, 242; Code Ann. § 88-1118), death certificates filed under the provisions thereof are “prima facie evidence of the facts stated therein,” such presumption is rebuttable, McWaters v. Employers Liability Assurance Corp., 73 Ga. App. 586 (37 SE2d 430); Davis v. Atlantic Steel Corp., 91 Ga. App. 102 (84 SE2d 839); Prudential Ins. Co. of America v. Kellar, 213 Ga. 453, supra.
The certificate of death in the present case contains a contradiction which, to that extent, militates against the presumption. According to the certificate the bronchial pneumonia which was the immediate cause of death was due to hemorrhagic acute esophagitis severe (vomiting), yet the certificate shows that the deceased had pneumonia for three days before the death and had hemorrhagic esophagitis severe only 24 hours before death. The death certificate, therefore, does not establish prima facie that the pneumonia was caused by hemorrhagic acute esophagitis severe, but is sufficient to authorize a finding that it was not so caused. The doctor who signed the death certificate, while testifying that nothing had changed his opinion of the causes of
It follows, therefore, that the trial court erred in sustaining the defendant insurance company’s motion for summary judgment.
Judgment reversed.