lawskills
Loading
Did you know you can download our entire database for free?


Resources
[more] 

Georgia Caselaw:
Browse
Greatest Hits

Georgia Code: Browse

(external) Findlaw Georgia Law Resources


This site exists because of donors like you.

Thanks!


Lawskills.com Georgia Caselaw
GULF LIFE INSURANCE COMPANY v. HOWARD.
40710.
Action on insurance policy. Jefferson Superior Court. Before Judge Brown.
FRANKUM, Judge.
1. The evidence authorized the verdict for the plaintiff, and the trial court did not err in denying the defendant's motion for a judgment notwithstanding the verdict and in denying the defendant's motion for a new trial on the general grounds.
again by the doctor who first examined him and who had performed an operation on his eye.
3. Since the defendant had reasonable grounds for refusing to pay the claim, and for contesting the right of the plaintiff to recover under the policies of insurance sued on, the verdict awarding attorney's fees for bad faith was not authorized.
Ernest C. Howard sued the Gulf Life Insurance Company on three insurance policies obligating the company to pay him specified sums for the accidental loss of the sight of an eye. The portion of one of the policies, insofar as material to the issues in this case, provides that loss of the sight of an eye shall mean "the entire and irrecoverable loss of sight" thereof. The portions of the other two policies, insofar as material to the issues in this case, provide: "The loss of an eye or eyes means the permanent loss of the sight thereof."
The plaintiff alleged that while the policies were in full force and effect he sustained an accidental injury to his left eye, as a result of which he lost the sight and use of his left eye and is, therefore, blind in said eye. He further alleged that the sight of his eye was irrecoverable. He also alleged that in accordance with the provisions of the policies he gave defendant due notice of the injury and the loss of the sight of his left eye and demanded payment for such loss, and that the defendant, acting in bad faith, refused to pay him the benefits to which he was entitled under the provisions of the respective policies. He prayed for judgment for the principal amount he claimed was due him under the provisions of the policies and for penalty in the amount of 25% thereof and for reasonable attorney's fees.
The defendant filed an answer admitting the issuance of the policies in question; that they were in full force and effect on the date plaintiff contends he sustained the alleged injury upon which the suit is based; but denied that the plaintiff sustained an accidental injury to his left eye from which he lost the sight and use thereof, and also denied that the plaintiff complied with the provisions of the policies with reference to notice and proof of loss resulting from the alleged injury, and contended in its answer that "the only proof of loss furnished to it by the insured shows that his loss of vision is less than four percent and that he has not lost the sight of his eye as contemplated by the policies."
At the conclusion of the evidence the defendant moved for a directed verdict in its favor, which motion was denied. Upon the trial of the case the jury returned a verdict for the plaintiff for the amount of benefits provided for under the policies and for $463 attorney's fees.
The defendant duly filed its motion for a new trial and its motion for a judgment notwithstanding the verdict. By one order both motions were overruled, and the exception here is to that order.
1. The main issue of fact in this case was whether the plaintiff had suffered the entire and irrecoverable or permanent loss of the sight of his left eye as a result of an accidental injury thereto which he had admittedly sustained. The evidence as to this issue did not demand a verdict for the defendant. The plaintiff testified that he could not see out of his left eye since the accident, and that he knew of no correction that could be made. An optometrist, sworn on behalf of the plaintiff, testified that plaintiff was blind in his left eye, and that, in his opinion, this condition was permanent and entire and that there was no hope of recovery. Even the defendant's own witness, Dr. R. E. Leonard, testified that for all practical purposes the plaintiff was blind in his left eye. While there was some evidence that this condition might have been alleviated by the plaintiff's use of a contact lens, the plaintiff testified that he could not wear such a lens, and therefore, this evidence could not change the practical results of the case. The evidence was undisputed that ordinary cataract eye glasses could not be used to correct one eye alone where a cataract operation had not been performed on the other eye. Under these circumstances the evidence amply authorized the verdict for the plaintiff, and the trial court did not err in overruling the motion for a judgment notwithstanding the verdict and bin overruling the general grounds of the motion for new trial.
2. The final special ground of the motion for new trial attempts to assign error on the refusal of the court to grant the defendant's motion that the plaintiff be examined again by Dr. Leonard. Assuming, but not deciding, that error properly may be assigned in a ground of a motion for a new trial on such antecedent ruling of the trial court, it is sufficient to say that whether or not such an examination will be ordered lies within the sound discretion of the trial judge, and in the absence of a clear abuse of such discretion, the judgment of the trial court in this regard will not be controlled. See Richmond &c. R. Co. v. Childress, 82 Ga. 719, 721 (9 SE 602, 3 LRA 808, 14 ASR 189), and City of Cedartown v. Brooks, 2 Ga. App. 583, 590 (9) (59 SE 836).
3. The first three special grounds of the motion for new trial all relate to the question of whether a jury finding that the defendant was guilty of bad faith in declining to pay the plaintiff's claim was authorized. The policies of insurance sued on obligated the company to pay the sums specified for the entire and irrecoverable loss of sight or the permanent loss of the sight of the plaintiff's eye. In the medical statement accompanying the proof of loss submitted by the plaintiff, Dr. Leonard, who first treated the plaintiff and who operated on his eye for the removal of the traumatic cataract there from, certified that the plaintiff's loss of vision was less than 4 percent with glasses and that the loss of the sight of the eye was not complete. In cases of this nature the burden is on the plaintiff to show that he has sustained a loss within the terms of the policy, and the insurance carrier is not charge able with bad faith in failing to pay the claim where the proof of loss submitted raises a reasonable doubt as to whether the plaintiff is entitled to recover under the terms of the policy. On its face the proof of loss in this case left it doubtful as to whether the plaintiff had sustained a loss within the terms of the coverage of the policies, and it cannot be said that defendant was guilty of bad faith in refusing to pay the claim in view of the information which it had before it at the time it refused. Accordingly, the verdict finding attorney's fees in the amount of $463 was not authorized. However, since this amount can be separated from the general verdict in favor of the plaintiff, the judgment will be affirmed on condition that the amount of $463 be written off by the plaintiff before the judgment of this court is made the judgment of the trial court. Otherwise, the judgment is reversed.
Judgment affirmed on condition. Felton, C. J., and Pannell, J., concur.
Marshall L. Fountain, contra.
Tindall & Tindall, Joseph D. Tindall, Jr., Carlton G. Matthews, Jr., for plaintiff in error.
DECIDED JULY 8, 1964.
Friday May 22 21:40 EDT


This site exists because of donors like you.

Thanks!


Valid HTML 4.0!

Valid CSS!





Home - Tour - Disclaimer - Privacy - Contact Us
Copyright © 2000,2002,2004 Lawskills.com