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Action on life policy; double indemnity. Before Judge Paschall. Bartow Superior Court. September 21, 1956.
Under the provisions of a double-indemnity life policy with additional benefit if the insured died "as a result, directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means" but excluding death resulting "directly or indirectly from bodily or mental infirmity or disease in any form," if the insured has a pre-existing physical impairment which contributes to the injury in whole or in part, directly or indirectly, there can be no recovery. If, however, the physical impairment does not contribute to the injury but merely aggravates the consequences of the occurrence, recovery is not thereby precluded as a matter of law.
The defendant, the Prudential Insurance Company of America, issued a group insurance contract to the Louisville & Nashville Railroad Company under which Mr. John C. Kellar, a locomotive engineer and employee of the railroad, was issued a certificate on October 1, 1941. The certificate provided for $3,000 in life insurance and an additional accidental death benefit in the amount of $3,000 payable to the plaintiff as the named beneficiary, if the insured died "as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent, and accidental means . . . provided, however, that no accidental death benefit shall be payable if such death resulted . . . directly or indirectly from bodily or mental infirmity or disease in any form." In her action to recover for the accidental death benefit (the life insurance having already been paid), the plaintiff alleges that the insured died on January 14, 1956, and seeks to recover the accidental death benefit for which provision is made in the policy. The defendant denied that the insured died as the result of accidental injuries in such manner as to come within the terms of the policy. The issues involved in the case were by stipulation before trial reduced to the questions of whether or not the insured died from enumerated injuries sustained by him when he was struck by a motor vehicle on November 7, 1955, or whether his death was directly or indirectly the result of bodily infirmity or disease.
The only evidence introduced by the plaintiff was the testimony of the insured's personal physician. The only evidence introduced by the defendant was a certified copy of the certificate of death filed by such physician with the Georgia Department of Health.
At the close of the evidence, the defendant made a motion for a directed verdict which the trial court denied. The jury returned a verdict for the plaintiff and the defendant made a motion for new trial, based on the usual general grounds and four special grounds, and also made a motion for judgment notwithstanding the verdict. These motions were denied and the defendant has brought the case here assigning error on those judgments.
It appears from Section 22 of the certificate of death introduced in evidence by the defendant, that the cause of death was: "1. Disease or condition directly leading to death: (a) Myocardial infarction. Antecedent Causes due to: (b) Hypertensive cardiovascular disease. 2. Other significant conditions. Conditions contributing to the death but not related to the disease or condition causing death: Fracture neck left femur."
The testimony of the insured's personal physician was that the insured was a man aged 67 who was admitted to the hospital on November 7th after having been struck by a truck in which he sustained a wrist fracture and a fracture of the neck of the left femur; that the insured was discharged from the hospital on November 18th in a generally good condition; that the insured was required to return to the hospital on November 28th to re-position the fracture of the left femur; that this repair was made on November 30th and the insured would have been discharged from the hospital on December 7th save that on December 6th he suffered a severe myocardial infarction and was transferred to Emory University Hospital under the care of a cardiologist; that he stayed for three weeks and was sent home with a guarded prognosis because of the severity of the infarct and his general cardiovascular condition; that in spite of this, the insured was progressing and was sitting up and beginning to move his leg slightly, but died suddenly on January 14th when his heart stopped beating. It is insisted by the plaintiff in error that this evidence demands a verdict in favor of the insurer.
The prima facie cause of death as shown by the death certificate may be paraphrased as follows: "The condition which directly produced the death was a myocardial infarction. The fracture of the femur (direct result of plaintiff's accident) contributed to the death, but was not related to the myocardial infarction which brought about the death." In his testimony the medical witness stated: "I do not believe that the accident and subsequent surgery was the cause of the heart attack, but in my opinion it was certainly an aggravating factor both in the attack and in its course. . . As to what, if anything, with relationship to the traumatic injuries which Mr. Kellar received, and the subsequent flaring up of his heart condition; well, such an injury as that, of course, will test a man's heart, going through the shock and all that, of course, requires more work on the heart, and the shock that he had naturally overworked it. As to whether or not the subsequent complications from injuries received to his hip could have any bearing upon his heart condition and the heart attack that he subsequently had; well, it could have. Mr. Kellar's heart trouble did not have anything to do with the injuries he received in the automobile accident. As to whether or not, in my opinion, the injuries that Mr. Kellar received by reason of being struck by an automobile, would precipitate a chain of events which would give rise to coronary thrombosis as the direct cause of his death; well, it could have. The heart trouble that Mr. Kellar had was not the sole cause of his death."
The issue for decision, construing the evidence in favor of the verdict, may be thus stated: Where an insured has a pre-existing diseased condition not necessarily fatal, and thereafter has an accidental injury not fatal in character, and thereafter dies of the disease because of the shock effect of the accidental injury reacting unfavorably upon the diseased condition, does the exclusion clause in the policy above quoted preclude recovery? In Inter-Ocean Casualty Co. v. Scott, 91 Ga. App. 311 (85 S. E. 2d 452) the policy also contained the provision "resulting solely from bodily injuries effected directly and independently of all other causes through accidental means" and excluded injuries "caused wholly or partly by bodily or mental infirmity." In that case recovery was allowed where an insured, convalescing from a broken leg which constituted the accidental injury, was seized with an attack of gallstones, a pre-existing bodily infirmity aggravated by the result of the accidental injury, and thereafter died. The decision in the Scott case was predicated on Thornton v. Travelers Ins. Co., 116 Ga. 121, 122 (42 S. E. 287, 94 Am. St. R. 99) and on Hall v. General Accident Assur. Corp., 16 Ga. App. 66 (85 S. E. 600). The former of these cases concerned a policy insuring against bodily injury effected "through external, violent, and accidental means . . . independently of all other causes" and excluded injuries "resulting wholly or partly, directly or indirectly, from hernia." In that case the insured, who had a pre-existing reducible hernia, suffered accidental injury which caused the hernia to become strangulated. Recovery was allowed, and the Scott case, 91 Ga. App. 311, 317, speaking of the Thornton case, has the following to say: "From what is held in the Thornton case, the conclusion is inescapable that, in order for the disease to be held a contributing cause of the insured's death within the meaning of the policy clause, it must appear that the disease caused the injury to which the insured succumbs. It is under the concept of the Supreme Court as expressed by Justice Cobb that the insured's beneficiary is not debarred from recovery because an injury caused solely by an accident, together with mental or physical infirmity, brought about the insured's death." (Emphasis added.) Cases directly in point with this concept of the meaning of such an exclusionary clause are Johnson v. Aetna Life Ins. Co., 66 Ga. App. 629 (18 S. E. 2d 777), where recovery was denied, it appearing that the insured fell because of a pre-existing paralytic condition, although the injuries caused by the fall resulted in his death, and Independent Life & Acc. Ins. Co. v. Causby, 94 Ga. App. 305 (94 S. E. 2d 388), where a pre-existing injury also caused a fall. Also, recovery was denied in Pilot Life Ins. Co. v. Morgan, 94 Ga. App. 394 (94 S. E. 2d 765) where there was an exclusion for injury by "hernia of any kind, however caused" although the hernia resulted from accidental injury, the exclusion being comprehensive in character, and therefore excluding even hernias caused by accidental injury. Recovery was also denied in Metropolitan Casualty Ins. Co. v. Reese, 67 Ga. App. 628 (21 S. E. 2d 455), but that case is distinguishable in at least two particulars--the injury was not shown on the death certificate as even a contributing cause of death, and there was no opinion
evidence that the accident would accelerate or aggravate the injury or hasten the death. This coincides with the rule as restated in the Causby case, 94 Ga. App. 305, 306: "Under the provisions of the policy, if the physical impairment of the deceased contributed to the [injury] in whole or in part, directly or indirectly, then there could be no recovery; but if the physical impairment did not contribute to the [injury] but merely aggravated the consequences of the accident, recovery would not be barred." Also, as stated in the Scott case, 91 Ga. App. 311, 317, "The real meaning of a clause such as is contained in the policy in the case at bar, given reasonable interpretation, means no more than that the disease must be shown to have been the proximate and not simply one of the causes of the insured's death that any other construction would result in the practical impossibility that any man be insured against death resulting from accident by a policy containing a clause providing that the insured's death must result solely from accident and independently of disease . . . that no man is entirely well, and where one is injured, unless he die immediately, some disease or physical disorder existing in his system will to some extent contribute to its fatality."
There was in the present case sufficient evidence to authorize the jury to find that the automobile injury sustained by the insured, which resulted in a broken hip and other disabilities, with the shock resultant therefrom, aggravated and accelerated the insured's heart and circulatory condition and thus brought on his death. Under the rules of law set forth above this condition would not preclude recovery, provided the bodily infirmity did not in any way act as a causative factor in the injury received. Accordingly, it was not error for the court to charge, as set out in the 4 special grounds of the amended motion for a new trial, that disease may aggravate the consequences of injuries and make them more serious than they would otherwise have been without precluding recovery; that "the real meaning of a clause such as is contained in the policy, . . . given reasonable interpretation, means no more than that the disease must be shown to have been the proximate and not simply one of the causes of . . . death"; that if the accident produced the death, or contributed to or accelerated it, the defendant would be liable, but if the deceased died from heart disease not aggravated or accelerated by the accident the insurer would not be liable. These excerpts were authorized by the evidence, and are in the language of the Scott and Hall cases, supra. Evidence that the accidental injury might "precipitate a chain of events which would give rise to coronary thrombosis as the direct cause of death" is sufficient to authorize an inference that, by precipitating, it accelerated such chain of events. Accordingly, there was no error in denying the motion for a new trial as amended.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Pittman & Greene, contra.
Paul F. Akin, Warren Akin, Spalding, Sibley, Troutman, Meadow & Smith, Griffin B. Bell, Harry C. Howard, Jr., for plaintiff in error.
Saturday May 23 01:58 EDT

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