Bell v. State Life Insurance

101 S.E. 541, 24 Ga. App. 497, 1919 Ga. App. LEXIS 880

• Court: Court of Appeals of Georgia
• Decided: November 26, 1919
• Docket: 10358
• Status: Published

Opinion

Jenkins, P. J.

(After stating the foregoing facts.) A few words might properly be said in elaboration of subdivision (&) of the fifth paragraph of the syllabus, it being borne in mind, however, that the construction which is there assumed to be the meaning of the pleadings is not that which we have in fact held to be the only proper and necessary one. In point of fact, there is no direct or specific evidence tending to show that the fatal infection might have been contracted from germs collected upon the glasses and which entered the wound or scratch upon the ear at the time the abrasion occurred, but construing the evidence along this line most favorably for the plaintiff, and conceding that such might reasonably be within its purport, it is also true that from the plaintiff’s own evidence it is plainly shown that had the scratch occurred free from all concurrent contamination, the assured, in subsequently handling and bringing himself within immediate contact with the erysipelas patient with such an exposed abrasion might readily and easily have contracted the disease in this way. If the disease was contracted by reason of such subsequent volun■fcary exposure, there would be no liability under the policy. Thus, since the plaintiff has shown by his own evidence that there were two reasonable and likely theories as to how the disease might have been contracted from the scratch upon the ear, assuming now that it in fact originated at the point of abrasion, and since there is no testimony whatever of any character which tends in any way to throw light upon the question as to which of these two theories thus presented was in fact the more probable, it is our opinion that the plaintiff has failed to carry the burden devolving upon him. Had the evidence been disputed as to the existence of the latter of the two reasonable theories, or had there been any conflict in the evidence as to which of these two reasonable theories was in fact the more probable, it could not have devolved upon the judge to determine such an issue; but since the plaintiff himself has presented both theories, and since there is no evidence, and therefore no conflict, as to which of the two theories thus presented is the more probable, it was not error to direct a verdict on the theory that the burden resting upon the plaintiff had not been met.

Judgment ajjffo'med.

Stephens and Smith, JJ., concur.