Independent Life & Accident Insurance v. Maddox

226 So. 2d 315, 284 Ala. 532, 1969 Ala. LEXIS 1132
CourtSupreme Court of Alabama
DecidedSeptember 4, 1969
Docket6 Div. 352
StatusPublished
Cited by3 cases

This text of 226 So. 2d 315 (Independent Life & Accident Insurance v. Maddox) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Independent Life & Accident Insurance v. Maddox, 226 So. 2d 315, 284 Ala. 532, 1969 Ala. LEXIS 1132 (Ala. 1969).

Opinion

LIVINGSTON, Chief Justice.

This is an appeal from a judgment of the Circuit Court of Jefferson County, Alabama, setting aside a judgment for the defendant, Independent Life and Accident Insurance Company, Jacksonville, Florida.

The suit was on a policy of insurance issued by the appellant, defendant below, for the loss of a leg by appellee, plaintiff below.

The cause was tried in the Jefferson County Civil Court, resulting in a judgment for the plaintiff. Defendant appealed to the Circuit Court of Jefferson County. There, the cause was tried to a jury and a verdict was returned for the defendant. That court granted plaintiff’s motion for a new trial, and defendant duly excepted thereto. A timely appeal was taken by defendant to this Court.

' The facts, in substance, are that the plaintiff, in the latter part of November, 1963, slipped and fell into a creek while acting within the line and scope of his employment. A stick struck and bruised the back of plaintiff’s left knee as he fell. No previous difficulties had been experienced by plaintiff with his left leg. Three or four days later, pneumonia developed and plaintiff was taken to a hospital on December 1, 1963. He was treated on an outpatient basis and sent home. He continued to suffer from pneumonia and, on December 5,1963, returned to the hospital, was again treated on an out-patient basis and released.

Plaintiff testified that prior to receiving the blow by the stick when he fell, no pain had been experienced in the left leg. Thereafter, however, the pain had been constant and had gradually increased until the leg was amputated on December 13, 1963. A neighbor of the plaintiff, summoned to the home of the plaintiff, testified that when he saw plaintiff’s leg after the accident it appeared black and swollen.

A physician testified that he first saw appellee in the emergency room of a hospital on December 8, 1963, at which time appellee was complaining of sharp pains in the left foot and leg which had begun some sixteen hours earlier. The foot and leg had become cold and mottled. There Was no pulse in the left foót, which implied insufficient blood supply ‘and arterial blockage in the left leg.

[534]*534A serjes.,of tests .indicated that appellee had arteriosclerosis, a condition that progresses gradually, and beginning in early life in many of those afflicted with same. Changes occur in the blood vessels in the form of the thickening and calcification of the artery walls. These irregularities in the walls of the arteries are known as plaques. The condition is called arteriosclerosis, but is commonly referred to as “hardening of the arteries.”

On December 8, 1963, five days prior to the amputation of appellee’s leg, exploratory surgery was performed. The operation revealed a block or clot which resulted from a tear in the lining of the blood vessel associated with a plaque or hardening of the artery. It was brought out on cross-examination that such a tear may result from trauma or turbulence of blood around a plaque.

The damage to appellee’s leg was caused by the onset of gangrene, which in turn was brought about by an inadequate blood supply to the involved area. A clot which formed as a result of the tear in the lining of the blood vessel in appellee’s leg obstructed the normal and necessary circulation of - blood to that area, thereby giving rise to the gangrenous condition.

The attending physician’s opinion, as stated in his testimony, was that the leg amputation resulted from arteriosclerosis and associated problems. On cross-examination, however, this physician stated that a tear such as was discovered in appellee’s blood vessel could have occurred as the result of a blow, or, once occurring from a blow, could have been increased in size as a result of the flow of blood around the tear. In his opinion, however, there was no sign of a recent blow when the operation of December 8, 1963, was performed.

There are fourteen assignments of error on this appeal, all of which pertain to the action of the trial court in granting appellee’s motion for a new trial. -Assignment of error No. 1 relates to the granting of appellee’s motion for a new trial, and assignments of error No. 2 through No. 14 relate to the action of the trial court in granting appellee’s motion for á new trial based on individual grounds assigned in the motion for a new trial, with each assignment of error directed to an individual ground.

In his brief, appellant’s argument begins with the designation, “All Assignments of Error,” and asserts that the trial court’s action in granting appellee’s motion for a new trial was error to reverse, for the reason that the defendant insurance company was due the affirmative charge.

The appellant in this case was not due the affirmative charge. Where the evidence is conflicting as to whether an accident was the cause of an insured’s death, or disability, or whether an accident and a disease cooperating therewith combined to cause death, or disability, then ordinarily a question of fact within the resolution of the'trier of fact is presented. Liberty National Life Insurance Co. v. Reid, 276 Ala. 25, 158 So.2d 667; John Hancock Mut. Life Ins. Co. v. McCreary, 37 Ala.App. 493, 70 So.2d 817.

Appellant’s first assignment of error asserts that the trial court erred in granting appellee’s motion for a new trial. Appellant adopts the argument advanced for assignments of error No. 2 through No. 14 as his argument for this assignment of error.

Assignments of error No. 2 through No. 14 claim error on the part of the trial court in granting appellee’s motion for a new trial based on the trial court’s action in giving, various of defendant’s requested written charges.

The entire basis of appellant’s argument is the assigned error of the trial court in granting appellee’s motion for a new trial. The judgment of the lower court does not [535]*535specify on what ground the motion for a new trial was granted; it does, however, specify that said motion was not granted <011 grounds 1 and 2 of the motion, which are, respectively, verdict contrary to law and evidence and verdict not sustained by the great preponderance of the evidence. What was said in Cooper v. Grubbs, 262 Ala. 519, .'80 So.2d 284, is controlling in our review of the instant case:

“This court has held that the action of the trial court in granting the motion for a new trial will not be disturbed, if any ground of the motion was well taken. Louisville & Nashville R. Co. v. Scott, 232 Ala. 284, 167 So. 572; Gissendanner v. Temples, 232 Ala. 608, 169 So. 231.” Id., at 520, 80 So.2d at 285.

Without waiving the other grounds assigned in the motion for a new trial, appellee relies primarily upon the error of the trial court in giving appellant’s requested charges numbered 9, 14 and 15, said charges being the subject of grounds 5, 6 and 16, respectively, of the appellee’s motion for . a new trial. Those charges are as follows:

“9.

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226 So. 2d 315, 284 Ala. 532, 1969 Ala. LEXIS 1132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independent-life-accident-insurance-v-maddox-ala-1969.