Interstate Life & Accident Insurance v. Brown

204 S.E.2d 755, 130 Ga. App. 850, 1974 Ga. App. LEXIS 1283

• Court: Court of Appeals of Georgia
• Decided: January 9, 1974
• Docket: 48702, 48703
• Status: Published

Opinions

Hall, Presiding Judge.

Interstate Life & Accident Insurance Company (hereinafter, "the company”) appeals from an adverse jury verdict in a suit for double indemnity death benefits. Brown and Hutchings, plaintiffs-appellees, were beneficiaries under two policies issued by the company to one John Grady. Upon his death the company paid basic death benefits, but refused the double indemnity benefit. In their suit against the company, appellees sought and were awarded by the jury attorney fees for bad faith refusal to pay, in addition to the policy benefit payable for death "through external, violent, and accidental means. . .” The company appealed.

l.The question here is whether the plaintiffs have carried their burden of proving that death occurred "through external, violent, and accidental means” under the circumstantial evidence rule. "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.” McCarty v. National Life &c. Ins., Co., 107 Ga. App. 178 (2) (129 SE2d 408). Accord, Old Colony Ins. Co. v. Dressel, 220 Ga. 354, 358 (138 SE2d 886); Pippin v. Mutual Life Ins. Co., 108 Ga. App. 741, 750 (134 SE2d 446). See also Continental Cas. Co. v. Rucker, 50 Ga. App. 694 (179 SE 269).

The trial evidence showed that Grady appeared to be in good health; on July 4, 1970 he was incarcerated in the Atlanta City Jail on "drunk” charges; he did not appear intoxicated to a witness; he was sitting on the end of a wooden bench two or three feet high; he began to "doze” or to drop off to sleep; no one touched him; he fell sideways off the end of the bench to the left, hitting his head on the concrete floor; his head began to bleed profusely, "squirting” so that the exact site of the injury could not be seen; he began to shake somewhat as if he were trying to get up; he did not get up; he was quickly removed and taken to the hospital but was dead on arrival there; no autopsy was performed; the death certificate recited as the cause of death "sudden death; cause, non-violent but otherwise undetermined”; the medical examiner who completed the death certificate died before trial.

Argued October 4, 1973 Decided January 9, 1974 Rehearing denied February 12, 1974. Anderson, Walker & Reichert, John W. Collier, for appellant. J. Sewell Elliott, for appellees.

The evidence supports the verdict and the trial court did not err in denying defendant’s motion for a judgment n.o.v. or its motion for a new trial on this ground.

2. Assuming without deciding that the admission of the doctor’s testimony as to the cause of death was error, it was harmless because his similar testimony is found in other parts of the transcript without objection. Smith v. Smith, 125 Ga. App. 257 (7) (187 SE2d 330); Eiberger v. Martel Electronic Sales, 125 Ga. App. 253 (6) (187 SE2d 327).

3. The court erred in authorizing the jury to award attorney fees for bad faith refusal to pay. The evidence was circumstantial and did not demand a finding for the plaintiff. Boston-Old Colony Ins. Co. v. Warr, 127 Ga. App. 364 (2) (193 SE2d 624); Home Indemnity Co. v. Godley, 122 Ga. App. 356, 363 (177 SE2d 105). Though the evidence indicated that Grady could have died from a blow to the head, nonetheless the reason for his falling off the bench prior to suffering the blow remains unexplained.

We therefore direct that the attorney fees be written off.

Judgments affirmed with direction.

Bell C. J., Quillian, Clark and Stolz, JJ., concur. Deen, J., concurs in Divisions 1 and 2 and in the judgment. Eberhardt, P. J., concurs in Divisions 2 and 3 and in the judgment. Pannell, J., concurs in Division 2 and in the judgment. Evans, J., concurs in Divisions 1 and 2 and dissents from Division 3.