Opinion
38527.
DECIDED OCTOBER 26, 1960.
Action on accident insurance policy. Glynn Superior Court. Before Judge Thomas. July 21, 1960.
W. A. Wraggs, for plaintiff in error.
Gowen, Conyers, Fendig Dickey, Chris B. Conyers, contra.
Where the evidence shows without dispute that the death of the insured was proximately caused by the combined effects of injury sustained in an accident and a pre-existing disease, there can be no recovery under an accident insurance policy which provides that payment will be made "If such death is not caused or contributed to by disease or infirmity."
DECIDED OCTOBER 26, 1960.
Mrs. Addie L. Miller filed suit to recover $1,000 under an accident insurance policy issued on her grandson by the defendant insurer. The defendant introduced the policy by his request for admission, the pertinent clause of which reads: "Benefit for death by accidental means — If the insured, after the effective date of the policy sustains drowning or bodily injury effected solely through violent external and accidental means and if such drowning or bodily injury is the direct, independent and proximate cause of the death of the insured within 90 days of such injury and if such death is not caused or contributed to by disease or infirmity, the company will pay the principal sum specified herein."
The petition alleges that the defendant's agent solicited the purchase of the insurance policy on the plaintiff's grandson, Stephen R. Miller, and that at the time the plaintiff informed the defendant's agent that Stephen had hemophilia; that the defendant's agent stated to her that said condition would not prevent the issuance of the policy and that a physical examination by a physician would not be necessary; that the agent fraudulently filled out the application omitting any reference to the disease; that Stephen was injured in an accident on May 31, 1959, and as a result of injuries sustained died eight days later. During the trial of the case three doctors testified that Stephen had sustained a laceration of the liver from which extended bleeding produced death and that hemophilia contributed to his death. There was a conflict in testimony as to who prepared the application. The jury returned a verdict for the defendant and the plaintiff in addition to the general grounds filed a motion for a new trial on two special grounds: (1) that defendant based its defense on the application for insurance which was not attached to and made a part of the policy without alleging fraud against the applicant; and (2) that the court did not charge any material law favorable to the plaintiff, i. e., that knowledge of the illness by the agent would be imputable to his principal. The court overruled the motion for a new trial and it is to this ruling that the plaintiff excepts.
A thorough review of the evidence discloses that the plaintiff's grandson had hemophilia from birth; that he died as a result of an injury, which was aggravated by his disease. Further, the evidence shows that neither the accident nor the disease likely would have independently produced death. The cases relied on by the plaintiff in his contention that a new trial should have been granted on the general grounds, have been thoroughly reviewed. We must agree that the language employed in those cases, Thornton v. Travelers Ins. Co., 116 Ga. 121 ( 42 S.E. 287, 94 Am. St. Rep. 99); Hall v. General Accident Assurance Corp., 16 Ga. App. 66 ( 85 S.E. 600); Inter-Ocean Cas. Co. v. Scott, 91 Ga. App. 311 ( 85 S.E.2d 452), requires careful interpretation in the light of the facts of the instant case. The facts of those cases are different from the facts in this case, both as to the clause controlling liability of the insurer and the effect of the insured's infirmity on the cause of his death. In none of the policies in the cases cited is there the lucid limitation, "if such death is not caused or contributed to by disease or infirmity." On the contrary, in Harris v. Metropolitan Life Ins. Co., 66 Ga. App. 761 ( 19 S.E.2d 199) the insurance contract provided that no accidental death benefit will be paid "if death is caused or contributed to . . . wholly or partially by disease, or by bodily or mental infirmity." The court there held that the insurer was not liable if the death was due wholly or in part to an attack of heart disease with which the insured had been afflicted for more than a year, notwithstanding that he died four days after injuries were sustained in an automobile accident. In Prudential Ins. Co. v. Kellar, 213 Ga. 453 ( 99 S.E.2d 823), the plaintiff suffered injuries by accident and died two months later from myocardial infarction. The evidence disclosed that the insured had been treated for high blood pressure and stroke prior to the injury. The court in its decision made the distinction that where the injuries contributed to death but were not related to the disease or condition causing death there could be no recovery under a contract providing "that no accidental death benefit shall be payable if such death resulted . . . directly or indirectly from bodily or mental infirmity or disease." For the plaintiff to recover under the terms of the contract in the instant case, the unfortunate death of her grandson must have resulted from his injury sustained in the accident independently of his infirmity. The evidence is clear that the pre-existing infirmity contributed to the death. The first doctor testified: "In my opinion the disease contributed to his death." The second and third doctors, in answer to a question as to whether or not the disease contributed to death, answered, "yes." The evidence shows that hemophilia is a disease caused by a deficiency in the blood, the result of which is that the blood will not clot and which inevitably results in excessive bleeding, after bleeding begins. The evidence shows that there was a laceration of the liver as a result of the accident, which caused extended bleeding.
In Prudential Ins. Co. v. Kellar, 213 Ga. 453, supra, the court said in substance that due to the small premium charged for double indemnity by the insurer the coverage is also correspondingly narrow. Thus, the liability must be defined by well chosen words. It was stated further that in such instances the court would have no more right to extend the coverage of the policy making it more beneficial by strained construction than it would have to increase the amount of the insurance.
Because the evidence in this case demanded the verdict, it is not necessary that we consider the special grounds of the amended motion for a new trial.
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Nichols and Bell, JJ., concur.