Continental Assurance Co. v. Rothell

Pannell, Judge.

Jewell English Rothell, appellee, brought an action against Continental Assurance Company, appellant, seeking recovery, as beneficiary, of accidental death benefits under a policy of insurance issued by the appellant which provided: “If an insured, as a result of bodily injury caused solely by accident occurring while insured under the policy, shall suffer, directly and independently of all other causes within ninety days from the date of the accident, any of the losses described below the company will pay the amount specified in the following Schedule of Indemnities for such loss.” While there were exclusionary provisions in the policy, there is no contention by the insurance company that they apply. To be shortly stated, the evidence showed conclusively that the insured died of a broken neck caused by a severe trauma. He was found slumped on a sidewalk and when admitted to the hospital was suffering from partial paralysis and up until the time of his death was unable to explain how he received his injuries. The insurance company appealed from the denial of its summary judgment with a proper certificate therefor as well as from the granting of a summary judgment for the plaintiff appellee, and enumerated as error the overruling of its motion for summary judgment and the granting of the summary judgment in favor of the appellee. A motion was made to dismiss the appeal. Held:

1. The appeal is from an order and judgment entered on September 22, 1969, overruling defendant’s motion for summary judgment and granting a summary judgment in favor of the plaintiff. The order and judgment described were signed and dated on September 22, 1969, but were not entered (filed with the clerk of the lower court) until September 23, 1969. . The motion to dismiss the appeal for insufficient description of the order appealed from is denied. Insurance Co. of North A. v. Jewell, 118 Ga. App. 599, 602 (164 SE2d 846).

2. A defendant, on whom the burden of proof at the trial does not lie, and who on motion for summary judgment in its favor does not pierce the issues made by the pleadings, or, under our present practice, disprove one or more of the essential elements of the plaintiff’s case, does not carry the burden of such a movant merely because the evidence submitted fails to prove the plaintiff’s case even though it be wholly or in part the deposition or affidavit of the plaintiff itself. There is no burden on the plaintiff to come forward with proof of his case until the evidence adduced prima facie disproves an essential element of plaintiff’s theory of recovery. 6 Moore’s Federal Practice 2347, par. 56.15 (3), n. 46; Shadix v. Dowdney, 117 Ga. App. 720 (162 SE2d 245). Accordingly, the evidence adduced on the defendant’s motion for summary judgment not affirmatively disclosing that the insured’s death was other than accidental, the trial court did not err in denying the defendant’s motion for summary judgment. This is so even should we assume the evidence failed to prove the plaintiff’s side of the issue, that is, that the death was accidental. Merely because under the evidence adduced the defendant movant for summary judgment might be entitled to a directed verdict on the trial under the same evidence, does not necessarily authorize a summary judgment for the defendant. See Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (3) (170 SE2d 737).

3. Where a death occurs and none of the causative factors are known, it will be presumed to be from natural causes (New York Life Ins. Co. v. King, 28 Ga. App. 607, 610. (112 SE 383)), and where the only factor known is that the insured died as the result of a violent and external injury, the cause is presumed accidental. Gaynor v. Travelers Ins. Co., 12 Ga. App. 601 (6) (77 SE 1072); New York Life Ins. Co. v. King, 28 Ga. App. 607, supra. In New York Life Ins. Co. v. Jennings, 61 Ga. App. 557, 561 (6 SE2d 431), this court in approving a charge complained of said: “The excerpt from the charge complained of in grounds 9 and 10 in effect followed 1 C. J. 495, § 278, which is as follows: ‘The fact of death does not of itself create any presumption that it was the result of an accident; and where, in order to make out plaintiff’s case, it is necessary to base a presumption that death resulted from an injury on a presumption that the insured sustained an accidental injury, no recovery can be had. Where, however, it is apparent that the injury to or death of the insured was the result of external and violent means, and the issue is as to whether it was due to an accident within the meaning of the policy, or to some cause excepted by the policy, the presumption is in favor of accident and against the existence of facts bringing the case within any of the exceptions of the policy, such as insanity of the insured, intentional injury inflicted by a third person, lack of due care and diligence, self-inflicted injuries, and suicide. These presumptions may, however, be overcome by facts and circumstances establishing the contrary.’ This charge was not reversible error.” Accordingly, under the evidence adduced, a prima facie case for recovery under the policy was proven and, nothing to the contrary appearing, the trial court did not err in granting the plaintiff’s motion for summary judgment.

We are not here concerned with cases where additional evidence was submitted as to the cause of the injury resulting in death or stated otherwise, as to the cause of death, such as that the death was intentionally inflicted by another, which may come within an exclusionary clause of the policy (Gaynor v. Travelers Ins. Co., 12 Ga. App. 601, supra; New York Life Ins. Co. v. King, 28 Ga. App. 607, supra), or where there was some evidence of a fight between the insured and others which may bring the death within an exclusionary clause in the policy (Riggins v. Equitable Life Assurance Society, 64 Ga. App. 834 (14 SE2d 182)); nor cases where a fall was the cause of the injury and there was no evidence as to the cause of the fall, that is, whether the fall was accidental or caused by bodily infirmity or disease, such as was the case in Overstreet v. Metropolitan Life Ins. Co., 69 Ga. App. 459 (26 SE2d 115)) and cases cited therein; United States Ins. Co. of America v. Monroe, 115 Ga. App. 747 (156 SE2d 99); McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178 (129 SE2d 408). Nothing to the contrary is ruled in Davison v. National Life &c. Ins. Co., 106 Ga. App. 187 (126 SE2d 811); Life & Cas. Ins. Co. of Tennessee v. Brown, 213 Ga. 390 (99 SE2d 98); Travelers Ins. Co. of Hartford v. Newsome, 147 Ga. 608 (95 SE 4); Power v. Liberty Nat. Life Ins. Co., 221 Ga. 305 (144 SE2d 389); Liberty Nat. Life Ins. Co. v. Power, 111 Ga. App. 458 (142 SE2d 103) for in these cases no presumption arose, or if it did, there was evidence in rebuttal.

Argued January 8, 1970 Decided May 11, 1970 Rehearing denied. June 5, 1970 Gambrell, Bussell, Moye & Killorin, Charles A. Moye, Jr., Sewell K. Loggins, E. Smythe Gambrell, for appellant. V. D. Stockton, McClure, Bamsay & Struble, Robert B. Struble, for appellee.

Judgment affirmed.

Jordan, P. J., Deen, Whitman, and Evans, JJ., concur. Bell, C. J., Hall, P. J., Eberhardt and Quillian, JJ., dissent.