Beneficial Standard Life Insurance v. Usalavage , 136 Ga. App. 328 ( 1975 )

Stolz, Judge.

The facts of these cases are to be found in Allstate Ins. Co. v. Holcombe, 132 Ga. App. 111 (207 SE2d 537) in which this court affirmed the denial of summary judgment to the defendant insurer. Although the beneficiaries and the insurance companies differ, each case involves substantially identical accidental death benefit clauses in plaintiffs’ insurance policies. The controlling clause in each policy provides for death benefits resulting from accidental bodily injury, "directly and independently of all other causes. ”

The trial judge made the following finding of fact: "The court, therefore, from all the facts and circumstances, finds that the injury received by the deceased on June 8th, 1971, did contribute to the infarction of the small bowel and to her death on June 17th, 1971.” (Emphasis supplied.) The trial judge made the following conclusion of law: "The plaintiff’s wife having received an injury to her person arising out of the use of an automobile which contributed to her death, the defendant is liable under the terms of the policy.” (Emphasis supplied.)

The trial judge’s finding of fact and conclusion of law, quoted above (made pursuant to Code Ann. § 81A-152 (a) (Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171) (made applicable to the State Court of DeKalb County by Code Ann. § 24-2107a (Ga. L. 1970, pp. 679, 681)), are in irreconcilable conflict. In policies such as those in the present cases, covering death resulting directly and independently of all causes other than the injury itself, the plaintiff has the burden of proof that the alleged injury was the proximate cause of the death of the insured, independent of other possible causes, and not merely a "contributing cause. ” Hall v. Gen. Acc. Assur. Corp., 16 Ga. App. 66 (85 SE 600); United Ins. Co. of America v. Monroe, 115 Ga. App. 747 (156 SE2d 99). We find no conflict in Hall, supra, where it was held that under the evidence presented the plaintiff was entitled to have the court submit to the jury the issue of fact as to whether the accidental injury or a pre-existing ailment was the proximate cause of death of the insured, with an instruction that to entitle the plaintiff to recover, the jury must be satisfied that the alleged injury was the proximate cause of the death. See Hall, p. 67 (3), and Monroe, supra, where this court held that under the evidence the accident (fall) sustained by the insured was only a contributing cause of the insured’s death, not independent of other possible causes, and the plaintiff had failed to carry the burden of proof of death caused "directly and independently of all other causes by accidental bodily injury.” Thus, in Hall, this court held that, under the evidence in that case, a jury issue was presented; whereas, in Monroe, this court held the evidence insufficient in that regard.

When a judge presides as trier of fact, pursuant to Code Ann. § 81A-152 (a), supra, he must make written findings of fact and conclusions of law. Except in cases of special verdicts, this is not required of the jury. Its verdict speaks its finding of fact and is upheld where there is any competent evidence to support it.

The trial judge heard the case without a jury. In his findings of fact and conclusions of law, quoted above, he found as a matter of fact, only an injury which "did contribute to the infarction of the small bowel and to her death on June 17, 1971” (R.16), but concluded that by reason of such findings, "the defendant is liable under the terms of the policy.” (Emphasis supplied.) Thus, the trial judge has found as a matter of fact in each case an injury which contributed to the insured’s death, whereas the insurance policy requires that death result from accidental bodily injury "directly and independently of all other causes.” (Emphasis supplied.) Since the conclusion of law must be based on the finding of fact, it is inescapable that coverage cannot be held to exist in this case. Had the trial judge found as a matter of fact that the insured had sustained an accidental injury which was the proximate cause of her death or one which directly and independently of all other causes resulted in the insured’s death, we would then affirm the conclusion of law holding coverage to exist if there was any evidence for its support. In the cases before us, the trial judge’s finding of fact is strongly supported by the evidence. However, his conclusion of law based thereon is erroneous.

50693,

Argued May 21,1975;

50848,

Argued July 1,1975 Decided September 22, 1975 Rehearing denied October 24, 1975. Dunaway, Haas & Broome, George Haas, for Beneficial Standard Life Ins. Co. Gambrell, Russell, Killorin & Forbes, Sewell K. Loggins, Douglas N. Campbell, for Allstate Ins. Co. Hendon, Egerton, Harrison & Glean, E. T. Hendon, Jr., for appellees.

The judgment of the State Court of DeKalb County is reversed with direction that the conclusions of law and judgments in each of the above cases be amended in conformity with the findings of fact previously made.

Judgment reversed.

Bell, C. J., Quillian, Clark, Webb and Marshall, JJ., concur. Pannell, P. J., concurs in the judgment of reversal but would remand for further finding of fact. Deen, P. J., and Evans, J., dissent.