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Brown v. State Mut. Life Ins. Co.

Court of Appeal of Louisiana, Third Circuit

August 30, 1979

No. 7157

Opinion

 [*356]  This is a suit to collect insurance benefits based on the alleged accidental death of the insured, Johnny R. Brown. His widow, Cleola Brown, is the plaintiff-appellant. The policy sued on is an accidental injury death policy. 1 The sole question presented by the case and this appeal is: Did the plaintiff prove that an accident caused her insured husband's death? The trial court held that plaintiff-appellant did not prove this essential fact. We reverse.

 [**2]  The decedent's death did not occur on the date of his alleged injury. There is no question of his death and that it resulted from infection of his left foot which developed into gangrene. Plaintiff-appellant claims the infection was caused by an accident in which her deceased husband stepped on a crate and stuck a staple in his foot. There was only one witness to the alleged incident. This was the son of plaintiff, Clinton Johnson. The defendant-appellee insurer denies the incident took place. It urges that Johnny R. Brown was a diabetic and that he suffered circulatory and foot infection problems through the years. The defense to the action urged by defendant, State Mutual Life Insurance Company of America ("State Mutual") is that plaintiff failed to prove that an accident occurred.

Alternatively, State Mutual contends that the death did not result directly and independently of any other cause. 2

 [**3]    [*357]  The widow's claim rests entirely on the import and effect given to the testimony of her son. The trial court rejected the son's testimony. It found that plaintiff did not show that Brown's death was the result of an accident. The trial court remarked as follows:

The evidence offered by the plaintiff fails in its quality or weight to tip the scales; therefore the plaintiff's case must fall for lack of preponderance of evidence that an accident happened.

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377 So. 2d 355 *; 1979 La. App. LEXIS 4090 **

CLEOLA BROWN, Plaintiff - Appellant v. STATE MUTUAL LIFE INSURANCE COMPANY OF AMERICA, Defendant - Appellee

Subsequent History:  [**1]  On Rehearing November 12, 1979.

Prior History: Appeal from the Thirtieth Judicial District Court, Parish of Vernon, State of Louisiana, the Honorable James C. Terrell, Jr., District Judge, presiding.

CORE TERMS

infection, foot, trial court, happened, deposition, remember, trauma, left foot, deceased, diabetes, nail, plaintiff-appellee, impeached, puncture, reasons, staple, urges, trial judge, occurrence, benefits, toe, date of the accident, exact date, take place, Plaintiff-appellant, defendant-appellee, hospitalization, impressed, stepped, wound

Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, Judicial Officers, Judges, Discretionary Powers, Evidence, Types of Evidence, Testimony, General Overview