INDEPENDENT LIFE & ACCIDENT INSURANCE COMPANY v. Branton

236 Ga. 514 (1976)

224 S.E.2d 380

INDEPENDENT LIFE & ACCIDENT INSURANCE COMPANY v. BRANTON.

30730.

Supreme Court of Georgia.

Decided March 16, 1976.

Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes, II, Albert W. Stubbs, for appellant.

Douglas Breault, for appellee.

PER CURIAM.

This court denied the applicant's petition for a writ of certiorari to the Court of Appeals in this case on February 11, 1976. Applicant made a timely motion for reconsideration of this court's denial of its petition. We have decided, on the applicant's motion for reconsideration, to vacate this court's judgment of February 11, 1976, and we now enter a judgment granting *515 the applicant's petition.

Pursuant to Rule 36 (c) of this court (effective December 1, 1975) we now grant the applicant's petition for a writ of certiorari, vacate the judgment of the Court of Appeals in this case, and remand the case to the Court of Appeals for further consideration.

The decision of the Court of Appeals is reported at 136 Ga. App. 414 (221 SE2d 217) (1975). Applicant's motion for reconsideration filed in this court complains about Division 4 of the opinion of the Court of Appeals. The complaint is that the recital contained in the pleaded death certificate is a conclusion rather than a "recital of facts." Applicant's argument is that the conclusion contained in the pleaded certificate is the very issue to be determined in the case, and that such issue is a question of fact.

Applicant especially objects to the sentence: "Such presumption must be by defendant rebutted at the trial of the case," contained in Division 4 of the opinion of the Court of Appeals. The argument is that if the recital contained in the pleaded certificate is a conclusion, such recital cannot raise a presumption that must be rebutted by the applicant at the trial of the case.

We deem the applicant's contention with respect to Division 4 of the opinion of the Court of Appeals to be of sufficient importance to warrant our vacating the judgment of the Court of Appeals and remanding the case to that court for further consideration and clarification of Division 4 on this one issue.

Therefore, the petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further consideration as stated herein.

Judgment vacated and case remanded for further consideration. All the Justices concur.