Whiddon v. National Union Fire Insurance ( 1939 )

1. The judgment of the superior court in the present suit, as modified by direction of the Supreme Court affirming the judgment dismissing the action as against the various defendants, and directing that the judgment be predicated solely upon the ground of multifariousness and misjoinder, had the legal effect of dismissing the action as to all the defendants. The plaintiff, in filing the amendment to the petition in the present suit, although it may in fact have been allowed and ordered filed by the court, in which the plaintiff dismissed the suit as against the insurance company, could not have been misled by any alleged statement by counsel for that defendant that the plaintiff could institute a second suit against the defendant without prejudice to any rights of the plaintiff under the policy sued on.

2. Where an insurance policy provides that "No suit or action on this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity unless . . commenced within twelve (12) months after the happening of the loss," a suit commenced after the expiration of such period is not commenced or filed within the terms of the policy, notwithstanding it may be a renewal of a suit which had been filed within twelve months after the happening of the loss insured against and had been dismissed.

3. The petition failed to set out a cause of action, and the court properly sustained the demurrer.

DECIDED DECEMBER 2, 1939. REHEARING DENIED DECEMBER 18, 1939. On November 3, 1938, Cecil V. Whiddon filed suit against National Union Fire Insurance Company on a policy which insured against loss of an automobile. From the allegations of the petition as amended the following facts appear: On January 6, 1937, Cecil V. Whiddon brought an equitable petition against Southern Auto Finance Company, Wade Motor Company, and National Union Fire Insurance Company. The judge sustained demurrers filed by all the defendants and dismissed the case. The plaintiff excepted and sued out a writ of error to the Supreme Court. That court, on September 23, 1938, affirmed the judgment sustaining the demurrers, and in its judgment directed that the judgment dismissing the petition be so modified as to rest upon the ground of multifariousness and misjoinder alone, and so as not to adjudicate other grounds of demurrer, or that the petition fails to set forth a cause of action against any of the defendants.Whiddon v. Southern Auto Finance Co., 186 Ga. 726 (198 S.E. 729).

Before the remittitur of the Supreme Court was made the judgment of the trial court, the plaintiff sought to amend the petition by striking therefrom the insurance company, the defendant in this case, and the motor company, and leaving the case to stand as one against the finance company alone. This amendment was, on October 16, 1938, allowed by the trial court subject to demurrer and objections and was ordered filed. On November 3, 1938, the judgment of the trial court sustaining the demurrers to the petition and dismissing the case, was, pursuant to the order and direction of the Supreme Court, modified by the trial judge by provision as follows: "So that said judgment dismissing the case will rest only upon the ground that plaintiff's petition is multifarious and contains a misjoinder, so that no right of the plaintiff on the merits of his cause shall be prejudiced, in accordance with and as directed by the Supreme Court" and that "the judgment of the Supreme Court is hereby made the judgment of this court." The policy sued on contained this provision: "No suit or action on this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity unless the assured shall have fully complied with all the foregoing requirements, nor unless commenced within twelve (12) months after the happening of the loss."

It appears from the allegations of the petition that the loss, which was the wrecking of the plaintiff's automobile, occurred October 1, 1936, and that the present suit, which is to recover on the policy for the loss, was filed November 12, 1938. The present suit therefore was filed more than twelve months after the happening of the loss. The plaintiff alleges that he dismissed the original suit, which was against this same defendant insurance company, after the counsel of record for the insurance company had assured the plaintiff's counsel that the dismissal of the suit by the plaintiff would not prejudice the plaintiff's right to institute a second suit against the defendant to recover on the policy. The defendant insurance company demurred generally to the plaintiff's petition as amended. The judge sustained this demurrer and dismissed the action, reciting in the order of dismissal: "This suit is upon an insurance policy, the terms of which limited the right to file suit thereon to twelve months after loss. This suit was filed a little more than two years after loss. The plaintiff insists that he is entitled to maintain this suit because of the previous dismissal of a case involving the same subject-matter and upon grounds of alleged estoppel as set out in an amendment filed subject to objection and demurrer February 9, 1939. . . The court is of the opinion that the judgment of the superior court on the demurrers filed effected a dismissal of the case as of that date; and the Supreme Court having affirmed the dismissal with direction that the dismissal should rest only upon the ground of multifariousness, the case was never reinstated after dismissal in the superior court, and the plaintiff never had a choice thereafter as to whether he would dismiss any part of the case, and leave another part to stand for adjudication. Therefore the defendant can not be estopped from asserting a right which already existed by the affirmance of the judgment of dismissal by the superior court." To this judgment the plaintiff excepted. The judgment of the superior court sustaining the demurrer and dismissing the petition in the former suit upon the express ground of missing the petition in the former suit upon the express ground of multifariousness and misjoinder, pursuant to the direction of the judgment of the Supreme Court affirming the judgment of the superior court generally sustaining the demurrers and dismissing the petition (Whiddon v. Southern Auto FinanceCo., 186 Ga. 726, 198 S.E. 729), operated as a dismissal of the plaintiff's petition in that case as against all of the defendants. See Whiddon v. Southern Auto Finance Co.,188 Ga. 340 (3 S.E.2d 889). In that case the Supreme Court held that when the present plaintiff, who was the plaintiff in the former suit, attempted to amend the petition in that suit the amendment was properly disallowed because the judgment of dismissal of the petition, although it was predicated upon the ground of multifariousness and misjoinder, operated to sustain the demurrer to the plaintiff's petition in that suit and to dismiss the plaintiff's case in its entirety as to all the defendants therein.

There was no voluntary dismissal by the plaintiff of that suit. The plaintiff therefore could not have been misled by any alleged statement of counsel for the defendant insurance company that the plaintiff could institute a second suit against the defendant without prejudice to any rights which the plaintiff may have had under the policy in having commenced the first suit within the twelve months' period. The plaintiff's original petition, in so far as the defendant in the present suit was concerned, was on a policy of automobile insurance, the policy on which this suit is brought, and that policy provided that suit thereon shall be commenced within twelve months after the happening of a loss thereunder. The original petition was brought within the twelve-months' limitation provision contained in the policy. When the case was dismissed on demurrer the twelve months had expired, so that when the present suit was instituted it was filed more than twelve months after the loss complained of. The effect of the ruling of the Supreme Court directing that the judgment dismissing the original petition be modified so as to rest upon the ground of multifariousness and misjoinder alone was not to preserve a right of the plaintiff which the plaintiff possessed by having commenced suit within the twelve months' period as provided in the policy. The effect of

the Supreme Court's judgment was merely to adjudicate that the petition be dismissed, and that the dismissal should be solely upon the ground of multifariousness and misjoinder. The question as to whether the plaintiff's petition set out a cause of action against any of the defendants was thereby left open and not decided or adjudicated. If this original petition of the plaintiff set out a cause of action as against the defendant insurance company by reason of its having been filed within twelve months after the happening of the loss and by reason of other allegations therein, the judgment dismissing it preserved no right in the plaintiff as respected the filing of a second suit on the same cause of action which the plaintiff did not otherwise possess by law or under the provisions of the contract.

It has been held that a provision in an insurance policy substantially in the language of that contained in the present policy, that no suit or action on the policy or for the recovery of any claim under the policy, shall be maintainable in any court unless commenced within twelve months next after the happening of the loss, has reference to a particular action brought upon the claim, and does not have reference to the mere filing of a claim, and that where the particular action is commenced subsequently to a period of twelve months next after the happening of the loss the suit is not maintainable, unless the application of this provision of the policy has been waived by the insurance company or it is estopped to rely on it. Melson v. Phoenix Ins. Co.,97 Ga. 722 (25 S.E. 189); Hartford Fire Ins. Co. v. Amos,98 Ga. 533 (25 S.E. 575); McDaniel v. German American Ins.Co., 134 Ga. 189 (67 S.E. 668), and cit.; Riddlesbarger v. Hartford Fire Ins. Co., 7 Wall. (U.S.) 386 (19 L. ed. 257); Arthur v. Homestead Fire Ins. Co., 78 N.Y. 462 (34 Am. R. 550); Wilson v. AEtna Ins. Co., 27 Vt. 99; Rogers v. Home Ins. Co., 95 Fed. 109; 33 C. J. 78.

In dismissing the petition of the plaintiff in the present case the judge correctly held that the effect of the judgment on the demurrers to the petition in the original case was to dismiss the petition, and that the plaintiff was barred, because of such limitation in the policy, from instituting the present suit upon the policy, which was commenced and instituted after the expiration of the twelve months' period after the happening of the loss. The court did not err in sustaining the demurrers and dismissing the action.

Judgment affirmed. Sutton and Felton, JJ., concur.