Union Central Life Insurance v. Trundle , 65 Ga. App. 553 ( 1941 )

1. Upon a reversal without direction by this court of the judgment of the trial court, the case, upon the return of the remittitur, stands upon the docket for trial de novo, and is subject to amendment as in other instances.

2. Upon the return of the remittitur an amendment to the declaration striking the original allegation that due proofs of disability as required by the policy had been furnished, and substituting the allegation that the defendant had unconditionally refused to pay and had waived this requirement, did not set up a new cause of action and was not objectionable in that it had not been originally pleaded.

3. The evidence supported the verdict.

(a) Whether an agent had authority to refuse payment of a claim unconditionally, and constitute such a refusal a denial of liability and a waiver of the requirement of the policy that due proofs of disability be furnished as a condition antecedent to recovery, is immaterial when it is shown that such refusal to pay and disclaimer of liability related to the company.

(b) When the reason for the refusal to pay is inadequate in law, the refusal to pay is rendered "unconditional."

4. The special assignments of error are without merit.

DECIDED JULY 15, 1941. REHEARING DENIED JULY 30, 1941. Robert O. Trundle brought an action against the Union Central Life Insurance Company for recovery of certain alleged disability benefits, and alleged that he had furnished timely the proofs of disability as required by the policy. The court overruled general and special demurrers to the declaration and the trial resulted in judgment for the plaintiff. The court overruled the defendant's motion for new trial. The defendant excepted to the orders overruling the demurrers and the motion for new trial. This court, in Union Central Life Insurance Co. v. Trundle, 61 Ga. App. 110 (5 S.E.2d 675), treating the special demurrers as abandoned, held as against the general demurrer that the declaration set forth a cause of action, and that "The evidence demanded a finding, as a matter of law, that the plaintiff did not comply with the provision of the policy as to filing due proof of disability with the home office of the defendant, a condition precedent to recovery, and [that] the court erred in overruling the defendant's motion for new trial." The court made no ruling on the substantive merits of the claim, save only as they were related to the technical requirement that due proofs of disability be furnished the defendant. The effect of the ruling was that (see page 116 of the opinion) since the plaintiff had not pleaded unconditional refusal by the company to pay, or waiver of the requirement that such proofs be furnished, but had specifically relied on the averment that the proofs had been furnished, he was held strictly to that allegation, and the proof thereof, which had failed.

Before the remittitur became the judgment of the court (though, in "reversal," there is no requirement that amendment antecede the making of the remittitur the judgment of the court), the plaintiff amended his declaration by striking the allegations that he had furnished due proofs of disability and by substituting therefor allegations in effect that, within the time required, he had notified the company of the disability, that the company had denied all liability, and that such action on the part of the company amounted to a waiver of the requirement that due proofs be furnished. In further exposition of the amendment, we quote: "Petitioner shows that as soon as he ascertained his total and permanent disability and while the said contract of insurance was in full force and effect, and while petitioner was totally and permanently disabled as aforesaid, petitioner reported [orally] his disability to the defendant company by going to the defendant company's office in Memphis, Tennessee, and reporting the same to Tom Jones, manager in charge of the defendant's office and business in Memphis, Tennessee. Said oral notice being given to the defendant company's agent and manager on or about the first day of October, 1933, when and at which time the defendant company by and through its agent and manager denied any and all liability under said policy, and stated to the plaintiff that unless he was bedfast and absolutely incapacitated from doing anything at all, that he would not be entitled to any benefits under the policy, and stated to plaintiff that in view of the fact that plaintiff was not bedfast, that the company would not pay anything whatever, and, therefore, denied any liability. . . And defendant acted upon the notice given by plaintiff to defendant's agent and denied liability upon the ground that plaintiff was not totally and permanently disabled at that time."

The defendant objected to the allowance of the amendment, upon the grounds (1) that the amendment set forth a new and distinct cause of action; (2) that "the questions raised in the original declaration and the evidence introduced thereon, having been held adversely to the contentions of the plaintiff on a writ of error to the Court of Appeals in this case, and the allegations made in the amendments so offered could have been made at the time of the filing of the original declaration, the plaintiff can not now add any ground not embodied in his original declaration, as the same has been abandoned;" and (3) that the amendments averring waiver were contradictory to the original allegations of furnishing due proofs of disability. The questions for determination are whether the amendments were properly allowable, whether the evidence supported the verdict, and whether the special assignments of error on the overruling of the motion for new trial are meritorious.

1, 2. A judgment of reversal by this court of the judgment of the trial court, in the absence of direction, vacates that judgment in toto, and the case thereafter stands for trial de novo, as in the first instance. Walker v. Dougherty, 14 Ga. 653;United States Fidelity Guaranty Co. v. Clarke,187 Ga. 774, 782 (2 S.E.2d 608), and cit. "All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by." Code, § 81-1301. The declaration in the instant case was amendable, as in other cases. Mayor c. ofMonroe v. Fidelity Deposit Co., 50 Ga. App. 865 (2) (178 S.E. 767); United States Fidelity c. Co. v. Clarke, supra. Although the former ruling of this court was that "the evidence demanded a finding, as a matter of law, that the plaintiff did not comply with the provision of the policy as to filing due proof of disability with the home office of the defendant, a condition precedent to recovery" and that the defendant was not entitled to recover, nevertheless, the case stood on the docket for trial. Mayor c. of Monroe v. Fidelity Deposit Co., supra. The right to require the furnishing of due proofs of disability as a condition precedent is a regulatory provision (Code, § 56-831). It does not inhere in the substantive merits of the cause, but goes only to its enforcement. Whether the condition precedent must be met, or be it waived, the cause of action is the same. The plaintiff had the right to strike the allegations of compliance with the requirement of furnishing due proofs of loss, and amend the declaration by alleging unconditional refusal by the company to pay and waiver.Liverpool London Globe Insurance Co. v. Ellington,94 Ga. 785 (2) (21 S.E. 1006). The objections that the amendments were too late in not being made during the first trial, but only after the case had been decided by this court and returned for another trial, and that they were contradictory to the pleadings as originally made, are without merit. The court having formerly held that the declaration set out a cause of action, and the amendments being properly allowed, it follows that the demurrers renewed to the declaration as amended were properly overruled.

3. The evidence supported the verdict. The jury were authorized to find that the defendant, within the time limit under the contract when due proofs of disability were required to be filed, unconditionally refused to pay, and that such refusal constituted a waiver of compliance with that condition of the policy. The jury were authorized to find that the plaintiff went to the office of the defendant in Memphis, Tennessee, and orally reported his claim of disability; that the "manager" of that office on September 27, 1933, reported the claim to the home office; that the "manager" of the Memphis office on October 7, 1933, notified the plaintiff as follows: "Although you have not provided us with the letters from the Little Rock physicians who attended you during your illness we wrote directly to our company and submitted your case. Their reply is that disability clause No. 6 (the clause attached to your policy) provides that proof of disability is to be submitted while the insured is totally disabled. Indeed we regret that it is impossible for the company to take any action at this belated date on your case." The jury were further authorized to find that the defendant admitted to the attorneys for the plaintiff on December 17, 1936, that it had received no notice of disability from the defendant at any timesave the notice to it in 1933, when "it appeared that the insured was still working so that no claim for benefits could be allowed." The jury were authorized to find that the plaintiff had been stricken with paralysis, and had been unable to work save at different jobs at only short periods of time, and at only a very small per centum of his original wage scale and earnings before the paralysis, and that the reduction in earning power was from the original scale of $300 or more, to the reduced scale from $90 to $20, to $5 to $10 per month. The jury were authorized to find that the plaintiff had been reduced to this greatly lessened scale of wages, and had been suffering from and disabled by paralysis when he reported his disability to the Memphis office, and that he so advised the "manager" of that office. Under the authority of Cato v. AEtna Life Insurance Co., 164 Ga. 392 (138 S.E. 787), and under the subsequent consistent decisions of our courts in line with the principles announced therein, the plaintiff was permanently and totally disabled at the time of reporting his disability to the Memphis office. While the defendant declined payment because under the facts as given the Memphis office it contended it was not liable, the plaintiff being at that time still "working," the refusal for this reason was not in law adequate, and therefore constituted the refusal an "unconditional" refusal to pay. Such refusal amounted to a wavier of the requirement of furnishing due proofs of disability as required by the policy.

It is unnecessary to decide whether the report of disability was made to such an agent as might have authority to deny liability, as it appeared that the defendant had notice of the claim and that the ultimate denial of liability related back to it. It became immaterial whether the policy subsequently lapsed, and whether its reinstatement was procured by fraud on the part of the insured, when in fact the policy, providing against such an eventuality if the insured became totally and permanently disabled, had not lapsed.

4. A careful review of the special assignments of error discloses no merit.

Judgment affirmed. MacIntyre, J., concurs. Broyles, C. J.,disqualified.