*1 INSURANCE CASUALTY COMMERCIAL 27651. MATHEWS. COMPANY Rehearing 14, 2, December 1939. Decided December 1939. Swinson, (cid:127)& for Mobley, & Swift, Pease, Bryan Davidson error. Mllioti, McGee & contra. Com- an against M. Mathews brought J. James

Guerry, 1938, in the 12, on Company mercial Insurance Casualty accident, from date monthly $50 court for superior recovery previous as six which a upon save first months faith for bad alleged fees and recovery, attorney damages and for acci- under the terms an claim, refusing plaintiff’s for continuous indemnity dent-insurance policy providing This condition years. of five exceeding “If insured subject provision: following he days, more than reason of such injury disabled fo.r thirty days, company every or his must representative with a report as possible, or near thereto may reasonably writing physician surgeon, fully stating from or duration of dis- and the probable condition 1935, November 7, accident occurred on ability.” The After injury. lapse preliminary gave suit May 23, brought of six months the Columbus, the de- court of municipal company alleging unconditional refusal to pay, sought judgment fendant’s bad $300, fees together attorney’s damages penalty faith the insured pay. otherwise complied furnished proper proofs inclusive reports, of the policy, required monthly (1) and also grounds: defended fraud, facts procured (2) means.” The “did not constitute accidental verdict and judgment Thereafter for new trial adverse to the defendant. were motion overruled, and court for writ application superior however, of certiorari was the court denied, directing, faith recovery be written oif. damages bad The case court on exceptions came this the denial of writ. court March 1938, affirmed the *2 superior court the writ denying (Commercial Ins. v.Co. Casualty Mathews, 446, 57 Ga. S. E. App. 195 887). The company paid 25, April on judgment 1938, and demand being made for an alleged 29, intervening disability on May 1938, all denied liability months from the first intervening months, six as “the does company not consider that any liability under the in accrued view policy claimant, of the fact that the Mathews, Mr. has failed to the conditions precedent set out the policy.” Thereupon brought insured the instant 12, action on company defended on the sole that the furnished as monthly reports foregoing quoted provision, contending that was in faith. The plea returned good jury verdict for $1500 all accruals months thirty months, intervening over to date of trial amendment, included together with further sums cent, cent, 7 per interest, 12y2 representing per for bad penalty $150, of faith, of all which pay, court, approved by judgment was rendered. The entire previous record proceedings action the municipal court of Columbus included in the instant case as a part To the denial petition. defendant’s motion for new trial it excepted. in the first Compaq,

The insurance brought against liability sued on. all In National Life Jackson, 18 494 S. Co. v. Ga. E. App. Ins. it is (89 said: 633) insurer “An absolute refusal loss waives a com these preliminaries.” Code, 56-831; pliance Harp v. Fire § Co., 130 E. (61 man’s Fund Ins. Ga. 726 S. 14 Ann. Cas. 299); Jordan, Co. 21 Ins. Ga. App. National 647 E. (94 862), S. Life Insurance, 7 Briefs on cit.; Cooley’s 6019. The insurer in the case, having denied instant policy, waived necessity continued liability. This pro is for the vision benefit insurer. 7 Couch Law, 5442, of Insurance 1536. “The Cyclopedia principle that loss, liability, waiving proofs a denial of results from statement forfeited, ap- is also has been force or never health policies.” insurance life, accident, involving in cases plied “The denial 6026. Insurance, Briefs on 7 Cooley’s insured to fulfill for the it is must take while yet possible place rule a denial it is the general conditions of the And of loss waiver furnish proof time allowed to within the of liability Insurance, 6033. Briefs Cooley’s of such proof.” insurer on the first action the pendency During became this court on, and until now below, of the court the judgment of the defendant. part the in- for it to thing require it was a useless all physician from the report to furnish continue

sured to the following provision: days. policy contained every thirty than reason such more “If the is disabled must furnish representative he or his days, may days, or as near thereto as every thirty reasonably possible, *3 in a from report writing attending physician surgeon, the condition of dura- the and the fully stating probable denial disability.” tion of his Such a liability amounted to calling waiver of the for statements from requirement 56-831, Code, Our physician. provided the that waives an absolute refusal preliminary loss, it also that such refusal provides waives proofs the of such notices or reports. a continuation of in its in error brief that it the says paid suit, first and that in the the defendant in error (the obtained the then all “requested in court addi- below) payment May tional months which had accrued since the date of the the six months sued first the first suit.” conclusion request to this and said that it replied did not consider accrued under the view of liability that the claimant failed with the fact that conditions in the During first suit pendency precedent due, the claim there adjudged until was all liability continuing part denial insurer, refusal to was a denial its continued of such fact such denial based liability, although that in- not, the former during pendency suit, continued sured had

361 to file from his the state monthly statements physician concerning of his injury. The the former suit and petitions present disability by suffered insured. permanent not, force, The insurer can ever in by and also suffered did constitute claiming accidental means as after such against policy, issue has been determined defeat liability for adversely against period covered suit that the insured present on the ground did not continue to it continuation of a A., days. in South injury every thirty court, v. Asso., B. & C. 52 Railroad Ga. 372 E. App. (183 213), S. Benefit that where the insured has adjudicated said right disability payments in a former ain suit, subsequent suit the only issue whether the disabled during for. “The right certificate, to recover re if he was settled the former disabled, mained In judgment.” Wash Dukes, National ington Ins. Co. v. 53 E. App. Ga. 293 (185 S. it was 599), denial of any held on a of insurance waives necessity making proofs the con Co., of such tinuance disability. See also Patrick v. Travelers Ins. Snow, 51 Ga. E. App. 141); S. Co. (180 Guardian Ins. Life 51 Ga. S. E. App. (180 241).

The former not be res that the judgment may judicata continued after the period sued first action, but res it is judicata as to in- validity policy and thereon, surer provided thereunder continued. It determined judicially was a under the terms of this will policy, continue as long continues, hazard insured unless insured omits to per- *4 form some duty or fixed on him obligation by terms the the The insurer policy. contends the time that, during it was abso- lutely to the in order to fix pay, insured, and its continue to him, should have continued send reports to every days, and it bases refusal its to in this action on pay ground alone, having failed to introduce evidence controvert- the insured’s ing respect to the continuation testimony total Its disability. absolute refusal to waived its pay right to insist on the insured’s to it every thirty days doctor’s certificate of his continued disability. Upon demand for in disability total continuing made for such alleged

being refused to action, later as provided thirty-day reports furnish the failed to had case, are which allegations present Under the policy. com- evidence, we think and not denied supported policy, and its absolutely had denied pany to avoidance of waived insist on an right thereby de- plaintiff evidence for The uncontradicted this ground. to the total had continued up manded finding suit. shown by of the trial the second time show examination to submit to letters, had offered to made no and defendant disability; entirely and based its refusal to question on this issue which under the facts is plainly law adverse on a proposition we for the verdict think plaintiff, this second being re- upheld. award of should damages and are without merit. of error assignments maining J., J., MacIntyre, G. concur. Broyles, Judgment affirmed. MOTION'FOR REHEARING. ON so Movant contends in his motion for that much rehearing time pay- in this covers from the verdict case as the. wit, it in the first ing suit, rendered action in the court of trial of this 7, 1938, May up below, wit, this court. Nov. is improperly approved 7, 1938, filed action was in the trial court on present This defense of failure persisted solely while the defendant as to preliminary provisions with plaintiff in its it monthly reports, answer to that action continued to yet on the or that deny liability plaintiff injured accident also covered provisions policjf, said complied as to the days by certificate from a every thirty doctor. giving on its was a absolute denial continuing part, it unnecessary made continue total and notices thirty-day for under the think that where the provided We has denied said that does not cover the that before it injury claimed, again can demand Code, as mentioned in 56r-831, preliminaries *5 notice that it its it must and withdraws plain unequivocal give its unconditional refusal denial of policy now relies on the and will insist on in the compliance future with these conditions The insurer policy. may named contract, or that contract covers the deny claimed, refuse that still insist on a with or conditions subsequent in respect contract. Conditions of loss and the con- proof tinuance thereof conditions are of the subsequent happening hazard is Where there against. loss is occurred, or that loss has against, there is need no these conditions performance subsequent.

The letters introduced in evidence this case, written defendant, admits, have never that it now admitted, stated or then injury which was protected by terms it but him, issued to stated that it merely would refuse time accruing during pendency' of the former action because the plaintiff had not it the notice give When policy. sued thereon it again any liability on the policy, the happening original one injury being covered policy. So long as the defendant continues to deny under for the service or need the. notices sus- thirty-day is It must admit its pended. liability therefor, heretofore continued before it deny again can insist these terms of the policy. If any further occurs or continues, may future, by is admitting in effect and that it same, relies demand the insured comply with its terms by furnishing doctor’s certificates as required therein. can It not continue unconditional refusal to at pay and the same insist the insured to it the giving notices provided for in the always

There is available to insurer the defense that dis- has ceased. ability J., Motion rehearing denied. Broyles, O. and MacIntyre,

n J.,concur.