50 Ga. App. 763 | Ga. Ct. App. | 1935
Under the rulings of the Supreme Court in Cato v. Ætna Life Ins. Co., 164 Ga. 392 (2) (138 S. E. 787), reaffirmed in Prudential Ins. Co. v. South, 179 Ga. 653 (177 S. E. 499), the jury, under the evidence, were fully authorized to find that the plaintiff was totally and permanently disabled, within the meaning of the provision in the group policy upon which suit was brought, that “any employee shall be considered totally and permanently disabled who furnishes due proof to the company that, while insured thereunder and prior to his 60th birthday, he has become so disabled, as a result of bodily injury or disease, as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit,” and that “three months after receipt of such proof, the [insurer] will commence to pay such employee, in lieu of the payment of the insurance under said policy at his death, equal monthly installments” as further provided.
The verdict for total-disability benefits was not excessive, and the court did not err in charging the jury in effect that the amount of insurance applicable to the case was $2000 and not $1000, or in refusing to give the requested written instruction that it was $1000, upon the contention of the defendant insurance company that the plaintiff became permanently disabled, if at all, while the original certificate of insurance for $1000, issued November 16, 1929, was in force, and before the rider, increasing the insurance to $2000, issued on June 13, 1931, became effective. Under the undisputed evidence, the plaintiff developed the varicose veins, from which he suffered, first in one leg in 1930, and made a claim therefor to the defendant on April 23, 1931, prior to the issuance of the increased insurance, but lie did not press his original claim, and in May or June, 1931, renewed his former occupation and duties as a house-to-house salesman, in which he continued to
The jury found in favor of the plaintiff for past accrued payments under the $2000 policy of $36 a month from July 22, 1932, to October 26, 1933, the date of trial, a total of $580.80, and $500 attorney’s fees, thus allowing 16 installments of $576 and apparently prorating a seventeenth installment on the basis of 2/15 of a month in the amount of $4.80 to cover the four days from October 22 to 26, 1933. Exception'is taken on the grounds that, even if any recovery of installments could be legally had, it could not include monthly installments due after the filing of the suit to the trial (although the petition claimed such installments); that, under the above-quoted provision of the policy that payments would commence three months after receipt of “due proof” of total and permanent disability, only three installments would be due from the time thus provided to the time of filing suit; and that in no event was there any claim filed which could properly be construed as furnishing such proof before September 27, 1932, so as to make no payment due until three months thereafter, although it is further contended that no sufficient proof was furnished until October 3, 1932.
The verdict was not illegal or excessive because it included installments due under the amended policy between the time of filing suit and the time of trial, such installments being claimed in the petition. See U. S. v. Worley, 281 U. S. 339, 341 (50 Sup. Ct. 291, 74 L. ed. 887, 890). The right of the insured to recover these payments under a disability policy is not unlike that of a wrongfully discharged servant or agent to recover moneys due under the contract of employment under “the state of facts down to the time of trial.” See Roberts v. Rigden, 81 Ga. 440-442 (7 S. E. 742); Roberts v. Crowley, 81 Ga. 429 (7 S. E. 740); G., F. & A. Ry. Co. v. Parsons, 12 Ga. App. 180 (2), 183 (76 S. E. 1063); Realty Co. v. Ellis, 4 Ga. App. 402 (61 S. E. 832).
The evidence supports the defendant’s contention that there was no sufficient proof of total and permanent disability
The court did not err in refusing a new trial upon the ground that the verdict for $500 attorney’s fees, under the Civil Code, § 2549, was unauthorized. “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon another and different consideration.” Cowdery v. Greenlee, 126 Ga. 786, 789 (55 S. E. 919, 8 L. R. A. (N. S.)
Although the award of a $500 attorney’s fee to the plaintiff might seem large, it was authorized by the evidence of attorneys not connected with the case, which was admitted without exception. Where the amount of a verdict is attacked merely for excessiveness, and not for the inclusion of some calculable amount definitely ascertainable from the undisputed evidence, and the verdict has been approved by the trial court, it will not be set aside unless the amount is so excessive as to manifest undue bias or prejudice, gross mistake, or improper motive, on the part 'of the jury. See Civil Code, § 4399; Dixie Mfg. Co. v. Ricks, 30 Ga. App. 433 (5), 440 (118 S.
Judgment affirmed on condition.