Mutual Life Insurance Co. of N. Y. v. Barron

454 not that the trial was

strued. All that the holds is judge opinipn- sourceíb-..T,he words, “unimpeached to use the required express not themselves ex- that'these-words do opinion merely points out Code, 38-1803, as to which.-the pressly .judge- appear (cid:127) nor they, expressly appear charges.'.appr.qved do charging, (cid:127) cited eases. inconsistent

In 7 it is contended that the is. opinion ground 9. is shown. In in divisions 6 and No inconsistency; rulings whether .Mrs. 6 it is out that the issue as to Tant division pointed because of dis- unworthy and Kinard were of.belief their-general fundamental, un- an oath was embraced in the general, regard and in the impeachment, general- rule derlying given charge - .In- witnesses. division out that pointed credibility - not .there to was error because of charge, excepted Of-the the part words, source.” It express “unimpeached the omission there .that to was limited charge excepted held in division - contradictory statements and not otherwise to impeachment out as one of merely points The court the reasons why applicable. source” were not “unimpeached words to be required the express are not expressly Code, these words used is, that or in used with one of the modes cases, in connection of impeachment cited as to which the trial statements) court correctly (contradictory charged. n matters the motion for all other rehearing having These considered, is adhered to. the judgment J., Gardner, J'., Broyles, to. O. adhered concur.

Judgment LIFE MUTUAL INSURANCE COMPANY OF 30041. NEW

YORK v. BARRON et al. Rehearing December 1943. denied 1943. December Decided Beck, Middlebrooks, Dawson, Beck, & Goodrich Louis W. Grover William, Dallas, M. in error. contra. for plaintiff This was a suit on an insurance for J. total- MacIntyre, Mutual Life Dr. A. Barron Henry against benefits disability of New York. The policy provided upon Company 60 age years) furnishing (before'reaching the insured' that he was disabled totally permanently proof with company in said wbuld: waive each policy, company (1) as'provided it- became due such disability; thereafter during' premium' insured monthly $50 benefits of month for the per pa'y (2) $75 of said month for the second 60 disability, per monthb first disability, said and thereafter month per $100 during months insured;,’ life of- said so' as said remaining long disability'con- thé insured The furnished the that he proof company tinued. 1,A927. The waived totally January disabled'on ac- benefits began payment total-disability premiums, same continu- policy, paid provisions cording made, had been payment until after the ously February, make further payments. when it refused to in Cato v. Ætna In total stated disability rule as .to Life S. E. in Met 787), explained surance 164 Ga. 392 (138 Johnson, 2d, Insurance Co. v. Ga. 138 S. E. ropolitan Life insured has is that as the long capacity perform any so duties, he is not disabled. totally -substantial of his “Total part n disability do all of the material acts substantially inability of the insured’s in substan occupation, transaction necessary and usual manner. Total does not customary his tially at one’s inability occupation, mean absolute work or to physical or but it exists if wages some occupation gain; injury pursue n ordisease insured is such that common care and prudence desist, desist, and he does in fact him to from transacting require circumstances, total In such exists.” Cato disability business. his The rule stated in supra. the'--Cato v. Ætna Life weaver, that of a occupation, one and that was involved ease claimant in case the that at which occupation working the occurred; More one .than is in disability occupation- the time the case, medicine, to wit: doctor of instant chairman of volved commissioners, and city councilman. The county .of oc the-board here was at the engaged the claimant time in which of his cupation 1, was that a 1927) of doctor of medicine. disability (January total $800- month. On per $700. were earnings showing His net claimant, in accordance with of provision the the policy, by made and -paid, the premiums, total-disability bene waived company the 1942, the month of February, after which -including and toup fits the that the ground plaintiff had recov paying it discontinued- he -wasno longer totally that disabled within an extent such ered is, here question the what is the policy. of rule provisions recovered -from his disability has to a named claimant where medicine, practice resumed has extent, employ but at the time of the engaged he was occurrence of the in which ment Q. B. & 12, In Keith v. R. Co. Chicago, (82 Neb. disability. total 655, R. 23 L. R. A. 130 Am. St. (N. S.) 352), it W.N. relief member department injured “If an recovers said: to the extent that he is no in longer disabled performance worky work or similar contemplated is, employment —that as equally remunerative, desirable and obligation —then defendant to pay benefits disability ceases.” In Insur Prudential South, ance Company 179 Ga. S. E. 98 A. L. R. Supreme Court speaking through Mr. Justice Bell stated: “The expressions ‘any occupation’ work’ were ‘any thus converted into words of concrete signification, and be should mean construed ordinary employment particular per insured, son or such other if employment, any, approximating livelihood, same as the insured be might follow, fairly expected to in station, circumstances, view of his physical mental capa bilities.” While the writer has read a number of cases on foreign this case, the rule point, South just quoted, to him appears to be the helpful most statement of the law of total as the facts applies case; of the instant for the explanation South case what some decisions call “similar employment,” writer clearer to the than in the other cases read. And when we the rule from apply quoted the South case case, instant where involved, kinds are occupations different order for the insur ance to be justified refusing to continue the total-disa bility payments, merely showing that the insured is engaged it must occupations, the other appear: (1) he never became he) able to did physically resume his (nor work as a doctor of medi cine; he engaged employments which (2) were to him de sirable, he be might fairly expected to follow in view of his circumstances, station, and mental and physical capabilities; (3) employment that the like produced remuneration or approxU mated the same livelihood. Under the circumstances of case, necessary 'it was show all proof three of these essentials. contended that it The defendant refused to make total-disability February, after on the ground that payments after investiga that it learned the insured was tion not totally and permanently the- definition. verdict, disabled within After that view of is favorable the evidence which most to the plaintiff must be taken, and every for inference every presumption favor of the verdict. construed, evidence, when so a The authorized finding that in 1927 made claim for benefits, the insured total-disability which were paid 1942; that February, during until for period which the dis- for, of was board continued benefits were sued he chairman of the of and had been re-elected county County, commissioners Upson for he had an officein the court- another term of three that years; house, and that he was day; performing wenc there almost every satisfactorily, the duties of chairman the board of commissioners of services; and received a for his that during $75 of month salary per council, he also a member of period city was question, tern, mayor pro and of the street committee of Thomas- chairman ton; he that was duties those offices satis- performing also services; factorily and a month for his salary per $60 received and he the city oil other committees of council serving “I Tim testified in on Thomaston. insured was born part: I a I dis- 1889. was before became August practicing physician from I I in this 1913 to 1927. did practiced county abled. does, that a a little of doctor and was general everything practice, to 15 on I made duty day up day. from 12 hours hours hundred dollars net a month I eight an seven or before average I and became . overworked . myself became disabled. disabled. to Mutual Life my disability I made Insurance Com- proofs York, and recognized my of New and they began pany me to They February in 1927. and then paid me to pay . . I am a I nervous payments. very man. they stopped hours at I sleep night. three or four rest dur- about some get is, down, I bad, I lie but feel I sleep when don’t day ing I am . weak what I was. I day very time. can during all. I I at myself stopped practice exert of medi- if sleep not time, 1926. I an made average Christmas of seven or about cine month. None of my duties per hundred dollars connected eight any physical exertion. county My duties city require or with any at time. anything particular me to do None of not require do at time any me from resting during if day prevent duties my I up reason and get night do come up so. desire I can I wake I up is because sleep, get carmy -town he asked me The amounts about I bed. got of lying tired I salary. do not my gross have to county city from If I feel don’t like I time. don’t particular anything do from office, myself I can absent the city coun- to go have I I to. do not supervise if five weeks want next cil chairman, or as as street chairman capacity in my hands oversee of the street committee. I-tell Chief the Bogers,- police, chief of what to do and he has charge the street hands. If were to you to me that the report you street live on was in need the of repairs, have, exertion I would would be only the pick up telephone I call Chief could all Bogers. do at home or in bed. that sitting If I -had a from report somebody out in the as to living county any road, I could attend it in a chair and tele- home sitting my the have it fixed I would not phoning camp, day. that same there, whether was fixed know or mot if I because right went out am I I not an and do not engineer, supervise the actual work. The warden does most of the that is riding required county the com- The other two missioners. commissioners do a deal of great riding county, over the after the looking county’s affairs.” Notwithstand- evidence, doctor’s, ing conflicting that of the particularly find, were authorized to jury at the time the insurance com- benefits,'the ceased paying disability claimant was pany totally disabled according provisions of the insurance under policy, stated the rules Cato and-the South-cases. Irrespective of the insurance company whether proved first two essentials stated above, third, it failed to prove to wit: that the employment pro- n a like remuneration or duced approximated the same livelihood. were authorized to find from jury the evidence as a whole that at the time of the disability, claimant was making $700 $800 month, medicine, as a doctor of per net and that at the time the paying compensation benefits, ceased insured, the board of county a member of commissioners and as a member council, was city "making only month, $135 per which was less than one-fifth of remuneration he was at the receiving time disability. of the' Under rules force in State, as an- cases, and South nounced Cato the verdict finding authorized, disabled as insured was totally alleged was Under foregoing ruling following charge, wit: “The words Total mean disability’ to do inability substantially or all material acts practically necessary to the transaction of business, or his the insured’s occupation, or whatever line he is fol and in the customary manner,” and usual lowing, is not reversible error, “it in effect because instructs the jury that recovery should his be had even though partial not total. It jury instructs should recovery be had unless the insured is of. whether or Ms'usual:occupation; regardless able follow .to other, error, if is not him.” This'charge, :v. open occupation error, the complaining dhe plaintiff1 as against reversible-'error “whatever, following” limit line:he-is. did' not The'charge, party. Thus, South livelihood: under the the same to one approximating .defendant, it error, favorable to the case; if was -any, supra, that, if .the jury insured-was-then'-following in'effect instructed endeavor, disabléd unless'-'hewas he would: not be totally line of all-the-material or acts neces substantially practically unable to do of said line of work or endeavor.- transaction Under sary to-the instructed that if the- was effect insured was jury- this an charge (cid:127) line, “in the usual pencils customary and following'the of'selling manner,” and totally permanently he could not- be -disabled. in the record but exceptions

There 'are other we think that cover all made. exceptions the foregoing rulings faith,” Code, as used in 56-706, The term “bad is not fraud, but of actual means any frivolous or un equivalent- founded, fact, law, to comply refusal or with-the requisition according terms of pay his contract policyholder statute. Cotton imposed-by the conditions States and Ins. Life Edwards, 74 220 We do not think Ga. (4). Co. evidence au v. in the instant case that the finding insurance thorized company’s in “bad .faith.” was pay refusal to the insurance the verdict against As was authorized evidence, error and no material was committed which affected recover, the judgment right affirmed on condi plaintiff’s the sums write off recovered as a plaintiff that tion and penalty fees; judgment otherwise reversed. attorney’s Gardner, J., condition. concurs. Judgment Broyles, affirmed J., dissents. C. In J., my dissenting. opinion the C. evidence de-

Broyles, Dr. Barron was only that partially finding disabled and manded at the time the insurance employed company refused was gainfully benefits; the total-disability payment that continue was plaintiff contrary law favor the evi- verdict dence. FOR MOTION REHEARING.

ON rehearing, plaintiff error for motion contends In its that of insurance in the contract the time case that fact “the 1925, the issued in decisions of the appellate Georgia courts of the words ‘total and the de construing permanent were disability’ Co., cases of Whitton v. American National cisions Insurance 17 Ga. S. App. 827), E. decided in (87. Parten Standard Insurance 30 Ga. S. App. Jefferson Life in 1923, E. decided both such holding disability-benefit .that bewill construed as provisions expressed, and is not insured if entitled it benefits that he appears is not wholly un or able to earn obtain for any wages compensation profit;” that the question having executed between the time of the rendition decision of the Court of in the Whit- Appeals case, ton the time contrary decision the case of Cato Co., 164 v. Ætna Ga. 392 be as (supra), must Life sumed in this intermediate law of the stage, the Whitton case case,-and to be was the applied to instant ]aw it was man on the below to court so it. datory apply Co., The case of Cato v. Ætna Insurance supra, decided Life 1927, dealt with an June insurance policy on issued 10, 1920. The Court held: April Supreme “Total is disability all to do substantially material acts inability to necessary the transaction of insured’s occupation, the in hi's cus substantially and usual manner. Total does tomary disability not mean absolute inability to work at one’s or to physical occupation, pursue some or but it wages gain; for exists if the occupation or injury disease is such the insured that common care of and prudence him require desist, desist, he does fact to from his transacting business. circumstances, In such total exists.” disability Since that time Court of has followed the Appeals cases, the Gato case many Court, whenever the question of Supreme total has them, certiorari from the by reached of Court Appeals, or other wise, has held to the uniformly decision in the Gato In case. Par ten Insurance supra, was “In said: Jefferson Life for this insurance it is stated that application ‘any issued policy under this be governed shall application by laws of the State ” North rule in of Carolina.’ such a case under the laws of North the State of Carolina different from the rule in Georgia case, as in all stated the Gato the cases decided by both Court of and the Supreme Georgia Court of Appeals of the State June, However, since when Gato case was decided. National the case of Whitton v. American Parten ease does cite Life Co., supra. error; rely in motion seems to rehearing, its The plaintiff 2d, E. Heist v. 193 Ga. S. Dunlap, the case of strongly raised as to different in- contrary decides an issue two which a statute Court. We think by Supreme of terpretations to the decision of the holding contrary Supreme unequivocal case, is the decision of the early Ap- in the Cato Court of Court case. It be noted that might in the Whitton the Constitution peals states that “the decisions of the Court shall Supreme of Georgia Code, as 2-30Ó9. The Appeals precedents.” bind Court effect the decision of here is to what question Supreme Court aby in the Cato case cases (followed long supporting line both Court and the Court of is to Supreme Appeals) be given insurance written prior Cabo case and subsequent ease, the decision of the Whitton which was overruled Cato ease. discussion as to the effect be age-old

Out of given these there have been two developed decisions fundamentally opposing one theory decisions of the According theories. courts are evidence of what the law is. conclusive always According are the decisions but not theory other conclusive evidence, evidence “Salmond, in his work on law. Jurisprudence (8th ed.), effect of a retrospective later discussing decision said: p. not the abolition of an overruling precedent 'The established law; it is an authoritative denial that the rule of supposed rule of existed. The is so treated precedent has ever not because it law law, but because it has never reality made bad made law has conformed to the requirements all. It has not legal efficacy. of a unlike overruling precedent, it is that of repeal Hence The statute, has decision is retrospective operation. pronounced a statute, A bad ab initio. repealed have been the contrary to as to matters before applicable arising valid the date remains a is of overruling precedent analogous The not to repeal. its of statute, rejection but of a custom as judicial of a to the repeal or as otherwise conform failing requirements unreasonable Graves, v. Div. 128 App. law.” N. People customary of are under a construction If of a 582). rights acquired Supp. Y. in the contract question, written 'impliedly which is statute

'463 contract, statute a of the part becomes and must govern rights a different parties against construction' adopted thereafter the former by decision. Such overruling seems to be rule ap- plied Heist A Dunlap, supra. judicial construction of the statute, statute a part becomes and as to accrue rights which afterwards, it should be adhered to for the of those protection them To divest a .rights. of the constitution change is legis- retroactively. late Kent,

Chancellor decisis, the rule commenting upon of stare said that “it is probable that the records of courts of many are country replete with and crude hasty decisions; and in to be such cases are examined without fear and revised fear without 'and revised reluctance rather without than to have the character (cid:127)of impaired our law and the beauty harmony system destroyed by perpetuity of error.” Kent’s Commentaries (13 In Butler ed.), Wyck, 477. v. Van 1 Hill (N. Y.) court said: “It is too far say that a going quite decision single is conclusive absolutely court as a precedent. It is an elé that an erroneous decision is mentary principle, not bad law—it is at all. It be final on may no law the parties having rights depend same The ing upon question.” general is principle that a de a of supreme jurisdiction of court overruling former decision cision is in its operation, the effect is not retrospective that the for law, bad mer decision is but it never was the law. To this the exception courts have established the that where a constitutional has given or statute law received a construction by the courts last have made resort and contracts acquired under and rights construction, with accordance such such contract not be in- may . validated, nor vested under them rights acquired be impaired by of construction made aby decision. change subsequent reversal, rule as the effect of or the general overruling n earlier decisions, is as follows: “The overruling of a decision gen- makes retrospective is the law at the erally time of the over- as it is be in ruled decision declared to the last decision. The over- ruled decision as precedent thereby destroyed, but it remains in which particular the law of the case it was rendered.” 21 C. J. n S. rule, 194. But there an exception general to wit: “An decision can overruling operate so as to im- retrospectively into, of contracts entered or injuriously affect pair obligations 464 in reliance the overruled 21 on decision.” rights acquired,

vested court make a for itself 328, may 194. State choice C. J. S. § operation forward that relationship principle the between by was stated Mr. Justice Cardozo in the case And as backwards. Co. Sunburst Oil Ref. 85 A. R. v. & L. R. Northern

of Great court, that decisions of its 250, 260, say highest “It may though overruled, the less for intermediate are law none transactions. later are cases too Tidal Oil intimating, broadly (cf. there Co. v. Indeed 68 444, 197, 382, 44 S. Ct. ed. 263 L. supra), U. S. that Flanagan, effect; but never has doubt been expressed must them that it give them if whenever pleases, injustice it so treat it or hard may that In 21 C. J. S. it is be averted.” said thereby will ship decisis, stated in simple rule of stare form and “that the considered affairs, private really to its effect on more nothing with relation to court decisions.” estoppel application Although than the the from the records that exact in question issue appear does not them, least there are at four raised in cases which here was have courts of by appellate Georgia, the based on an decided insur been for total provision in which there was disability simi policy ance the in in instant All policy the case. the provision lar the were issued during these four cases in intermediate policies cases, and the Cato but the Whitton were decided between period In each of the eases the Court case. of Appeals the Cato ap after in the Cato case. These stated four are: principle cases plied Childs, 64 Ga. 658 App. Co. 2d, S. (14 Mutual E. Life involved was issued on November policy in which 165), Johnson, 66 Ins. Co. v. Ga. 1926; Metropolitan App. (18 Life involved in was issued in 1925 2d, policy which 35), (af E.S. in 138); Metropolitan 194 Ga. Ins. certiorari Co. v. firmed Life 2d, E. in Daniel, S. which the in 64 Ga. App. October, 1925 was (certiorari denied). in issued It was volved in error in the first of the cases plaintiff noted that be might the same plaintiff error mentioned above just are other cases many There since the case. decided the instant Court, by Supreme court and all of which case, both Cato which, effect, had case, overruled the the Cato have followed have ease seems to the single Whitton Thus case. Whitton Court Supreme and the that con Appeals case Court do not feel authorized vo that say We Cato case. trary doctrine of estoppel iu not applying erred court below cases many ease but all the Gato decision court stated, is but another which therein the principle have followed saying authorized court was of saying way case. in the present not be applied should stare decisis doctrine considered, motion having matters in the and all other This denied. rehearing the motion Gardner, J., J., concur. C. Broyles, denied.

Rehearing

Case Details

Case Name: Mutual Life Insurance Co. of N. Y. v. Barron

Court Name: Court of Appeals of Georgia

Date Published: Dec 4, 1943

Citation: 28 S.E.2d 334

Docket Number: 30041.

Court Abbreviation: Ga. Ct. App.