52 Ga. App. 372 | Ga. Ct. App. | 1936
1. Prior to the institution of this action, the plaintiff sued for weekly benefits up to July 29, 1931, the time of the filing of the suit on the same benefit certificate involved herein, and recovered judgment therein against the defendant association. A., B. & C. Benefit Association v. South, 49 Ga. App. 659 (175 S. E. 924). In that case the questions raised in this case were directly put in issue, and were determined adversely to the contention of the defendant. This being so, that judgment was an adjudication as to all matters and questions in issue, and which might have been put in issue under the pleadings and the evidence,
2. If the plaintiff was totally disabled, as contended by him, then he would be entitled to recover weekly benefits under the certificate “as long as total disability continues;” and the present suit being to recover for weekly benefits from the time of the former recovery to the time of the trial of this case, the petition having prayed that the plaintiff be allowed so to amend as to recover weekly benefits up to the time of the trial, if his disability continued to that time, provided the jury believed that his disability continued to that time, and having been amended accordingly, the suit was properly brought. Metropolitan Life Ins. Co. v. Lovett, supra. The question for decision then would be whether the plaintiff was totally disabled; and this question should have been submitted to the jury. The judge erroneously held that the prior suit and judgment adjudicated only that the plaintiff was totally disabled during the time sued for. The judgment in that action adjudicated all matters in issue, and which might have been put in issue; and the questions now raised, as to notice and proof of disability, and as to the fact that the plaintiff had been' dismissed or suspended before disability, and had not paid any dues after dismissal, and had not submitted weekly doctor’s certificates, were questions which were or which might have been raised in the former case.
Judgment reversed.