15 Ga. App. 263 | Ga. Ct. App. | 1914
This is the second appearance of this case in this court, the present defendant in error having brought to the October term, 1912, a bill of exceptions complaining of a judgment of nonsuit. Stanley v. Sterling Mutual Life Insurance Co., supra. The material'facts in behalf of the plaintiff were substantially stated by Judge Pottle, in rendering the decision in that case, and there is no real difference in the testimony for the plaintiff on the previous trial and on the trial now under review.
In our adjudication upon the judgment of nonsuit, when the case was here before, we held, (1) that by accepting proof of death, in the statement furnished by the beneficiary, the Sterling Mutual Life Insurance Company waived the right to set up, as a matter of defense, that the proof of death was not furnished in compliance with one of the stipulations of the contract of insurance; (2) that
Upon the trial now under review the defendant introduced testimony to the effect that it was with the greatest difficulty that the company succeeded in collecting $74 to pay the death claim of one Samuel Mearn, whose death preceded that of the plaintiff’s wife; that other assessments were made and all of the members lapsed, and nothing could be collected. The defendant’s secretary and treasurer also contradicted the plaintiff’s statement to the effect that he gave him notice of the death of his wife; and it may be said that the testimony upon this material issue was in conflict. However, upon this trial the-plaintiff introduced a witness who testified that the secretary and treasurer told him that the plaintiff would teceive $65 or $75 on his contract of insurance upon the life of his wife; and since the testimony of the secretary and treasurer that the assessment would likely not have been paid, based upon the fact that he had had great difficulty in collecting the Mearn assessment, was a mere conclusion of the witness, the jury were not compelled to accept the reason given by the insurer for not issuing the assessment, as a valid and sufficient reason for the failure to perform that duty, which we heretofore held to be essential. The sufficiency of the excuse for not issuing the assessment was, under our previous ruling, left to the decision of the jury. Upon a review of the record it can not be said that there was no evidence which would have authorized the jury to infer that there were
The instructions of which the plaintiff in error complains appear to be fully in accord with the rulings of this court upon the questions presented, which are res judicata. So far as concerns these parties and the subject-matter of the suit, the former decision of this court is the law of the case.
Judgment affirmed.