Opinion
41410.
ARGUED JULY 8, 1965.
DECIDED SEPTEMBER 8, 1965. REHEARING DENIED SEPTEMBER 29, 1965.
Action on insurance policy. Clarke Superior Court. Before Judge Barrow.
Rupert A. Brown, for plaintiff in error.
Denny C. Galis, contra.
1. The plaintiff insured was not estopped from bringing suit to enforce a claim arising under a policy of insurance even though such claim could have been asserted in a prior suit to enforce another claim previously arising under the same policy where the first suit had been voluntarily dismissed pursuant to a settlement under the terms of which the parties had expressly agreed that only the particular claim sued upon was concluded by the settlement and that it did not affect any other claims under the policy; the result would have been otherwise if the first suit had proceeded to judgment or if it had been settled and dismissed without these terms and conditions.
2. The defendant insurance company having denied a previous claims filed by the plaintiff insured under the policy on the ground that the policy was null and void and of no effect from its inception and such renunciation of the policy not having been expressly withdrawn by the company, it was not necessary that the plaintiff comply with the terms of the policy as to the giving of notice and the filing of proof of loss before instituting the present action under the same policy.
3, 4, 5. The trial court did not err in denying the defendant's motion for judgment notwithstanding the verdict and its amended motion for new trial.
ARGUED JULY 8, 1965 — DECIDED SEPTEMBER 8, 1965 — REHEARING DENIED SEPTEMBER 29, 1965.
This was a suit brought on December 11, 1963, on a policy of hospitalization indemnity insurance issued by the defendant insurance company to Mrs. Warren C. Thurmond, Sr., in which the plaintiff insured sought to recover the sum of $2,450 allegedly due her under the "Weekly Indemnity During Hospital Confinement" provisions of the policy because of the following periods of hospitalization: (1) June 17, 1962, to June 22, 1962; (2) June 22, 1962, to July 12, 1962; and (3) August 16, 1962, to January 11, 1963. It was alleged in paragraph 8 of the petition as amended that in connection with a prior claim the company had denied liability under the policy and had "repudiated said policy and has continued to treat the policy as being void from its inception and of no effect." It was further alleged that the defendant company had continued to send premium notices and had accepted the plaintiff's tender of premiums due.
The defendant in its answer to the petition admitted that it had previously denied liability in February of 1962 in connection with the prior claim referred to in paragraph 8 of the petition but denied that it had ever arbitrarily and unjustly denied liability under the policy, and alleged that the sending of any premium notices thereafter was done while changing the manner of processing same from manual means to mechanical means and that the sending of any such premium notices was an administrative error and inadvertently done.
By way of further plea and answer the defendant company alleged in substance that the plaintiff on February 22, 1963, had filed an action against the defendant on the same policy or contract for benefits due her because of a confinement for 61 days in Athens General Hospital following an injury she received in November 1961; that at the time the prior action was commenced, the above three periods of hospitalization had occurred and any claim for benefits or right of action therefor under the policy had accrued; that without knowledge of the existence of these periods of hospitalization on the part of the defendant insurance company, the plaintiff, after the accrual of any right of action therefor, brought suit for the recovery of the benefits due her for the period of hospitalization for 61 days in Athens General Hospital following her injury in November 1961, and did so without including in such action any cause of action or claim of benefits she then had for the three subsequent periods of hospitalization which had occurred and accrued prior to the commencement of the first action; that on November 13, 1963, the plaintiff and defendant settled the prior claim and suit and a dismissal was entered therein; and that this settlement extinguished all claims, rights, and causes of action which the plaintiff had under the policy and which had accrued on or before February 22, 1963, and which should have been embraced in the prior suit, so that the claims for which recovery is sought in the present suit are barred and the plaintiff has no right to recover therefor.
The defendant insurance company further alleged in its plea and answer that if the plaintiff had any right to sue for the recovery at this time, she brought this action without complying with the provisions of the policy with respect to giving notice of claim and furnishing proofs of loss to the defendant and that for such reason she is not entitled to proceed with this action.
The case proceeded to trial on the issues thus made and, at the conclusion of the evidence, the defendant made a motion for directed verdict which was denied. The jury returned a verdict for the plaintiff and the defendant filed a motion for a judgment notwithstanding the verdict and in the alternative, a motion for new trial. The exception is to the denial of these motions.
1. It is contended by the defendant insurance company that the present suit was barred as a matter of law under the provisions of Code § 20-1401 because the plaintiff insured had previously instituted another suit against the defendant company on the same policy of insurance in which she could and should have asserted the subject claims.
Code § 20-1401 provides that all breaches of contract occurring up to the commencement of an action on such contract must be included therein; and it has been held that it is a legal presumption that such has been done ( Evans v. Collier, 79 Ga. 319 (2a) ( 4 S.E. 266); Macon Augusta R. v. Garrard, 54 Ga. 327), and that: "A judgment rendered in a litigation arising under a contract is conclusive of all the accrued rights of the parties arising under the contract, whether they were actually inquired into or not; and such judgment may, in a subsequent suit between the parties arising under the same contract, be pleaded as res judicata." Missouri State Life Ins. Co. v. Pilcher, 179 Ga. 231, 232 ( 175 S.E. 586).
This is well settled law and would be controlling in this case were we here concerned with a plea of res judicata based on a final judgment in a prior suit rather than with a plea of settlement. The first suit instituted by the plaintiff insured did not proceed to judgment but was voluntarily dismissed by the plaintiff after a settlement with the defendant insurance company had been reached; and under the uncontradicted evidence in this case a finding was demanded that the parties had expressly agreed in making such settlement that it applied only to the first claim against the company and did not cover any other claims arising out of the policy of insurance.
The plaintiff was not therefore concluded by this settlement as to the claims upon which this action is predicated and, since the first action did not proceed to judgment but was voluntarily dismissed by the plaintiff in reliance on such settlement, she was not estopped from bringing this action to enforce these claims. The result would have been otherwise of course if the suit had been settled and dismissed without these terms and conditions in which event the presumption that the first action had been brought to satisfy all accrued rights would control, and settlement and dismissal thereof would be tantamount to judgment and the plaintiff would be barred. Atlanta Elevator Co. v. Fulton Bag c. Mills, 106 Ga. 427 ( 32 S.E. 541).
2. The defendant insurance company having denied a previous claim filed by the plaintiff insured under this policy on the ground that such policy was null and void and of no effect from its inception, it was not necessary that the plaintiff comply with the terms of the policy as to the giving of notice and the filing of proof of loss before instituting the present action under the same policy. The company by its specific renunciation of the policy and denial of any and all liability thereunder which had not been expressly withdrawn waived the necessity for the insured to comply with these preliminaries under the policy before bringing suit. Commercial Cas. Ins. Co. v. Mathews, 61 Ga. App. 358, 362 ( 6 S.E.2d 172).
3. The evidence authorized the finding that the plaintiff was entitled to recover the sum sued for under the policy in dispute, and since a finding was not demanded for the defendant on its plea of settlement or contention that the action had been prematurely brought, the trial court did not err in denying the defendant's motion for judgment notwithstanding the verdict and the general grounds of the motion for new trial.
4. The defendant in the first ground of the amended motion for new trial assigned error on the following excerpt from the charge: "I charge you, gentlemen, that if you should determine from the evidence submitted to you that in that prior case the plaintiff accomplished all that she sought to do in that action, and that the defendant paid to the plaintiff the full amount the plaintiff sued for, and that pursuant thereto the prior suit was dismissed, then in that event, gentlemen, I charge you that the settlement of that prior suit bars the prosecution of this case, and in that event you would be under a duty to render a verdict in favor of the defendant in this case.
"On the other hand, gentlemen, if you should determine from the evidence submitted to you that in that prior suit the plaintiff did not accomplish all that she sought to do in that action and that the defendant did not pay to her all that she sought to recover in that action, and that the plaintiff dismissed that prior suit without it proceeding to final judgment, then in that event, gentlemen, I charge you that that prior suit would not be a bar to the plaintiff's recovery in this case."
This charge was incorrect as an abstract principle of law as it is the express agreement between the parties that the settlement covers only a particular claim and not others which is determinative of the plaintiff's right to bring another action and not the fact that the plaintiff has settled for a less amount than that sued for in the original action.
However, since the uncontradicted evidence in this case showed that the settlement under review here was made on the condition that it covered the one claim arising out of the confinement at Athens General Hospital in November 1961, and no other claims under the policy of insurance sued upon, this charge could not have been harmful to the defendant insurance company and does not require the grant of a new trial. W. C. Thurmond, the husband of the insured was the sole witness in this case. He testified with respect to the settlement substantially as follows: that the defendant company first offered a sum of money in full settlement of any and all claims under the policy of insurance; that this proposal was refused and a counter proposal made that the sum of $700 would be accepted for the one claim arising out of the November 1961 confinement, but that no other claims would be affected thereby; and that checks were tendered by the company and accepted on this condition as evidenced by the conditional endorsement of the checks which were ultimately honored by the defendant insurance company.
5. The remaining special ground is without merit.
Judgment affirmed. Felton, C. J., and Deen, J., concur.