Life Ins. Co. of Ga. v. Burke, 39916

• Citation: 131 S.E.2d 206,107 Ga.App. 621
• Decision Date: 02 April 1963
• Docket Number: 3,Nos. 1,2,No. 39916,39916,s. 1
• Parties: LIFE INSURANCE COMPANY OF GEORGIA v. Leona E. BURKE
• Court: United States Court of Appeals (Georgia)

Page 206

131 S.E.2d 206

107 Ga.App. 621

LIFE INSURANCE COMPANY OF GEORGIA v. Leona E. BURKE.

No. 39916.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 2, 1963.

Rehearing Denied April 16, 1963.

Syllabus by the Court

Where, as here, the defendant insurer offered plaintiff beneficiary the face amount of a policy of life insurance but denied liability for double indemnity; plaintiff sued for recovery of double indemnity and alleged that the failure of the insurer to pay more than the face of the policy constituted bad faith, and this court held both that double indemnity coverage was afforded, and that in view of this fact the question of bad faith was for the jury, it is established as the law of the case that on a subsequent trial of the bad faith issue a verdict in favor of the plaintiff was authorized if the plaintiff proved all the allegations of the petition. Whether the legal construction of the double indemnity provision of the policy presented a new and novel question of law was an issue necessarily involved in the first appeal, from which it follows that this court can not, on the second appearance of the case, reverse an award in favor of the plaintiff for attorney's fees on the sole ground that the insurer was entitled without penalty to test the validity of its interpretation of the double indemnity feature of the policy.

When this case was here before (see Burke v. Life Ins. Co. of Ga., 104 Ga.App. 865, 123 S.E.2d 426; certiorari dismissed, 217 Ga. 742, 125 S.E.2d 48), this court reversed a judgment of the trial court sustaining general demurrers and special demurrers to a petition seeking recovery of double indemnity under a policy of insurance, where the defendant insurer had tendered into court the face amount of the policy but had denied liability under the double indemnity provision, and seeking also penalty and attorney's fees for bad faith on the part of the defendant in its denial of liability. Subsequent to that decision the insurer paid into the registry of the trial court another $1034, being the amount of double indemnity held by this court to be owing as a matter of law under the provisions of the policy on the facts pleaded, but the insurer did not tender any amount as penalty or attorney's fees, and the case went to the jury on this issue alone. The jury returned a verdict in favor of the plaintiff. A motion for new trial was overruled and the defendant brings error.

Clement E. Sutton, Washington, for plaintiff in error.

Walton Hardin, Washington, for defendant in error.

RUSSELL, Judge.

1. A former decision of an appellate court in the same case becomes the law of the case and cannot thereafter, upon a subsequent appeal, be modified or overruled. Dixon v. Federal Farm Mtg. Corp., 187 Ga. 660, 1 S.E.2d 732; Turner v. Davidson, 188 Ga. 736, 4 S.E.2d 814, 125 A.L.R. 401; Smoot v. Alexander, 192 Ga. 684, 16 S.E.2d 544. All questions of law determined on a prior appeal in an action on an insurance policy are binding both upon this court and on the trial court in further proceedings. Mutual Ben. Health & Accident Ass'n v. Marsh, 62 Ga.App. 425, 8 S.E.2d 117. All issues material to a decision in the case which were or could have been raised on the prior appeal are a part of the law of the case. Lowe v. City of Atlanta, 194 Ga. 317, 21 S.E.2d 171.

The first appeal involved one major issue, which was whether under the facts stated in the petition the policy attached thereto included double indemnity coverage, and one corollary issue, which was whether the denial of liability as to double indemnity by the insurance company under this state of facts might be found by a jury to have been in bad faith. We answered yes to both questions. The particular policy provision involved had never before been construed by the courts of this state, and the sole question before us was one of law. In Division 3 of the opinion we held that there was double indemnity coverage. Paragraph 14 of the petition, alleging that the defendant's refusal to pay more than $1034 (the face value of the policy) constituted bad faith and rendered the defendant liable for penalty and attorney's fees, was attacked by demurrer on the ground that 'neither in said paragraph, nor elsewhere in the petition, is it shown wherein defendant is indebted in any greater amount.' The court held: 'In view of division 3 of this opinion, whereunder the defendant might be liable to the petitioner in an amount greater than $1,034 [that is, double indemnity] the question of penalty and attorney's fees is a jury question. Therefore, the court erred in sustaining this special demurrer.' 104 Ga.App. p. 871, 123 S.E.2d p. 431.

A demurrer, although addressed only to a particular paragraph of the pleadings, is not necessarily a special demurrer but may be general as to some particular issue in a case. Douglas, Augusta & G.Ry. Co. v. Swindle, 2 Ga.App. 550, 59 S.E. 600; Ayers v. Young, 210 Ga. 441(1), 80 S.E.2d 801. This demurrer, addressed to paragraph 14 and to the petition as a whole, raised but one issue: if the plaintiff proved all the allegations of his petition as alleged, would the facts shown support also a finding of bad faith on the part of the defendant in refusing to pay more than $1,034, that is, in refusing to pay the double indemnity feature of the policy? If as a matter of law the construction of the policy provision urged by the defendant was not frivolous or unfounded, this court would necessarily have had to hold on demurrer, as it did in Southeastern Construction Co. for use of Beckham v. Glens Falls Indemnity Co., 81 Ga.App. 770(2), 59 S.E.2d 751 that 'it cannot be said that to test the question here is in bad faith.' The issue was material to the decision at that time and was or could have been raised on the prior appeal; it accordingly became the law of the case that if the plaintiff proved the allegations of his petition the jury might, as they in fact did, find bad faith on the part of the insurer. Since the question for decision in the first instance was a matter of law only, the litigants, the trial court, this court, and the Supreme Court on certiorari knew as well then as they know now to what extent a new and novel question of law was involved. Nothing in the evidence before the jury discloses any fact which changes that picture. The insurance company did not attempt by its evidence to negative the imputation of bad faith (Life & Cas. Co. of Tenn. v. Smith, 51 Ga.App. 122(2), 179 S.E. 744) which followed the refusal to pay on any other ground than that, under its construction of the policy, double indemnity was not provided, and that the question of law of how to construe the policy was a new and novel one. These are the very questions we decided, right or wrong, on the first appearance of this case, and we cannot readjudicate them now. It follows that the verdict was authorized, and that the trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

FELTON, C. J., CARLISLE and NICHOLS, P. JJ., and JORDAN, J., concur.

EBERHARDT, Judge (dissenting).

In the trial court defendant demurred to paragraph 14 of plaintiff's petition ¹ 'upon the ground that no bad faith has been shown on the part of defendant, in that it is alleged that the defendant has offered to pay $1,034 to the petitioner, and neither in said paragraph, nor elsewhere in the petition, is it shown wherein defendant is indebted in any greater amount.' This ground of the demurrer was sustained, and on the prior appeal ² we held that 'In view of division 3 of this opinion, whereunder the defendant might be liable to the petitioner in an amount greater than $1,034 the question of penalty and attorney's fees is a jury question. Therefore, the court erred in sustaining this special demurrer.' It is now contended that this ruling is the 'law of the case,' that as a matter of law, under the facts pleaded, a jury question was presented on these items and that since the jury returned a verdict for plaintiff an affirmance is demanded. We can not agree.

(a) Neither the allegations of paragraph 14 of the petition nor the demurrer thereto raised the issue as to whether a new or novel question might be or was involved in the case. The allegations were simply that defendant had refused to pay more than $1,034 and that its refusal was in bad faith. This allegation was challenged by the special demurrer upon the ground alone that nothing in paragraph 14 or elsewhere in the petition showed that defendant was indebted to plaintiff in any greater sum. Thus both the allegations of paragraph 14 and the demurrer thereto went solely to the matter of whether there had been bad faith in offering to pay $1,034. The special demurrer did and could raise no issue save that made by its specific terms, nor could our ruling thereon rise any higher than the demurrer itself. If it had been a general demurrer to the allegations of the petition dealing with the matter of penalty and...