Missouri State Life Ins. Co. v. Lovelace

• Decision Date: 22 March 1907
• Docket Number: 39.
• Parties: MISSOURI STATE LIFE INS. CO. v. LOVELACE.
• Court: Georgia Court of Appeals

58 S.E. 93

1 Ga.App. 446

MISSOURI STATE LIFE INS. CO. v. LOVELACE.

No. 39.

Court of Appeals of Georgia

March 22, 1907

Syllabus by the Court.

The sustaining of a general demurrer to a petition for equitable relief filed in the superior court, upon the ground that the petitioner was not able to set up by way of defense in a city court the things which it sought to prove in order to cancel a policy of insurance, and the consequent dismissal of the petition, do not make the questions therein involved res judicata, so as to require the dismissal of a writ of error brought to review errors alleged to have been committed in the city court, even though the subject-matter of the suit was in both cases the same policy of insurance.

The judgment sought to be set up as res judicata must be the result of an actual and fair trial of the issues. It is not sufficient that there is an inference of a decision upon the same points. There must not only be identity of subject-matter, of persons, and of parties, but identity of cause of action.

Parties are presumed to contract with reference to the place of the contract. If the contract is valid there, it is valid everywhere. The lex loci contractus controls as to the nature, construction, and interpretation of a contract.

(a) By comity the laws of a sister state will be applied in the enforcement of any contract to be performed in that state, so long as such laws do not conflict with the statutes, powers or rights of this state, its well-settled public policy, or the public conscience.

(b) "The court on the trial of a cause may proceed on their knowledge of the laws of another state, and it is not necessary in that case to prove them."

[Ed Note.-For cases in point, see Cent. Dig. vol. 11, Contracts § 724; vol. 20, Evidence, § 51.]

In cases of doubt as to whether the common law or the statutes of another state shall prevail, the law will be construed more strongly against the framer and proposer of the contract, always preferring, in contracts of insurance, that construction most favorable to the insured.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 295.]

Where the laws of another state pro hac vice apply, an answer to a suit based upon a contract to be performed in another state should be stricken, unless a meritorious defense, as judged by the laws of that state, is presented.

The penalty is one of the inherent rights attaching to a contract of insurance (in case there is groundless refusal to pay), to enable the beneficiaries to obtain, free from deduction, the original benefits of the provision in their favor according to the tenor of the policy. Such damages and attorney's fees as would be recoverable by citizens of another state can likewise be recovered by citizens of this state, where the contract sought to be enforced is to be performed in such sister state. Citizens of this state will not be deprived of any rights allowed citizens of the place of the contract, when the laws of that state are being administered at the choice of the insurer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 293.]

Error from City Court of Atlanta; Reid, Judge.

Action by Ophelia Lovelace against the Missouri State Life Insurance Company. Judgment for plaintiff, and defendant brings error. Motion to dismiss writ of error. Motion overruled, and judgment affirmed.

J. W. Preston and Payne, Jones & Jones, for plaintiff in error.

Edgar Latham, for defendant in error.

RUSSELL J.

We will first consider the motion of the defendant in error to dismiss the writ of error. The motion is predicated upon the following grounds: "(1) That on the 30th day of April, 1906, the Missouri State Life Insurance Company, the plaintiff in error in the above-stated case, filed its petition against this defendant in error in the superior court of Fulton county. A copy of said petition is hereto attached and marked 'Exhibit A,' and is made part of this motion. (2) That since the date of suing out the writ of error in the above-stated case by said company the said case of the said company against this movant came on to be heard in the said superior court of Fulton county, and that the same was heard on a general demurrer made by movant to the said petition on the 14th day of September, 1906, and during the September term, 1906, of said superior court, on which day this movant avers the court made and entered the following judgment therein, to wit: 'The general demurrer in this case coming on to be heard, it is ordered that the same be sustained, and plaintiff's bill is dismissed. September 14, 1906. J. T. Pendleton, J. S.C. A. C.' (3) This movant avers that every contention which was made by said company in its plea and answer to the suit brought by her against it in the city court of Atlanta, and that every issue involved in his case, was averred in said petition filed in the said superior court as aforesaid. (4) That the judgment of the said superior court, hereinbefore set forth, was not excepted to nor appealed from by said company, and that the September term of said superior court has expired, and that said company is now concluded, and cannot except to nor appeal from said judgment. (5) That every issue involved in the above-stated case was determined adversely to said company by the said judgment of the said superior court aforesaid, and that said judgment is now res adjudicata, and said company has no right to have two tribunals determine the issues involved in the two different proceedings. (6) That said plaintiff in error has no right to further prosecute the writ of error in this case, for the reason that it is concluded as to all assignments of error contained in the bill of exceptions in the above-stated case. (7) The said Mrs. Ophelia Lovelace avers that the various exhibits referred to in the petition filed by said company in the superior court aforesaid are contained in the record in the case at bar, and are, therefore, already before this honorable court. (8) Wherefore she prays that said case be dismissed for and on account of the reasons herein alleged."

If we were to consult our own ease, we would cheerfully avoid the voluminous record in this case by sustaining the motion to dismiss the writ of error; and estoppels by judgment are favored. "In Lampen v. Corke, 7 Eng. S. L. R. 209, Holroyd, J., says that estoppels are odious in the law. It is often so said, and truly said, of estoppels by recitals in deeds, admissions in pleadings, and all of that class. They are not to be readily allowed. Estoppels by judgments are, however, not odious. They are to be received with as much favor as any other defense, because it is the interest of the commonwealth that litigation should cease." Evans v. Birge, 11 Ga. 265. On the other hand, "matters which have received a judicial determination cannot be called again into controversy"; and this "applies with full force, not only in the same jurisdiction, but also as between courts of law and equity." Pollock v. Gilbert, 16 Ga. 402, 60 Am.Dec. 732. In Evans v. Birge, supra, Judge Nisbet delivered the opinion, and announced the following rule of decision as to the plea of res adjudicata, and established its limitations: "It is very well settled that a fact which has been directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties or their privies, in the same or any other court. A judgment, therefore, of a court of law, or a decree in chancery, is an estoppel to the parties thereto and to those who are in privity with them. This is the rule. It is, however, carefully and strongly fenced. The judgment must relate to the same question, and must clearly decided it. If it came collaterally under consideration, or was only incidentally considered, there is no estoppel. And if the decision of the question is ascertained inferentially, by arguing from the judgment or decree and the pleadings in the case, there is equally no estoppel." And in Brooking v. Dearmond, 27 Ga. 58, it is held that "a judgment in one suit is not a bar to another suit, if, *** although the parties in the two suits are the same, they sue or are sued in one suit in a right different from the right in which they sue or are sued in the other."

Applying Judge Nisbet's rule to the judgment of the judge of the superior court dismissing the equitable petition, as well as to the record in that case, we cannot dismiss the writ of error on the ground of former adjudication, or hold that that judgment, although unexcepted to, is a bar to the right of the plaintiff in error to prosecute its writ of error in this court. The suit which was brought in the city court of Atlanta was an action upon a contract, to which the insurance company filed substantially four defenses: (1) That the insured had made certain false representations in his application, which avoided the policy; (2) that the insured committed suicide, which should reduce the amount of the recovery; (3) that the insured became intemperate, and that this caused his death, and by the terms of the contract avoided the policy; (4) that the policy never became effective, because the premium was not paid. The suit filed in the superior court for equitable relief by the company sought (1) to enjoin Mrs. Lovelace from prosecuting the case in the city court, (2) to cancel the contract of insurance upon the life of her husband, upon various grounds, and (3) to have the superior court take jurisdiction of the entire cause in equity and by appropriate decree establish the rights of the insurance company in the premises. While there are many statements in the company's petition in the superior court which are similar to those contained in its answer to the...