Wilson v. Missouri State Life Ins. Co.

• Decision Date: 11 March 1937
• Docket Number: 11717.
• Citation: 190 S.E. 552,184 Ga. 184
• Parties: WILSON et al. v. MISSOURI STATE LIFE INS. CO. et al.
• Court: Georgia Supreme Court

190 S.E. 552

184 Ga. 184

WILSON et al. v. MISSOURI STATE LIFE INS. CO. et al.

No. 11717.

Supreme Court of Georgia

March 11, 1937

Rehearing Denied March 24, 1937.

Error from Superior Court, Fulton County; Hugh M. Dorsey, Judge.

Consolidated suits by John R. Wilson and another against the Missouri State Life Insurance Company, wherein R. E. O'Malley, as Superintendent of the Insurance Department, State of Missouri, was substituted as party defendant. To review a judgment disallowing an amendment and dismissing the case plaintiffs bring error.

Affirmed.

M. H. Collier, W. L. Bryan, and Ellis & Bell, all of Atlanta, for plaintiffs in error.

Little Powell, Reid & Goldstein, Francis Fuller, and McElreath Scott, Duckworth & DuVall, all of Atlanta, John J. Hennessy and Emanuel Javetz, both of Savannah, Courtney S. Goodman, of St. Louis, Mo., and James P. Aylward, of Kansas City, Mo., for defendants in error.

Syllabus OPINION.

JAMES R. HUTCHESON, Judge.

The writ of error in this case brings for review the decision of the trial judge in Fulton superior court, disallowing the amendment offered by the plaintiffs in error before the judgment of this court was made the judgment of the lower court, and the judgment dissmissing the case. O'Malley v. Wilson, 182 Ga. 97, 185 S.E. 109, where the history of this litigation and the facts in the case are fully stated. No attempt will be made here to restate the facts or the history of the case, and reference will be had to the former decision of this court.

1. The motion to dismiss the writ of error is overruled. It is not necessary to elaborate on the reasons for overruling that motion.

2. The decision by this court (O'Malley v. Wilson, supra) determined the law of the case. Therefore the qeustions of law decided in the former adjudication will not be reviewed.

3. The amendments offered by the plaintiffs in error did not strengthen the cause of action, but simply attempted to amplify the grounds of the plaintiff's suit. It will be seen that the plaintiffs in error attempt to avoid the effect of this judgment in O'Malley v. Wilson, supra, by adopting a difference in the pleadings, and perhaps adding grounds thereto. The plaintiffs in error should have set out all the grounds of complaint at the outset. Not having done so, they are bound by the judgment of this court, supra, just as conclusively as if they had alleged and adopted their amended grounds at the outset. A plaintiff will not be permitted to trifle with a court of equity by reserving a part of his grounds of complaint to be set out by amendment later in the event of his losing on the partial grounds first relied on. In other words, any cause of action that he had, any ground of complaint that he had, when he filed his suit at the outset, not embodied in such complaint, will be deemed to have been abandoned; otherwise there would be no end to litigation. Woods v. Travelers Insurance Co., 53 Ga.App. 429, 186 S.E. 467; Perry v. McLendon, 62 Ga. 598. It has long been the rule that a cause of action not in existence when suit was brought cannot be added by amendment; neither can a new cause of action be added by amendment. Eagle & Phenix Mills v. Muscogee Mfg. Co., 129 Ga. 712, 59 S.E. 804; Jackson v. Security Insurance Co., 177 Ga. 631, 170 S.E. 787; Central of Georgia Ry. Co. v. Jones, 152 Ga. 92, 108 S.E. 618; Code, § 81-1303.

4. The plaintiffs in error insist that certain statutes...