Stansall v. Columbian National Life Insurance

Jenkins, P. J. (After stating the foregoing facts.) The ruling in the first heaclnote, when taken in connection with the above statement of facts, does not seem to require further elaboration. Something additional may properly be 'said in regard to the rulings in the 2d and 3d heaclnotes. It is the contention of learned counsel for the insurance company that neither of the rulings made by this court in Columbian National Life Insurance Co. v. Mulkey, 13 Ga. App. 508, and 19 Ga. App. 247, can properly be taken as the law of this case, so as to exclude the defense made by virtue of the stipulation contained in the premium notes, for the reason that the ruling on the demurrer as made in 13 Ga. App. 508, “ went no further than the judgment of the trial court, which was that a declaration setting up all the waivers and facts heretofore enumerated could withstand a general demurrer to the petition.” In other words, the contention is, as we understand it, that, since the petition might have been held to be. good by virtue of the saving allegations therein contained with reference to a waiver by the company of its defense growing out of the stipulation contained in the premium notes, neither the trial court nor this court can be taken to have gone further in its ruling than to hold that the petition as brought was good in law; and consequently that this, as the only ruling, is all that has become settled as “ the law of the case,” to the exclusion of what might have been given by this court merely as reasons for its decision. If the proposition should be accepted as sound, that this court in ruling upon questions of law is limited in its power to fix and determine the law of the case by the scope and necessary legal effect of the judgment rendered in the trial court, then the contention as now made might be correct, since it has been held that a judgment by a trial judge on a demurrer does not conclude a party upon any question not necessarily involved in such a demurrer. McElmurray v. Blodgett, 120 Ga. 9 (3) (47 S. E. 531); Ga. Northern Ry. Co. v. [543] Hutchins, 119 Ga. 504 (1, 2), 510 (46 S. E. 659); Atlanta Post Co. v. McHenry, 26 Ga. App. 341 (106 S. E. 324). But, while we agree with counsel that a decision or ruling by this court such as shall constitute the “law of the case” does not consist in the line of reasoning or arguments set forth in the opinion, we do think that it includes each and every applicable proposition of law actually applied io the facts or pleadings involved (Heidt v. Minor, 113 Cal. 385, 45 Pac. 700, 701); and that a rule when thus announced, so far as it relates to the case in which it was rendered, is binding alike upon the trial court and the court rendering it, in all subsequent proceedings therein. As we understand it, not only the judgment rendered by the appellate court, but all applicable rules of law actually applied in the decision, become the law of the case. Continental Life Insurance Co. v. Houser, 111 Ind. 266, 268 (12 N. E. 479). While it is true that a judgment by an appellate court does not become the law of the case upon any proposition not expressly or impliedly applied by it in the decision, yet where a proposition of law is plainly stated and applied to its decision, the rule thus applied becomes the law of that particular case in all subsequent proceedings therein, and that to such an extent that the appellate court itself is powerless to depart therefrom. Thus, the proposition of law as stated by this court and applied to this case in 13 Ga. App. 508, binds not only the trial court, but this court as well. It was there held that “ the failure to pay a promissory note, taken in payment of an insurance policy (although it is stipulated in the note that the non-payment of the same at maturity will avoid the policy), will not forfeit the policy, where there is no condition in the policy itself providing for its forfeiture for the non-payment of notes.” The petition had admitted the non-payment of the premium notes containing such a stipulation. The demurrer raised the question of law. In passing thereon the court specifically planted its decision on its statement of the legal rule, and the rule as thus stated and applied became the law of the case. Under the ruling as made, the question as to whether, under the allegations of the petition, the company had by the conduct of- its agents waived such a ground of defense became moot, as it were, since that question became merged into and was comprehended by the more far reaching arid controlling prop [544] osition actually applied. A right which did not exist need not and could not be waived. The court in its subsequent decision in 19 Ga. App. 247, itself treated this question of law as adjudicated. The action of the trial judge in striking the original and amended portions of the plea, which pertain to this matter of defense, was following not only the original ruling, but the subsequent one as well, the latter of which was itself based upon this doctrine known as “ the law of the case.” It appears that when the case was here last these pleas had not, as was then supposed, been actually stricken; but the subsequent action in striking them is in accord with both of the decisions of this court. So far as the ruling in 19 Ga. App. 247, which relates not to the demurrer to the petition but to the pleas as amended, is concerned, counsel seek to draw a distinction, such as might prevent the application of the' latter ease under the doctrine of the law of the case. The point is that up to the time of the holding in 19 Ga. App. 247, the plea had sought to set up that the policy was void ab initio, whereas the recent amendment offered at the time of the last trial sought to show that tire policy lapsed or became forfeited upon the non-payment of the premium note. As already intimated, this contention is not urged with reference to the decision in 13 Ga. App., since that decision was upon the overruling of the defendant’s demurrer to the petition, and both the petition and the decision clearly had reference to a lapse or forfeiture. But even as to the point made with reference to the later decision, it would seem that the original plea, and certainly the plea filed December 15, 1914, sought to set up as a defense the lapse or forfeiture of the policy by reason of the non-payment of the premium note on its maturity. In the original plea and answer it is set up, not only that the policy was void ab initio by reason of the nonpayment of the premium note, but “became, was, and is null and void by reason of the failure to pay the first premium thereon,” and that “by the failure of the said William M. Mulkey to pay the notes, both the notes and the policy became null and void and of no force and effect whatsoever.” In the amendment to the previous plea, filed December 15, 1914, it is stated that by reason of the provision in the premium notes, the policy of insurance “ lapsed and became null and void by the failure to pay the second of said notes at its maturity;” and that after receiving notice of such non-payment it took action [545] upon said notes “by cancelling and entering cancelled said notes, and by lapsing and entering as lapsed said policy.” This latter amendment, as well as the paragraphs in the earlier pleas containing the averments quoted, was specifically referred to in the opinion in 19 Ga. App. 247 (3), 248. The only other question involved relates to the exclusion of the special report to the defendant of the physician who examined the insured; which report appears to have been printed and written on the same pages as Part II of the application, and which was signed by the medical examiner, but not by the applicant. This physician testified orally for the plaintiff in the trial; and the court in excluding the report as independent evidence of itself ruled that it was admissible “as a memorandum which the witness used.” Plaintiff contends that it was admissible because it “ is a part of the application written and printed on the same sheet, and it is likewise a part of the contract of insurance,” that “this report was before the company when the application for insurance was considered, and. it thus acquired direct knowledge and notice of every statement in the application,” and that the knowledge of the medical examiner “will be imputed to the company.” Since an examination of the report discloses nothing whatever to indicate any knowledge on the part of the examiner as to any fact conflicting with the statements made by the insured, and since it fails to disclose any statements from which any such knowledge might be deduced, the exclusion of such report was necessarily harmless to the defendant, as showing either actual or imputed knowledge by the company relating to the previous use of alcoholic stimulants by the insured. Thus, since the report could not have any probative value upon the sole issue to be determined, its exclusion could not in any event have been harmful to the defendant; and it therefore becomes unnecessary to determine whether or not it in fact constituted a part of the contract of insurance and for that reason was admissible. Moreover, it appears that the examiner, as a witness for the plaintiff, testified to substantially everything treated in that report, and, while so testifying, was permitted, under the ruling of the court, to use the report as a memorandum to refresh his recollection; and by the ruling of the court the report was declared admissible for such purpose. Judgment reversed on the main hill of exceptionsj affirmed on the cross-bill. Stephens and Hill, JJ., concur.