Georgia Casualty & Surety Co. v. Reville , 97 Ga. App. 888 ( 1958 )

Nichols, Judge.

No exception was taken to the judgment of the trial court overruling the defendant’s special demurrers on the first appearance of this case before this court, and such judgment became the law of the case. McWilliams v. Walthall, 77 Ga. 7; Hodgkins v. Marshall, 102 Ga. 191 (29 S. E. 174); Oslin v. Telford, 108 Ga. 803 (34 S. E. 168); Little Rock Cooperage Co. v. Hodge, 109 Ga. 434 (34 S. E. 667); Morris v. Duncan, 126 Ga. 467 (3) (54 S. E. 1045, 115 Am. St. R. 105). Therefore, no question is now presented for decision as to such judgment, inasmuch as this court will pass upon judgments overruling special demurrers at the time it passes upon an assignment of error to the overruling of a general demurrer. See Stewart v. Holland, 95 Ga. App. 28 (96 S. E. 2d 623); United States Cas. Co. v. Durrence, 94 Ga. App. 222 (94 S. E. 2d 101).

The assignment of error that the trial court erred in denying the defendant’s second motion to dismiss in the nature of a general demurrer, made after the first judgment of the trial court denying its first motion to dismiss in the nature of a general demurrer was affirmed, is without merit.

While the first motion to dismiss was limited, in that it challenged the petition because it allegedly failed to set forth a cause of action for a given reason, it nevertheless was in the nature of' a general demurrer, and where a general demurrer is overruled it becomes the law of the case until vacated or reversed. The first motion to dismiss, which was denied, became the law of the case .on the 'first appearance of the case before this court, and' the second motion to dismiss, although it 'was much broader in its' attack on the plaintiff’s petition," cannot be considered. See Harris v. McDaniel, 92 Ga. App. 299 (88 S. E. 2d 442).

The sole remaining issue is whether the trial court erred in- denying the defendant’s motion for new trial based on the usual general grounds only.

As shown above, the law of the case was made on the first appearance before this court. Whether the plaintiff’s petition failed to set forth a cause of action for any reason other than the reason urged in its first motion to' dismiss must be treated as having been waived, and after the law of the case was established the plaintiff, in order to authorize a verdict in his behalf, merely had to prove 'his case as laid (see Dye v. Alexander, 195 Ga. 676 (1), 25 S. E. 2d 419, and cases cited), .although he may not be entitled to recover each and every item sought by his petition. Jones v. Darling, 94 Ga. App. 641 (95 S. E. 2d 709). The case sub judice is therefore distinguishable from the line of cases exemplified by Blount v. Metropolitan Life Ins. Co., 192 Ga. 325 (15 S. E. 2d 413), where the general demurrer or motion to dismiss in the nature of a general demurrer, does not go to the sufficiency of the pleadings, but goes only to jurisdictional and like matters.

The plaintiff’s petition is set forth in substance in Georgia Cas. Co. v. Reville, 95 Ga. App. 358, supra, and it would indeed serve no useful purpose to repeat it here. The material allegations, except as to the bad faith or .negligence of the defendant, were either admitted by the defendant’s answer or by admissions, made in response to a request for admissions, which admissions were admitted in evidence. While the defendant presented evidence as to its good faith in failing to settle the claim within the policy limits there was evidence adduced from a vice president of the defendant insurance company: “After the trial and after they had a judgment against him for $15,000, it came to my attention that Mr. Evans had written a letter to our attorneys, Norman and Neal, and had offered to settle for $5,000 and interest. We turned that down. We turned that down because we knew if we went ahead and lost, we would lose just the $5,000. I don’t know what he would lose. We didn’t have anything to lose then but $5,000 either way.” There was also other evidence that would have authorized the jury to find that the defendant had acted in bad faith so as to authorize the verdict for the plaintiff. The verdict for the plaintiff was authorized by the evidence and the trial court did not err in denying the defendant’s motion for a new trial on the usual general grounds.

Judgment affirmed.

Gardner, P. J., Toionsend, Carlisle, and Quillian, JJ., concur. Felton, C. J., dissents.