ON MOTION FOR REHEARING. Movant insists that the court has overlooked certain statutes and legal principles and decisions of our courts which are controlling, and that the ruling when the case was here on a former appearance (61 Ga. App. 110, supra) is likewise controlling, adversely to the opinion in the instant case, and that a different judgment should have been rendered.
1. This subdivision of the motion is prefatory only.
2, 3. Movant insists "that the former decision of the court, on proper issues presented, held: (1) that there was no such refusal to pay on the part of the company as would make the filing of proof unnecessary; (2) that the letter written by Jones of the Memphis office, dated September 27, 1933, was insufficient to put the home office on any notice whatever of the existence of any claim for `a total and permanent disability;' (3) that Jones, of the Memphis office, in writing the letter to the home office, was the agent of the plaintiff, and not of the company; and (4) that all of the correspondence which was before the court on the former trial, and which is in the present record, did not show that the home office had declined to pay the plaintiff under the policy for any total and permanent disability." Granting that the insistence of movant is *Page 559 correct, it nevertheless remains that the court was passing on all issues as they related to the allegations of the plaintiff that he had filed due proofs of disability with the company as required by the policy. The court expressly held: "the plaintiff did not plead, and does not now insist, on any waiver by the company, but based his right to recovery on the contention [as alleged] that he had fully complied with the conditions precedent as to furnishing proof." The doctrine of the law of the case includes "every applicable proposition of law actually applied to the facts and pleadings involved [italics ours]; and a rule thus announced, so far as it relates to the case in which it was laid, is, in all subsequent proceedings therein, binding alike upon the trial court and the appellate court announcing it."Willingham Stone Co. v. White-Stone Marble Co., 36 Ga. App. 230 (2) (136 S.E. 180). But where in the subsequent case standing for trial de novo the pleadings amended present new issues, such issues stand for original adjudication, both in law and in evidence. In this case on its former appearance the court did not pass upon the substantive merits of the cause of action, whether under the terms of the policy total and permanent disability was in fact existing. The pleadings as amended struck the allegations of having furnished due proofs of disability, and substituted therefor the allegation, largely the antithesis of the former, that the company unconditionally refused to pay and thereby in law waived the requirement of furnishing due proofs as required under the policy. The evidence in the instant case, whether substantially the same or different from that on the former trial, goes to the proof of this issue without the bar of former adjudication, and additionally to the issue of the existence of permanent and total disability under the terms of the policy, that also as an original adjudication.
4, 5. The evidence authorized a finding that the plaintiff suffered a stroke of paralysis about June 1, 1930, and that this paralytic condition was continuous until, and beyond, September 27, 1933, the date of the second interview with the "manager" of the defendant's Memphis office, that from the inception of the stroke the condition of the plaintiff grew gradually worse in ability to talk, walk, and generally to pursue his usual customary callings, as well as other jobs unsuccessfully attempted, and that at the time of the interview he was sustaining, under the authority of Cato v. *Page 560 AEtna Life Ins. Co., supra, total and permanent disability within the terms of the policy; and that the purpose of visiting and interviewing "Jones" was to secure disability benefits.
Even though there was some evidence, by witnesses who were not parties to the case, that the plaintiff on the two visits in question was seeking disability benefits for a temporary total period of disability existent in 1930, the jury were authorized to resolve the conflicts in the evidence in favor of the verdict as returned. Also, even though the plaintiff himself testified on cross-examination that he was calling attention to a disability existent in 1930, his evidence was not so contradictory as to require against him, as the party at interest, a different finding by the jury, since the existence of such a disability, were the jury to so credit the testimony, was not inconsistent with the paralytic condition of the plaintiff arising in June, 1930, but was consistent therewith and as a continuous part thereof. The evidence further authorized a finding that "Jones" was fully informed of the condition of total and permanent disability of the plaintiff, and that the extent of this information was more than "just dragging a foot," that all matters as above indicated were discussed, even to the extent that, notwithstanding the plaintiff's stroke and his gradually worsened condition, he had been holding temporary jobs at greatly reduced pay. While the evidence also authorized a finding that he was working at the time of the second interview, it further disclosed that "Jones" was informed that the plaintiff was being fired at the end of the (current) month, because of his disability. The effect of the ruling of the court in this case on its former appearance was, on the issue of having furnished dueproofs of disability, that "Jones" was the agent of the plaintiff. Such ruling is not binding on the question as to whose agent "Jones" was in the matter of receiving information for the purpose of apprisement to the home office, on the issue of unconditional refusal to pay and consequent waiver. For this purpose "Jones" was the agent of the defendant, in that ultimately his identity was lost in that of the manager, Brooks, with Jones being his amanuensis. M. E. Brooks, manager, by Tom Jones, on September 27, 1933, wrote C. S. Joseph, manager of the disability and income department of the home office of the defendant. Joseph, manager, on October 3, 1933, replied to this letter, addressing the communication (the contents not being in the record *Page 561 of evidence) to M. E. Brooks, manager. Four days later, on October 7, 1933, M. E. Brooks, manager, by Tom Jones, wrote to the plaintiff, the contents of the letter being already set forth in the opinion in the instant case. However it might have been that "Jones" was the agent of the plaintiff (61 Ga. App. 110) to have received the literal, physical, properly prepared due proofs of disability and to have sent them to the home office of the defendant, or on behalf of the plaintiff to have prepared papers [letter] the equivalent of such proofs for forwarding to the home office, in behalf of the plaintiff, it is evident that the identity of "Jones" was lost in that of Brooks as manager, and that the defendant was so treating him for all purposes, save only as Jones was the amanuensis of Brooks.
Brooks, manager, by his amanuensis, notified the home office, on September 27, 1933: "We are advised by the above insured that for a considerable period beginning about June 1st, 1930, he was incapacitated and totally unable to engage in any work of any nature. At this time he has recovered sufficiently to be employed. He has raised the question as to whether he would not be entitled to disability benefits for the period during which he was incapacitated, provided, of course, that proper evidence is submitted and established of the correctness of his statements. We have advised him to secure from each of the attending physicians who consulted him during his period of infirmity full statements and these will be forwarded to you as soon as received." As to this letter Mr. Jones testified: "That letter is bound to have been written on the basis of what Mr. Trundle hadreported to me; that he had been disabled since 1930 [italics ours], because . . I was very specific to state: `We are advised by the above insured that for a considerable period beginning about June 1st, 1930, he was incapacitated and totally unable to engage in any work of any nature.'" The record discloses that the defendant, by its manager Joseph, having received this communication, wrote to Brooks of the Memphis office, the contents of which not being before us. Then Brooks, manager of the Memphis office, by Jones, his amanuensis, wrote to the plaintiff, under date of October 7, 1933: "Proof of disability is to be submitted while the insured is totally disabled . . it is impossible . . to take any action at this belated date on your case." The defendant admitted that "we were not notified of any *Page 562 disability until 1933, and it appeared that the insured wasstill working, so that no claim for benefits could be allowed." (Italics ours.) The evidence authorized the jury to find that total and permanent disability originally arising by paralysis in June, 1930, was currently existing at the time of the notice to Brooks [Jones], manager of the Memphis office, through Jones, the amanuensis; that the claim for such disability within the terms of the policy was effectually made to the manager of this office; that this office by its manager, Brooks, by his amanuensis, Jones, notified the home office; that the notice to the home office was ample to apprise the defendant of the nature of the claim, or sufficient in any event to put the defendant on notice as would require further inquiry, lest it act at its peril; that the home office, acting by Joseph, manager, notified Brooks of its decision, and then Brooks, acting through his amanuensis, notified the plaintiff that the company would not pay the claim. While the evidence did not disclose the nature of the claim which the home office advised the manager of the Memphis office it was declining to pay, it does appear, and the jury was so authorized to find, that the nature of the claim under consideration between them was that of "total and permanent disability," because as to this claim the defendant admitted it was that as to which the plaintiff was "still working, so that no claim for benefits could be allowed." The plaintiff was not "still working" as to anytemporary claim existent in 1930. The jury thus was authorized to find that the defendant was conditionally refusing to pay a claim for total and permanent disability, for the reason and on the condition that the plaintiff was "still working." Such conditional refusal was in law inadequate as a sufficient reason under the facts for the refusal, and as would relieve the defendant from liability; and accordingly it constituted the refusal as "unconditional" and as a waiver of the requirements of filing of proofs of disability as required by the policy. The evidence of continuous total disability over the months sued for was sufficient to sustain the verdict.
6-10. Under the foregoing rulings and the opinion as rendered, the questions raised under these subdivisions need no extended discussion. The questions whether "Jones" was such an agent as to deny liability and bind the company, whether under the laws of Georgia or those of Tennessee, or was such an agent as to deny liability, with ratification by the defendant, are not material or *Page 563 harmful to the defendant, as the refusal to pay, as we have indicated, related directly to it. But on the assignment of error that the court erred in charging that the plaintiff was entitled to recover if the jury should find that the plaintiff had furnished due proofs as required by the policy, the court committed error in charging on this issue, as the court had expressly ruled on the former appearance of this case that the evidence did not support this issue, and this issue had been expressly stricken by the plaintiff. As a general rule, when instructions are given to the jury which are not warranted by the pleadings and the evidence, or by the evidence, which are calculated to confuse and mislead the jury, a new trial should be granted. Blackwell v. Partridge, 156 Ga. 119 (118 S.E. 739); Patterson v. Burroughs, 19 Ga. App. 72 (90 S.E. 974). But an erroneous charge to the jury on an issue not involved, either in the pleadings or the evidence, will not require a reversal when such error is not prejudicial to the losing party. Savannah Electric Co. v. Joseph, 25 Ga. App. 518 (103 S.E. 723). However, even though the instructions be erroneous and may cause the jury to arrive at their verdict by being misled or confused, nevertheless such erroneous charge will not work a reversal where the same result would necessarily be reached by another trial and verdict under correct instruction (Fuller v. Atlanta, 66 Ga. 80 (7)), or where the verdict is clearly supported by the evidence (Luke v. Mayo, 18 Ga. App. 614 (2) 89 S.E. 1090), or where the verdict is right (Stix v. Pump, 36 Ga. 526, 532) under the evidence contained in the record. Applying these principles, the erroneous instruction to the jury will not require a reversal. The verdict was amply authorized, if not demanded; it was right under the evidence. Wellborn v. Weaver, 17 Ga. 267 (63 Am. D. 235).
Rehearing denied. MacIntyre, J., concurs. Broyles, C. J.,disqualified.