In my opinion the evidence demanded a finding that Dr. Barron was only partially disabled and was gainfully employed at the time the insurance company refused to continue payment of the total-disability benefits; and that the verdict in favor of the plaintiff was contrary to law and the evidence.
ON MOTION FOR REHEARING. In its motion for a rehearing, the plaintiff in error contends that "the fact that at the time the contract of insurance in this case was *Page 461 issued in 1925, the only decisions of the appellate courts of Georgia construing the words `total and permanent disability' were the decisions in the cases of Whitton v. AmericanNational Insurance Co., 17 Ga. App. 525 (87 S.E. 827), decided in 1916, and Parten v. Jefferson Standard LifeInsurance Co., 30 Ga. App. 245 (117 S.E. 772), decided in 1923, both holding that such disability-benefit provisions will be construed as expressed, and that insured is not entitled to disability benefits if it appears that he is not wholly unable to earn or obtain any wages for compensation for profit;" and that the policy in question having been executed between the time of the rendition of the decision of the Court of Appeals in theWhitton case, and the time of the contrary decision in the case of Cato v. AEtna Life Insurance Co., 164 Ga. 392 (supra), it must be assumed that in this intermediate stage, the law of the Whitton case was the law to be applied to the instant case, and that it was mandatory on the court below so to apply it.
The case of Cato v. AEtna Life Insurance Co., supra, decided June 23, 1927, dealt with an insurance policy that was issued on April 10, 1920. The Supreme Court held: "Total disability is inability to do substantially all of the material acts necessary to the transaction of the insured's occupation, in substantially his customary and usual manner. Total disability does not mean absolute physical inability to work at one's occupation, or to pursue some occupation for wages or gain; but it exists if the injury or disease of the insured is such that common care and prudence require him to desist, and he does in fact desist, from transacting his business. In such circumstances, total disability exists." Since that time the Court of Appeals has followed the Cato case in many cases, and the Supreme Court, whenever the question of total disability has reached them, by certiorari from the Court of Appeals, or otherwise, has uniformly held to the decision in the Cato case. In Parten v. Jefferson Life Insurance Co., supra, it was said: "In the application for this insurance it is stated that `any policy issued under this application shall be governed by the laws of the State of North Carolina.'" The rule in such a case under the laws of the State of North Carolina is different from the rule in Georgia as stated in the Cato case, and in all the cases decided both by the Supreme Court of Georgia and the Court of Appeals of the State since June, 1927, when the Cato case was decided. However, the *Page 462 Parten case does cite the case of Whitton v. AmericanNational Life Insurance Co., supra.
The plaintiff in error, in its motion for a rehearing, seems to rely strongly on the case of Heist v. Dunlap, 193 Ga. 462 (18 S.E.2d 837), which decides an issue raised as to two different contrary interpretations of a statute by the Supreme Court. We think the only unequivocal holding contrary to the decision of the Supreme Court in the Cato case, is the early decision of the Court of Appeals in the Whitton case. It might be noted that the Constitution of Georgia states that "the decisions of the Supreme Court shall bind the Court of Appeals as precedents." Code, § 2-3009. The question here is as to what effect the decision of the Supreme Court in the Cato case (followed by a long line of supporting cases both in the Supreme Court and the Court of Appeals) is to be given to a policy of insurance written prior to the Cato case and subsequent to the decision of the Whitton case, which was overruled by the Cato case.
Out of the age-old discussion as to the effect to be given these decisions there have been developed two fundamentally opposing theories. According to one theory the decisions of the courts are always conclusive evidence of what the law is. According to the other theory the decisions are evidence, but not conclusive evidence of the law. "Salmond, in his work on Jurisprudence (8th ed.), p. 197, in discussing the retrospective effect of a later decision said: The overruling of a precedent is not the abolition of an established rule of law; it is an authoritative denial that the supposed rule of law has ever existed. The precedent is so treated not because it has made bad law, but because it has never in reality made any law at all. It has not conformed to the requirements of legal efficacy. Hence it is that the overruling of a precedent, unlike the repeal of a statute, has retrospective operation. The decision is pronounced to have been bad ab initio. A repealed statute, on the contrary remains valid and applicable as to matters arising before the date of its repeal. The overruling of a precedent is analogous not to the repeal of a statute, but to the judicial rejection of a custom as unreasonable or as otherwise failing to conform to the requirements of customary law." People v. Graves, 242 App. Div. 128 (273 N. Y. Supp. 582). If rights are acquired under a construction of a statute which is impliedly written in the contract in question, the *Page 463 statute becomes a part of the contract, and must govern the rights of the parties as against a different construction thereafter adopted by overruling the former decision. Such seems to be the rule applied in Heist v. Dunlap, supra. A judicial construction of the statute becomes a part of the statute, and as to rights which accrue afterwards, it should be adhered to for the protection of those rights. To divest them by a change of the constitution is to legislate retroactively.
Chancellor Kent, in commenting upon the rule of stare decisis, said that "it is probable that the records of many of the courts of this country are replete with hasty and crude decisions; and in such cases are to be examined without fear and revised without fear and revised without reluctance rather than to have the character of our law impaired and the beauty and harmony of the system destroyed by the perpetuity of error." 1 Kent's Commentaries (13 ed.), 477. In Butler v. Van Wyck, 1 Hill (N. Y.) 438, 462, the court said: "It is going quite too far to say that a single decision of any court is absolutely conclusive as a precedent. It is an elementary principle, that an erroneous decision is not bad law — it is no law at all. It may be final on the parties having rights depending upon the same question." The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law. To this the courts have established the exception that where a constitutional or statute law has received a given construction by the courts of last resort and contracts have been made and rights acquired under and in accordance with such construction, such contract may not be invalidated, nor vested rights acquired under them be impaired by a change of construction made by a subsequent decision.
The general rule as to the effect of reversal, or the overruling of earlier decisions, is as follows: "The overruling of a decision generally is retrospective and makes the law at the time of the overruled decision as it is declared to be in the last decision. The overruled decision as a precedent is thereby destroyed, but it remains the law of the particular case in which it was rendered." 21 C. J. S. 326, § 194. But there is an exception to the general rule, to wit: "An overruling decision can not operate retrospectively so as to impair the obligations of contracts entered into, or injuriously affect *Page 464 vested rights acquired, in reliance on the overruled decision." 21 C. J. S. 328, § 194. The State court may make a choice for itself between the principle of forward operation and that of relationship backwards. And as was stated by Mr. Justice Cardozo in the case of Great Northern R. Co. v. Sunburst Oil Ref. Co., 85 A.L.R. 250, 260, "It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly (cf. Tidal Oil Co. v. Flanagan, 263 U.S. 444,44 S. Ct. 197, 68 L. ed. 382, supra), that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted." In 21 C. J. S. 326, § 193, it is said "that the rule of stare decisis, stated in simple form and considered with relation to its effect on private affairs, is really nothing more than the application of estoppel to court decisions." Although it does not appear from the records that the exact question in issue here was raised in them, there are at least four cases which have been decided by the appellate courts of Georgia, based on an insurance policy in which there was a provision for total disability similar to the provision in the policy in the instant case. All of the policies in these four cases were issued during the intermediate period between the Whitton and the Cato cases, but were decided after the Cato case. In each of the cases the Court of Appeals applied the principle stated in theCato case. These four cases are: Mutual Life Insurance Co. v.Childs, 64 Ga. App. 658 (14 S.E.2d 165), in which the policy involved was issued on November 26, 1926; MetropolitanLife Ins. Co. v. Johnson, 66 Ga. App. 520 (18 S.E.2d 35), in which the policy involved was issued in 1925 (affirmed on certiorari in 194 Ga. 138); Metropolitan Life Ins. Co. v.Daniel, 64 Ga. App. 620 (13 S.E.2d 741), in which the policy involved was issued in October, 1925 (certiorari was denied). It might be noted that the plaintiff in error in the first of the cases just above mentioned was the same company as the plaintiff in error in the instant case. There are many other cases decided since the Cato case, by both this court and by the Supreme Court, all of which have followed the Cato case, which, in effect, had overruled the Whitton case. Thus theWhitton case seems to have been the single case in the Court of Appeals and the Supreme Court that is contrary to the Cato case. We do not feel authorized to say that the *Page 465 court below erred in not applying the doctrine of estoppel to the court decision not only in the Cato case but in all the many cases that have followed the principle therein stated, which is but another way of saying that the court was authorized in saying that the doctrine of stare decisis should not be applied in the present case.
This and all other matters in the motion having been considered the motion for rehearing is denied.
Rehearing denied. Broyles, C. J., and Gardner, J., concur. *Page 466