Opinion
42133.
ARGUED JULY 7, 1966.
DECIDED SEPTEMBER 7, 1966.
Action for damages. Fulton Superior Court. Before Judge McKenzie.
William M. Redman, Jr., for appellant.
Greene, Neely, Buckley DeRieux, Burt DeRieux, James A. Eichelberger, Douglas Stewart, for appellee.
Rufus Adams filed suit on April 14, 1965, against the Travelers Insurance Company to recover damages in the amount of $45,000 because of the defendant's alleged cancellation of a policy of life insurance issued to him. To this action the defendant insurance company filed a plea of res judicata and estoppel by judgment which was predicated upon the contention that the plaintiff had previously filed suit against the defendant arising out of the same controversy, the only distinction being that in the first action the plaintiff had prayed for specific performance of the insurance contract, and in the alternative, for damages because of its cancellation; that the defendant's general demurrer to this petition on the ground that it did not state a cause of action either at law or in equity had been sustained by order of court of February 12, 1965, granting the plaintiff 20 days within which to amend his petition; and that on March 5, 1965, a final order of dismissal had been entered upon failure of the plaintiff to amend his petition in conformity with the previous order of court. The defendant's plea was supported by a certified copy of the record in the original case which was introduced in evidence on the hearing of the plea and the trial court entered an order on November 2, 1965, sustaining the plea and dismissing plaintiff's suit. The appeal is from the judgment. Held:
The order of March 5, 1965, dismissing the plaintiff's first suit constituted an adjudication on the merits that the plaintiff's petition did not state a cause of action for any relief, legal or equitable, arising out of the facts alleged therein, and since the plaintiff's second suit was clearly predicated upon the same cause of action and was between the same parties, the trial court did not err in sustaining the defendant's plea of res judicata. Code §§ 110-501, 110-504; Grant v. Hart, 192 Ga. 153 (1) ( 14 S.E.2d 860); Booker v. Booker, 107 Ga. App. 339 ( 130 S.E.2d 260); Smith v. Bank of Acworth, 111 Ga. App. 112 ( 140 S.E.2d 888); Sudderth v. Harris, 51 Ga. App. 654 (1) ( 181 S.E. 122).
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.