Planters & Peoples Mutual Fire Ass'n v. DeLoach

Cobb, J.

1. The main bill of exceptions purported to set forth the evidence introduced at the trial, and the certificate of the judge was in the usual form, stating that the bill of exceptions “ is true, and contains all the evidence . . material to a clear understanding of the errors complained of.” The cross-bill of exceptions contains the following averment: “The defendant in error alleges that the plaintiff in error has omitted facts and rulings by the court in said case material to a clear understanding of the errors complained of; and hence the defendant in error has hereto attached what occurred in the trial of the said case, omitted by plaintiff in error, material to a clear understanding of the said case, and incorporates in this her cross-bill of exceptions all evidence material and the rulings of the court material that were omitted in the direct bill of exceptions, and prays that the Supreme Court may pass on the omitted evidence and the omitted rulings of the court in this her cross-bill of exceptions in conjunction with the direct bill of exceptions.” The cross-bill contains evidence which does not appear in the main bill, and some of it seems to be in conflict with what is stated in the main bill. The cross-bill is. certified by the judge in the usual form, the language of the certificate, so far as it is material to the present discussion, being exactly that quoted above from the certificate to the main bill. It is not the office of a cross-bill of exceptions to add to or change in any way the main bill of exceptions. The cross-bill of exceptions is a remedy provided for the successful party in the trial court to have reviewed rulings made against him during the trial, in the event his adversary is successful in obtaining a judgment in the Supreme Court which in its effect leaves the case to be tried again in the trial court. See Civil Code, § 5527. The cross-bill of exceptions must contain, or specify, so much of the evidence as is material to a clear understanding of the. errors therein complained of. Other evidence than what is necessary for this purpose has no proper place in the cross-bill of exceptions, and if contained therein must be entirely disregarded. It was the right, even if it was not the duty, of the judge to have refused to sign the cross-bill of exceptions until all of this matter, entirely unnecessary and utterly irrelevant so far as anything in the cross-bill is concerned, had been stricken therefrom. See Little v. Sparks, 112 Ga. 220. So much, of the evidence contained in the cross-bill of exceptions as is material to the errors complained of therein "will be considered in-passing upon the questions therein made; no other evidence therein will be considered for any purpose whatever, and certainly it will not be considered in any way so far as the errors complained of in the main bill are concerned. When there is no brief of evidence filed and made a part of the record, so that it may be brought to this court by a proper specification in the bill of exceptions, and the evidence is brought to this court in the bill of exceptions, the errors complained of must be determined in the light of the evidence contained in the bill of exceptions in which the assignment of error is contained. The question may be asked, if a judge certifies a main bill of exceptions which does not correctly set forth the evidence, what is the remedy ? If there is no brief of-evidence duly approved and filed, so that it can be transmitted to this court as record, we know of no remedy. See Tumlin v. Bass, Co., 93 Ga. 594. It has been held that, after a bill of exceptions has been duly certified, it is not within the power of the judge to alter or change the same in any way by an additional certificate. Dyson v. Railway Co., 113 Ga. 327. The principle of this ruling is applicable to any additional certificate, even though it be the usual certificate required to be affixed to a cross-bill of exceptions.

2. The official report which precedes this opinion contains a correct summary of the evidence as it is contained in the main bill of exceptions. From this evidence no other conclusion can be possibly reached than that the paper relied on by the plaintiff as containing the contract of insurance between her and the defendant was not signed by any authorized officer or agent of the association at the time or subsequent to her application for membership in the association, and not only that she was never admitted as a member of the association by the constituted authorities, but that her application was expressly declined. A contract of fire-insurance is not valid unless in writing. Civil Code, § 2089. The writing relied on to make the contract of insurance not having been signed by any one authorized by the association to execute contracts in its behalf at the time that it is claimed that the contract was entered into, the court erred in not excluding the paper from evidence.

3. It is claimed, however, that the unauthorized act of the agent in delivering the policy has been ratified by the association. If the contract had been duly executed, and the officers of the association had, after a full knowledge of all the facts, treated the plaintiff as a member, such conduct on the part of those authorized to act in behalf of the association might have had the effect of rendering the contract valid. But such is not the case. In the first place, there was no contract in writing at the beginning, and nothing but a writing will ever make a valid contract of fire-insurance. In the second place, all that was done by the officers of the association which could be at all construed as treating the plaintiff as a member of the association was, according to the uncontradicted •evidence, done in ignorance of the facts in relation to her claim of membership, and as soon as the truth was known the association promptly repudiated the acts of those who had, without am thority, been assuming to act in its behalf, and restored to the plaintiff every cent which it or any of its authorized agents had received from her. There was nothing whatever in the evidence to authorize a finding that the defendant was estopped from making the defense that it was not bound because the contract of insurance was not evidenced by a writing executed by one authorized to act in .its behalf.

4. The policy provides that whenever litigation is unavoidable, the president, together with a majority of the directors, shall conduct the suit for the association. The defendant’s answer in the present case was signed by “Enoch J. Giles, Defendant’s Attorney,” and was sworn to by “H. C. Smith, President Association.” The plaintiff moved to dismiss the answer, “ because it showed upon its face that the defense was being conducted by the president alone, now ex-president, and without the aid or help of any director of the said association.” The motion was overruled. H. C. Smith was sworn as a witness, and testified that he was no longer president of the association. Plaintiff then sought to have him answer whether he was receiving any assistance from the directors, or was conducting the defense alone, and whether he had any authority to make the defense in the case. The court refused to allow these questions. This ruling and the one just referred to are made the. subject-matter of exception in the cross-bill of exceptions. We see no error in these rulings. As a general rule the president of a mutual insurance company can defend a suit brought against it. 4 Joyce, Ins. § 3657. Whether this rule would apply to a person who was president when the answer was- filed but resigned before the case came on for trial, or whether the language above referred ta-in the policy sued on in the present case makes it imperative that-the president should be assisted by a majority of the directors, are questions which we do not deem it necessary to decide. The answer was signed by a person as attorney at law for the defendant. The name of this attorney is also signed to the bill of exceptions-filed by the defendant, and he acknowleged service of the cross-bill of exceptions filed by the plaintiff. It is, therefore, fair to assume: that he conducted the trial for the defendant. No question was-made as to the attorney’s authority, and no motion was made to require him to produce his authority. The presumption of law is. that he was duly authorized to represent the defendant in the case.. Civil Code, § 4423. It was therefore, so long as the right of the attorney at law to appear for the defendant stood unimpeached,, entirely immaterial whether the president or directors appeared at. all or offered the attorney any assistance, and the fact that he may have been aided in the trial by a person not connected with the association can afford the plaintiff no cause for complaint.

Judgment on main bill of exceptions reversed-, on cross-bill affirmed.

All the 'Justices concurring.