Continental Ins. Co. v. Wickham

• Decision Date: 01 March 1900
• Parties: CONTINENTAL INS. CO. v. WICKHAM. v. WICKHAM v. CONTINENTAL INS. CO.
• Court: Georgia Supreme Court

35 S.E. 287

110 Ga. 129

CONTINENTAL INS. CO. v. WICKHAM. v. WICKHAM v. CONTINENTAL INS. CO.

Supreme Court of Georgia

March 1, 1900

Syllabus by the Court.

1. It is not essential, for the purpose of reviewing a judgment overruling a motion for a new trial, that the judgment itself should be specified and brought to this court as a part of the record, or that the terms of the judgment should be set forth in the bill of exceptions. It is sufficient if that document states the fact that the motion was overruled.

2. A refusal to pay anything upon a policy of fire insurance, if made by an authorized agent of the insurer, is a waiver of a stipulation in the policy that the loss thereunder "shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss" have been received by the insurer. (a) There was in the present case sufficient evidence to show that the defendant's agent had authority to represent it in determining whether or not the policy should be paid.

3. In passing upon a motion for a nonsuit, the judge properly assumes that all conflicts in the testimony should be resolved in favor of the plaintiff, except where he as a witness in his own behalf is self-contradictory, and that he should also be given the benefit of all inferences in support of his contentions of fact which can be legitimately drawn from the evidence; and, in discussing with counsel his reasons for refusing to sustain such a motion, the judge may without necessarily violating the provisions of section 4334 of the Civil Code, refer to the evidence, and say what it establishes, or would be sufficient to establish. In so doing, however, he should deal in hypothesis, and not in absolute statement; for it is by far the better practice that a judge should abstain from using, in the hearing of the jury, any expression calculated to impress them as to what his own opinion may be with respect to the truth of any disputed issue.

Error from city court of Savannah; T. M. Norwood, Judge.

Action by Thomas Wickham against the Continental Insurance Company. Judgment for plaintiff, and both parties bring error. Judgment on main bill of exceptions affirmed, and cross bill dismissed.

Denmark Adams & Freeman, for plaintiff in error.

Barrow & Osborne, for defendant in error.

COBB J.

Wickham sued the Continental Insurance Company upon a policy of fire insurance, and recovered a judgment. The defendant made a motion for a new trial, which was overruled, and it excepted.

1. When the case was called in this court a motion was made to dismiss the writ of error, on the ground that there was not contained in the transcript of the record certified by the clerk of the trial court a copy of the judgment overruling the motion for a new trial. The reply to this motion was that there was embodied in the bill of exceptions a verbatim copy of the order overruling the motion. The question, therefore for decision, is whether the judge has authority to certify to a fact transpiring in the trial before him which is a matter of record on the minutes of the court. It is contended by counsel for defendant in error that there is a clear line to be drawn between the power of the judge to certify to what occurs on the trial, and the power of the clerk,--that the judge has no power to go into the domain of the clerk, and that the clerk has no power to enter the domain of the judge. The contention is that whatever is matter of record in the clerk's office can be authenticated in no other way than by the certificate of the clerk, who is the custodian of the record; that the judge is authorized to certify only to those facts which are not of record, and the existence of which depends entirely upon his recollection. The position of counsel for defendant in error, according to the strict rules which formerly governed in such matters, is undoubtedly sound. We do not think, however, that at the present time the rule which he invokes is still of force. When the legislature passed the act of 1889 (Civ. Code, § 5528 et seq.), declaring how cases should be brought to this court, it was the intention of that body to provide a method which would result in eliminating from records and bills of exceptions all immaterial parts of the record in the court below, and in abbreviating such parts of the record as were transmitted wherever it could be done consistently; the purpose of the act being to provide for a record and bill of exceptions containing such matters only as were necessary to enable this court to pass intelligently upon the assignments of error made therein. Under that act this court, in its investigation of the case, was limited to those parts of the record specified by the plaintiff in error, or such as might be brought up under order of the judge, either upon his own motion or upon application of the defendant in error, when the latter was of opinion that the record specified in the bill of exceptions was not all that was necessary to a proper determination of the questions involved. The act of 1892 (Civ. Code, § 5536) went one step further than this, and provided that, whenever it appeared to this court that any part of the record in the court below, which was not specified by the plaintiff in error or brought up under order of the judge, was necessary to a decision of the case, this court, of its own motion, should pass an order directing the clerk of the court below to transmit certified copies of such parts of the record as were necessary. The act of 1893 (Id. § 5569) went still one step further, and provided that no cases should be dismissed in this court for a want of technical conformity to any of the statutes regulating the manner in which cases should be brought to this court, whenever there was enough in the bill of exceptions and the transcript of the record to enable the court to decide the questions involved in the case. Two things are evident, when we consider the various provisions of the law relating to the method to be followed in bringing cases to this court: First, that it is contemplated that the bill of exceptions and record shall contain whatever is necessary to a decision of the questions involved, in as abbreviated a form as the nature of the case will admit of; and, second, that this court shall not dismiss any case where the bill of exceptions and transcript of the record, either as originally brought or as supplemented by proper orders of this court, contain sufficient information in reference to the trial of the case to enable the court to properly determine the questions raised by the bill of exceptions. If by a simple statement in the bill of exceptions a certified copy of a long record may be eliminated, that is not only permissible, but is to be desired. To illustrate: If a suit is brought upon a policy of insurance, and the defense does not depend at all upon the sufficiency of the petition or of any stipulation in the policy, a mere statement in the bill of exceptions that the plaintiff sued the defendant upon a policy of insurance would be permissible, in lieu of a specification requiring the clerk to transmit a certified copy of the petition and the exhibit thereto attached. If the defendant in error is not satisfied with this brief statement in regard to the case, he has a remedy under the act of 1889 above referred to, where it is provided that he may make application to the judge to require the clerk to send up such parts of the record as he deems material, and which the plaintiff in error has failed to specify. Certainly, in a case like the present, where the order which could have properly come up in the record is copied in the bill of exceptions, it would be no ground to dismiss the writ of error because the plaintiff in error has seen proper to have the fact that the motion for a new trial was overruled authenticated by the official certificate of the judge, rather than that of the clerk. That the contrary view was taken by this court prior to the passage of the act of 1889 is undoubtedly true, as was shown by the decisions cited by counsel for defendant in error; but we think that since the passage of that act those cases are not controlling. See Burkhalter v. Oliver, 88 Ga. 473, 14 S.E. 704; Ahrens & Ott Mfg. Co. v. Patton Sash, Door & Building Co., 94 Ga. 247, 21 S.E. 523.

2. The policy sued on contained a stipulation that, if there should be a loss, the same should "not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required." It appears that there was an appraisal had according to the terms of the policy and that the suit was brought within less than 60 days from the date of such appraisal. The defendant contends that the suit was prematurely brought. To this the reply of the plaintiff is that the defendant, through its duly-authorized agent, after the appraisement, absolutely refused to pay the loss, thus in effect denying all liability on the policy, and that for this reason the defendant had waived the benefit of the stipulation in the policy above referred to. It is to be determined, therefore, whether an absolute refusal by an insurer to pay, which would amount to a denial of all liability on the policy, would be a waiver of the right to insist upon a stipulation of the character above quoted. In Merritt v. Insurance Co., 55 Ga. 103, it was held: "An absolute refusal to pay by an insurance company is a waiver of the 60 days' time from proof of death, reserved by the policy within which to make payment." This decision was rendered by only two judges, and practically no argument is made in the opinion to support the...