Fed. Life Ins. Co v. Hurst

• Decision Date: 27 August 1931
• Docket Number: No. 21043.,21043.
• Citation: 43 Ga.App. 840,160 S.E. 533
• Parties: FEDERAL LIFE INS. CO. v. HURST.
• Court: Georgia Court of Appeals

43 Ga.App. 840

160 S.E. 533

FEDERAL LIFE INS. CO.

v.HURST.

No. 21043.

Court of Appeals of Georgia,

Division No. 2.

Aug. 27, 1931.

Rehearing Denied Sept. 18, 1931.

Syllabus by the Court.

Where a plaintiff in a case tried in the municipal court of Atlanta desires to except to a judgment of nonsuit, his exceptions must be presented to the trial court and certified and ordered filed, and actually filed, within ten days of the date of the ruling complained of; and, where such exceptions, though duly presented, are not also certified and filed within this period, the appellate division does not acquire jurisdiction of the case, and should dismiss the exceptions upon that ground.

Syllabus by the Court.

A party is not estopped to question the jurisdiction of the appellate division merely because he may have appeared before the trial judge and objected to the certification of exceptions upon the ground that they were not filed within time, and thereafter failed to take exception to the overruling of such objection.

Syllabus by the Court.

In a suit upon a policy of insurance providing that for injuries which, "independently and exclusively of all other causes, wholly and continuously shall disable the insured from the date of accident from performing any and every kind of duty pertaining to his occupation, as long as the insured lives and suffers said total disability, the company will pay a monthly indemnity of $100, " the plaintiff was not entitled to recover without proof that he had sustained injuries which necessitated the abandonment of substantially all the usual and customary duties of his occupation. Where the occupation of the insured was that of a teacher of dancing, but the actual dancing with his pupils constituted only a small portion of his customary activities, and he was able after his injuries to execute many of the other important duties of his profession, and was forced to desist only from the physical act of dancing, he was not wholly disabled within the purview and meaning of the contract.

[Ed. Note.—For other definitions of "Wholly Disabled, " see Words and Phrases.]

Syllabus by the Court.

The plaintiff's case was not aided by anything which appeared to have been adjudicated in a former suit upon the same policy.

Syllabus by the Court.

Upon application of the above rulings, the plaintiff's appeal to the appellate division was too late and should have been dismissed; but, even if the appeal had been filed and certified in due time, the judgment of nonsuit as therein excepted to was not erroneous, and the appellate division erred in sustaining the appeal and reversing this judgment. It follows that the superior court erred in overruling the certiorari assigning error upon the judgment of the appellate division.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by E. S. Hurst against the Federal Life Insurance Company. Judgment of nonsuit was entered by the Atlanta municipal court, which was reversed by the appellate division, and, after the overruling of defendant's petition to the superior court for certiorari, defendant brings error.

Reversed.

E. S. Hurst brought suit in the municipal court of Atlanta against Federal Life Insurance Company. The trial resulted in a judgment of nonsuit on January 29, 1930. Theplaintiff's exceptions to this judgment and to intermediate rulings were presented to the trial court, and left in the clerk's office; on February 5, 1930, but, because there was no brief of evidence accompanying such exceptions, "the court did not file or certify same" at that time. Orders were passed by the trial judge on February 4 and February 18, 1930, respectively, extending the time for the preparation of the brief of evidence. The brief having been perfected and approved on or before February 26, 1930, the exceptions were on that date certified and ordered filed, over objection of the defendant "that said appeal [was] not filed within the time required by law." The defendant took no exception to the overruling of this objection, but at the hearing before the appellate division moved to dismiss the plaintiff's "exceptions or appeal" upon the same ground. The appellate division overruled the motion to dismiss, and, upon a consideration of the case upon its merits, reversed the judgment of the trial court awarding the nonsuit. The defendant then carried the case by certiorari to the superior court, assigning error on these rulings, and, the petition for certiorari being overruled, the defendant excepted.

The action was brought upon an accident insurance policy containing the following provision upon which the plaintiff relied for a recovery: "If such injuries, independently and exclusively of all other causes, wholly and continuously shall disable the insured from the date of accident from performing any and every kind of duty pertaining to his occupation, as long as the insured lives and suffers said total disability, the company will pay a monthly indemnity of $100." The suit was to recover $100 per month for the period of twenty months from March 20, 1928, to November 20, 1929, inclusive.

From the evidence it appeared that the plaintiff was a teacher of dancing, and at the time of the issuance of the policy was operating a dancing school in the city of Atlanta. He claimed to have been struck by an automobile in the city of New York some time in 1927, and that as a result of injuries then received he was totally disabled from performing any of the substantial duties of his occupation, and was entitled to be indemnified under the provisions of the policy. Other facts will be stated in the opinion.

Bryan, Middlebrooks & Carter and Dillon, Calhoun & Dillon, all of Atlanta, for plaintiff in error.

W. H. Terrell, of Atlanta, for defendant in error.

BELL, J. (after stating the foregoing facts).

1. It is our opinion that the appellate division erred in overruling the motion to dismiss the plaintiff's exceptions.

The act of 1913 (Ga. Laws 1913, p. 145) establishing the municipal court of Atlanta was amended in several particulars in 1925 (Ga. Laws 1925, p. 370). The act was again amended in 1927 (Ga. Laws 1927, p. 388). The law relating to the question for decision, as taken from the several acts referred to, is contained in section 42 of the act of 1925 (Laws 1925, p. 383), as amended by the act of 1927. This section, after first providing for the making and granting of motions for new trial, and for the method of procedure in such matters, goes on to prescribe the practice on exceptions and appeals to the appellate division, in the following language, the part which is taken from the act of 1927 being indicated by brackets:

42 (b) "Should the Judge decline to grant said oral or written motion for new trial, as the case may be, he shall pass an order to that effect, and appeal shall lie therefrom to the Appellate Division of said Court upon any ground of new trial which would be ground for new trial in the Superior Courts. [All rulings of the trial court which under the practice in the Superior Courts would be the subject-matter of final bill of exceptions, cross-bill of exceptions, or exceptions pendente lite shall likewise be the subject-matter of such exceptions in this court, and such exceptions shall be presented to the trial court within ten days from the date of the ruling complained of, and certified to by the trial court and ordered filed and transmitted to the Appellate Division of said court after final judgment in the trial court, as elsewhere herein provided for in case of appeals.]

42 (c) "Should the movant desire to enter an appeal to the Appellate Division of said Court from the order denying a new trial he shall, within ten days from the order overruling the oral motion for a new trial, file a written statement of the grounds of his motion, and the errors of which he complains, together with a written brief of so much of the evidence adduced on the trial of the case as may be necessary to a clear understanding of the errors complained of, the brief of evidence and the grounds of said motion to be certified as true by the trial Judge before the same shall be filed, unless further time is granted by the trial judge for the perfection and approval of the brief of evidence, in which case the trial Judge shall order the brief filed, subject to correction and approval at such time as he shall fix."

According to the record, the plaintiff's exceptions were presented within the period of ten days, as prescribed in subsection (b), but, in order to confer jurisdiction upon the appellate division, it was necessary that such exceptions should also be certified and ordered filed "as elsewhere herein provided for in case of appeals." The "elsewhere" can only refer to subsection c, which providesthat, in case of an appeal from an order denying a new trial, the movant shall file a written statement of the grounds of his motion and the errors of which he complains, within ten days of the order overruling the motion, and that the grounds of the motion shall be certified as true by the trial judge before the same shall be filed. If the statement of the grounds of the motion and of the errors complained of must be filed within ton days, but must be certified before filing, it follows that the certification must also be obtained before the expiration of this period, and that a filing without certification is unauthorized. The provision as to granting time for the perfection and approval of the brief of evidence has no application to the approval of the grounds of the motion for a new trial. Dean v. Johnson, 18 Ga. App. C61, 90 S. E. 286; Atlanta & West Point R. Co. v. Williams Brick Co., 36 Ga. App. 814, 138 S. E. 248.

We therefore conclude that subsection (b), in pointing to subsection (c) for the law as to the certification and filing of exceptions, must be construed as limiting the time for the performance of these acts in accordance with the latter provision. Since it is thus...