Opinion
7 Div. 127.
May 7, 1935. Rehearing Denied June 28, 1935.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Action on a policy of life insurance by Sadie Byrd against the Ætna Life Insurance Company. From a judgment for defendant, plaintiff appeals.
Affirmed.
Certiorari denied by Supreme Court in Byrd v. Aetna Life Ins. Co., 231 Ala. 458, 165 So. 110.
See, also, 25 Ala. App. 318, 146 So. 78.
Chas. F. Douglass, of Anniston, for appellant.
If the document is attached when the judge signs the bill and it is referred to as an exhibit and identified by the number or letter, there is no uncertainty, and the exhibit is as much a part of the bill as if it had been copied in its body. Forrester v. McFry, 229 Ala. 324, 157 So. 68; Oregonian R. Co. v. Wright, 10 Or. 162; Lagnard v. Rhoades, 156 Ill. 431, 40 N.E. 964; Rosenthal v. Wehe, 58 Wis. 621, 17 N.W. 318; Humbarger v. Humbarger, 72 Kan. 412, 83 P. 1095, 115 Am.St.Rep. 204; Leftwitch v. Lecanu, 4 Wall. 187, 18 L.Ed. 388; Louisville N. R. Co. v. Barker, 96 Ala. 435, 11 So. 453; 4 C.J. 236.
London, Yancey, Smith Windham, of Birmingham, for appellee.
There is not included in the bill of exceptions, which purports to carry all the evidence, either the text or the substance of the contract sued on; and the court is not authorized to look to outside source to supply the deficiency. Supreme Court Rule 26; Elliott v. Round Mountain C. I. Co., 108 Ala. 640, 18 So. 689; Jones v. White, 189 Ala. 622, 629, 66 So. 605; Pearce v. Clements, 73 Ala. 256.
This suit was founded on a policy of life insurance containing a clause providing for disability benefits in certain contingencies.
It would really seem to be unnecessary to cite authority to the effect that there could be no recovery in the absence of the introduction into the evidence on the trial, of the policy — or its essential contents — which was the basis of the claim. That such is the fact will be, we believe, conceded by all concerned to be elementary.
Appellant's counsel, of course, knew it, for he introduced the policy sued on into the evidence — as appears.
But the same is not before us in the way that we are authorized to hold it as error — even if it was, which we do not intimate — on the part of the trial court to give to the jury at appellee's request the general affirmative charge to find in its favor.
We look strictly to the bill of exceptions and its proper exhibits for the evidence on the trial. Pearce v. Clements, 73 Ala. 256; Forrester v. McFry, 229 Ala. 324, 157 So. 68.
The bill of exceptions sent up here, while it shows, as above noted, that the policy of insurance involved was introduced in evidence, does not contain said policy, nor its essential provisions, and, even though the said bill recites, with regard to its contents, that, "The Foregoing is All of the Evidence that was Introduced in this Case," it affirmatively appears that it was not.
The policy of insurance referred to — introduced, as stated, into the evidence — is not incorporated in the bill of exceptions in any manner, either in that distinguished by Mr. Justice Foster in the opinion in the case of Forrester v. McFry, supra, or in the manner held by the Supreme Court in that case to be efficacious.
It results that for all we could say — regardless of error, vel non, in the great number of rulings complained of, in fact, regardless of said rulings — the lower court was fully justified in giving the general affirmative charge in favor of appellee.
So the judgment is affirmed.
Affirmed.