52 Ga. 640 | Ga. | 1874
This was an action brought by the plaintiffs against the defendant to recover the amount of insurance alleged to be due them. On the trial of the case, the jury, under the charge of the court, found a verdict 'in favor of the plaintiffs for the sum of $1,098 00 as principal, and the sum of $259 00 for interest. The defendant made a motion for a new trial on the several grounds set forth therein, which was overruled by the
1. The court charged the jury, “that the. by-laws of the company, at the time Gibson became a member, constituted the law of the contract between the members of that company, and that the by-laws, as amended March 5th, 1869, did not bind him or those claiming through him, unless the company could show that he (Gibson) assented to such amendment or alteration.” This charge of the court, in view of the facts contained in the record, was error. The amended by-laws did not annex any new condition to the policy of Gibson after the same was issued to him. The amended by-laws only regulated the proceedings of the company, and provided, amongst other things, that upon the death of a member of the company it shall be the duty of the secretary to notify the members of his class of the same, and thereupon each surviving member of the class to which the deceased belonged shall,
2. Although this charge of the court was error, still it did not hurt the defendant, because there was no evidence that it had ever given the notice to Gibson as required by the bylaws of the company.
3. It appears from the evidence in the record that Gibson, in the spring of 1870, transmitted to the secretary of the company the sum of f35 25 in payment of all dues then demanded of him by the company; that in the month of July thereafter Gibson died; the company retained the money in its possession until after his death, without notifying him whether it was satisfactory or not. The court, in substance, charged the jury, that if they believed from the evidence that after the forfeiture by Gibson, by non-payment of assessments, the company received and retained the amount of the unpaid assessments, then this was a waiver of the default, and for the purposes of this contract, it restored him to membership. We find no error in this charge of the court, in view of the evidence in the record. If the amount of money, admitted to have been received by the company, was not sufficient to pay his past dues and entitle him to membership, it was the clear
4. AVe find no error in the ruling of the court as to the rejection of the evidence offered by the defendant as to proof of handwriting by comparison, inasmuch as the defendant did not comply with the requirement of the 3840th section of the Code in submitting the same to the opposite party, nor did the court err in rejecting the other written evidence offered by the defendant at the trial.
5. It appears from the record, that on the trial, Obear, the president of the company, Burke, the secretary and treasurer, thereof, and Robson, all being members of the company, were offered as witnesses to testify in favor of the defendant. The court ruled that they were incompetent witnesses to testify in the case, inasmuch as Gibson, the other party to the contract, was dead. The 3854th section of the Code declares that where one of the original parties to the contract, or cause' of action in issue or on trial, is dead, the other party shall not be admitted to testify in his own favor. In this case, the corporation is the party with which the contract was made on the one side and Gibson the insured, on the other, and the question is, whether the members of the corporation are competent witnesses to testify in the case, Gibson being dead ? This is the first time this precise question has been presented to this court for decision, and we have given to it that consideration which its practical importance demands. In view of the true intent and spirit of the statute, we hold and decide, that inasmuch as a corporation can only make contracts by its authorized officers and agents, that when a contract is made by such officer or agent, for and in behalf of the corporation, with a natural person, and such person is dead, the officer or agent of the corporation so making the contract, is an incompetent witness to testify in relation to that contract when the .other party thereto is dead, not on the ground of interest, but on the ground that where one of the parties who made
Let the judgment of the court below be reversed.