101 Ark. 555 | Ark. | 1912
(after stating the facts). The appellee contends that the judgment must be affirmed because the bill of exceptions does not contain all the evidence. The bill of exceptions shows that the policy of insurance upon which the suit was based was introduced in evidence. The bill of exceptions shows that Henry Jackson was asked: Q. “Is this the policy which she carried?” A. .Yes, sir.” It also recites, “The policy of insurance was here introduced in evidence and read to the jury.”
The policy of insurance here referred to was not made an exhibit to the complaint; it was not a part of the record proper, and had to bé brought into the record by bill of exceptions. This has not been done. There is in the transcript what purports to be a policy of insurance issued by the appellant in favor of Fannie Williams in the sum of $250, but the bill of exceptions nowhere identifies this as the policy upon which this suit was grounded, and which was introduced in evidence at the trial. There is no call in the bill of exceptions for this policy to be copied by the clerk, and nothing whatever to identify the policy that appears in the transcript as the one that was introduced in evidence. The bill of exceptions must contain the evidence that was introduced at the trial, and we can not look to other parts of the transcript for such evidence.
The bill of exceptions, over the certificate of the judge, must contain, or in some manner call for and specifically identify, the evidence that was introduced at the trial, in order to authorize this court to consider it.
This court, in St. Louis, I. M. & S. Ry. Co. v. Godby, 45 Ark. 485, said: “A fair and liberal practice is adopted by the Supreme Court of the United States, in the case of Leftwitch v. Lecanu, 4 Wall. 187, and is as follows: “If a paper which is to constitute a part of a bill of exceptions is not incorporated in the body of the bill, it must be annexed to it, or so marked by letter, number or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.” See also Lesser v. Banks, 46 Ark. 482.
Appellant, in its abstract, copies what purports to be the policy that was introduced in evidence," and urges a reversal of the judgment for alleged error of the court in the admission of testimony, and in the giving of instructions based upon certain provisions contained in the policy, which they set out, but we can not accept this copy of the policy in the appellant’s abstract as the one that was introduced in evidence, and it is impossible for us to determine as to whether or not the court committed error in the particulars claimed by appellant unless we had before us the policy .that was introduced at the trial. This court has often ruled that “where the bill of exceptions fails to show that it contains all the evidence that was introduced at the trial, it will be presumed that there was evidence to sustain the verdict, and that the jury were correctly instructed. Jonesboro, Lake City & Eastern Ry. Co. v. Chicago Portrait Co., 81 Ark. 327.
The appellant contended in oral argument that, if the policy was not in the bill of exceptions, then there is nothing to show that appellee was entitled to recover. But the bill of exceptions does show that the policy was introduced in evidence, and all presumptions are in favor of the correctness of the proceedings in the trial court. The burden is on the appellant to show that error was committed in order to entitle it to a reversal.
Affirmed.
