Penn Mutual Life Insurance v. Blount

37 Ga. App. 756 | Ga. Ct. App. | 1928

Stephens, J.

This is a suit to recover on a life-insurance policy, brought against the insurance company in behalf of the beneficiaries named in the policy; the allegations,being that the defendant, by receiving the policy back from the person named therein as the insured, and changing the beneficiaries named in the policy after the defendant’s local agent had delivered the policy to the alleged insured without exacting payment of the initial premium, ratified the act of the local agent in so delivering the policy. See report of this case in 33 Ga. App. 642. The defendant denied ratification. A verdict was found for the plaintiffs, and the defendant moved for a new trial, which was denied.

Iieadnotes 1 and 2 need no elaboration. In support of headnote 1 see answer of the Supreme Court to certified questions in this case in 165 Ga. 193 (140 S. E. 496).

The writer of this opinion prepared the certified questions propounded to the Supreme Court in this case. The answer to one of the questions is the basis for the ruling announced in headnote 1. The answer to the other question, being in the negative, is not essential to the decision of the case under the record as now presented. Had this latter question been answered in the affirmative, the answer would have been controlling, and an affirmance of the judgment finding for the plaintiffs would have been necessitated. The question propounded in effect inquired whether, under the evidence taken most strongly in favor of the defendant, i. e., where knowledge of delivery of the policy without payment of premium was in the local agent only, having the limited powers indicated, the verdict for the plaintiff was demanded as a matter of law.

Counsel for the defendants in error, who were the plaintiffs in the trial court, in their supplemental brief, object to the form of this latter question, because the question does not contain a recital of various portions of the evidence which counsel claim show ratification by the defendant of the agent’s act in delivering the policy without collecting the premium; and counsel intimate in their - brief that, by virtue of such omissions, the question is not fair to the plaintiffs. Counsel have in their brief prepared an elaborate question which is captioned a “fair certified question,” and suggest “that in fairness to the defendants in error the certified question should have read substantially as followsThen follows the proposed certified question, which concludes as follows: “Should the verdict of a jury, finding the disputed facts in favor of the plaintiff, and that verdict approved by the trial judge, be set aside?” Had we propounded the question suggested by counsel, we would not have elicited an answer as to whether the verdict found for the plaintiffs was as a matter of law demanded, but would have inquired only as to whether the verdict found for the plaintiffs was, under the disputed issues of fact, authorized. The two propositions are entirely different. We desired an answer as to one, and did not desire an answer as to the other. An answer either way to the question suggested by counsel would not have removed the necessity of a reversal of the judgment, while an answer in the affirmative to the question actually propounded would have necessitated an affirmance of the judgment. The question as propounded was really in the interest of the defendants in error.

In certifying a question to the Supreme Court the Court of Appeals can propound any question of law which in its opinion is presented by the record, and an answer to which might be necessary to a proper disposition of the case. In so doing the court may limit its inquiry to questions the answers to which would not be exhaustive of all questions presented by the record, and which might be necessary to the proper disposition of the case. Penn Mutual Life Insurance Co. v. Blount, supra; Georgian Co. v. Jones, 154 Ga. 762 (115 S. E. 490); Knight v. Herring, 161 Ga. 58 (129 S. E. 526). It may base a question hypothetically upon only so much of the evidence taken from the record as in the opinion of the Court of Appeals is necessary to propound a question of law presented by the record. The court can, in stating the evidence as the basis for the questions propounded, give its effect, and.may eliminate from the statement of facts portions of the evidence immaterial to- an answer to the question propounded, as was done in the certified question in Knight v. Herring, supra. The Court of Appeals therefore, in certifying a question to the Supreme Court, may limit its application to inferences drawn from the evidence which is most favorable to one of the parties to the case, and the opposite party has no right to complain that the question propounded is not presented by the record because it is not based upon inferences of fact favorable to him.

When the certified question in this case was propounded, this court was confronted with the possibility of an error in .the charge which was prejudicial to the plaintiff in error and which demanded a reversal unless the verdict rendered for the defendants in error (the plaintiffs in the court» below) wa? as a matter of law demanded, irrespective of any error in the instructions to the jury. An instruction ■ from the Supreme Court, therefore, was invoked upon the question whether or not the verdict rendered for the plaintiffs in the trial court was as a matter of law demanded; and in order to do so, it was necessary to submit the question only upon the evidence as construed most favorably to the defendant, which we did.

Judgment reversed.

Jenlcins, P.J., and Bell, J., concur.