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the Supreme Court of the United States has held to be constitutional and valid. "It was for the Legislature to define the public policy of that state in respect of life insurance, and to impose such conditions on the transaction of business by life insurance companies within the state as was deemed best. We do not see any arbitrary classification or unlawful discrimination in this legislation; but, at all events, we cannot say that the federal Constitution has been violated in the exercise, in this regard, by the State of its undoubted power over corporations." Hancock Insurance Co. v. Warren, 181 U. S. 73, 21 Sup. Ct. 535, 45 L. Ed. 955. The reasoning in Railway Co. v. Ellis, 165 U. S. 150-153, 154, 17 Sup. Ct. 255, 41 L. Ed. 666, says the court, in Fidelity Mutual Life Association v. Mettler, 185 U. S. 326, 22 Sup. Ct. 669, 46 L. Ed. 922, does not apply to life insurance companies. "The ground for placing life and health companies in a different class from fire, marine, and inland companies is obvious, and we think that putting them in a different class * rests on sufficient reason. The Legislature evidently intended to distinguish between life and health insurance companies engaged in business for profit, and lodges and associations of a mutual benefit or benevolent character, having in mind, also, the necessity of the prompt payment of the insurance money in very many cases in order to provide the means of living of which the beneficiaries had been deprived by the death of the insured." And in Orient Insurance Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552, the interpretation and construction of the Supreme Court of Missouri as to a similar statute was upheld. In Farmers' Insurance Co. v. Dobney, 189 U. S. 304, 23 Sup. Ct. 565, 47 L. Ed. 821, the Supreme Court of the United States, having under consideration the question of the allowance of attorney's fees and damages, and answering argument contending, as here, that such allowance was unconstitutional for various reasons, says: "But the unsoundness of these propositions is settled by the previous adjudications of this court. Orient Insurance Co. v. Daggs. 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552; Insurance Co. v. Warren, 181 U. S. 73, 21 Sup. Ct. 535, 45 L. Ed. 955; Insurance Co. v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 922. In the Orient Case, a statute of the state of Missouri which subjected fire insurance contracts to an exceptional rule was upheld, not only on the ground of the right of the state to prescribe the conditions upon which an insurance company should transact business within its borders, but also because the rule in question was the lawful exercise of the power to classify. In the Warren Case a like principle was applied to a statute of the state of Ohio establishing a particular regulation as to life insurance

companies. In the Mettler Case a statute of the state of Texas was sustained, applicable alone to life insurance policies, which authorized the enforcement, not only of a reasonable attorney's fee, but also of 12 per cent. damages after demand in case of the unsuccessful defense of a suit to enforce a life insurance policy. In all three of the cases referred to, therefore, it was necessarily held that insurance contracts were so distinct as to justify legislative classification apart from other contracts, or to authorize a classification of insurance contracts so as to subject one character of such contracts, when put in one class, to one rule, and other varieties of such contracts, when placed in another class, to a different rule."

We come now to the complaint with reference to the striking of defendant's plea. If the court was right in adjudicating the case according to the laws of Missouri, it was clearly right in striking the defendant's answer, upon the ground that it constituted no defense. The defense was based upon five propositions:

(1) That Lovelace had made false statements in his application and failed to pay his premium. Under the statute of Missouri the company could not plead the application as a part of the contract, for it was not indorsed or the substance of the application entered on the policy. We hold, further, that it could not plead nonpayment of the premium, because the receipt of the premium was acknowledged in the policy, and it was estopped from denying this fact, especially in view of the death of the insured. The further portion of the fourth paragraph of the answer, that the policy was issued by reason of the false and fraudulent representations of Lovelace, and that the policy was procured by fraud, could not be considered after death of the insured. "The statements made in the application *

were

not warranties, and, before the company can be permitted to show that these false statements and answers contributed to the contingency on which the policy was to become due and payable, it must plead such defense, and, besides, it must deposit in court the And premiums it received on the policy. unless the company meets both these requirements the court should exclude the testimony

as to the cause of the insured's death, and as to his physical condition before and after his death, and give a peremptory instruction to find for plaintiff." "The company may, during the life of the insured, but not afterwards, bring a suit to set aside the policy on the ground that it was procured by fraud." Kern v. Legion of Honor, 167 Mo. 472, 67 S. W. 252.

(2) The fifth paragraph of defendant's answer denied that the premium was ever paid, and, as we said above, we think the recital of the policy that the premium had been paid es

tops the company to deny the receipt of the premium after the death of the insured.

(3) The sixth paragraph of the answer set up as a defense that "one of the conditions of said alleged contract of insurance was that, if within one year from the date thereof said Edwin Lovelace should become intemperate in the use of narcotic or other stimulants, any policy issued thereunder should be null and void; and this defendant alleges that the said Edwin Lovelace did become intemperate in the use of narcotic, alcoholic, or other stimulants, and that his death was the result of narcotic, alcoholic, or other stimulants." Counsel for plaintiff in error, in their very exhaustive brief, say: "We are at a loss to know how counsel for defendant in error ever convinced the court below that this one of the defenses was not good." We think that under the decision in Kern v. Legion of Honor, cited above, the answer should have been accompanied by the deposit in court of the premiums received; and without this, it is held unequivocally by the Supreme Court of Missouri that this defense should be dismissed.

(4) The seventh and eighth paragraphs of the answer were correctly stricken under the laws of Missouri-the seventh for the reason that the application was not indorsed upon the policy, and the eighth because the anti-suicide provision of the policy, as has been shown heretofore, is, under the laws of Missouri, void and of no effect. We have carefully examined all of the contentions of the learned counsel for the plaintiff in error, grouped in three heads: First. That the statute of the state of Missouri, allowing the recovery of damages and attorney's fees, will not be enforced by the courts of Georgia. Second. that the court erred in striking the defenses, which is assigned to be error upon three grounds: (a) That the main defenses, if proved, were good; (b) that the statutes of Missouri relative to misrepresentations and procurement of the policy by fraud, and relative to the suicide of the insured, are confined to citizens of Missouri; and (c) that the provision in the policy sued on, relative to the matter of suicide, was not in violation of the laws of Missouri. Third. That the evidence was not sufficient to authorize the verdict allowing the plaintiff damages and attorney's fees, because it did not show vexatious refusal on the part of the company to pay. For the reasons already heretofore stated we think the case was to be tried as if in Missouri and before a Missouri court, and that to deprive a citizen of Georgia of any rights belonging to a citizen of Missouri cannot, under the Constitution of the United States, be countenanced. Parties are presumed to contract with reference to the place of the contract. If it is valid there, it is valid everywhere. The lex loci contractus controls as to the nature, construction, and interpretation of the con

tract. The laws of one state have force in the territory of another, as long as they do not come in conflict with the power or right of that state, or violate its policy or conscience. Cox v. Adams, 2 Ga. 158. Where a contract is made in one state to be performed in another, the laws of the latter state govern as to the validity, nature, obligation, and construction of the contract (Dunn v. Welsh, 62 Ga. 241; Herschfeld v. Dexel, 12 Ga. 584); and they will be enforced by comity, unless contrary to our statute law, our general public policy, or violative of the conscience of the state called on to give it effect. We see no reason why a new trial should be granted because of the recovery of the attorney's fees and damages, especially as the Missouri statute is prac tically identical with our Georgia law upon the same subject. The only difference is that the state of Missouri imposes the penalty for a vexatious refusal, and the Georgia law (Civ. Code 1895, § 2140) makes bad faith in the refusal the basis for damages and attorney's fees. The various grounds of the second contention of the plaintiff in error have already been discussed, and so we come to the third.

Was the evidence of vexatious refusal sufficient to authorize the verdict upon the subject of damages and attorney's fees? We think that where it appears, as it does in this case, that the defendant had no ground of defense, or at least could set up none, to the payment of the policy, and yet declined to pay it, and thereby imposed upon the beneficiary a burden not contemplated in the original contract with the insured, and, without establishing any good reason for delay, subjects the widow and children of the dead to the expense of collecting by law what was contracted to be paid upon proofs of death, and extensively prolongs the litigation, it would be a great hardship if this loss and expense should be deducted from the provision made by the deceased for his family. On the other hand, we think that the expense necessary to collect the policy should be paid by the company, unless it establishes some good reason for an apparently frivolous refusal to pay promptly. In other words, the burden of proof, where unusual and unnecessary delay is shown, should be upon the company to give reason for the delay; or, after the delay is shown, it will be presumed to be vexatious, as in this case, or in bad faith, if under our Georgia statute. It must appear, from the evidence in this case, that the refusal or the neglect to pay was frivolous. The purpose of the law is to force prompt payment of such losses, after the lapse of a reasonable time, to enable the company to ascertain good grounds, if any, for not meeting the demand, and if no such cause existed for the refusal of compliance with the demand, and it refuses to respond, the company does so subject to the further

claim for damages. Cotton States Life Ins. Co. v. Edwards, 74 Ga. 231. The meaning of the term "bad faith" is "any frivolous or unfounded refusal in law or in fact to comply with the requisition of the policy holder to pay according to the terms of his contract and the conditions imposed by the statute." We can hardly imagine anything that would be more "vexatious" than the treatmentthe silent contempt-the plaintiff received at the hands of the company up to the time the suit was brought. We think the evidence authorized the jury to find that there was a vexatious refusal; and it was a benefit to the company that the penalty was affixed by the Missouri statute, instead of under the provisions of our Code, which would have allowed a larger penalty. For the decision in Phenix Insurance Co. v. Hart, 112 Ga. 765, 38 S. E. 67, holding section 2140 of the Civil Code of 1895 to be unconstitutional, was based entirely upon the decision of the Supreme Court of the United States in Gulf, Colorado & Santa Fé Railway Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, as controlling authority; and, since the decision in the Phenix Case, the Supreme Court of the United States has held, in the Mettler Case, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 922, that the ruling in the Ellis Case is confined to railway companies only, and has no application whatever to penalties imposed on insurance companies. Judgment affirmed.

I

POWELL, J. (concurring specially). cannot agree with all the reasoning by which my Brethren of this court arrive at the result in this Case. Indeed, it is only with besitation that I am able to concur at all. It does seem, however, that if the insurance statutes of Missouri are to be read into the contract of insurance as a part thereof, these laws, as construed by the decisions of the courts of review in that state, authorize an affirmance of the judgment. The difficulty is that these statutes do not on their face purport to include the plaintiff within their purview. By express language they are applicable only to policies of insurance written upon the lives of citizens of Missouri; and it is presumed that as to policies of insurance not written upon lives of its own citizens the common law still prevails in that state. But I have finally come to the conclusion that, since policies of insurance are to be most strongly construed against the insurer, the language of the policy, wherein it contracts that the rights of the parties thereunder shall be determined in accordance with the laws of Missouri, contemplates these statutes, and not the common law merely; in other words, that the policy contracted to give to Lovelace the same rights which he would have if he were a citizen of Missouri.

In this view of the question I am able to concur in the judgment.

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1. BILL OF EXCEPTIONS-FORM AND ARRANGEMENT-WRIT OF ERROR-DISMISSAL-STATUTORY PROVISIONS.

Under Civ. Code 1895, $ 5532. taken in connection with Acts 1893, p. 52 (Civ. Code 1895, § 5534), it is mandatory that the trial judge certify the bill of exceptions to be true; but the remainder of the prescribed form of the certificate is directory only, and no error or misdirection therein contained will operate to cause a dismissal of the writ of error in the appellate court.

2. WRIT OF ERROR-REVIEW-PRESUMPTIONSMAKING AND FILING BILL OF EXCEPTIONS.

Unless the contrary affirmatively appears, the certifying, serving, and filing of a bill of exceptions are to be regarded as having taken place in their proper chronological sequence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3795-3803]. 3. PLEADING-MOTION TO STRIKE-GROUNDS. While a plea or answer which sets up no legal or equitable defense, being bad in substance, may be stricken on motion at the trial terin, yet such a motion is not available where the plea states a substantial defense, but is merely deficient in certainty or particularity.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 39, Pleading, §§ 1102–1110.] 4. SAME-PLEA-CONSTRUCTION.

The plea in this case was not subject to the construction that it admitted a sum to be due by the defendant to the plaintiff in excess of the amount found by the jury in the latter's favor. 5. WRIT OF ERROR-REVIEW.

The objections to the evidence were not well taken, the charges complained of are not erroneous for any of the reasons assigned, and the verdict is not without sufficient evidence to support it.

(Syllabus by the Court.)

Error from City Court of Nashville; Peeples, Judge.

Action between the Bailey & Carney Buggy Company and one Guthrie. From the judgment, the Bailey & Carney Buggy Company bring error. Affirmed.

Alexander & Gary, for plaintiff in error. Hendricks, Smith & Christian and Buie & Knight, for defendant in error.

POWELL, J. Since we have deemed it unnecessary to elaborate in the opinion the points decided in the headnotes 3 to 5, inclusive, we shall set forth only so much of the facts as are necessary to an understanding of what is decided upon the motion to dismiss the bill of exceptions. The assignment of error is to the overruling of a motion for a new trial, and no evidence is contained in the bill of exceptions, but the brief of the evidence is specified by the plaintiff in error as a necessary part of the record. The certificate of the judge, in addition to verifying the bill of exceptions, certifies that it contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of," and concludes in regular form. The point is made that the certificate, in referring to the

evidence, employs the word "contains," instead of the word "specifies." Civ. Code 1895, § 5534 (Acts 1893, p. 52), provides: "It shall be the duty of the judge, to whom any bill of exceptions is presented, to see that the certificate is in legal form before signing the same; and no failure of any judge to discharge his duty in this respect shall prejudice the rights of the parties by dismissal or otherwise." Prior to the adoption of this statute compliance with the prescribed form of certificate to a bill of exceptions was mandatory, and a certificate in the form used in the present case would not have been sufficient. Gresham v. Turner, 88 Ga. 160, 13 S. E. 946; Lovingood v. Roberts, 89 Ga. 417, 15 S. E. 495; Holland v. Van Beil, 89 Ga. 223, 15 S. E. 302. Since the adoption of this statute the Supreme Court has, reluctantly at first (see Pusey v. Sweat, 92 Ga. 809, 19 S. E. 816, and Gregory v. Daniel, 93 Ga. 795, 20 S. E. 656), but finally fully, yielded its assent to the principle that as to everything in the certificate presented by the Civil Code of 1895, § 5532, except the actual verification of the bill of exceptions, the form is directory only. Scott v. Whipple, 116 Ga. 214, 42 S. E. 519.

The further point is made, in the motion to dismiss, that "the writ of error is not dated, and there is no way to ascertain whether the writ was signed before the acknowledgment of service or not, or to ascertain whether the bill of exceptions was filed in the clerk's office before acknowledgment of service." "The presumption is that the different steps taken in having the certificate signed, service acknowledged, and the bill of exceptions filed were in their proper chronological sequence." McCain v. Bonner, 122 Ga. 843, 51 S. E. 36. The cases of Vickers v. Sanders, 106 Ga. 266, 32 S. E. 102, and Cooper v. State, 121 Ga. 578, 49 S. E. 707, holding to the contrary, were expressly overruled in Porter v. Holmes, 122 Ga. 784, 50 S. E. 923. Bush v. Keaton, 65 Ga. 296, was decided prior to the passage of the act of 1881, touching this subject-matter. So that the bill of exceptions will not be dismissed; but, under our holding as contained in the last three headnotes above, the judgment will be affirmed on the merits of the case. Judgment, affirmed.

BENNETT v. CRUMPTON. (No. 122.) (Court of Appeals of Georgia. March 22, 1907.) 1. SLANDER-JUSTIFICATION-FACTS CONSTI

TUTING.

A. brought suit against B. for slander for using of and concerning him the following words: "It is the general belief among the negroes and a great many white people that A. broke open the smokehouse of C., a negro, and stole therefrom a quantity of meat and syrup." A plea of justification was insufficient which alleged that B. had used such words and that his statement as to the existence of such belief of A.'s guilt was the truth. The plea should

have averred further that A. was in fact guilty of the crime imputed to him by the report and belief which B. had repeated. The proof necessary to establish a plea of justification in such case would be A.'s guilt of the crime imputed to him as shown by a preponderance of the testimony. Proof of the fact that it was the common report and belief in the neighborhood that A. was guilty would not be sufficient. "Talebearers are as bad as tale-makers," and it is no defense that the speaker did not originate the slander, but heard it from another.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 104, 222.] 2. SAME.

The court erred in instructing the jury that the plea of justification would be established by a preponderance of the evidence showing that the statement made by B. as to the existence of the general belief that A. was guilty of the crime imputed to him, was true.

3. SAME.

The court erred in refusing a written request to charge embodying the principle stated in the first headnote. - ADMISSIBIL

4. SAME-ACTIONS - EVIDENCE ITY.

The court also erred in admitting testimony to the effect that it was "the general belief and report of the neighborhood that A. was guilty of breaking open the smokehouse of C., and stealing his meat and syrup," in support of the plea of justification. Such evidence would be admissible in mitigation of damages.

(Syllabus by the Court.)

Error from City Court of Dublin; Burch, Judge.

Action by K. H. Bennett against R. H. Crumpton. Judgment for defendant, and plaintiff brings error. Reversed.

George B. Davis and Ira S. Chappell, for plaintiff in error. John S. Adams, for defendant in error.

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HILL, C. J. K. H. Bennett brought suit against R. H. Crumpton, in the city court of Dublin, for slander in using of and concerning him the following words: "It is the general belief among the negroes and a great many white people that K. H. Bennett broke open the smokehouse of Lee Tillery, a negro, and stole therefrom a quantity of meat and syrup." The defendant filed the * use following plea: "That he did the words of and concerning the plaintiff as set out in the * petition, and he asserts that the report concerning the plaintiff * * * is and was true; and defendant stands ready to prove the same." The plaintiff demurred to this plea because "it is too vague and uncertain, and does not amount to a plea of justification, because it does not admit the truth of the charge and imputation of burglary and theft as charged in the declaration, and offer to prove the same, but admits only the report concerning the plaintiff, and offers only to prove that said report is true." The court overruled this demurrer, and allowed the plea to stand as a sufficient plea of justification. The court instructed the jury that the plea would be sustained if the preponderance of the evidence established the truth of the

admission, to wit, that it was the general opinion among the negroes and a good many white people that the plaintiff had stolen the meat and syrup from the negro mentioned. The error assigned in this charge was that it confined the jury to a consideration of the question of opinion in the community as to the plaintiff's guilt, creating the impression on the minds of the jury that, if the defendant succeeded in proving that such was the opinion in the neighborhood, the plea of justification would be fully proved; whereas the court should have charged that, in order for the plea of justification to avail, it was necessary for the defendant to prove by a preponderance of the evidence that the plaintiff was guilty of the burglary and larceny as set out in the declaration. The court refused a written request to give the following charge: "In order for defendant to sustain the plea of justification, it is necessary for him to prove, by a preponderance of the testimony, that Bennett is guilty of breaking open Tillery's smokehouse and stealing therefrom his meat and syrup. Then your verdict must be for the defendant, for then the defendant would have made good his plea of justification by proving to your satisfaction that Bennett is guilty as charged in the declaration, and he was justified in using the language concerning Bennett, because it was the truth. If, on the other hand, a preponderance of the testimony convinces you that Bennett is not guilty of breaking open Tillery's smokehouse and stealing his meat and syrup, then your verdict should be for the plaintiff in some amount. It makes no difference what the common belief is or the current reports in the community." It is also claimed that the court allowed, over the plaintiff's objection, certain witnesses to testify that "it is the common report or belief in the neighborhood that Bennett stole Lee Tillery's meat and syrup, and the people generally believe that he did it." The objection made to this testimony was that "it was hearsay and inadmissible, and incompetent to prove a charge of burglary and larceny."

We do not think the plea or the evidence submitted in support thereof sufficiently averred or proved justification. One who repeats a charge imputing to another a crime, when called upon to account, cannot legally justify by showing that the alleged slander originated with others, and that he merely repeated it. Under the plea of justification he must go further, and prove by a preponderance of the testimony that the plaintiff did as a matter of fact and truth commit the offense with which he is charged. "Every repetition of a slander originated by a third person is a willful publication of it, rendering the person so repeating it liable to an action. "Tale-bearers are as bad as tale-makers.' And it is no defense that the speaker did not originate the scandal, but heard it from another, even though it

was a current rumor and he in good faith believed it to be true." Newell on Slander and Libel, 350. "Thus, if the libel complained of be 'A. B. said that plaintiff had been guilty of fraud, etc.,' it is no avail to plead that A. B. did in fact make that statement on the occasion specified. Each repetition is a fresh defamation, and the defendant by. repeating A. B.'s words has made them his own, and is legally as liable as if he had invented the story himself. The only plea of justification which will be an answer to the action must not merely allege that A. B. did in fact say so, but must go on to aver with all necessary particularity that every word which A. B. is reported to have said is true in substance and in fact." Odgers on Libel and Slander, 173.

This rule, as declared by these standard authorities, is abundantly supported by the courts. A few decisions hold that slanderous words may be justified by giving another as the author by whom the assertion had previously been made, but it is generally held that this is not the law, both by the courts of England and this country. Bennett v. Bennett, 6 C. & P. 588; De Crespigny v. Wellesley, 5 Bing. 392, 2 M. & P. 695; Dole v. Lyon, 10 Johns. (N. Y.) 447, 6 Am. Dec. 346; Treat v. Browning, 4 Conn. 408, 10 Am. Dec. 156; Graves v. State, 9 Ala. 450. In Waters v. Jones, 3 Port. (Ala.) 442, 29 Am. Dec. 261, the words were: "It is the general opinion of the people in Jones' neighborhood that he burnt Coleman's ginhouse" and it was held that they were actionable, and that proof that such was the belief would furnish no defense. In the case of Brewer v. Chase, 121 Mich. 526, 80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527, it was held that "where one publishes that he has heard that another has been guilty of certain disgraceful conduct, though he give the source of his information, he makes the charge his own, and must show, in an action for libel, to constitute justification, not merely that he has in fact heard it, but that the charge itself is true." In Kenney v. McLaughlin, 5 Gray (Mass.) 3, 66 Am. Dec. 345, the court says: "The 'story' uttered or repeated by the defendant contains a charge against the plaintiff of a nature to destroy her reputation. It is no answer, in any forum, to say that she only repeated the story as she heard it. If the story was false and slanderous, she must repeat it at her peril. There is safety in no other rule." In McPherson v. Daniels, 10 Barn. & C. 263, it was held that if A. said of X. that he was a thief, and C. published that A. said of X. that he was a thief, in a certain sense C. would publish the truth, but not in a sense that would constitute a defense. See, also, Giddens v. Mirk, 4 Ga. 364. But we do not think it necessary to multiply authorities on this point. Our own Supreme Court, in Cox v. Strickland, 101 Ga. 482 (3), 28 S. E. 655, declares the law to

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