agreed to be the home office of the company" -which, as appears from other portions of the policy, was the city of St. Louis, Mo. To this suit the defendant filed demurrer and answer. The demurrer contains several grounds specially demurring to the various paragraphs of the petition, as well as the general ground that the petition contains no cause of action. The demurrer was overruled. Exceptions pendente lite were filed, but were not presented and certified until after the opening of the next term of the trial court. This was too late to enable this court to review the order of the court upon the demurrer. The answer, besides denying the essential allegations entitling the plaintiff to recover, set up that the policy was void because of false and fraudulent representations made by Lovelace in the application for the insurance-namely, that he was at that time in good health, and usually enjoyed good health, that he was not then and never had been addicted to the use of narcotics or intoxicants, and that no company had ever declined to issue a policy upon his life, all of which statements were alleged in the answer to be untrue; that before the death of said Lovelace the company demanded from him a cancellation of the policy and received his promise that he would surrender it; that no consideration had ever passed to the company for the policy, because the premium thereon had never been paid; also that one of the conditions of the policy was that the policy should become null and void if within one year after its date the said Lovelace became intemperate in the use of narcotics or alcoholic drinks, that Lovelace did become so intemperate within such time, and that his death was the result of such intemperance. The company further answered that said Lovelace distinctly stipulated that all the statements in his application for insurance were warranted to be true and complete, that no information or material facts were suppressed, and that the same was offered to the company as a consideration for the contract of insurance; that all of said statements were false and fraudulent, and made with the design of deceiving the insurance company, and did so deceive it; that one of the provisions of the policy was that if death occurred from self-destruction, while sane or insane, within one year from the date of the policy, only the reserve (com puted according to the Actuaries' Table of Mortality, with interest at 4 per cent.) should be due upon the surrender of the policy; and that Lovelace did in fact destroy his own life within one year of the date of the policy. The plaintiff filed a general and special demurrer to the plea and answer of the company. The general demurrer was sustained, and the plea and answer dismissed, except in so far as the answer denied liability for attorney's fees and damages.

The plaintiff subsequently amended her petition, by averring: That each and all of

the statutes of the state of Missouri in force at the time the policy was issued became a part of the policy as effectually as if they had been incorporated therein. That at the time the policy was issued, section 7896 (chapter 119, art. 2) of the Revised Statutes of the state of Missouri of 1899 [Ann. St. 1906, p. 3750] was as follows: "In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it should be shown to the satisfaction of the court or jury trying the cause that the insured contemplated suicide at the time he made his application for the policy; and any stipulation in the policy to the contrary shall be void." And section 7890 of said Revised Statutes was as follows: "No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable; and whether it so contributed in any case shall be a question for the jury." That section 7929 of said Revised Statutes is as follows: "Every corporation, company, or association transacting business under the provisions of this article shall, upon the issuance of every policy, attach to such policy or indorse thereon the substance of the application upon which such policy was issued, and which is made a part of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such policy.", That the substance of said application was not attached to or indorsed upon this policy. That the stipulation contained in the policy, making said application a part of the contract, is void. That the policy alone constitutes the entire contract of insurance. Plaintiff further set up section 7867 of the Revised Statutes of Missouri, providing for the registration of policies, and that the policy sued on was a registered policy, and that the insurance company was estopped from claiming that the premium had not been paid thereon. Upon the allowance of these amendments the defendant renewed its demurrer, and, besides the general demurrer that the petition contained no cause of action, demurred specially on the grounds: (1) That there is a misjoinder of causes of action, for the reason that the petitioner has brought suit upon the alleged contract of insurance and also upon an alleged tort for which she prays special punitive damages; (2) that section 8012 of the Revised Statutes of Missouri, referred to in paragraph 8 of plaintiff's petition, is unconstitutional, in that it operates to deprive insurance companies of property without due process of law, and denies to them equal protection of the law, and requires them to pay attorney's fees and damages in certain cases to parties

successfully suing them, while it gives them no corresponding benefits; (3) that the city court of Atlanta has no jurisdiction to enforce a penalty of the state of Missouri. This demurrer was, after a hearing, overruled by the court. Exceptions pendente lite to this judgment were filed in due form and in due time.

The case went to trial before a jury, therefore, upon the one question whether the plaintiff should recover the penalties fixed by the Missouri statutes. A verdict was found for the plaintiff for the amount of the insurance, with interest, and for $100 damages, and $500 attorney's fees; and a motion for new trial was made. The motion contains the usual general grounds, and, by amendment, the following additional grounds of alleged error: (1) The admission of the testimony of Edgar Latham and the refusal of the court to exclude his testimony that he is familiar with the insurance laws of the state of Missouri, and that the statutes pleaded in the cause and now before the court were the laws of force in that state at the time this policy was issued. (2) The admission in evidence of a book offered by the plaintiff, entitled "Insurance Laws of the State of Missouri, 1903," upon the front leaf of which book was printed: "Insurance Laws of the State of Missouri, 1903. Including Laws Governing and Regulating Fraternal Beneficiary Associations, Trust Companies, and Pools, Trusts, and Conspiracies. R. G. Yates, Supt. of Insurance. [Seal of State.] Jefferson City, Mo., Tribune Printing Co., State Printers and Binders." And on the second page of said book: "Insurance Laws of the State of Missouri, Revised Statutes of 1899 and Acts approved 1901 and 1903"-said book being admitted for the purpose of proving what the laws of that state were. The motion for new trial was overruled; and by the writ of error we are called upon to review the action of the court upon that motion, and those rulings of the court to which exceptions pendente lite were taken, as well as the overruling of an oral motion to dismiss that portion of the plaintiff's petition which sought to recover damages and attorney's fees; said motion being upon the ground that the allowance of the same was a matter of remedy governed by the laws of the forum, under which they could not be recovered.

We are clearly of the opinion that when the general demurrer was overruled, and this judgment was not excepted to during the term at which it was rendered, the petition became the law of the case so far as the defendant was concerned. Sims v. Georgia Ry. & Electric Co., 123 Ga. 643-645, 51 S. E. 573, and cases therein cited. If we are right in this, the subsequent demurrer offered by the company could not be considered by the court below, because in conflict with its prior ruling. Section 8012 of the Revised Statutes of Missouri, which was a ground of the second demurrer, was pleaded

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in the original petition and passed upon in overruling the first demurrer. As to the ground that there was a joinder of suit upon the contract of insurance with suit upon an alleged tort, we think it was properly overruled by the court. The ground that the court had no jurisdiction to enforce the penalty of another state will come more properly under what we shall have to say further on with reference to the application of the laws of Missouri to the case as a whole. Suffice it to say here that the law of Missouri was the selection of the company itself, and will be enforced, unless in conflict with our law or our public policy.

Much stress is laid by learned counsel for the company on the fact that certain of the Missouri statutes use the term "citizens of this state," and it is contended that by reason of these words the benefits which would accrue to the plaintiff in this case, were she a citizen of Missouri, are denied to her, because she is a citizen of Georgia. From the place assigned these sections in the Revised Statutes of Missouri it is evident to our minds that these words are used merely because it would naturally be presumed that generally the persons to be affected by the provision of the Missouri statutes would be citizens of Missouri; and as the plaintiff is forced, by the very contract prepared and proposed by the company, to have the contract construed and her rights adjudicated by the laws of Missouri, it is apparent that the words "citizens of this state" may be treated as mere surplusage and rejected as such. The guaranty in the fourteenth amendment of the Constitution of the United States, which declares that "No state shall deny to any person within its jurisdiction the equal protection of the laws." was said by Justice Bradley, in Missouri v. Lewis, 101 U. S. 22, 30, 25 L. Ed. 989, to include "the equal right to resort to the appropriate courts for redress." "It means," as was further said by the court, "that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances." The same court, in United States v. Cruikshank, 92 U. S. 542, 555, 23 L. Ed. 588, per Waite, C. J., used the following language, in discussing the foregoing constitutional clause: "The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the states; and it still remains there." In our view of this case the city court of Atlanta was for the time being a Missouri court, so far as the "validity and effect" of this contract is concerned. Under article 4, § 2, of the Constitution of the United States, "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." Sitting, as it were, in

Missouri, so as to give "effect" to the contract, the trial court could not consider Mrs. Lovelace as other than a citizen of Missouri, at least in so far as to accord her any "privileges" appertaining to such citizenship, and to enforce the laws of Missouri, construing them most favorably to the insured. In the language of our Supreme Court in Champion v. Wilson, 64 Ga. 188, "The law of New York entered into this contract, as it was

to be executed there, and our courts will enforce it, whatever it may be; and this contract must stand or fall as the test of that law is applied to it." And, applying the language of the decision in that case to Missouri instead of New York: "When so applied it becomes, as the law of the contract, Georgia law; and it matters not where it comes from. For this case-pro hac vice-it is our own law."

We do not see either that the demurrer, which had at a former term been overruled, could be renewed at a subsequent term, or that it can be justly claimed that the plaintiff's petition set forth two causes of action merely because the plaintiff offered an amendment setting up certain statutes of the state of Missouri in amplification and aid of rights already claimed in the original petition. Foreign statutes may be pleaded by amendment. South Carolina R. Co. v. Nix, 68 Ga. 572. And the amendment in that case was expressly approved because allowable by the laws of South Carolina. Conlin v. City Council of Charleston, 15 Rich. Law, 201. The amendment did not materially change the cause of action, and gave no right to dig up a dead demurrer and have its sufficiency again passed upon. Civ. Code 1895, 5068. The motion to dismiss that part of plaintiff's petition that sought to recover damages and attorney's fees was properly overruled, because, even as a matter of remedy and as governed by the laws of the forum, such penalty and damages can be recovered in Georgia; and the defendant's motion was made upon the distinct ground that they could not be so recovered.

We come next to the amended grounds of the motion for a new trial, which relate to the method of proving the laws of Missouri. It is settled that, where either party claims a benefit under a foreign law, the statute must be pleaded; and, of course, where the laws of a foreign state are specially pleaded, they must, as any other material matter, be proved. Champion v. Wilson, supra. But according to prior decisions of our courts there is no inexorable rule which demands a certain kind of proof or prescribes the exact quantum of proof required to satisfy the trial court as to the authenticity of the statutes of one of our sister states. The court's own knowledge may give testimony and supply the proper verification of the law. "The courts, on the trial of a cause, may proceed on their knowledge of the laws of another state, and it is not necessary in that case to

prove them; and their judgment will not be reversed, when they proceed on such knowledge, unless it should appear that they decided wrong as to those laws." Herschfeld v. Dexel, 12 Ga. 582. Three methods of proof have been recognized. One is by proof of witnesses, testifying as to their familiarity with the law in reference to a certain subject. A second method is by certified copy of the statute in question. And the third method of proof is, we think, clearly authorized by the Code, which is judicial recognition. Civ. Code 1895, § 5231. An instance of the first appears in Chattanooga, Rome & C. R. Co. v. Jackson, 86 Ga. 681, 13 S. E. 110, where the Supreme Court approved proof by attorneys, who testified as to the law of Tennessee (as Latham did in this case as to the law of Missouri), except that they testified that they had practiced law in Tennessee, and Latham did not testify that he had practiced in Missouri. In that case Justice Simmons, in dealing with the exceptions to the testimony of the attorneys proving the law of Tennessee, lays down the following rule: ""The public laws of the United States and of the several states thereof, as published by authority, shall be judicially recognized without proof.' While, therefore, the trial judge might have resorted to the statutes and the decisions of the Supreme Court of Tennessee, we cannot say that it was error to receive the testimony of skilled attorneys who practiced in the courts of that state, to aid him in arriving at a proper conclusion as to what was the law of that state, and especially as to the practice of the courts thereof in regard to appeals and their dismissal. The testimony was not for the jury, but for the information of the judge; and he was not bound by the opinions of these attorneys, but it was his duty at last to decide the law himself, aided by these opinions and such other sources of information as were accessible to him. Knowing, as we do, the great difficulty under which courts labor in arriving at the true law of a case, and especially the difficulty encountered here, as well as by the court below in this case, we cannot condemn the trial judge for resorting to any sources of information which will aid him in coming to a correct conclusion as to the law." The learned Justice cites Hanley v. Donoghue, 115 U. S. 1, 6 Sup. Ct. 242, 29 L. Ed. 535, and Chicago & Alton Railroad v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct. 398, 30 L. Ed. 519, as authority approving this method of proof, and refers to the fact that in other states that have no statutes like ours, evidence of this kind is the proper mode of proving the laws of another state. And in Thomas v. Clarkson, 125 Ga. 77, 54 S. E. 77, 6 L. R. A. (N. S.) 658, the same method of proof is recognized, and the only criticism passed upon it by the court was that the evidence of the witness did not refer to or show what the law was at the time of the contract.

The method of proving the laws of other

states by copy thereof, "under the great seal of their respective states," is provided for by Civ. Code 1895, § 5233; but this mode of proof is not, as has sometimes been supposed, exclusive of every other means. That the court may consider the law as proven, by judicial recognition of its terms and provisions, is shown in Massachusetts Benefit Life Association v. Hale, 96 Ga. 802, 23 S. E. 849, where it was decided that a stipulation in a policy (which, like this, was to be governed by the lex loci contractus) that no suit should be brought under the contract, unless within one year from the death of the member, was void, because the law of Massachusetts allowed such suit to be brought within two years. In that case, "while it does not appear in the reported decision * that the Massachusetts statute was not invoked in the trial court, an examination of the original record shows that no reference whatever was made to this law in the pleadings of the parties." Seaboard Air Line Ry. v. Phillips, 117 Ga. 101, 43 S. E. 494. See, also, Barranger v. Baum, 103 Ga. 466, 30 S. E. 524, 68 Am. St. Rep. 113. No authoritative ruling was made by our Supreme Court upon this subject in Seaboard Air Line Ry. v. Phillips, supra, because it was not required; but we think that the reasoning of Justice Cobb is unanswerable, and that section 5231 of the Civil Code of 1895 means just what it says, and is founded upon sound reasoning. "If a book containing the laws as published by authority is not accessible, then, in the absence of a copy of the law under the great seal of the state, the case would generally have to be determined by a presumption that the common law prevailed in the other state." We think it absurd that a court of this state should be required to administer, as the law of a sister state, that which is not the law, when it has before its eyes an open book showing what is the law, refusing to see what may be seen by all men, merely because it was not formally offered as evidence on the trial. We think, then, that our view that there is no merit in the amended grounds of the motion for new trial is sustained by ample authority; and we come to the question which, after all, must determine the casewhether the court erred in the rulings which were the subject of the exceptions pendente lite. That question is: Did the court err in trying the case by the laws of Missouri; and, if so, how?

The policy of insurance prepared by the company named the situs in which it preferred its right to be administered, and made the state of Missouri the place of the contract. Having made choice, it is bound by its selection, and estopped to vary or retract its own contract from its written provisions. The policy, in its concluding paragraph, says: "This contract shall be governed by and construed according to the laws of Missouri; the place of this contract being expressly agreed to be the home office of the company."

All contracts of insurance are to be construed most strongly against the insurer and in favor of the insured; and if, therefore, the court had entertained doubt as to which law prevailed as to any phase of the case, the company having selected in the contract, which it prepared itself, the laws of Missouri, the court was bound to construe the contract by those laws of Missouri, most favorably to the insured. If this means anything, it means that the validity, form, and effect of the contract are to be determined by the laws of the state of Missouri. Georgia enforces the laws of another state only by comity. But that comity will extend, in passing upon a contract made to take effect and be performed in another state, so as to give effect to every law of that state applicable to the subject-matter of the litigation, except such as conflict with our laws or such as are opposed to the well-known public policy of the state. The question is: Was the court right in trying the case by the law of Missouri; and, if so, to what extent should the law of Missouri have controlled? The company selected the law of Missouri as its choice. Can it complain if that law is administered? And while he who claims a benefit under the law of a foreign state must plead and prove that law to the satisfaction of the court in some one of the modes to which we have referred, still, in the administration of such laws as collaterally, rather than directly, affect the case, it cannot be questioned that the court may in any way possible inform itself as to what is the law. The means of finding it are immaterial, provided, only, that the true and correct law is found. The court must inform itself; and, judged by this rule, the learned judge of the trial court was right in striking all of the defenses of the defendant company. The court had previously overruled the demurrers to the plaintiff's pe tition, and (no exception having been duly taken thereto) the right of the plaintiff to stand on her petition, both as to the law and as to the facts, was established. If her rights as to either were questioned before as to any portion of the petition, her rights as to both were extended to the extreme boundary lines fixed by the petition. This petition the plaintiff had the right to amend, and that right was not abused.

The plaintiff in error excepted pendente lite to the allowance of certain amendments, for reasons given in its demurrer; and error is assigned thereon in the bill of exceptions. We think the court was right in overruling the demurrers and allowing the amendments. The gravamen of the defendant's objection must have been that contained in the first demurrer, that there was a misjoinder of causes of action; the defendant contending that, joined to the suit on the contract of insurance, the plaintiff was praying for punitive or vindictive damages. The damages were alleged and asked for, and section 8012 of the Revised Statutes of

Missouri was specially pleaded in the original petition, the special and general demurrer to which had been overruled, and, therefore, to offer this demurrer again was to ask the court to reopen what had already been settled as the law of the case. But, waiving this, we see no error in overruling this demurrer to the petition. The plaintiff was entitled to the damages if she established the allegations with reference to vexatious refusal, under Civ. Code 1895, § 8. It was one of the effects of the contract which our courts will enforce. The question of the constitutionality of the very statute of Missouri which was pleaded in this case, and which allows damages and attorney's fees, has been passed upon by the Supreme Court of the United States in Orient Insurance Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552, and it is not repugnant to our Constitution. The contract in the Daggs Case was one of fire insurance, instead of life insurance; but section 8012, cited supra, includes both. Its wording is: "In any action against any insurance company

under a policy of fire, life, marine or other insurance, * the court or jury may allow damages." The decision likewise covers life insurance as well as fire insurance; for the Supreme Court of the United States, in Farmers', etc., Ins. Co. v. Dobney, 189 U. S. 305, 23 Sup. Ct. 566, 47 L. Ed. 821, citing and referring to the Orient Case, says the statute of the state of Missouri 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 reference to the plea of suicide, the statute (Rev. St. Mo. § 7896) voids any suicide provision in policies of life insurance. But it was insisted that the provision in this case is not in the nature of a defense to the action, but simply provides for an apportionment of the loss in case of suicide-simply reducing the amount to be recovered, without defeating recovery itself. This same question has been decided by the Court of Appeals of Missouri, passing upon a provision identical with the contents of the policy under our consideration. In Keller v. Travelers' Insurance Co., 58 Mo. App. 557, the Missouri court held as follows as to reductions in cases of suicide: "A provision in a policy of life insurance, which reduces the amount of the insurance in case of the suicide of the insured below that otherwise contracted for, makes the suicide a defense to the extent of the reduction, and is, therefore, contrary to the statute on the subject and invalid." In the Keller Case the only question presented was whether or not the contract sued upon was in contravention of section 7896 of the Revised Statutes of Missouri, but, as in the present case, was embodied by the plaintiff in her petition. That section

is as follows: "In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy; and any stipulation in the policy to the contrary shall be void." The clause of the policy relied on in the answer in this case is as follows: "But if death occurs from self destruction, while sane or insane, within one year from the date of issuance of this policy, then in such event only the reserve (computed according to the Actuaries' Table of Mortality, with interest at 4 per cent.) will be due on surrender of this policy."

The plaintiff in error urges that the clause of the policy invoked in this answer is a mere contractual limitation of the amount of the recovery to be had, and not a defense. Under the above-quoted decision of the Court of Appeals of Missouri we cannot agree with this contention. "The plain purpose of the statute quoted above was to prevent the insertion in policies of life insurance of exceptions of liability on the ground of the suicide of the insured, unless it could be proven 'that the insured contemplated suicide at the time he made the application for the policy.' This was in effect a legislative declaration of the public policy" of Missouri, the state which the company itself selected as the place of contract. In the Keller Case, above cited, the Court of Appeals of Missouri says: "That it was intended to limit the power to contract for a lesser liability in cases of death by suicide, not within the limitation expressed in the statute, is also apparent from its terms, to wit: 'And any stipulation to the contrary shall be void.' That it is not within the power of the parties to change or annul this statutory provision with reference to life insurance in this state has been held in a well-considered case in the circuit court of the United States. Berry v. Knights Templars', etc., Co. (C. C.) 46 Fed. 439. In construing the statute in question, that court said: "The statute is mandatory, and obligatory alike on the insurance company and the assured. Its very object was to prohibit and annul such stipulations in policies, and it cannot be waived or abrogated by any form of contract or by any device whatever. The legislative will, when expressed in the peremptory terms of this statute, is paramount and absolute, and cannot be varied or waived by the private conventions of the parties.'"

For the same reasons as heretofore stated, we think that the question of attorney's fees and damages should also be determined by the laws of Missouri. As Chief Justice Jackson said in the case of Champion v. Wilson, supra, the court was pro hac vice sitting in Missouri, and the finding of the jury is in accordance with that law, which