Opinion
8 Div. 466.
March 29, 1932.
Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.
Action on a policy of life insurance by Jean P. Simpson against the First National Life Insurance Company of America, Troy, Alabama. From a judgment for plaintiff, defendant appeals.
Affirmed.
Thos. C. Pettus, of Moulton, for appellant.
Counsel argues for error in the rulings assigned, citing 14 R. C. L. 1027, 1080; Kelly v. L. I. Clearing Co., 113 Ala. 453, 21 So. 361; Code 1923, §§ 7705, 7707.
R. L. Almon, of Moulton, and O. Kyle, of Decatur, for appellee.
Where a bill of exceptions does not set out all of the evidence, the presumption will be indulged that there was evidence justifying the action of the trial court. Sloss S. S. I. Co. v. Redd, 6 Ala. App. 405, 60 So. 468; Hunnicutt L. Co. v. M. O. R. Co., 2 Ala. App. 443, 57 So. 73. The policy constitutes the contract of the company and the plaintiff. Brotherhood Ins. Co. v. Harris, 224 Ala. 28, 138 So. 295.
While the bill of exceptions contains a statement at the close which states, "This was all the evidence in the case," the bill on its face discloses the fact that there was other evidence in the case not so included, notably the insurance contract sued on. As to this, the bill of exceptions states that the policy was introduced in evidence, but no copy or an abstract thereof is set out. In the absence of the policy we must presume that its recitals were such as to sustain the action of the trial judge in giving the general charge as requested by the plaintiff. Murphree v. Farmers' Sav. Bank, 16 Ala. App. 340, 77 So. 934; Broughton v. Broughton, 17 Ala. App. 255, 84 So. 635.
Defendant sought to introduce in evidence what purported to be the application on which the policy of insurance was issued, but no sufficient evidence of its execution by the insured was adduced. Non constat, the policy was issued without written application or representation. The policy is the contract between the parties, and by it both parties are bound. Brotherhood Ins. Co. v. Harris, 24 Ala. App. 395, 138 So. 292.
There is no error in the record, and the judgment is affirmed.
Affirmed.