
    26777.
    PROGRESSIVE LIFE INSURANCE CO. v. STANLEY.
    Decided June 18, 1938.
    
      J. A. Wright, Henry A. SiewcM't, for plaintiff in error.
    
      Ozé B. Horton, contra.
   Broyles, C. J.

This was a suit upon a policy of life insurance. After introduction of evidence by both parties, the court directed a verdict in favor of the plaintiff for $65, the amount due if the defendant was liable. The sole defense of the company, as set forth in its answer, was that when the policy was issued and delivered the insured was not in sound health, and therefore it was liable only for the. return of premiums paid on the policy, since on the lack of the policy were provisions stating that if the insured was not in sound health at the date of the issuance and delivery of the policy, “the company may declare this policy void and the liability of the company . . shall be limited to the return of premiums paid on the policy.” And upon the trial the defendant tendered back the amount of the premiums so paid. Attached as exhibit A to the .petition was the “face” of the policy, but the exhibit did not contain the provisions on the lack of the policy which were set forth in the answer as a defense to the action. Nor does the approved brief of evidence set forth those provisions. However, near the end of such brief, the following statement appears: “Documentary papers exhibited in trial of case, introduced into evidence, and attached hereto as marked exhibits: ‘Exhibit ‘ ‘ Policy number 180916, issued on the life of Eva Nell Stanley on November 2nd, 1936. ‘Exhibit B’ Receipt of the Progressive Life Insurance Company, date on October 19th, 1936, for the sum thirty-six cents. ‘Exhibit C’ Claimant’s statement made by Virdell Stanley, form number GR-16-31-1. ‘Exhibit D’ Premium-receipt book on life of Eva Nell Stanley, premium eighteen cents a week, showing premiums credited for four weeks, being payments for and through November 23rd, 1936. The above and foregoing eight pages (including this page) is hereby approved as a true and correct brief of the evidence, oral and documentary, adduced on the trial of the case of Virdell Stanley versus The Progressive Life Insurance Company, in Polk Superior Court, on August 23rd, 1937. Let the same be filed and become a part of the record in said case. This the 1 day of Dec., 1937. J. R. Hutcheson, Judge of the Superior Court of Tallapoosa Circuit.”

But none of such exhibits is attached to the approved brief of the evidence in the transcript of the record. Upon noting this defect, this court directed the clerk of the trial court to transmit to this court certified copies of such exhibits, if they were of file in his office; and the clerk responded by certifying that the exhibits were not of file in his office, and that they had never been in his possession.

In this condition of the record, the sole defense of the company being based on certain alleged provisions in the policy of insurance, which provisions, while pleaded in the defendant’s answer, are not set forth in the approved brief of evidence,' or contained in the copy of the policy attached to the petition, this court can not hold that the court erred in directing the verdict for the plaintiff. Judgment affirmed.

MacIntyre and Guerry, JJ., concur.  