Insurance Companies v. Boykin

M-iv Justice MILLER

delivered the opinion of-the court.

1. The exception as to the introduction of testimony relates to four affidavits, which are referred to in the bill of exceptions as “ Exhibit 4.” There is no such exhibit in the record, nor anything else which can be identified as either of these affidavits. We cannot, therefore, determine whether their admission-damaged the defence or not, and the assignment of error based on this exception must be overruled.

2. The assignment which alleges error in the chaige of *436 the judge is equally unfortunate. The charge is a very full and elaborate discussion of the law. and the facts of the case, and no particular part of tbe charge, nor any special proposition of law found in it, is excepted to.' Wo have repeatedly held that a general exception to the whole of such a charge is insufficient.

8. The exception to the refusal of the court to charge as requested may, with a little liberality, be held sufficient.

Based on the facts of the ease the'defendants at the trial askecT instructions, the substance of which is condensed in the propositioirthat they had a right to proof of loss by an intelligent being, and if plaintiff was insane no such proof bad been given, and if ho werq sane then his affidavit showed such fraud as should defeat recovery. The last of-these propositions is not denied, but was not asked as an independent instruction. But the first is too repugnant to justice and humanity to merit serious consideration. There are two obvious answers to it. First, tbe affidavit, whether of an insane man or not, is sufficient in the information which it conveys of tbe time, tbe nature, and amount of the loss. Second, if lie was so insane as. to be incapable of making an intelligent statement, this would of itself excuse that condition of the policy. It is argued that plaintiff, having averred in his declaration that lie did give them this information under oath, he cannot now be permitted to show an excuse by bis insanity for not doing it. But as already seen bis affidavit does literally prove the allegation, and if it contains something more which was the result of insanity, that does not vitiate what is well and truly stated in the affidavit. We are of opinion that all these prayers for instruction were properly rejected.

Thé remaining assignment of error is that the action was sustained and judgment given against all the defendant companies jointly.

We need not stop to inquire whether the action in this form should have been sustained if objection had been made at the proper stage of the suit, for by an express written agreement found iu tbe record, defendants, by their counsel, *437 consented that the action should be brought jointly instead of severally. As their liability depended on the same evidence and was founded on the same policy, and as their defence rested on the same issues, to be supported by the same testimony, it was manifestly for their interest to have but one trial, and no reason is apparent to us wh. ■ diis could not be done by consent. But the terms of this consent did not authorize the court to render a joint judgment, by which each company would be bound for the whole loss. This was not their contract, and it may be doubted if their counsel' could have bound them by such an agreement if they had intended it. The judgment of the court, therefore, which is against the defendants jointly and not severally for the full amount of the policy, with interest, is erroneous and must be reversed.

But this error does not extend to the verdict. The amended declaration sets forth very distinctly the promises of the defendants as several and not joint, and the verdict of the jury is, “that the said defendants did promise and assume, as the said plaintiff hath alleged, and they assess the damages of the said plaintiff at ten thousand dollars, with interest from the 20th of March, 1867.” The verdict of the jury, therefore, finds the amount of plaintiff’s damages or loss, and that each of the defendants had promised' and assumed to pay one-fourth thereof, which is manifestly a good verdict, responsive to the issues and to the contract of the defendants. The Circuit Court ought to have rendered a judgment that plaintiff' recover of each of said defendants, severally, a sum which would have been the one-fourth part of the $10,000, and interest from the time mentioned in the verdict, and a joint judgment against all the defendants for costs. While wo are bound, therefore,-to reverse .the judgment of that court the foregoing-statement indicates very clearly the judgment which tiffs" court must render under the twenty-fourth section of the Judiciary Act. That section enacts that where a judgment or decree shall be reversed in a Circuit Court, such court shall proceed to render such judgment' or pass such decree *438 as the District Court should have rendered or passed; and the Supreme Court shall do the same in reversals therein, except when the reversal is in favor of the plaintiff" or petitioner in the original suit, and the damages to be assessed, or matter to bo decreed, are uncertain ; in which case they shall remand the cause for final decision. As the case before us does not come within the exception above mentioned, it is our duty to render the judgment which we have shown that the Circuit Court should have rendered. The process, the pleadings, the trial, and the verdict are without error, and it surely cannot be necessary to set aside this verdict and award a new trial because the judgment which Was rendered on' that verdict was erroneous. And this was also the rule by which courts of error were governed at the common law. Indeed, it was for a long time denied that a court of error could award a venire facias de novo. In the case of Philips v. Bury, reported at great length in Skinner,* which was an action in the King’s Bench and writ of error to the Peers, who reversed the judgment below, the ease was carried back and forward several times between the Peers and the King’s Bench on the question of which court should render the judgment on the verdict, and it was finally settled that the House of Lords should give the judgment which the King’s Bench ought to have given, Eyre, C. J., saying that where judgment is upon a verdict, if they reverse a'judgment they ought to give the same judgment that ought to have been given at first, and that judgment ought to be sent to the court below. So in Slocomb’s Case, Cro. Car.,† on a general verdict where- judgment was reversed in the King’s Bench,' it was, in the language of the reporter, “agreed by all the court, if-the declaration and verdict be good, then judgment ought to be given for plaintiff", whereof Jones at first doubted, but at last agreed thereto, for we are to give such judgment as they ought to have given there.” Iii 1 Salkeld,‡ it is said: “If judgment be below for plaintiff and error is brought *439 and that judgtnént reversed, yet if the record will warrant it the court ought to give a new judgment for the plaintiff,” which is precisely the case before us. And in Mellor v. Moore * on the authority of these and other cases, the court of Exchequer Chamber held that when a judgment-is reversed on demurrer in favor of plaintiff, the case is sent down and a writ of inquiry goes, but when it is upon a verdict. they should give the same judgment -that Ought to have been given at first, and that judgment ought to be sent below. In Gildart v. Gladstone,† on a- case from the Common Fleas having been reversed on a special verdict, Lord Ellen-borough said: “The court are bound, ex officio, to give a perfect judgment upon the record before them.”

The provisions of our statute.of 1789, already cited, show that the lawyers who framed it were familiar with the doubts which seemed at that time to.beset the courts in England as to the precise judgment to ho rendered in a court of errors on reversing a judgment, and they in plain language prescribed the rule which has since become the settled law of the English courts on the same subject.

The judgment will be reversed and a judgment certified to the Circuit. Court for plaintiff against each of the defendants for the one-fourth of amount of the plaintiff’s damages, including interest, as qscertained by the verdict, and.for a joint judgment against them all for the costs in that court.

Page 447.

Page 442.

Page 401 ; see also Butcher v. Porter, 1 Shower, 400.

1 Bosanquet & Puller, 30.

12 East, 668.