1. After a loss covered by a policy of insurance, an affidavit
by the insured of the time, amount, and circumstances of the loss,
accompanying proof that a loss had occurred, was made while he was
insane.
Held:
(i) That insanity was a sufficient excuse for failure to comply
with the condition of the policy requiring such an affidavit.
(ii) That if the affidavit contained the necessary information
as to the time, amount, and circumstances of the loss, it was
sufficient, though the insured was insane when it was made.
2. A policy for $10,000 was signed by four companies, each of
whom agreed to become liable for one-fourth of the loss to that
extent.
Held:
(i) That one action could be brought against them all by their
consent, the declaration charging the separate promises and praying
for separate judgment.
(ii) That a verdict finding that the defendants did assume in
manner and form as in the declaration alleged, and assessing the
whole damages at $10,000, was a good verdict in such action.
(iii) That the judgment rendered in such verdict should have
been against each defendant for one-fourth of the damages, and
against them jointly for the costs, and that a joint judgment
against them all on the whole sum was erroneous, and should be
reversed.
(iv) That this Court, instead of awarding a
venire facias de
novo, must, under the 24th section of the Judiciary Act, as
well as by the common law powers of a court of error, render the
judgment which the circuit court ought to have rendered on that
verdict.
Page 79 U. S. 434
3. Such a judgment was accordingly certified to the circuit
court, to be there enforced by execution.
Boykin caused his house to be insured against fire by one single
policy in four different insurance companies to the extent of
$10,000, "each company," as the policy declared, "acting for
itself, and not one for the other or others." The policy contained
a provision that in case of loss, the assured should "render a
particular account of such loss, signed and sworn to by him, and
when and where the fire originated," &c. Boykin did accordingly
send an affidavit, in which, after giving the particulars of the
loss, he proceeded further to state that he believed the buildings
had been set on fire by an incendiary; that he had heard of
repeated threats of a person whom he named that he would burn the
premises, and that it was in consequence of these threats that he
had procured the insurance which he was then seeking to recover.
When this affidavit was laid before the insurance companies, they
refused to pay, and gave notice to Boykin that they considered the
policy void.
Boykin then sued all four companies in one action. The
declaration being demurred to, the demurrer was sustained. On the
back of this declaration there was this statement, signed by the
counsel of all four insurance companies:
"This action, by consent of the undersigned, was brought jointly
instead of severally."
An amended declaration was then filed containing two counts,
both being special upon the policy, setting forth very distinctly
the promises of the defendants as several and not joint and
averring performance on the plaintiff's part of all things on his
part to be performed.
In the course of the trial, the bill of exceptions showed the
plaintiff offered in evidence certain affidavits, being marked
"Exhibit 4." The defendants objected to them. The objection was
overruled and the affidavits read. But they
Page 79 U. S. 435
were not given in the record nor described otherwise than as
something "marked Exhibit 4."
Testimony was also given to show that when Boykin made the
affidavit above referred to, of the fact and manner of the fire, he
was insane. Based on these facts, the defendant asked six
instructions, the substance of which was that they had a right to
proof of loss by an intelligent being, and that if the plaintiff
was insane, no such proof had been given, and if he were sane, then
his affidavit showed such fraud as should defeat recovery -- the
last proposition, however, not being put in the form of a separate
point. The court refused the instructions asked for and charged the
jury in its own way, presenting its views fully and elaborately,
upon the law and the facts of the case.
To this charge the defendants excepted generally, not specifying
any particular part of the charge nor any particular proposition of
it.
The verdict was,
"That the said defendants did promise and assume,
as the
said plaintiff hath alleged, and they assess the damages of
the said plaintiff at $10,000, with interest from the 20th of
March, 1867,"
the date when the loss was payable. A joint judgment being given
accordingly, the four companies brought the case here, assigning
for error as to this particular that the action had been sustained,
and judgment given against all the companies jointly.
MR. 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
defense or not, and the assignment of error based on this exception
must be overruled.
2. The assignment which alleges error in the charge of
Page 79 U. S. 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 the charge, nor any special proposition of law
found in it, is excepted to. We have repeatedly held that a general
exception to the whole of such a charge is insufficient.
3. 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 case, the defendants at the trial
asked instructions the substance of which is condensed in the
proposition that they had a right to proof of loss by an
intelligent being, and if plaintiff was insane, no such proof had
been given, and if he were 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, the
affidavit, whether of an insane man or not, is sufficient in the
information which it conveys of the time, the nature, and amount of
the loss. Second, if he 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 he did give them this information
under oath, he cannot now be permitted to show an excuse by his
insanity for not doing it. But as already seen, his 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.
The 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 in the
record, defendants, by their counsel,
Page 79 U. S. 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 defense 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 why this 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 we are bound,
therefore, to reverse the judgment of that court, the foregoing
statement indicates very clearly the judgment which this 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
Page 79 U. S. 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 be
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, [
Footnote 1] which was an action in the King's Bench and
writ of error to the Peers, who reversed the judgment below, the
case 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., [
Footnote 2] 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."
In 1 Salkeld [
Footnote 3] it
is said:
"If judgment be below for plaintiff and error is brought
Page 79 U. S. 439
and that judgment 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, [
Footnote 4] 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, [
Footnote 5] on a case from the Common Pleas having
been reversed on a special verdict, Lord Ellenborough 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 be 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 ascertained by the verdict, and for a joint judgment
against them all for the costs in that court.
MR. JUSTICE STRONG concurred in the judgment of reversal, but
thought there should be a
venire de novo. He stated his
opinion to be that the verdict did not warrant the entry of such
judgments as had just been directed.
[
Footnote 1]
Page 447.
[
Footnote 2]
Page 442.
[
Footnote 3]
Page 401;
see also Butcher v. Porter, 1 Shower 400.
[
Footnote 4]
1 Bosanquet & Puller 30.
[
Footnote 5]
12 East 668.
