Fidelity-Phenix Fire Ins. Co. of New York v. Murphy

• Decision Date: 23 January 1936
• Docket Number: 1 Div. 881
• Citation: 231 Ala. 680,166 So. 604
• Parties: FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK v. MURPHY.
• Court: Alabama Supreme Court

166 So. 604

231 Ala. 680

FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK v. MURPHY.

1 Div. 881

Supreme Court of Alabama

January 23, 1936

Rehearing Denied March 12, 1936

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action on a policy of marine insurance by John G. Murphy against the Fidelity-Phenix Fire Insurance Company of New York. From a judgment for plaintiff, defendant appeals.

Affirmed.

Pillans Cowley & Gresham, of Mobile, and Forrest E. Single, of New York City, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

THOMAS Justice.

The suit is upon a policy of marine insurance on the steamship Rose Murphy.

There was no error in sustaining plaintiff's objection to the certified copy of the conviction and sentence of the plaintiff in the United States District Court for perjury. It was offered by defendant for the purpose of disqualifying plaintiff as a witness. The case of State ex rel Sanford, Solicitor, v. Riddle, 213 Ala. 430, 105 So. 259, presented for application a different statute from section 7722 of the Code of 1923, coming to us from the Code of 1886, § 2766, Acts 1883, p. 146. That case involved the removal of an attorney for the violation of certain provisions of sections 6256, 6258, Code 1923.

In Cheatham v. State, 59 Ala. 40, 43, 44, the common-law rule of disqualification of witnesses was thus stated:

"In regard to the objection to two of the State's witnesses, that they were infamous, and therefore incompetent, the general rule of the common law was, that such disqualification to testify as a witness was produced only by a conviction and judgment for treason, felony, or some one of the offenses belonging to the class generally described as crimen falsi; and what these are, it is not easy in all cases to determine.

"But the conviction and judgment spoken of must be in a State tribunal, for a violation of a State law, and not merely, as in this instance, for the violation of a town ordinance, and before a mayor or councilman of the town. The disqualification is established, not by the commission of the crime, or by the verdict merely of the jury against the proposed witness, but by the judgment of the court thereupon."

And in Gillman v. State, 165 Ala. 135, 51 So. 722, it was declared of the statute (section 4008, Code 1907), that it related to the competency and credibility of witnesses affected by convictions for violation of state laws, and not convictions for violation of municipal ordinances. Norris v. State, 229 Ala. 226, 156 So. 556; Wilson v. Vassar, 214 Ala. 435, 108 So. 250; Burns v. Campbell, 71 Ala. 271.

It is clear that the jurisdiction of state and federal courts sitting in the same territorial district or venue is essentially different, and the federal jurisdiction is foreign to that of the state. Brown v. United States, 256 U.S. 335, 341, 41 S.Ct. 501, 65 L.Ed. 961, 18 A.L.R. 1276.

When this court has construed the statute in question, as it is contained in the Code of 1907, and thereafter recodified without change, such construction may not be disregarded or changed except by expression of legislative intent. Rea v. Keller, 215 Ala. 672, 112 So. 211; Russell v. Thornton et al., 216 Ala. 60, 112 So. 347; Spooney v. State, 217 Ala. 219, 115 So. 308.

The defendant offered in evidence a certified copy of the inquisition proceedings of the corporation of the city of Norfolk, Va., to which objection was sustained. It related to the coroner's inquest that Roddy's death was caused from a gastric hemorrhage, self-inflicted, subsequent to some poisoning unknown to the coroner. This act which resulted in death was subsequent to the execution of the alleged conspiracy with which defendant sought to connect plaintiff, Roddy, and others. If it be taken as suicide and in the nature of a confession of guilt, or an admission against interest on Roddy's part, it was not admissible evidence as affecting others of the alleged conspiracy. Everage et al. v. State, 113 Ala. 102, 21 So. 404; Ferguson v. State, 134 Ala. 63, 32 So. 760, 92 Am.St.Rep. 17; National Park Bank v. Louisville & N.R. Co., 199 Ala. 192, 74 So. 69.

As to the exception of the appellant to the ruling of the trial court in sustaining the appellee's objection to the offering of the statement of Martinez to the Consul of the United States at Barcelona, Spain, this statement was made many months after the consummation of the alleged conspiracy, and was not competent evidence in this suit under the authorities we have cited.

For the reasons stated at the outset, there was no error in rejecting the indictment and proceedings in the United States court against Mrs. Abner Hursey and William Hursey; that proceeding was between the United States and the Hurseys, and was res inter alios acta as far as the appellee was concerned.

There are other assignments of error, based upon objections and exceptions taken to statements made to the jury by plaintiff's counsel, the motion to withdraw the case from the jury, and the refusal thereof by the court. The motion for a new trial embraced such objections and exceptions to such rulings. These rulings will be adverted to later.

Under the decisions of this court, the policy of marine insurance declared upon will be taken and considered as though the liability created by the intentional act of the assured was excluded from its operation and terms. Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 226 Ala. 226, 230, 231, 146 So. 387; Sovereign Camp, W.O.W., v. Gunn, 227 Ala. 400, 403, 150 So. 491; Bankers' Fire & Marine Ins. Co. v. Sloss et al., 229 Ala. 26, 31, 32, 155 So. 371; Supreme Commandery of Knights of Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am.Rep. 332; Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188, 5 L.R.A. 340, 12 Am.St.Rep. 819; Schindler v. Royal Insurance Co., 258 N.Y. 310, 179 N.E. 711, 80 A.L.R. 1142; Burt v. Union Central Life Insurance Co., 187 U.S. 362, 23 S.Ct. 139, 47 L.Ed. 216; Eagle, Star & British Dominions Insurance Co. v. Heller, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490.

The policy, or material provisions thereof, are exhibited by the pleadings and in aid thereof (Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90); and the plaintiff had the burden of proving that the destruction of the subject of insurance was within the coverage of the policy, and, as for that, under the issues of fact presented, that the loss was not intentionally caused by plaintiff. Protective Life Ins. Co. v. Swink, 222 Ala. 496, 132 So. 728. In Sovereign Camp, W.O.W., v. Gunn, 227 Ala. 400, 403, 150 So. 491, after consideration by all of the justices, the decision in Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, supra,

was adhered to, and it was there held that in an action on a life policy, the record of the beneficiary's conviction by a state court, for murdering the insured, was admissible as prima facie (not conclusive) evidence of the beneficiary's guilt, and that all evidence tending to prove the beneficiary's innocence was admissible. Under this rule, the plaintiff was not foreclosed from asserting that the cause of the loss of the vessel was not the intentional act of plaintiff or his agents, or the result of his coconspiracy with others, but was left an open avenue for the introduction of available evidence tending to show that his vessel was lost or destroyed by and through collision with a submerged object, as it proceeded on its voyage to port of destination. This right was accorded by way of a reply to the prima facie effect of evidence of the former proceeding against him as to his said property, had in the United States court; that is to say, on the question of fact as to the cause of destruction of his said property--whether or not he cast away that vessel, by the agency of Coconspirators Martinez (the oiler), Fulford (chief engineer) and Roddy (assistant engineer).

The motion for new trial presents several questions for consideration, viz.: That "the verdict is not sustained by the great preponderance of evidence"; was "contrary to the great weight of the evidence" "contrary to law;" and is the result of "bias, passion or prejudice." As we view the evidence in the record before us, the verdict may be set aside only: (1) Upon the finding that the jury has acted capriciously or ignorantly (Wolf v. Do ex dem. Delage et al., 150 Ala. 445, 43 So. 856; Alabama Great Southern R. Co. v. Randle, 215 Ala. 535, 112 So. 112) in refusing to accept as true the testimony of Martinez and Fulford; or (2) upon a finding that under all the facts and circumstances (believed to be worthy as evidence) they were persuaded (to their reasonable satisfaction) that the contrary action of the jury as to appellee's guilt was shocking to the conscience of the court. And in this connection (as to the rejection of evidence by Martinez and Fulford) we note there must have been a reasonable application of the ancient and established maxim of the law of evidence, "Falsus in uno, falsus in omnibus." 25 Corpus Juris, p. 662; see our cases where there is such a reasonable application of this rule that the verdict may not be disturbed. 46 Corpus Juris, p. 183 and note; J.B. Colt Co. v. Price, 210 Ala. 189, 97 So. 696; Alabama Great Southern R. Co. v. Randle, 215 Ala. 535, 112 So. 112, 114. That is to say, that a court having superintendence of juries in matters of fact "will grant a new trial when it has strong reason to believe the jury has erred, capriciously or ignorantly, as to the credibility of the testimony." (Italics supplied.) Alabama Great Southern R. Co. v. Randle, supra; Jackson v. Roddy, 224 Ala. 132, 139 So. 354. As we view this evidence, it was within the province of the jury to reject as unworthy of belief the testimony of...