Insurance Companies v. Boykin

• Decision Date: 01 December 1870
• Citation: 20 L.Ed. 442,12 Wall. 433,79 U.S. 433
• Parties: INSURANCE COMPANIES v. BOYKIN
• Court: U.S. Supreme Court

79 U.S. 433

20 L.Ed. 442

12 Wall. 433

INSURANCE COMPANIES v. BOYKIN.

December Term, 1870

ERROR to the Circuit Court for the District of South Carolina, the case being this:

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 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.

Messrs. Carlisle and McPherson, for the plaintiffs in error; Mr. W. W. Boyce, contra.

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 defence or not, and the assignment of error based on this exception must be overruled.

2. The assignment which alleges error in the charge of 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...