Phoenix Ins. Co. v. Moog

• Decision Date: 11 January 1887
• Parties: PH NIX INS. CO. v. MOOG, Surviving Partner.
• Court: Alabama Supreme Court

1 So. 108

81 Ala. 335

PH NIX INS. CO. v. MOOG, Surviving Partner.

Supreme Court of Alabama

January 11, 1887

Appeal from circuit court, Mobile county.

Action on policy of marine insurance.

This was a suit brought originally April 24, 1882, by A. & B Moog, a partnership engaged in the wholesale grocery business in Mobile, upon a $12,500 policy of insurance on a cargo of groceries shipped per brig Mary Allerton, from Mobile to Galveston, Texas, in December, 1881, this being one of several policies, amounting in all to $66,000. There was evidence tending to show the loading of light weight and otherwise fictitious goods. Shortly after leaving the port of Mobile the vessel was fired by the first mate, and was brought as far back as circumstances permitted, run aground on Sand island, outside the entrance to Mobile bay, and burned to the water's edge, the crew escaping. A storm blew the hulk off, and it sank in deep water. Much of the cargo was strewn on the coast outside and within the bay. Divers recovered other portions; and, while some articles were found to be merchantable, a large portion was a little value,-barrels marked as liquors filled with water; packages purporting to be of various groceries consisting really of straw or other worthless materials. There was, however little direct evidence connecting the plaintiffs with this the defense relying mainly upon circumstantial evidence. The plaintiffs endeavored to throw some of the suspicion upon the mate, who confessed that he set fire to the vessel by the captain's order. The first trial resulted in a verdict for the plaintiffs, but the case was reversed by the supreme court, (see Ph nix Ins. Co. v. Moog, 78 Ala. 284,) mainly upon the refusal of the circuit judge to admit evidence tending to connect the plaintiffs with the burning or removal of packages found on the beach, and evidently coming from the wreck. On the second trial this evidence was admitted, and the jury failed to agree.

A Moog, one of the plaintiffs, died February 23, 1884; but there was no revival of the action, or suggestion of his death upon the record within 18 months; and upon the third trial, to which this appeal relates, the defendant moved the court to declare the suit abated on that ground. This motion the court refused, and allowed suggestion of A. Moog's death to be then made, and the suit to be prosecuted in the name of B. Moog, surviving partner.

Four charges given by the court on the request of the plaintiff were excepted to by the defendant, in the words, the defendant "excepts to each of these charges as given by the court." No. 2 was that, "to establish a charge of fraud, the facts must be such that they are not explicable on any other reasonable hypothesis." No. 3, referred to in the opinion, was: "Neither courts nor juries ought to strive to force conclusions of fraud; and, if the facts and circumstances in evidence are fairly susceptible of the theory of an honest intent on the part of the plaintiff, that conclusion should be placed upon them."

The trial occupied about a fortnight in midsummer, and, after the jury had been out five days, they sent word that they desired to make a communication to the court. Before granting this, the judge cautioned counsel against saying anything which would tend to influence the jury, and told them that if they should do so it would be treated as a contempt; at the same time telling them that, if they desired to except to anything the court might say to the jury, they could do so. The jury came in, and, after stating their inability to agree, were addressed by the court in the language set out in the opinion, which was excepted to by the defendant, but only after the jury had been by the judge dismissed to their room for further consideration of the case. On the next day the jury brought in a verdict for the plaintiffs.

It was held in the case of Adams v. Thornton, cited in the opinion, that a charge which instructs the jury in a civil case "that, to justify an imputation of fraud, the facts must be such that they are not explicable on any other reasonable hypothesis," exacts too great a measure of proof, and is erroneous.

D. C. Anderson and P. & T. A. Hamilton, for appellant, Ph nix Ins. Co.

J. L. & J. G. Smith and McCartney & Clarke, for respondent, Moog; surviving partner.

STONE C.J.

The motion made in the court below to have the present suit declared abated, because it was not revived within 18 months after the death of A. Moog, was based on section 2908 of the Code of 1876. That section makes provision for two classes of cases. Its first and main object is to provide for cases where a sole plaintiff or sole defendant dies, or all the plaintiffs or all the defendants die, leaving the suit without a party of record, either plaintiff or defendant. This, if not cured, causes an abatement; for a suit cannot exist without antagonizing parties. In such case, if the cause of action survive, the statute allows 18 months, and only 18 months, within which to revive in the name of or against the successor or representative of the deceased party. Failing, the suit abates. Rupert v. Elston, 35 Ala. 79; Dumas

v.

Robbins, 48 Ala. 545; Pope

v.

Irby, 57 Ala. 105; Brown

v.

Tutwiler, 61 Ala. 372; Evans

v.

Welch, 63 Ala. 250; Glenn

v.

Billingslea, 64 Ala. 345; Ex parte

Sayre, 69 Ala. 184. When, however, there are more than one plaintiff or defendant, and the suit is of a class which can be prosecuted or defended in the name of the survivor, the death of one plaintiff or defendant does not abate the suit. "The death of such party may be suggested upon the record, and the action proceed in the name of or against the survivor." This is in no sense a revivor; for the surviving party is neither personal representative nor successor to the deceased. 2 Tidd, Pr. 1116 et seq.; 1 Bac. Abr. (Bouvier's Ed.) 11 et seq.

Evans v. Welch, 63 Ala. 250, was a statutory real action, brought by five plaintiffs, George Riser being one of the number. They claimed under a common title. Riser died, and more than 18 months afterwards the circuit court permitted a revivor in the name of his heirs. On appeal this court reversed so much of the judgment as permitted the revivor, but did not abate the suit. The cause was remanded that the suit might continue in the name of the four surviving plaintiffs. The effect of the remandment was that the suit, as to the survivors, had not abated by the failure to revive as to Riser. This, on the principle that in ejectment, and in the corresponding statutory action, plaintiffs having a title less than the entirety, can recover to the extent of their title.

The present action was brought by A. & B. Moog as partners. When A. Moog died, both the title and right to sue vested in B. Moog, the surviving partner. It was not a case for revivor, and the death did not abate the suit. Suggestion of the death of A. Moog met all the wants of the case, and the 18 months' limitation has no bearing on the question. The circuit court did not err in refusing to declare the suit abated.

Four charges, numbered 1, 2, 3, 4, were given to the jury at the request of the plaintiff, and to them was reserved an exception in the following language: "The defendant excepted, and now excepts, to each one of these charges as given by the court at plaintiff's request." This language is found immediately after said four charges as copied in the bill of exceptions. Some of these charges are free from error,-notably charge 3, which expresses precisely our view on the subject. We have a rule that when an exception is general to two or more charges, and one or more of them is free from error, the court commits no reversible error by giving or refusing the whole batch. The exception must not be too broad, but must be specific, and limited to the error complained of. The court is not bound to dissect or analyze the exception, so as to separate the error from the truth. Mayberry v. Leech, 58 Ala. 339; Eagle & Ph nix Manuf'g Co. v. Gibson, 62 Ala. 369; Stovall v. Fowler, 72 Ala. 77; Elliott v. Stocks, 67 Ala. 336; Robertson v. Black, 74 Ala. 322; Woods v. State, 76 Ala. 35; Bedwell

v.

Bedwell, 77 Ala. 587; Cohen

v.

State, 50 Ala. 108; South & North Alabama R. Co.

v.

Jones, 56 Ala. 507; Bernstein

v.

Humes, 60 Ala. 582; Mayor

v.

Rumsey, 63 Ala. 352; Smith

v.

Sweeney, 69 Ala. 524; Farley

v.

State, 72 Ala. 170.

It is contended for appellee that the exception in this case is too general, and must be disregarded, because it falls within the rule we have been considering. In Eagle & Ph nix Manuf'g Co. v. Gibson, supra, the exception was in the following language: "The court refused to give the above charges, from one to eleven inclusive, to the jury, although requested so to do by defendant's counsel in writing, whereupon defendant excepted severally to said refusal of the court." This exception is awkwardly expressed, and it is difficult to determine what it does mean. The refusal is spoken of as one and single,-a single refusal. A several exception to a single refusal is of difficult comprehension. This court construed it as an exception in gross, and ruled on it as such. So, in Woods v. State, 76 Ala. 35, three charges were asked and refused, and the exception is thus expressed: "The court refused to give either of said charges, by writing 'Refused' across the face thereof, and signing the judge's name thereto; to which ruling of the court the defendant then and there excepted." This was manifestly a single exception to rulings on three separate charges. Holland v. Barnes, 53 Ala. 83, is very like Woods v. State, supra. We think the rulings sufficiently reserved in this case. Lehman v. Bibb, 55 Ala. 411; Bernstein v. Humes, 60 Ala. 582; South & North Alabama R. Co. v. Sullivan, 59 Ala....