Washam v. Beaty

• Decision Date: 13 December 1923
• Docket Number: 5 Div. 825.
• Citation: 99 So. 163,210 Ala. 635
• Parties: WASHAM ET AL. v. BEATY.
• Court: Alabama Supreme Court

99 So. 163

210 Ala. 635

WASHAM ET AL. v. BEATY.

5 Div. 825.

Supreme Court of Alabama

December 13, 1923

Rehearing Granted Jan. 31, 1924.

Appeal from Circuit Court, Coosa County; W. L. Longshore, Judge.

Action of ejectment by T. J. Beaty against W. L. Washam and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded on rehearing.

Gardner and Miller, JJ., dissenting in part.

James W. Strother, of Dadeville, and John A. Darden, of Goodwater for appellants.

Holley & Milner, of Wetumpka, for appellee.

ANDERSON C.J.

This is an action of ejectment brought by the appellee, as purchaser of a piece of land conveyed to him by Washam, deceased, and under whom the defendants claim title and that the conveyance to the plaintiff was invalid for the reason that the grantor was a married man, the land was his homestead, and, while the wife executed and acknowledged the deed in conformity with the statute, she was at the time insane and not legally responsible. In the case of Beaty v. Washam, 205 Ala. 92, 87 So. 337, this court held that, if the wife was insane at the time she executed the deed conveying the homestead, the said conveyance was void. So the sole question involved and submitted to the jury upon the trial from which this appeal was taken was the sanity vel non of Mrs. Washam when she executed the deed to the appellee Beaty, and there was judgment for the plaintiff.

The appellants contend for error in the refusal of the general charge requested by them for the reason that upon the former trial, and in which the judgment was affirmed, the jury found that the deed was invalid because of the insanity of the wife and that said finding is conclusive as to this issue in this the second action of ejectment. This contention is unsound, as said finding in the first action is not res adjudicata as to this or any other issue there determined in the second action. Williamson v. Mayer, 117 Ala. 253, 23 So. 3.

There was no error in refusing charge 2, requested by the defendants. It is elliptical, as it omits the word "satisfied." Moreover, the fact of previous insanity is not presumed to exist when the deed was executed unless it was shown to be of a permanent nature as distinguished from temporary or spasmodic insanity. Pritchard v. Fowler, 171 Ala. 662, 55 So. 147.

There was no error in refusing defendants' requested charge B. If not otherwise faulty, it is argumentative.

While charge 2, given at the request of the plaintiff, could have been well refused, it is a copy of one given in the case of Dominick v. Randolph, 124 Ala. 557,

27 So. 481, wherein the court held that, while it was misleading, it was the privilege and duty of the appellant to have asked an explanatory charge and that the giving of same was not reversible error.

There was no error in giving the plaintiff's requested charge 3. It states the law. Pritchard v. Fowler, 171 Ala. 662, 55 So. 147.

There was no error in giving plaintiff's charge 5, though it could have been refused without error for the use of the word "preponderance." Green v. Sou. States Co., 163 Ala. 511, 50 So. 917, and cases there cited.

There was no reversible error in sustaining the plaintiff's objections to the question of defendants to the witnesses Abernathy and Miller, as these witnesses were fully examined on direct and cross as to the condition, conduct, and symptoms of Mrs. Washam, and, in effect, answered the questions to which objections were sustained.

There was no error in permitting the plaintiff to ask Mrs. W. I. Washam on cross-examination if she and her husband did not take a deed from Mrs. Washam after they moved back. She had testified that Mrs. Washam, Sr., was insane, and the fact that she and her husband dealt with her in a business way at that time would be a circumstance affecting her testimony, the probative force of the circumstance being a question for the jury. Hughes v. Bullen, 209 Ala. 134, 95 So. 379.

We think that the witness Dobson testified to such a long and intimate acquaintance with Mrs. Washam as to permit him to give his opinion, though a nonexpert, as to her sanity. Pritchard v. Fowler, supra.

There is no merit in the other assignments of error as to the rulings upon the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

All the Justices concur, except SAYRE and SOMERVILLE, JJ., who dissent.

SOMERVILLE J. (dissenting).

In Shelton on Insanity-written by an Englishman 75 years ago-the author said:

"Reason being the common gift to man raises the general presumption that every man is in a state of sanity, and that insanity ought to be proved; and in favor of liberty and of that dominion which, by the law of nature, men are entitled to exercise over their own persons and properties."

The context shows that the author had in mind a finding of insanity as a deprivation of personal liberty, and he prudently observed that-

"The existence of insanity is a fact which, by the law of England, is not in general decided without the intervention of a jury, whose decision in such cases ought to be found on clear and unexceptionable evidence submitted to their consideration." (Italics supplied.)

This language of Mr. Shelton was quoted by Peck, C.J., in his opinion in Cotton v. Ulmer, 45 Ala. 378, 396, 397, 6 Am. Rep. 703, but without any application whatever to the questions there presented; for the two instructions under review involved no question as to the measure of proof, or the character of the evidence necessary, in the establishment of insanity.

But the bearing of the language did not go unnoticed, and in Dominick v. Randolph, 124 Ala. 557, 565, 566, 27 So. 481, 485, counsel asked and the trial judge gave to the jury, this charge:

"Reason being the common gift of God to man, every man is presumed to be sane, and insanity can only be proved by clear and unexceptionable evidence." (Italics supplied.)

On appeal this court said:

"This charge also asserted a correct legal proposition. Cotton v. Ulmer, 45 Ala. 396. *** We do not think that in the giving of the charge the court shifted the responsibility of passing upon the competency of evidence from itself to the jury, as contended in argument by appellant's counsel. As an abstract proposition of law it is unobjectionable, and we fail to see wherein the defendant could have been prejudiced by it."

Thus has the mere expression, by an old text-writer, of a philosophical precaution, which was impertinently quoted in the opinion in Cotton v. Ulmer, supra, been accepted by this court as a correct principle of law, and thus has the simple rule of proof in civil cases-so often announced, and so scrupulously preserved-been corrupted.

That rule is that any fact in issue is proved and must be found as proved, when the evidence before the jury reasonably satisfies them of its existence.

The jury are not limited to a consideration of evidence which they or the trial judge may regard as either "clear" or "unexceptionable." It is enough if the evidence which has been placed before them-all of it, and not merely such as a selective discrimination might approve as "clear and unexceptionable"-produces a reasonable conviction, or reasonable satisfaction. "Clear" has a meaning in excess of that requirement, as this court has repeatedly declared.

In Wilcox v. Henderson, 64 Ala. 535, 543, it was said that an instruction that the jury must be "clearly convinced" lays down "too exacting a rule."

In Wilkinson v. Searcy, 76 Ala. 176, 182, it was said that "clearly and satisfactorily convinced" required too high a measure of proof.

In Morrow v. Campbell, 118 Ala. 330, 341, 24 So. 852 855, it was held that a given instruction that the proof of a fact should be "clear and convincing" exacted a "too high degree of proof," and "was therefore erroneous and should have been refused." The opinion in that case was written by Chief Justice Brickell, and I do not overlook the fact that in an earlier case (Edwards v. Whyte, 70 Ala. 365, 370) that learned judge had written that an instruction that a certain fact must be proved "to the satisfaction of the jury, by clear and satisfactory evidence," could not be intended to assert a higher degree of proof than reasonable satisfaction. It is plain that, had the instruction omitted the clause "to the satisfaction of the jury," and required proof by "clear and satisfactory...