Phoenix Insurance Companies v. Boykin

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.