99 So. 163 | Ala. | 1923
Lead Opinion
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,
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,
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,
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,
There was no error in giving the plaintiff's requested charge 3. It states the law. Pritchard v. Fowler,
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.,
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,
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.
Dissenting Opinion
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 onclear 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,
But the bearing of the language did not go unnoticed, and in Dominick v. Randolph,
"Reason being the common gift of God to man, every man is presumed to be sane, and insanity can only be proved by clearand unexceptionable evidence." (Italics supplied.)
On appeal this court said:
"This charge also asserted a correct legal proposition. Cotton v. Ulmer,
Thus has the mere expression, by an old text-writer, of a philosophical precaution, *638 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,
In Wilkinson v. Searcy,
In Morrow v. Campbell,
In Griffith v. State,
If "clear and distinct" proof has a tendency to mean, and may mean, more than proof beyond a reasonable doubt in criminal cases, it certainly must mean more than proof to the reasonable satisfaction of the jury, in civil cases.
In Peterson v. Bauer's Estate,
In Montana a statute requires a decision of facts in civil cases to be according to the preponderance of the evidence. In condemning an instruction that fraud is never presumed, but must be "clearly and distinctly proven," the Montana court said:
"Cases may be found in which it is held that the expressions 'clear,' 'convincing,' 'satisfactory,' and 'clear of all reasonable doubt,' as applied to evidence, substantially convey the same idea and require the same degree of proof, to wit, beyond a reasonable doubt. See Winston v. Burnell,
In Coyle v. Commonwealth,
I think it is pertinent here to observe, also, that, in reviewing the verdict of a jury on appeal, the rule of this court is that it will not be set aside unless the preponderance of the evidence against them is "so decided as to clearly convince the court that it is wrong and unjust." Cobb v. Malone,
But the instruction here under review contains a word of restriction which is more exacting, and more mischievous in its effect, than is the word "clear."
"Unexceptionable" is defined in the New Standard Dictionary as meaning not subject to exception or objection; faultless; admirable. In popular understanding, I think that *639 for anything to be "unexceptionable" it must be without any fault, and not subject to any objection or criticism. Surely it is wrong to instruct a jury in a civil case that any relevant fact can be proved only by evidence that is faultless in its character, and subject to no objection or criticism. That is what the language of this instruction means — nothing less.
The approval of such an instruction as to the proof of insanity will in time corrupt and change our simple formula of "reasonable satisfaction"; for, when that instruction is requested and given upon other issues of fact, my brethren will find it difficult, and I think impossible, to find any reason for restricting its application to the issue of insanity.
There is, indeed, no difference, as to the measure and sufficiency of proof, or character of evidence, required, between the issue of insanity and any other issue of fact that can arise in civil cases. In Coghill v. Kennedy,
In Dominick v. Randolph, supra, as already noted, it was said that the instruction stated a correct principle of law, and that, if it had any tendency to mislead the jury, an explanatory charge should have been requested. In the prevailing opinion herein it is said that the instruction could have been properly refused as misleading. If it states a correct principle of law, I am at a loss to understand how it can be misleading in its tendency, as given to the jury in this case; nor can I conceive of any truly corrective charge which would not flatly contradict it.
In my judgment the instruction in question is erroneous and mischievous, and I think that it should be condemned, and that Dominick v. Randolph,
SAYRE, J., concurs in the foregoing opinion, and joins in the dissent as therein expressed.
Addendum
Reversed and remanded.
GARDNER and MILLER, JJ., adhere to the discussion of this charge in the original opinion of the court and dissent.