KENTUCKY LIFE & ACC. INS. CO. v. HAMILTON, 63 F. 93

LURTON, Circuit Judge. This was an action on a policy of insurance upon the life of Mrs. Sarah Ritter, the defendant in error being the beneficiary to whom the sum assured was to be paid on the death of Mrs. Ritter. A jury was waived by written stipulation entered of record, and the issue submitted to the court. The court found for the plaintiff, and rendered judgment for the full sum assessed, with interest. The errors assigned by the appellant are these: “

(1) The said court erred in construing that the charter of the defendant, the Kentucky Life & Accident Insurance Company, exhibited in the trial, authorized said company to issue wager policies of life insurance.

(2) It nowhere appearing in this record that the claimant, Charlotte A. Hamilton, is the mother, sister, or daughter of the assured, Sarah E. Ritter, the court erred in adjudging to said claimant the maximum amount of the policy sued on, with interest.

(3) The court erred in holding that the legislature of Kentucky did or could, by act chartering defendant, authorize it to make wager policies of insurance, and that said company could, under its charter, and did, by its policy, make a binding contract with Sarah E. Ritter, whereby it should pay to said Charlotte A. Hamilton, on the death of said Ritter, any sum exceeding the sum of indebtedness of said Ritter to said Hamilton.

(4) The court erred in signing judgment for claimant, Hamilton, under the pleadings and evidence of the ease.”

Section 649 of the Revised Statutes provides that a jury may be waived, and issues of fact tried and determined by the court, upon a stipulation in writing. The finding of the court upon the facts may be general or special, and, by the statute, is given the same effect, as the verdict of a jury. By

section 700 the method of reviewing a judgment so rendered is provided. That

section is in these words: “When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to

section six hundred and forty-nine, the rulings of the com’t in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the supreme court upon a writ of error or upon an appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.” There was no such special finding of facts by the court as required in order to enable this court to determine the sufficiency of the facts to support the judgment.

The judgment entry was as follows: “And on another day of said term of said com’t, to wit, on Tuesday, July 18, 1893, came said plaintiff, by Azro Dyer, her attorney, and said defendant, by Marc Mundy, its attorney, and it appearing that heretofore, to wit, on the 15th day of April, 1893, this cause was, by agreement of parties, submitted to the court for trial without the intervention of a jury; that after-wards, to wit, on the 31st day of May, 1803, the court delivered a written opinion, and made a finding of all the issues in favor of the plaintiff, assesses! her damages in the sum of five thousand dollars, with six per cent, interest from .Tune 24, 1892; that afterwards, to wit, on the 1st day of June, 1893, the said defendant entered a motion for new trial upon written grounds filed,—the said motion for a new trial is now submitted io the court, and, the court being sufficiently advised, the said motion is overruled.

It is therefore considered, ordered, and adjudged by the court that the plaintiff, Charlotte A. Hamilton, recover of and from the defendant, the Kentucky Bife & Accident Insurance Company, the sum of five thousand dollars, with interest thereon at the rate of six per cent, per annum from the 241h day of June, 1892, until paid, also her costs herein expended, for which she may have executions.

On motion of defendant, it is ordered that it do have fifteen days to file a bill of exceptions.” That entry recites that, “the court delivered a written opinion,” “'and made a finding o£ all the issues in favor of the plaintiff.” This is nothing more than a general finding in favor of the plaintiff. The contention of the appellant is that the effect of the recital is to make the opinion a part of the record, and a special finding of facts, within the statute. We do not think the opinion thereby becomes a part, of the record. It is a mere recital of the fact that an opinion had been read.

The opinion did not become thereby a part of the judgment entry, and did not operate as a special finding of facts. The opinion is included in the transcript sent to ns, but there is no minute entry making it a part of the record. It was properly included-in the transcript under the 14th rule of this court, which requires the clerk of the circuit court “to transmit with the record a copy of the opinion or opinions filed in the case.” This opinion does not purport to be a special finding of facts. Some parts of the evidence are referred to and commented on for the purpose of supporting the judgment.

In so far as it deals with the fads, is; is a mere statement of the evidence, and not the conclusion of the court as to the facts from the evidence. In Insurance Go. v. Tweed a like question arose. Mr. Justice Miller, on this subject, said: “We are asked, In the present case, to accept the opinion of the court below, as a sufficient finding of the facts, within ihe statute, and within the general rule on this subject. But, with no aid outside the record, we cannot do this.

The opinion only recites some parts of the testimony by way of comment in support of the judgment, and is liable to the objection, often referred to in this court, that it states the evidence, and not the facts as found from that, evidence. Besides, it does not profess to be a statement of fads, but is very correctly called in the transcript, ‘reasons for judgment.’ ” 7 Wall. 51. In that case, counsel stipulated in the supreme court that certain parís of the opinion should be accepted as showing the material facts of the case.

Upon this agreement the court permitted the opinion to stand for a special finding of facts. Whether that practice would be again followed is more than questionable. Here there is no such agreement. Upon the contrary, counsel for appellee has strenuously insisted in brief and argument that no case is here presented for review by this court, and that the opinion is not a special finding of the ultimate facts. We have, therefore, “no aid outside of the record,” and we cannot trea t the opinion as a find ing of facts. Insurance Co. v. Tweed, supra; Dickinson v. Bank, 16 Wall. 250; Reed v. Stapp, 3 C. C.

A. 244, 52 Fed. 641. In the latter case the court said: “The practice adopted by counsel in this case, of seeking to have the opinion of the court fulfill the office of a finding, is not to be commended. The special finding of the statute is a specific statement of the ultimate facts proven by the evidence, determining .the issues, and essential to sustain the judgment. It corresponds to- the special verdict of a jury, and should be equally specific and comprehensive.

It should declare all the ultimate facts established by the evidence, so that if they do not. in law, warrant the- judgment, an appellate tribunal may direct such judgment Thereon as the law adjudges upon the facts determined, and without the need of a new trial, as was done in Ift. Scott v. Hickman, 112 U. S. 150, 5 Sup. Ct. 56.” It seems to us very clear that the opinion found in this transcript should not be regarded as a special finding of facts. The facts submitted to the circuit court have been made a part of the record by bill of exceptions.

The supreme court of the United States have frequently ruled that a bill of exceptions embodying the evidence is not the special finding which will enable an appellate court to review the evidence, and determine the sufficiency of the facts to support the judgment. The statute contemplates two distinct kinds of findings, to wit, general and special. “This,” as observed by Mr. Justice Miller in Norris v. Jackson, 9 Wall. 127, “is in perfect analogy to the findings by a jury, for which the court is, in such cases, substituted by consent of the parties.

In other words, the court finds a general verdict on all the issues for plaintiff or defendant, or it finds a special verdict.” This special finding, said the court in that case, “is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; á finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest.” “Whether the finding be general or special,” (the statute) “gives it the same effect as the verdict of a jury; that is to say, it is conclusive as to the facts so found.

In the case of a general verdict, which includes, or may include, as it generally does, mixed questions of law and fact, it includes both, except so far as they may be saved by some exception which the party has taken to the ruling of the court on the law.” “In the case of a special verdict the question is presented as it would be if tried by a jury, whether the facts thus found require a judgment for plaintiff or defendant; and, this being matter of law, the ruling of the court on it can be reviewed in this court on that , record.

If there were such special verdict here we could examine its sufficiency to sustain the judgment. But there is none. The bill of exceptions, while professing to detail all the evidence, is no special finding of the facts.

The judgment of the court, then, must be affirmid, unless the bill of exceptions presents some erroneous ruling of the court in the progress of the trial.” The conclusions of the court in that case were thus summarized: “If the verdict be a general verdict, only such rulings of the court, in the progress of the trial, can be reviewed as are presented by bill of exceptions, or as may arise on the pleadings.

In'such cases a bill of exceptions cannot be used to bring up the whole testimony for review any more than in trial oy jury.” “That, if the parties desire a review of the law involved in the case, tiiey must either get the court to find a special verdict, which raises the legal propositions, or they must present to the court their propositions of law, and require the court to rule on them.” “That objection to the admission or exclusion of evidence, or 1o such rulings on the propositions of law as the parly may ask, must appear by bill of exceptions.” That case has been repeatedly followed. See Insurance Co. v.

Folsom, 18 Wall. 237; Cooper v. Omohundro, 19 Wall. 65; Crews v. Brewer, Id. 70; Dickinson v. Bank, 16 Wall. 250; Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321; Bowden v. Burnham (Jan. 29, 1894) 8 C. C. A. 248, 59 Fed. 752. There was no demurrer to the case stated in the* pleadings, and no motion in arrest of judgment after the general finding for the plaintiff. Ho exceptions were taken upon evidence adinitied or excluded, jind no rulings made during the trial upon questions of law. I Cooper v.

Omohundro, cited above, the court said: “Where issues of fact are submitted to the circuit court, and the finding is general, nothing is open to review * * * except the rulings of the circuit court in the progress of the trial; and the phrase, ‘rulings of the eourt in the progress of the trial,’ does not include the general finding of the circuit eourt, nor the conclusions of the circuit court embodied in such general find-big.” ; In the case of Martinton v.

Fairbanks, also above cited, the court said: “The theory of the plaintiff in error seems to be that the general finding in this case, like a general verdict, includes questions of both law and fact, and that by excepting to the general finding lie excepts to such conclusions of law as the general finding implies. But

section 649, Ilev. St, provides that the finding of the court, whether general or special, shall have the same effect as the verdict of the jury. The general verdict of a jury concludes mixed questions of law and fact, except so far as they may be saved by some exception which the party has taken to the ruling of the court upon a question of law. * * The provision of the statute that the finding of the court shall have the same effect as the verdict of a jury cuts off the right to review in this case.” The issues presented were mixed questions of law and fact.

The finding being a general one, the legal questions supposed to be involved in the general result are not, on this record, open to review. It is accordingly ordered that the judgment of the circuit court be affirmed.