129 F. 723 | 8th Cir. | 1904
This is an action on a policy of insurance against fire for damages caused by the burning of an elevator. The complaint was in the usual form. The answer was that the policy had been canceled before the fire, that the insured was not the sole and unconditional owner of the property, and that no proofs of loss had been made. The plaintiff replied that the company had denied its liability on the ground that there was no contract of insurance, and had thereby waived the proofs of loss. The case was tried to a jury. At the close of the trial the plaintiff requested the court to give an instruction to the effect that the jury should return a verdict in his favor, the defendant asked the court to charge the jury to find a verdict for the insurance company, and the court told the jury to return a verdict for the plaintiff. This instruction is the alleged error in this case.
Where each of the parties to a trial by jury requests the court to charge them to return a verdict in his favor, he waives his right to any finding or trial of the issues by the jury, and consents that the court shall find the facts and declare the law. An acceptance of these waivers and a peremptory instruction by the court in favor of either party constitutes a general finding by the court of every material issue of fact and of law in favor of the successful party. The case is then in the same situation in which it would have been if both parties had filed a written waiver of a jury and it had been tried by the court. Each party is estopped by his request from reviewing every issue of fact upon which there is any substantial conflict in the evidence, and the only questions which the instruction presents to an appellate court are, was the court’s finding of facts without substahtial evidence to sustain it? and was there error in its declaration or application of the law ? U. S. v. Bishop (C. C. A.) 125 Fed. 181, 183; Bowen v. Chase, 98 U. S. 254, 264, 25 L. Ed. 47; Beuttell v. Magone, 157 U. S. 154, 157, 15 Sup. Ct. 566, 39 L. Ed. 654; The City of New York, 147 U. S. 72, 77, 13 Sup. Ct. 211, 37 L. Ed. 84; Laing v. Rigney, 160 U. S. 531, 16 Sup. Ct. 366,40 L. Ed. 525; King v. Smith, 110 Fed. 95, 97, 49 C. C. A. 46,48, 54 L. R. A. 708; The Francis Wright, 105 U. S. 381, 26 L. Ed. 1100; Merwin v. Magone, 70 Fed. 776, 777, 17 C. C. A. 361, 363; Chrystie v. Foster, 61 Fed. 551, 9 C. C. A. 606; Stanford v. McGill (N. D.) 72 N. W. 938, 952; Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261, 5 L. R. A. 540; Provost v. McEncroe, 102 N.Y. 650, 5 N. E. 795.
The first question for consideration, therefore, is, was there any substantial evidence in support of the finding of the court below that the policy in suit was not canceled or surrendered? There was evidence that the plaintiff was the owner and that Rundberg & McCann were the lessees of, and the holders of an option to purchase, the elevator, which was the subject of this litigation, under a contract to keep it insured for the benefit of the plaintiff. McCann had paid the premium — $80—upon the policy in suit, and had caused Rohrer, the recording agent of the defendant, to issue and deliver it to the plaintiff in November, 1900. The policy, by its terms, promised indemnity against loss by the burning of the elevator for the term of one year. On December 5, 1900, Rohrer received an order from Chicago to cancel the policy. On December 12, 1900, after some conversation with McCann and with Coryell, the state agent of the defendant for the state of Nebraska, he wrote, coun
' Was the interest of the plaintiff, Kerr, in the elevator other than the unconditional and sole ownership ? The evidence was that Kerr bought, paid $6,000 for and took the title to the elevator. Thereupon he made a written agreement with Rundberg & McCann to. the effect that they should have the possession and use of the property for a monthly rental of $100 and for the payment of the premium on thé insurance; that they
The policy required the insured to furnish proofs of loss within 60 days after the fire. A distinct denial by an insurance company of liability under a policy after the loss, and within the time prescribed by the proofs, upon the ground that there was no contract of insurance, is a waiver of proofs of loss, because in such a case the proofs do not tend to induce the company to pay the loss, and they are useless. Tayloe v. Ins. Co., 9 How. 390, 403, 13 L. Ed. 187; Knickerbocker Life Ins. Co. v. Pendleton, 112 U. S. 696, 5 Sup. Ct. 314, 28 L. Ed. 866. Was there any substantial evidence in this case of a denial of the validity of the policy within 60 days after the loss? Rohrer, the recording agent of the defendant, testified that he issued the policy; that he received an order from Chicago to cancel it on December 5, 1900; that the fire occurred on December 16, 1900; and that on the next day he told the plaintiff what entries he had made on his books; told him that he rather thought that the Milwaukee Company was the one liable, and obtained
Our conclusion is that there was no error in the finding or in the conclusions of the trial court, and that the judgment below must be affirmed. It is so ordered.