Insurance Co. v. Folsom

Mr. Justice CLIFFORD delivered the opinion.of the court.

Underwriters in a policy of marine insurance .undertake, in consideration of a certain premium, to indemnify the party insured against loss arising from certain perils of the sea, or sea risks to which the ship, merchandise, or freight of the insured may be exposed during a particular voyage or for a specified period of time. Long experience shows *247 that such a system is essential to commerce, as it tends to promote the spirit of maritime adventure by diminishing the risk of ruinous loss to which those who engage in it would otherwise be exposed. Losses of the kind cannot be prevented by any degree of human forecast or skill, but the system of insurance, as practiced among merchants, enables those engaged in such pursuits to provide themselves with indemnity against the consequences of such disasters. By such contracts either associated capital becomes pledged for such indemnity, or the loss is so distributed among different underwriters that the ultimate sufferers are not in general seriously injured. Indemnity is the great object of the insured, but the underwriter pursues the business as a means of profit.

On the first of March, 1869, the defendant subscribed a time policy of insurance in the sum of three thousand dollars, for a premium of twelve per cent, net, upon the schooner B. F. Folsom, her tackle, apparel, and other furniture, valued at thirty-five thousand dollars; in which policy it'is recited that the insurance is to the plaintiff on account of whom it may concern, and in case of loss, to be paid in funds current in the city of New York; and the policy contains the clause following, to wit: “insured at and from the first day of Ja'nuary, 1869, at noon, until the first day of January, 1870, at noon,” with liberty to the insured, if on a passage at the expiration of the term, to renew the policy for one, two, or three months, at the same rate of premium, provided application be made to the company on or before the expiration of the first term. Also “ privileged to cancel the policy at the expiration of six months, pro rata premium to be returned for time not used, no loss being claimed.” Prior to the date of the policy, to wit, on the sixth of January in the same year, the schooner set sail and departed from the-port of Boston, bound on a voyage to the port of Montevideo, laden with an assorted cargo,-and during the voyage she met with tempestuous weather, and on the thirtieth of the same month, by the force of the wind and waves was *248 wrecked, foundered, and sunk, and was wholly lost to the plaintiff. Seasonable notice of.the loss was given to the defendants, and payment being refused the plaintiff brought an action of assumpsit to recover the amount insured. Seiv vice having been made the defendants appeared and pleaded the general issue, and the parties having in due form waived a trial by jury, went to trial before the court without a jury. Matters of fact were accordingly submitted to the court, and the court found that the defendants did undertake and ■ promise the plaintiff' in manner and form as he, the plaintiff, in his writ and declaration had alleged, and assessed damages for the plaintiff in the sum of three thousand three hundred and forty-eight dollars and twenty cents, and the .court rendered judgment for the plaintiff for the amount so found. Exceptions were filed by the defendants, and they-sued out a writ of error and removed the cause into .this . court.

By the terms of the act of Congress permitting issues of fact in civil cases to be tried and determined by the court without the intervention of a juryj it is provided that the finding of the court upon the facts may be either general or special, and that the finding shall have the same effect as the verdict of a jury.

* Where a jury is waived, as therein provided, and the issues of fact are submitted to the court, the finding of the court may be either general or special, as in cases where an .issue of fact is tried by a jury; but where the finding .is general the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of'the court in the progress.of the trial. Such rulings, if duly presented by a bill of exceptions, may be reviewed here, even though the finding is general, but the finding of the court, if general, cannot be reviewed in this court by bill of exceptions or in any other manner.

† Facts *249 found by a jury could only be re-examined under the rules of the common law, either by the granting of a new trial by the court where the issue whs tried or to which the record was -returnable, or by the award of a venire facias de novo by an appellate court for some error of law which intervened in the proceedings.

* Nothing, therefore, is open to re-examination in this case except such of the rulings of the court made in the progress of the trial as are duly presented by a bill of exceptions.

† All matters of fact, under such a submission, must be found by the Circuit Court and not by the Supreme Court, as the act of Congress provides that the issues of fact may be tried and determined by the Circuit Court where the suit is brought. Inferences of fact must also be drawn by the Circuit Court, as it is the Circuit Court and not the Supreme Court which, by the agreement of the parties, is substituted for a jury.

‡ None of these rules are new, as they were established by numerous decisions of this court long before the act of Congress in question was enacted.

§ Propositions of fact found by the court, in a case where the trial by jury is waived, as provided in the act of Congress,-are equivalent to a special verdict, and the Supreme Court will not examine the evidence on which the finding is founded, as the act of Congress contemplates that the finding shall be by the Circuit Court; nor is the Circuit Court required to make a special finding, as the act provides that the finding of the Circuit Court may be either general or special, and that it shall have the same effect as *250 the verdict of a jury.

* Where a case is tried by the court without a jury, the bill of exceptions brings up nothing for revision except what it would have done had there been a jury trial.

† Tested by these considerations, it is clear that the exceptions of the defendants, to the rulings of the court refusing to make any special finding, as requested by their counsel, may be overruled without any further remark.

Exception is also taken by the defendants to the refusal of the court to decide that the evidence introduced by the plaintiff in the opening was not sufficient to entitle the plaintiff to a verdict.

Having introduced the policy, the plaintiff proved by the master that the schooner, on the sixth of January prior to the date of .the policy, departed on her voyage, and that she was lost at the time and by the means before stated. In addition to the incidents of the loss, he also proved the circumstances under which the master, and crew were saved from the wreck and carried to the port of Bremerhaven, by the vessel which rescued them; that the master wrote to the owner by the first mail from that place after their arrival there, and that, he w'as unable to use'the telegraph, as he had no funds to prepay a telegram. Due notice of the loss and of the interest of the plaintiff having been .admitted the plaintiff' rested, and the defendants moved the court to decide that the evidence was not sufficient to entitle the plaintiff' to a verdict, which the court refused to do.

Suppose the motion is regarded as a motion for a nonsuit, it was clearly one which could not be granted, as it is well-settled law that the Circuit Court does not possess the power to order a peremptory nonsuit against the will of the plaintiff.

‡ Power to grant a peremptory nonsuit is not vested ■in a Circuit Court, but the defendant may, if he sees fit, at the close of the plaintiff’s case, move the court to instruct *251 the jury that the evidence introduced by the plaintiff is not sufficient to warrant the jury in finding a verdict in his favor, and it is held that such a motion is notone addressed to the discretion of the court, but that it presents a question of law, and that it is as much the subject of exceptions as any other ruling of the court’ in the course of the trial.

* All things considered the court is inclined, not without some hesitation, to regard the motion as one of the latter character, and in that view it presents the question whether, by the terms of the policy, the'risk was within it, as the proofs show that the loss occurred before the policy was issued.

Policies of insurance intended to have a retroactive effect, usually contain the words “lost or not lost,” and the defendants contend that the policy in this case, inasmuch as it does not contain those words, does not cover the loss described in the declaration ; but it is well-settled law that other words may be employed in süch a contract which will have the samé operation and legal effect, and it appears that the policy in this ease, by its express terms, was to commence on the first day of January, 1869, and to continue until the first day of January, 1870. Elementary writers and the .decisions of the courts make it perfectly certain that the phrase “lost or not lost” is not necessary to make a policy retroactive. It is sufficient if it appear by the description of the risk and the subject-matter of the contract that the policy was intended to cover a previous loss. Contracts of the kind are as valid as those intended to cover a subsequent loss, if it appears that the insured as well as the underwriter was ignorant of the loss at the time, the contract was made.

† Viewed in the light of these suggestions, it is quite clear *252 that it-would have been error if the Circuit Court had decided as requested by the defendants, and that the decision made by the Circuit Court in denying the motion was correct.

Attempt was also made at the trial to set up the defence that the plaintiff concealed material facts from the defendants at the timé the policy was granted, but the Circuit Court found that the charge was not sustained by the evidence, which is all that need be said upon the subject, as it is quite clear that the finding of the Circuit Court, where the trial by jury is waived, as in this case, is not the proper subject of review in the Supreme Court, to which it may be added, that if the rule were otherwise the court here would be compelled to come to the same conclusion as that reached by the Circuit Court.

Issues of fact, however, under such a submission, are to be tried and determined by the Circuit Court, and it is equally clear that the findings of the Circuit Court, even when special, cannot be reviewed by the Supremo Court, except,for the purpose of determining whether the facts found are sufficient to support the judgment, as the express provision is that the finding of the Circuit Court in such a case shall have the same effect as the verdict of a jury.

* Exception was also taken to the ruling of the court in refusing to admit as evidence the application for insurance when tendered by the defendants in support of the defence of concealment. ■ Apparently it was offered to show that it did not state where the vessel was at that time or from what port she had sailed or on what voyage she was bound, but the court was of the opinion, and ruled, that inasmuch as'the instrument contained no statement in respect to any one of those matters, and that,its terms were exactly the same as those of the policy, the contents were immaterial to the issue, as the contents could have no tendency to show that the plaintiff, when he made the application, did not communicate to the *253 defendants all the material facts and circumstances within his knowledge, and answer truly all questions put to him in regard to those several matters.

* Evidently the burden of proof to establish such a defence is upon the party pleading it, and the court here is of the opinion that the ruling of the Circuit Court, as fully explained in the opinion given at the time, and in the opinion subsequently given denying the motion for new trial, was correct.

† Special findings of fact were requested by the defendants, and thej' excepted in numerous instances to the rulings of the court refusing to comply with such requests, all of which are overruled upon the ground that the finding of the Circuit Court upon the facts may be either general or special, as heretofore more fully explained.

‡ Bequests that the„ court would adopt certain conclusions of law were also presented by the defendants, in the nature of prayers for instruction, as in cases where the issues of fact are tried by a jury, which were refused by the Circuit Court, and the defendants also excepted to such refusals. None of these exceptions have hrespect to the rulings of the court in admitting or rejecting evidence, nor to any other ruling of the Circuit Court which can properly be denominated a ruling in the progress of the trial, as every one of the refusals excepted to appertain to some request made to affect or control the final conclusion of the court as to the plaintiff’s right to recover. Such requests or prayers for instruction, in the opinion of the court, -are not the proper subjects of exception in cases where a jury is waived and the issues of fact are submitted to the determination of the court.

§ Exceptions are allowed to the rulings of the court in the progress of the trial, and the provision is that the review, if the finding is special, may also extend to the determination of the sufficiency of the facts found to support the judgment. Where the finding is gen *254 eral, as in this ease, nothing is open to review but the rulings of the court in the.progress of the trial, and as none of the last-named exceptions, which are the ones now under consideration, were of that‘class, they are all overruled.

* Like a special verdict, a special -finding furnishes the means of reviewing such questions of law arising in the case as respect the sufficiency of the facts found to support the judgment, but where the finding is general the losing party cannot claim the right to review any questions of law arising in the case, except such as grow out of the rulings of the Circuit Court in the progress of the trial, which do not in any proper sense include the general finding of the Circuit Court nor the conclusions of the Circuit Court embodied in such general finding, as such findings are in the nature of a general'verdict and constitute the 'foundation of the judgment. No review of such a fiudiug can be made here under a writ of error, unless it- is accompanied by an authorized special statement of the facts, without imposing upon this court the duty of hearing the whole case, law and fact, as on an appeal in a chancery or in an admiralty suit, which would operate as a l’epeal of the provisions in the act of Congress, that issues of fact in such cases may be tried and determined by the Circuit Court, and would also violate that clause of the twenty-second section of the Judiciary Act, which prohibits this court from reversing any case “ for any error in fact.”

† Whether any ruling of the Circuit Court other than the rulings in admitting or rejecting evidence can properly be regarded “as rulings in the progress of the trial,” within the meaning of that phrase in the act of Congress, it is not necessary in this case to decide, as it is clear that neither the general finding of the Circuit Court nor the conclusions of the Circuit Court as embodied in the general finding fall within that category.

Judgment affirmed.

* 13 Stat. at Large, 501.

† Miller v. Insurance Co., 12 Wallace, 297; Norris v. Jackson, 9 Id. 125; Coddington v. Richardson, 10 Id. 516.

* Parsons v. Bedford, 2 Peters, 448 ; 2 Story on the Constitution, § 1770.

† Copelin v. Insurance Co., 9 Wallace, 461; Basset v. United States, Ib. 40.

‡ Tancred v. Christy, 12 Meeson & Welsby, 323.

§ Bond v. Brown, 12 Howard, 254 ; Penhallow v. Doane, 3 Dallas, 102 ; Wiscart v. Dauchy, Ib. 327; Jennings v. Brig Perseverance, Ib. 336; Talbot v. Seeman, 1 Cranch, 38 ; Saulet v. Shepherd, 4 Wallace, 502; Faw v. Koberdeau, 3 Crunch, 177; Dunlop v. Munroe, 7 Id. 270; United States v. Casks of Wine, 1 Peters, 550 ; Hyde v. Booream, 16 Id. 176; Archer v. Morehouse, Hempstead, 184; Parsons v. Bedford, 3 Peters, 434 ; Craig v. Missouri, 4 Id. 427; United States v. King et al., 7 Howard, 853 .

* Copelin v. Insurance Co., 9 Wallace, 461; Folsom v. Insurance Co., 9 Blatchford, 201.

† Norris v. Jackson, 9 Wallace, 125; Coddington v. Richardson, 10 Id. 516 ; Miller v. Insurance Co., 12 Id. 285.

‡ Elmore v. Grymes, 1 Peters, 469 ; Castle v. Bullard, 23 Howard, 172 .

* Schuchardt v. Allens, 1 Wallace, 370; Parks v. Ross, 11 Howard, 362 ; Bliven v. New England Screw Co., 23 Id. 433; Toomey v. Railway Co , 3 C. B., New Series, 150;

Ryder v. Wombwell. Law Reports, 4 Exchequer, 39; Giblin v. McMullen, Law Reports, 2 Privy Council, App 335.

† Hammond v. Allen, 2 Sumner, 396; 1 Phillips on Insurance, § 925; 2 Parsons on Marine Insurance, 44; 1 Arnould on Insurance, 26 ; 3 Kent (11th ed,), 344; Hallock v. Insurance Co., 2 Dutcher, 268.

* Insurance Co. v. Tweed, 7 Wallace, 51; Generes v. Bonnemer, Ib. 564; Norris v. Jackson, 9 Id. 127; Flanders v. Tweed, Ib. 428; Dirst v. Morris, 14 Id. 490; Richmond v. Smith, 15 Id. 437; Bethel v. Mathews, 13 Id. 2.

* Same Case, 8 Blatchford, 170; Same Case, 9 Id. 202.

† Vandervoort v. Columbia Insurance Co., 2 Caines, 160 ; Insurance Co.

v. Lyman, 15 Wallace, 670 ; Rawls v. American Mutual Life Insurance Co., 27 New York, 297.

‡ 13 Stat. at Large, 501.

§ Dirst v. Morris, 14 Wallace, 490.

* Dirst v. Morris, 14 Wallace, 490.

† 1 Stat. at Large, 85.