Fellman v. Royal Ins. Co.

• Decision Date: 21 February 1911
• Docket Number: 2,003.
• Citation: 185 F. 689
• Parties: FELLMAN v. ROYAL INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

185 F. 689

FELLMAN v. ROYAL INS. CO.

No. 2,003.

United States Court of Appeals, Fifth Circuit.

February 21, 1911

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM.

The elaborate and well-considered opinion of Judge McCormick (184 F. 577) fully disposes of this case on the real question at issue between the parties, and we find nothing in the petition for a rehearing to affect the correctness of the same. To the objection that the case was not before us on the merits, because the record shows no exception to the judgment, nor any formal bill of exceptions, we deem it proper to give some consideration.

The judgment below appears to have been on all the merits the case had and was final. The suing out of a writ of error is a sufficient exception to a judgment.

The writ of error brings before the appellate court the record of the case for review, the pleadings, the judgment, bills of exception, as also any agreed statement of facts. See Baltimore & Potomac R. Co. v. Trustees, 91 U.S. 127 130, 23 L.Ed. 260; England v. Gebhart, 112 U.S. 502, 505, 5 Sup.Ct 287, 28 L.Ed. 811.

Where in a case at law, a trial by jury is waived, and the case tried and judgment rendered by the court, there must be either a statement of facts by the parties, or a finding of facts by the court, analogous to a special verdict, and stating the ultimate facts, presenting questions of law only in order for the appellate court to review the case upon the merits. See Raimond v. Terrebonne Parish, 132 U.S. 192, 10 Sup.Ct. 57, 33 L.Ed. 309; Glenn v. Fant, 134 U.S. 398, 10 Sup.Ct. 583, 33 L.Ed. 969; Lloyd v. McWilliams, 137 U.S. 576, 11 Sup.Ct. 173, 34 L.Ed. 788; British Queen Mining Co. v. Baker, 139 U.S. 222, 11 Sup.Ct. 523, 35 L.Ed. 147; Moller v. United States, 57 F. 495, 6 C.C.A. 459.

In Worthington v. Mason, 101 U.S. 152, 25 L.Ed. 848, and again in New York, etc., Railroad Co. v. Madison, 123 U.S. 527, 8 Sup.Ct. 247 (31 L.Ed. 258), the Supreme Court declared:

'As we understand the principles on which judgments here are reviewed by writ of error, that error must appear by some ruling on the pleadings, or on a state of facts presented to this court. Those facts apart from the pleadings can only be shown here by a special verdict, an agreed statement duly signed and submitted to the court below, or by bill of exceptions.'

It thus distinctly recognized that an agreed statement of facts is a part of the record for the purpose of reviewal.

In the present case the record shows an agreed statement of facts duly submitted to the court below before judgment, by the note of evidence jointly offered by both parties as follows:

'On trial of plea of prescription and estoppel plaintiff offers:

'(1) Policy of insurance of London & Lancashire Insurance Company of Liverpool, No. 3666390, sued on in this case.

'(2) Interrogatories on facts and articles and defendant's answers thereto in this case.

'(2a) Lease of the premises assured.

'(3) Records in this court No. 12,990 and 12,991, styled 'Mrs. Anna Dreyfous, Widow of Fellman, v. Royal Insurance Co. of Liverpool' and 'Same v. London & Lancashire Fire Ins. Co. of Liverpool,' and particularly Complainant's Exhibit C in said record No. 12,990, styled 'agreement for submission to appraisement' and 'award.'

'(4) It is submitted by the parties that, while the agreement for 'submission to appraisement,' and styled 'award,' above referred to as Exhibit C, does not by its terms include policy No. 3666390, set up in the petition in this case, yet it was verbally agreed between the parties to this case that the appraisers and the umpire should consider and pass on the time necessary to rebuild, and that their finding should fix the number of days necessary to rebuild, to be used in fixing the amount of the loss under said policy No. 3666390.

'(5) Defendant makes same offerings as above.

'(Signed) Farrar, Jonas & Kruttschnitt, 'Saunders & Gurley, 'Attorneys for Plaintiff. 'Clegg & Quintero, 'Attorneys for Defendant.'

Supplemented by the agreed statement of facts filed on May 31, 1907, the day of hearing case, as follows:

'The following additional statement of fact is agreed to between the plaintiff and the defendant, to make part of the statement of facts to be used by the court in considering and deciding this cause on the plea of prescription filed by the defendant, and heretofore, by agreement, submitted to the court, and now under advisement by the court, to wit:

'That on the 14th day of August, 1901, Messrs. Ross & Cooke, representatives of the Royal Insurance Company, the London & Lancashire Fire Insurance Company, and the Lancashire Fire Insurance Company, made to the counsel of the plaintiff a tender of what they claimed as due under the policies held by the plaintiff in all three of said companies, covering the loss on the building and the loss on the rent, the amount of the tender for the rent being the sum of two thousand three hundred and eleven 12/100 dollars ($2,311.12); said companies claiming that the amount tendered was the amount due, as per the report of the appraisers and umpire heretofore offered in evidence in this cause, and that the counsel of the defendant declined to receive the amount thereof tendered, but agreed with the parties making the tender, although made by draft, that it should be considered as if made in

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