Aetna Ins Co Kennedy Bogash Springfield Fire Marine Ins Co v. Same Liverpool London Globe Ins Co Limited v. Same 8212 755, Nos. 753

CourtUnited States Supreme Court
Writing for the CourtBUTLER
Citation301 U.S. 389,81 L.Ed. 1177,57 S.Ct. 809
Decision Date17 May 1937
Docket NumberNos. 753
PartiesAETNA INS. CO. .v KENNEDY, 3d, to Use of BOGASH. SPRINGFIELD FIRE & MARINE INS. CO. v. SAME. LIVERPOOL & LONDON & GLOBE INS. CO., LIMITED, v. SAME. —755

301 U.S. 389
57 S.Ct. 809
81 L.Ed. 1177
AETNA INS. CO. .v KENNEDY, 3d, to Use of BOGASH. SPRINGFIELD FIRE & MARINE INS. CO.

v.

SAME. LIVERPOOL & LONDON & GLOBE INS. CO., LIMITED, v. SAME.

Nos. 753—755.
Argued April 30, 1937.
Decided May 17, 1937.

Page 390

Messrs. Horace M. Schell and Robert T. McCracken, both of Philadelphia, Pa., for petitioners.

Mr. Harry Shapiro, of Philadelphia, Pa., for respondent.

Mr. Justice BUTLER delivered the opinion of the Court.

Kennedy had a first mortgage and a bank a second mortgage on old brewery property in Pennsylvania owned

Page 391

by a distilling company. The bank procured from petitioners fire insurance policies covering the building. Each policy states it is understood that the insured building is under foreclosure by the bank; the premium being paid by the bank, it is agreed that in event of loss, same will be adjusted with the bank and paid to it and Kennedy, mortgagee, as interest may appear. Each provides for cancellation upon request of the insured and that the company may cancel by giving insured five days' written notice. It includes the standard mortgagee clause which provides: Loss or damage shall be payable to Kennedy as mortgagee as interest may appear; insurance as to the interest of the mortgagee shall not be invalidated by any act of the mortgagor or owner; in case the mortgagor or owner shall neglect to pay premium the mortgagee shall, on demand, pay the same. The company reserves the right to cancel the policy at any time as provided by its terms, but in such case the policy is to continue in force for the benefit of the mortgagee for ten days after notice to him.

After the bid at sheriff's sale in the foreclosure proceedings, the bank abandoned its interest in the property as worthless, notified Kennedy that it intended to cancel the policies, and suggested that he buy them. He declined to do so or to pay the bank any part of the premiums and expressed intention not to advance any money in respect of the insured building. The bank surrendered the policies for cancellation; petitioners paid it the unearned premiums. Later, and within the period for which petitioners had insured it, the building burned. Bogash acquired Kennedy's interest and, to recover on the policies, brought these suits. Upon the statements of claim and affidavits of defense, there arose questions whether Kennedy consented to or acquiesced in the surrender and cancellation of the policies and whether they were in force when the loss occurred or had been surrendered and canceled before that time.

Page 392

The parties, having introduced their evidence and agreed that the amount of the loss was $11,000, submitted their points for charge to the jury. Plaintiff requested the court to instruct the jury in respect of notice to Kennedy of cancellation and surrender of the policies, consent by him that they be canceled, and to direct verdicts in favor of plaintiff for the agreed amount. Defendants requested the court to instruct the jury in respect of the right of cancellation under the policies; that, if the jury should find facts specified in the proposed instructions, its verdicts should be for defendants, and to direct the jury that, upon the pleadings and evidence, the verdicts must be for defendants. The court refused to direct for plaintiff or defendants and, without reserving for later consideration the requests for directed verdicts or any question of law, submitted the cases to the jury. It found for defendants. Plaintiff filed motions for new trial, but did not move for judgments non obstante veredicto. The court denied the motions and entered judgments for defendants.

Plaintiff appealed; the Circuit Court of Appeals held the trial court erred in refusing to charge on points concerning notice of cancellation to Kennedy, reversed the judgments of the District Court and ordered new trials. Kennedy to Use of Bogash v. AEtna Ins. Co., 87 F.(2d) 683. But on plaintiff's application for rehearing it held that, by their requests for peremptory instructions, plaintiff and defendants assumed the facts to be undisputed and submitted to the trial judge the determination of the inferences to be drawn from the evidence and so took the cases from the jury. The court also held that the evidence was not sufficient to sustain verdicts for defendants, denied the petition for rehearing, and remanded the cases to the District Court with directions to give plaintiff judgments for the agreed amount of the loss. 87 F.(2d) 684.

Questions presented are: Whether, by their request for directed verdicts, the parties waived their right to trial

Page 393

by jury; whether, by reversing the judgments for defendants and directing judgments for plaintiff, the Circuit Court of Appeals deprived defendants of that right; and, whether the evidence was sufficient to sustain a finding that Kennedy consented to the cancellation of the policies.

1. The Circuit Court of Appeals erred in holding that, by their requests for peremptory instructions, the parties took the cases from the jury and applied to the judge for decision of the issues of fact as well as of law. The established rule is that where plaintiff and defendant respectively request peremptory instructions, and do nothing more, they thereby assume the facts to be undisputed and in effect submit to the trial judge the determination of the inferences properly to be drawn from them. And upon review a finding of fact by the trial court under such circumstances must stand if the record discloses...

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489 practice notes
  • Wood v. United States, No. 7863.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 9, 1942
    ...rights and that we `do not presume acquiescence in the loss of fundamental rights,'" citing: Aetna Ins. Co. v. Kennedy, 1937, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177; Hodges v. Easton, 1882, 106 U.S. 408, 412, 1 S.Ct. 307, 27 L.Ed. 169; Ohio Bell Telephone Co. v. Public Utilities Com......
  • Evans v. City of Chicago, No. 77 C 4119
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • August 15, 1980
    ...a waiver. Id. at 186, 92 S.Ct. at 782-783. We must "indulge every reasonable presumption against waiver." Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 We believe that plaintiffs may be able to show that they did not, under all the circumstances, volunt......
  • Turner v. Blackburn, No. C-C-73-68.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • February 12, 1975
    ...which, we hold, accompany foreclosure. "Courts indulge every reasonable presumption against waiver." Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937) (footnote RELIEF This is not a class action. Presumably Blackburn's interest is identical to that o......
  • People v. Collins, No. S075232.
    • United States
    • United States State Supreme Court (California)
    • August 2, 2001
    ...S.Ct. 1019, 82 L.Ed. 1461 [a defendant expressly must waive Sixth Amendment right to assistance of counsel]; Aetna Ins. v. Kennedy (1937) 301 U.S. 389, 393-394, 57 S.Ct. 809, 81 L.Ed. 1177 [a defendant expressly must waive right to trial by jury in a civil case]; Patton, supra, 281 U.S. 276......
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487 cases
  • Baldwin v.United States, Civil Action No. 09–0033.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of the Northern Mariana Islands
    • September 26, 2011
    ...trial right.” See Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1064 (9th Cir.2005) (quoting Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937)); accord Cal. Scents v. Surco Prods., Inc., 406 F.3d 1102, 1108 (9th Cir.2005). This flexible stand......
  • Wood v. United States, No. 7863.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 9, 1942
    ...rights and that we `do not presume acquiescence in the loss of fundamental rights,'" citing: Aetna Ins. Co. v. Kennedy, 1937, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177; Hodges v. Easton, 1882, 106 U.S. 408, 412, 1 S.Ct. 307, 27 L.Ed. 169; Ohio Bell Telephone Co. v. Public Utilities Com......
  • In re Oakwood Homes Corp., Bankruptcy No. 02-13396 (PJW).
    • United States
    • U.S. Bankruptcy Court — District of Delaware
    • November 15, 2007
    ...waiver.'" Tracinda Corp. v. DaimlerChrgsler AG., 502 F.3d 212, 222 (3d Cir.2007) (quoting Aetna, Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937)); Collins v. Gov't of Virgin Islands, 366 F.2d 279, 284 (3d Cir. 1966). A valid, enforceable waiver clau......
  • Evans v. City of Chicago, No. 77 C 4119
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • August 15, 1980
    ...a waiver. Id. at 186, 92 S.Ct. at 782-783. We must "indulge every reasonable presumption against waiver." Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 We believe that plaintiffs may be able to show that they did not, under all the circumstances, volunt......
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