Bank of Union v. Fidelity & Casualty Co. of New York
| Citation | 62 F.2d 1040 |
| Decision Date | 11 January 1933 |
| Docket Number | No. 9600.,9600. |
| Parties | BANK OF UNION v. FIDELITY & CASUALTY CO. OF NEW YORK. |
| Court | U.S. Court of Appeals — Eighth Circuit |
F. M. Hemker, of St. Louis, Mo. (W. L. Cole and T. P. Hukriede, both of Union, Mo., on the brief), for appellant.
George A. Hodgman, of St. Louis, Mo., for appellee.
Before KENYON, GARDNER, and SANBORN, Circuit Judges.
Appellant (herein called the Bank), plaintiff in the trial court, is located at the town of Union, Mo. Appellee (herein called the Casualty Company), defendant in the trial court, is a corporation of New York. It issued to the Bank a policy of insurance to protect it against losses sustained by robbery of moneys and securities. On October 28, 1929, the Bank was robbed and certain moneys and securities taken. The Casualty Company paid the money loss, but denied liability as to the securities taken. Action was brought by the Bank in a Missouri state court against the Casualty Company to recover $4,250, the claimed value of the securities alleged to have been taken, and also asking damages for vexatious delay in paying the loss. The case was removed to the United States District Court. After removal the Bank filed an amended petition claiming the securities stolen amounted to $5,813.75. Thereafter the Bank filed a second amended petition, in which it placed the value of the stolen securities at $2,264.91.
At the close of the evidence both parties moved for a directed verdict, at the same time submitting requests for additional instructions in the event the court should not direct a verdict. Both motions were overruled. The requested instructions were in part given, and the case submitted to the jury, which returned a verdict for the Casualty Company.
The errors assigned which should be considered are: The submission of the case to the jury after both plaintiff and defendant had moved for a directed verdict; failure of the court to sustain the motion of plaintiff for a directed verdict.
Ordinarily, where both parties move for a directed verdict without reservations, it amounts to a waiver of a jury trial, and a submission to the court of questions of fact as well as of law. Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654; Williams v. Vreeland, 250 U. S. 295, 39 S. Ct. 438, 63 L. Ed. 989, 3 A. L. R. 1038. But, where a party makes such motion, and at the same time requests instructions to the jury which show he does not intend to waive his right to jury trial if his motion is overruled, he cannot be held to have waived a trial by jury of the fact questions. This court apparently held otherwise in Empire State Cattle Co. et al. v. Atchison, T. & S. F. R. Co. (C. C. A. 8) 147 F. 457. While Judge Sanborn concurred in the result, he disagreed with the majority as to the effect of requesting instructions to the jury at the time of making the motion to instruct a verdict, saying at page 462 of 147 F.:
Upon appeal of this case to the Supreme Court (210 U. S. 1, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70), it sustained the position taken by Judge Sanborn. The court said at page 8 of 210 U. S., 28 S. Ct. 607, 609: This would seem to settle the question. See, also, Minahan v. Grand Trunk Western R. Co. (C. C. A.) 138 F. 37; Sampliner v. Motion Picture Patents Company, 254 U. S. 233, 41 S. Ct. 79, 65 L. Ed. 240. While the instructions requested by both parties at the time of making motions for directed verdicts do not appear in the record, the trial court in passing on the motion for a new trial filed a memorandum in which he stated: It is clear that under these circumstances the jury was not waived.
Appellant's motion for an instructed verdict was: "At the conclusion of all the evidence, the Court instructs the jury that under the law and the evidence your verdict must be for the plaintiff."
Appellee insists that this motion is not specific enough to raise any question as to the sufficiency of the evidence, and relies on Wharton v. Ætna Life Ins. Co. (C. C. A. 8) 48 F.(2d) 37. The motion in that case was limited to one issue, i. e., Did the insured make material misrepresentation in answering an interrogatory? and this court held that the motion could not be construed to embrace all possible grounds upon which it might be supported.
In Mansfield Hardwood Lumber Co. v. Horton (C. C. A. 8) 32 F.(2d) 851, this court held that a general motion to direct a verdict was not sufficient to raise the question of whether there was substantial evidence to support a verdict. In Ozark Pipe Line Corporation v. Decker (C. C. A. 8) 32 F.(2d) 66, 67, where the same judges sat as in the Mansfield Hardwood Lumber Co. Case, supra, this court held that a requested declaration (a jury being there waived), as follows: "The court declares the law to be that under the pleadings and evidence in this case, the plaintiff is not entitled to recover against the Ozark Pipe Line Corporation, and the decision and judgment of the court is in favor of the defendant," was sufficient to save for consideration by this court the question of sufficiency of the evidence.
In United States v. Schweppe (C. C. A. 8) 38 F.(2d) 595, 596, we held that the motion made at the close of all the evidence by the defendant, "to instruct the jury that under the pleadings, the law and the evidence, its verdict must be for the defendant," was sufficient to preserve for consideration the question of substantial evidence upon which a jury could base a verdict. The instruction here requested by plaintiff Bank is only slightly different from that in the Schweppe Case; the only difference being that it does not refer to the pleadings. We think it was sufficient.
This brings us to the real issue in the case, viz., should the trial court have instructed a verdict for plaintiff upon its motion at the close of all the evidence.
We need not set out in full the terms of the policy, as the controversy arises entirely by reason of one of its conditions, as follows:
No other question concerning the policy arises.
The Bank submitted to the Casualty Company three proofs of loss, the last two being supplemental to the original proof, as it was discovered additional bonds had been stolen. Simplifying the various proofs, the claims sued for cover five items of government bonds alleged to have been stolen, which may be grouped as follows:
Mudgett bonds .................... $300.00
Knehans bonds .................... 350.00
Froshaug bonds ................... 500.00
Wright bonds ..................... 400.00
Bell bonds ....................... 714.91
The first proof of loss covered the first three items, the second proof the fourth item, and the last proof the fifth item.
No question is raised that these bonds come within the protective terms of the policy. There is some suggestion in the...
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