Davis v. United States, 838.

• Decision Date: 27 November 1933
• Docket Number: No. 838.,838.
• Citation: 67 F.2d 737
• Parties: DAVIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

67 F.2d 737 (1933)

DAVIS v. UNITED STATES.

No. 838.

Circuit Court of Appeals, Tenth Circuit.

November 27, 1933.

V. R. Dittman, Jr., of Denver, Colo. (S. R. Owens, of Denver, Colo., on the brief), for appellant.

John G. Reid, Asst. U. S. Atty., of Denver, Colo. (Ralph L. Carr, U. S. Atty., and Richard A. Toomey, Atty., Veterans' Administration, both of Denver, Colo., and Davis G. Arnold and Otto T. Englehart, Attys., Veterans' Administration, both of Washington, D. C., on the brief), for the United States.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

Appellant brought this action against the United States to recover on a policy of war risk insurance issued to John William Davis. Trial by jury was duly waived, and the cause tried to the court. Judgment was for the United States.

The court made the following special finding of fact, "That the said John William Davis was not permanently and totally disabled within the terms of his contract of War Risk Insurance involved in this action during the time that said contract of insurance was in force"; and the following declaration of law, "That the plaintiff herein is not entitled to recover in this action, and that the defendant is entitled to judgment dismissing the plaintiff's complaint at the costs of the said plaintiff."

Following the special findings of fact and declarations of law in the record, there appears a purported general exception thereto, but such exception is not incorporated in the bill of exceptions.

There appears in the record a purported request by appellant for special findings of fact and a declaration of law that appellant is entitled to judgment, but these are not incorporated in the bill of exceptions.

The bill of exceptions contains no challenge by the appellant to the sufficiency of the evidence to support the special findings made by the court, no request for a declaration of law that she is entitled to judgment, and no motion for a judgment in her favor.

By her assignments of error the appellant charges that the court erred in making its findings of fact and conclusions of law and in entering judgment thereon, because they are contrary to the evidence; and that it erred in refusing to make the findings of fact and conclusions of law requested by appellant.

A special finding in a jury-waived case becomes a part of the record the same as a special verdict, and the question of its sufficiency to support the judgment arises without contemporaneous objection or exception. Therefore no bill of exceptions is requisite to present it. St. Joseph Stockyards Co. v. United States (C. C. A. 8) 187 F. 104; Chicago, R. I. & P. Ry. Co. v. Barrett (C. C. A. 6) 190 F. 118; Wesson v. Saline County (C. C. A. 7) 73 F. 917.

But the sufficiency of the evidence to support the findings must be appropriately raised by motion for judgment, request for declaration of law, or other like motion. White v. United States (C. C. A. 10) 48 F. (2d) 178; Henry H. Cross Co. v. Texhoma O. & R. Co. (C. C. A. 8) 32 F.(2d) 442, 445. Such a motion or request, and the ruling thereon, are not a part of the record...