Kleinschmit v. Farmers Mut. Hail Ins. Ass'n
| Decision Date | 04 March 1939 |
| Docket Number | No. 11261.,11261. |
| Citation | 101 F.2d 987 |
| Parties | KLEINSCHMIT v. FARMERS MUT. HAIL INS. ASS'N OF IOWA. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Maxwell V. Beghtol, of Lincoln, Neb. (Glen H. Foe and J. Lee Rankin, both of Lincoln, Neb., on the brief), for appellant.
Lyle C. Holland, of Lincoln, Neb. (Guy C. Chambers, Roland A. Locke, and T. J. Kiesselbach, all of Lincoln, Neb., on the brief), for appellee.
Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.
The appellee issued its policy of automobile insurance to one John Gorham covering his Chevrolet Coach for a period of one year from May 15, 1935, to May 15, 1936. By the terms of the policy Gorham was insured against legal liability to other persons for personal injuries in the amount of $5000. On October 29, 1937, the appellant recovered judgment against Gorham for $9000 for damages for personal injuries sustained by her in Omaha, Nebraska, on December 10, 1935, as a result of the negligent driving by Gorham of the car described in the policy. An execution on that judgment was returned unsatisfied and the present suit was thereafter brought by the appellant to recover of the appellee insurance association.
The petition is in two counts. In the first count the appellant sought to recover $5000 and expenses, the amount limited in the policy, and in the second count she sought to recover damages for $4000, the excess of her judgment above the limitation of the policy, for the bad faith and negligent manner in which it is alleged the appellee handled the defense of Gorham in the action against him. At the trial the court directed a verdict for the appellee on count 2 of the petition and the jury returned a verdict against the appellant on the first count. Thereupon a judgment was entered against the appellant for costs from which judgment she appeals.
Both causes of action alleged in the petition are predicated upon the following provision in the policy: "in case an execution against the assured on final judgment is returned unsatisfied * * * then the judgment creditor shall have a right of action against the Association to the same extent the assured would have had the assured paid such final judgment."
We have no hesitation in affirming the judgment on count 1 of the petition. As to this count the appellant made no motion for judgment, requested no instructions and took no exceptions to the instructions given by the court. The assignments of error are too general under our rules to raise any question calling for decision by this court. This is a law action; and it is elementary that only errors of the court below to which exception was duly taken at the time of trial can be reviewed on appeal. "The general rule is that a question of law which was not presented to nor passed upon by the trial court cannot be raised on appeal." United States v. Bollman, 8 Cir., 81 F.2d 1009, 1010; Trapp v. Metropolitan Life Insurance Co., 8 Cir., 70 F.2d 976, 981; Virtue v. Creamery Package Mfg. Co., 227 U.S. 8, 38, 39, 33 S.Ct. 202, 57 L.Ed. 393; Cox v. United States, 8 Cir., 96 F.2d 41; Arkansas Oak Flooring Co. v. Pritzen, 8 Cir., 87 F.2d 474; Hecht v. Alfaro, 9 Cir., 10 F.2d 464.
But one exception was taken by appellant to any ruling of the trial court relating to count 1 of the petition. One of the defenses was that Gorham had failed to cooperate with appellee in the trial of the case in October, 1937, and had failed to attend the trial, as required by the policy. By way of reply the appellant pleaded excuses for Gorham, one of which was that he had not received a certain letter requesting him to come to the trial and stating the date of the trial. At the conclusion of the evidence the court announced that he would limit the issue presented to the jury on count 1 to the sole question of whether or not John Gorham had or had not received that letter, to which the attorney for appellant excepted. The only other excuses pleaded were without merit in law or were unsupported by any substantial evidence. The court, therefore, did not err in so limiting the issue. Besides, neither the exception taken nor the assignment of error points out wherein the court erred, and our attention is not directed to any other issue which it is claimed should have been submitted to the jury or that is to any degree supported by substantial evidence. Upon the record thus presented no question is raised for our consideration. Harris v. Biszkowicz, 8 Cir., 100 F.2d 854.
The appeal on the second count of the petition...
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