McCormick v. National City Bank of Waco

• Decision Date: 16 January 1906
• Docket Number: 1,446.
• Citation: 142 F. 132
• Parties: McCORMICK v. NATIONAL CITY BANK OF WACO.
• Court: U.S. Court of Appeals — Fifth Circuit

142 F. 132

McCORMICK v. NATIONAL CITY BANK OF WACO.

No. 1,446.

United States Court of Appeals, Fifth Circuit.

January 16, 1906

J. E Boynton and Chas. A. Boynton, for plaintiff in error.

J. B Scarborough, J. N. Gallagher, H. N. Atkins, and A. C Prendergast, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM.

After evidence taken in this case each party requested the court to instruct the jury to return a verdict in his favor, thereby both affirming that there was no disputed question of fact which could operate to deflect or control the question of law, and necessarily requesting that the court find the facts. The parties are therefore concluded by the findings made by the court upon which the resulting construction of law was given, and this court in reviewing the action of the Circuit Court is limited to the consideration of the correctness of the finding on the law, and must affirm if there be any evidence in support thereof. Beuttel v Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654.

We find ample evidence in the record to support the conclusion of the court, and the judgment of the Circuit Court is therefore affirmed.

SHELBY Circuit Judge (concurring). I concur in the judgment of affirmance, because I find no reversible error in the record; but I am not of opinion that the plaintiff in error lost any right in this court by merely requesting the trial court to direct a verdict in his favor.

The doctrine announced in Beuttell v. Magone, 157 U.S 154, 15 Sup.Ct. 566, 39 L.Ed. 654, should not be extended to cases in which there are disputed questions of fact, nor to cases in which the parties ask other instructions in the event the peremptory instructions asked by them, respectively, are not given. In Beuttell v. Magone, supra, neither party asked to submit to the jury any disputed question of fact, and the court said: 'There was obviously no disputed question of fact. ' In a case where there is such conflict in the evidence as to require it to be submitted to the jury, there is no reason why, and the Supreme Court does not hold that, a party may not ask for a peremptory instruction in his favor without depriving himself, if the court decides he is not entitled to it, of the right to have the jury pass on the controverted issue of fact in the case. Although both parties may ask the court to direct the verdict, if there is conflict in the evidence or conflicting inferences to be drawn from it, the court may properly submit it to the jury. Farnum v. Davidson, 3 Cush. 232; Lake Superior Iron Co. v. Drexel, 90 N.Y. 87. It is not an unusual practice to ask for peremptory instructions, and there is no valid reason why such a request should deprive a party of the constitutional right to have controverted questions of fact tried by jury. The fact that the other party afterwards makes the same request does not affect the question in cases where there is a conflict in the evidence, nor in cases where the party prays for other instructions if his request for a peremptory instruction...