Paul v. Delaware, L. & W.R. Co.

• Decision Date: 24 June 1904
• Citation: 130 F. 951
• Parties: PAUL v. DELAWARE, L. & W.R. CO.
• Court: U.S. District Court — Eastern District of New York

130 F. 951

PAUL v. DELAWARE, L. & W.R. CO.

United States Circuit Court, E.D. New York.

June 24, 1904

Augustus Van Wyck, for plaintiff.

Walter W. Ross and W. S. McGuire (Henry D. Hotchkiss and Mr Guthrie, of counsel), for defendant.

THOMAS District Judge.

The trial is before the court without a jury, pursuant to the statute (section 649, Rev. St. U.S. (U.S. Comp. St.1901, p 525)); the court has concluded that the plaintiff should recover; the defendant asks the court to make special findings of fact, upon the ground that it cannot otherwise review the questions of law raised on the trial (other than those relating to the admission of evidence). The section provides:

'The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.'

While section 700 (U.S. Comp. St. 1901, p. 570) provides:

'The rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.'

Section 1011 (U.S. Comp. St. 1901, p. 715) provides:

'There shall be no reversal in the Supreme Court or in a Circuit Court upon a writ of error, * * * for any error of fact.'

This section is applicable to the Circuit Court of Appeals. Hall v. Houghton, etc., Co., 60 F. 350, 8 C.C.A. 661.

The trial court is not required to make special findings (Insurance Co. v. Folsom, 18 Wall. 249, 21 L.Ed. 827), and in the present case it is sufficient that the parties be placed in the same position as if a general verdict had been found by a jury. The defendant could not have had the jury pass specifically upon the 25 proposed findings of fact now tendered by it, to which the plaintiff suggests abundant addition. These, in many instances, are not requests for ultimate facts within the meaning of the term. Wilson v. Merchants' Loan & Trust Co., 183 U.S. 126, 22 Sup.Ct. 55, 46 L.Ed. 113; Mercantile Trust Co. v. Wood, 60 F. 348, 8 C.C.A. 685. The defendant could, in case of a verdict by a jury, have reviewed the rulings as to the admission of evidence. It can do the same at present. In case of a trial by a jury, it could have reviewed the refusal of the court to direct a verdict for the defendant. It should be enabled to review its motion to dismiss the complaint, or for judgment for the defendant, made after the evidence was closed. It urges that it must have the proposed special findings of fact to enable it to raise before the appellate court the ruling of the court upon such motion. It has been held that a judgment upon a nonsuit of an action tried before a jury may be reviewed upon proper exception by the Supreme Court. Central Transportation Co. v. Pullman's Palace Car Co., 139 U.S. 24, 11 Sup.Ct. 478, 35 L.Ed. 55. In analogy, it would seem that a dismissal of the complaint at any stage of a trial before the court should be similarly reviewable. If so, a refusal to dismiss at the close of the evidence should be reviewable on the part of the defendant. The only difficulty is that when the trial is before a jury the practice requires a motion to direct a verdict, while in the case of a trial before the court the motion takes the form of a motion to dismiss, or to order judgment for the defendant. The distinction is technical, and would most unjustly deprive the defendant of an opportunity to review. The motions are equivalents, except so far as a motion to dismiss is similar in its effect to a motion for nonsuit. Section 700 (U.S. Comp. St. 1901, p. 570) provides in terms for a review of the 'rulings of the court in the progress of the trial. ' The refusal to dismiss, or to order judgment for the defendant, is a ruling in the progress of the trial. The trial is not ended. It is in progress. The refusal of the court is a ruling. The motion of the common one, entitled to be made on the trial of every action in the courts of the state of New York or the federal courts held therein. An examination of the authorities will show that the present defendant may raise the questions of law, upon which it rests its denial of liability, either by motion to dismiss, or by submitting declarations of law and asking findings thereon. It may at this time avail itself of both methods. What may or may not be reviewed, and the manner of raising questions sought to be reviewed, fall under general rules. The first four rules given below were in terms stated in the opinion in Norris v. Jackson, 9 Wall. 125, 127, 19 L.Ed. 608. The rules are sustained by other decisions cited under them, and certain general propositions are added with references.

1. If the verdict be a general verdict, only such rulings of the court in the progress of the trial can be reviewed as are presented by bill of exceptions, or as may arise on the pleadings. Norris v. Jackson, supra; Insurance Co. v. Folsom, 18 Wall. 237, 248, 21 L.Ed. 827; Grayson v. Lynch, 163 U.S. 472, 16 Sup.Ct. 1064, 41 L.Ed. 230.

Searcy County v. Thompson, 66 F. 100, 101, 13 C.C.A. 357, 358. Judge Thayer's logical statement shows what should fall within the term 'rulings of the court.' The learned judge says:

'Between that conclusion, that rulings upon the admission and rejection of evidence alone may be reviewed, and the conclusion to which I have arrived, that any ruling of the court made during the progress of the trial, and before the finding is filed, is reviewable in the appellate court if it would have been subject to review had the trial been before a jury, there seems to me to be no secure middle ground. If we depart from both these rules, it will be difficult, and I think impossible, to draw the line by any rule so that the courts and the gentlemen of the bar may know what requests for declarations of law are, and what are not, reviewable in this court. For this reason, and because the statute provides that the general finding of the court shall have the same effect as the verdict of a jury, and that the rulings of the court in the progress of the trial of a cause may be reviewed upon a writ of error, and because I think both the earlier and later decisions of the Supreme Court point to this result, I have been forced to the conclusion that the true test for determining whether or not a ruling of the trial court may be reviewed when a jury has been waived is whether it would have been subject to review if the trial had been by jury. As the statute declares the general finding shall have the same effect as the verdict of a jury, I think it ought not to be given any greater or other effect. Trust Co. v. Wood, 8 C.C.A. 658, 60 F. 346, 348; Clement v. Insurance Co., supra (7 Blatchf. 51, Fed. Cas. No. 2,882); St. Louis v. W. U. Tel. Co. supra (148 U.S. 92, 13 Sup.Ct. 485, 37 L.Ed. 3801. Tested by this rule, the application of the plaintiff for a declaration of law 'that, upon the whole case, the finding of the court should be for the plaintiff for the amount of the warrants sued on, without deduction of any kind,' presented the question whether or not, if all the evidence adduced by the defendant was admitted to be true, the plaintiff was entitled to a judgment for the amount he claimed. This application had the same effect that a request to the court to instruct the jury peremptorily to find for the plaintiff for the amount of the warrants would have had if the trial had been before a jury. Nor does it appear to me that there is any greater difficulty in reviewing and deciding this question in a case tried before the court than there would have been if the trial had been by jury. There is in this record a bill of exceptions which declares that it contains all the evidence. It is not necessary to pass upon the weight or sufficiency of the evidence to determine this question of law. It is to be decided, like the question which arises upon a request for a preemptory instruction to the jury, on the concession that the evidence for the defendant must prevail on all disputed material issues. Indeed, this application is, both in form and in substance, substantially the same as that which Mr. Justice Brewer declared, in St. Louis v. W. U. Tel Co., supra, properly presented a question for the consideration of the Supreme Court.'

In Cooper v. Omohundro, 19 Wall. 65, 22 L.Ed. 47, it was said:

''Rulings of the court in the progress of the trial' does not include the general finding of the Circuit Court, nor the conclusions * * * embodied in such general finding.'

See, also, Martinton v. Fairbanks, 112 U.S. 673, 5 Sup.Ct. 321, 28 L.Ed. 862.

2. In such cases a bill of exceptions cannot be used to bring up the whole testimony for review, any more than on a trial by jury. Norris v. Jackson, supra; Insurance Co. v. Folsom, 18 Wall. 250, 21 L.Ed. 827; Martinton v. Fairbanks, 112 U.S. 672, 5 Sup.Ct. 321, 28 L.Ed. 862.

3. If the parties desire a review of the law involved in the case, they must get the court to find a special verdict, which raises the legal propositions. Norris v. Jackson, supra (see cases cited next below). Or they must present to the court their propositions or declarations of law, and require the court to rule on them. Norris v. Jackson, supra; Martinton v. Fairbanks, 112 U.S. 670, 672, 5 Sup.Ct. 321, 28 L.Ed. 862; St. Louis v. W. U. Tel. Co., 148 U.S. 92, 96, 13 Sup.Ct. 485, 487, 37 L.Ed. 380, where Mr. Justice Brewer said:

'It is enough to say that in this case there was, as appears by the bill of exceptions, an application at the close of the trial for a declaration of law that the plaintiff was entitled to judgment for the sum claimed, which instruction was

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