Pennsylvania Casualty Co. v. Whiteway

• Decision Date: 02 February 1914
• Docket Number: 2297.
• Citation: 210 F. 782
• Parties: PENNSYLVANIA CASUALTY CO. v. WHITEWAY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

210 F. 782

PENNSYLVANIA CASUALTY CO. v. WHITEWAY et al.

No. 2297.

United States Court of Appeals, Ninth Circuit.

February 2, 1914

The plaintiff in error executed to the defendants in error a policy of accident insurance, whereby it agreed to indemnify the assured against loss by reason of liability for damages on account of bodily injuries to their employes while conducting certain building operations, and to defend, in the name and on the behalf of the assured, all suits that might be brought at any time on account of such injuries, and to pay all costs and expenses connected therewith, and the judgment, within limitations expressed in the policy.While the policy was in force, one J. C. Irwin, an employe of the defendants in error, was accidentally injured, and he thereafter brought an action against the defendants in error to recover therefor.The assured requested the plaintiff in error to defend the action in their name, and on their behalf, and the plaintiff in error refused to do so.The action resulted in a verdict in favor of Irwin in the sum of $7,500.The defendants in error, in satisfaction of the judgment, paid the sum of $5,000.Thereafter they commenced the present action to recover the said sum, together with their attorney's fees and costs incurred in the prior action.

The pivotal question in the court below was whether Irwin was a steel man, and covered by the terms of the policy under that classification.The complaint alleged that he was a steel man.The answer denied the allegation, and alleged that he was a common laborer.The policy insured the employes under a schedule naming masons, bricklayers, carpenters, plasterers painters, steel men, electric wiring and sheet metal workers.There was no express mention of common laborers in the policy.Evidence was taken upon the question whether or not Irwin was a common laborer or a steelman.He testified that he was working at steelwork or anything they had to do 'steelwork, brickwork, concrete, or anything they told me to do. ' One of the defendants in error testified that Irwin was on the pay roll under the schedule of steel men.He was paid at $2.50 a day.There was testimony, on the other hand, that the work at which he was engaged was not that of a steel man, but that of a common laborer.A jury trial was waived.The court made no special findings, but upon consideration of the testimony entered a judgment for the defendants in error for the sum of $5,000 and the attorney's fees and costs of the prior action.

Martin & Cameron, of Boise, Idaho, for plaintiff in error.

Alfred A. Fraser, of Boise, Idaho, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge(after stating the facts as above).

The burden of the argument of counsel for the plaintiff in error is that the evidence overwhelmingly established the fact that Irwin was not a steel man, as he was classified in the policy, and as alleged in the complaint, but was a common laborer, and it ignores the effect of the judgment of the court below, which must be taken as conclusively establishing the contrary, for there was no motion in the court below for a ruling or judgment on that question at the close of the trial, nor does any assignment of error challenge the finding of the court on the evidence.When an action at law is tried before a jury their verdict is not subject to review unless there is absence of substantial evidence to sustain it, and even then it is not reviewable unless a request has been made for a peremptory instruction, and an exception taken to the ruling of the court.When a jury is waived, and the cause is tried by the court, the general finding of the court for one or the other of the parties stands as the verdict of a jury, and may not be reviewed in an appellate court unless the lack of evidence to sustain the finding has been suggested by a request for a ruling thereon, or a motion for judgment, or some motion to present to the court the issue of law so involved, before the close of the trial.Martinton v Fairbanks,112 U.S. 670, 5 Sup.Ct. 321, 28 L.Ed. 862;Wilson v. Merchants' Loan & Trust Co.,183 U.S. 121, 22 Sup.Ct. 55, 46 L.Ed. 113;Boardman v. Toffey,117 U.S. 271, 6 Sup.Ct. 734, 29 L.Ed. 898;Barnard v. Randle,110 F. 906, 49 C.C.A. 177;United States Fidelity & G. Co. v. Board of Com'rs,145 F. 144, 76 C.C.A. 114;Felker v. First...