Philadelphia Cas. Co. v. Fechheimer

• Decision Date: 02 February 1915
• Docket Number: 2470.
• Citation: 220 F. 401
• Parties: PHILADELPHIA CASUALTY CO. v. FECHHEIMER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

220 F. 401

PHILADELPHIA CASUALTY CO. v. FECHHEIMER et al.

No. 2470.

United States Court of Appeals, Sixth Circuit.

February 2, 1915

On Application for Rehearing, April 16, 1915. [Copyrighted Material Omitted]

J. L Kohl, of Cincinnati, Ohio, for plaintiff in error.

Alfred Mack, of Cincinnati, Ohio, for defendants in error.

Before WARRINGTON and DENISON, Circuit Judges, and TUTTLE, District judge.

TUTTLE District Judge.

This is an action in assumpsit, brought by defendants in error hereinafter called plaintiffs, against plaintiff in error, hereinafter called defendant, to recover on two so-called credit indemnity bonds, which are in their nature and effect policies of insurance against loss on commercial accounts; said bonds having been issued by defendant to plaintiffs in return for premiums paid. The cause was one for trial by jury, but by stipulation in writing, duly signed by both parties hereto, in accordance with the provisions of section 649, United States Revised Statutes, a jury was waived and said cause submitted for trial by the District Judge; it being provided in such stipulation that the court was 'to make special findings of fact and conclusions of law. ' This stipulation also contained the following clause:

'By consent and stipulation of the parties this cause is hereby referred to B. R. Cowen as special master herein, said special master being appointed by the consent and at the request of the parties and on account of his familiarity with accounts; said special master to take the evidence to be submitted by the parties hereto and report the same, together with his special findings of fact and conclusions of law upon the matters in controversy herein.'

The master named having died, another was, by order of the court, appointed in his place and directed to take testimony and report in accordance with the directions referred to. In pursuance thereof, the so-called special master, hereinafter called referee, took the testimony and thereafter filed a lengthy report, containing what he termed special findings of fact and conclusions of law, in which he found in favor of the plaintiffs on some items and in favor of the defendant on others, and as a result of his several findings found that plaintiffs were entitled to a judgment against defendant in the sum of $7,048.90, with certain interest.

The evidence, objections, rulings, and exceptions before the referee, together with his findings of fact and conclusions of law, were transcribed and returned as a part of his report. The report of the referee also states that the parties stipulated that the exceptions taken to the rulings of the referee on the admission and exclusion of evidence, as shown by the report, 'be deemed as and stand as exceptions to said report, the same as if said exceptions were specifically filed with the clerk of the court. ' On the same day that the referee's report was filed with the clerk of the court, each of the parties filed exceptions to the report. We are concerned only with the exceptions filed by the defendant, which were 19 in number. The first of these alleged errors on the part of the referee 'in the admission of evidence offered by the plaintiffs to which the defendant excepted' before the referee. This exception did not point out the particular evidence which was objectionable, or assign any reason for the objection, relying upon the stipulation reported by the referee to justify the failure to point out the particular rulings which it was desired to call to the attention of the court, and relying upon the objections made before the referee as a basis for the exceptions to be considered by the court. The second objection to the report of the referee alleged error on the part of the referee in the same indefinite manner 'in exclusion of evidence offered by defendant to which defendant excepted' before the referee. The third exception to the referee's report was that he denied the motion for judgment in favor of defendant at close of plaintiffs' proofs; the fourth, that he overruled the same motion at close of all the proofs; the fifth, the denial of a new trial by the referee. The other 14 exceptions alleged error on the part of the referee in specific findings of fact and conclusions of law.

Upon the hearing by the court of the exceptions filed by the respective parties, the exceptions of the defendant, like those of the plaintiffs, were overruled as a whole. To this the defendant excepted generally. Judgment was thereupon rendered against the defendant for the amount found by the referee to be due to the plaintiffs, to which the defendant excepted, without stating any objections, or assigning any reason for the exception. The bill of exceptions, which sets forth the report of the referee and the exceptions filed thereto, says that the court did 'overrule said exceptions and confirm said report, * * * and enter judgment in favor of the plaintiffs, to all of which the defendant then and there excepted. ' The order entering judgment recites the hearing before the court on exceptions to the report of the referee, and says that:

'The court, being advised, does overrule the exceptions of plaintiffs to said report, * * * to which plaintiffs except, and does overrule the exceptions of defendant to said report, * * * to which defendant excepts.'

The order then proceeds in the usual form of judgment for plaintiffs, and closes with this sentence:

'To which finding and judgment the plaintiffs except, and to which findings and judgment the defendant excepts.'

The record shows no exceptions taken by the defendant to any of the rulings or proceedings of the court, except this general exception to the court's order in overruling the 19 exceptions as a whole, and the exception 'to entering judgment.' The defendant sued out this writ of error, and assigns 20 errors. The first 19 respectively allege that the court erred in overruling the 19 exceptions to the referee's report, and the twentieth that:

'The court erred in entering judgment for the plaintiffs, to which the defendant then and there excepted.'

At the threshold of our inquiry we are confronted with the question whether the record presents any error which we can properly review. Section 700 of the Revised Statutes is as follows:

'When an issue of fact in any civil cause in a Circuit Court is tried and determined by the court without the intervention of a jury, according to section 649, 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.'

This provision now applies to District Courts. Eastern Oil Co. v. Holcomb, 212 F. 126, 128 C.C.A. 642; Nashville Interurban Railway v. Barnum, 212 F. 634, 129 C.C.A. 170.

'Under these statutes and the established construction given them by the courts, the power of this court is limited to the determination of the question whether errors were committed by the trial court in its rulings during the progress of the trial, and whether the special findings made by the court were sufficient to support the judgment. ' Sayward v. Dexter, Horton & Co., 72 F. 758, at page 769, 19 C.C.A. 176, at page 186; Churchill v. Buck, 102 F. 38, 42 C.C.A. 148; Mason v. Smith, 191 F. 502, 112 C.C.A. 146 (Sixth Circuit).

It is clear that the general exception mentioned is too indefinite to present any question for review by an appellate court. Felton v. Newport, 92 F. 470, 34 C.C.A. 470 (Sixth Circuit).

This was settled by the decision in Boogher v. New York Life Insurance Co., 103 U.S. 90, 26 L.Ed. 310. In that case, by stipulation following the Missouri state practice, there was a waiver of jury in the lower court, reference to referee, testimony taken by the referee, rulings by the referee on admissibility of evidence, exceptions taken to such rulings, findings of fact and law by the referee, all of which were reported to the court, and to which the defendant filed 22 separate exceptions, including exceptions to the rulings of the referee on the admission of testimony and to his findings of fact and conclusions of law. These 22 exceptions were heard and overruled as a whole by the court, and defendant excepted generally. Judgment was entered in favor of plaintiff on the report of the referee. A bill of exceptions was taken. The writ assigned separate errors, based on the confirmation of the referee's report by the court. The proceedings and practice in that case, so far as affect the point decided, are so identical with those here considered that to recite them is but to repeat the situation here described. Mr. Chief Justice Waite, speaking for the Supreme Court in that case, in a unanimous opinion affirming the court below, says (103 U.S.at page 98, 26 L.Ed. 310):

'The whole case, therefore, turns on the exception to the overruling of the objections to the report. This exception is a general one, to the single order overruling the 22 specific objections as a whole. We have uniformly held that 'if a series of propositions is embodied in instructions (to the jury), and the instructions are excepted to in a mass, if any one of the propositions is correct, the exception must be overruled.' Johnston v. Jones, 1 Black (66 U.S.) 209 (17 L.Ed. 117); Rogers v. The Marshal, 1 Wall. 644 (17 L.Ed. 714); Harvey v. Tyler, 2 Wall. 328 (17 L.Ed. 871); Lincoln v. Claflin, 7 Wall. 132 (19 L.Ed. 106); Beaver v. Taylor, 93 U.S. 46 (23 L.Ed. 797). The same rule should be applied to cases of this kind. Here are, so to speak, a series of propositions in

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