White v. German Alliance Ins. Co. of New York

• Decision Date: 15 June 1900
• Docket Number: 304.
• Citation: 103 F. 260
• Parties: WHITE et al. v. GERMAN ALLIANCE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — First Circuit

103 F. 260

WHITE et al. v. GERMAN ALLIANCE INS. CO. OF NEW YORK.

No. 304.

United States Court of Appeals, First Circuit.

June 15, 1900

Wm. G Roelker and Frank W. Tillinghast, for plaintiffs in error.

E. S Mansfield (Phillip Mansfield, on the brief), for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

COLT Circuit Judge.

In this case a jury trial was waived, and the court below made a general finding for the defendant. 93 F. 161. Where a case is tried by the court without a jury, the bill of exceptions brings up nothing for revision, except what it would have done had there been a jury trial. Where the finding is general, the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of the court in the progress of the trial. The rulings of the court in the progress of the trial do not include the general finding of the court, nor the conclusions of the court embodied in such general finding. These propositions are laid down in Insurance Co. v Folsom, 18 Wall. 237, 248, 250, 253, 254, 21 L.Ed. 827 and Cooper v. Omohundro, 19 Wall. 65, 69, 22 L.Ed. 47. The construction given by the supreme court to the statute relating to jury trial waived cases (Rev. St. Secs. 649, 700) confines the questions open for review on this particular writ of error to the exceptions taken in the court below to the admission of certain evidence.

This suit was brought to recover on a policy of fire insurance issued by the defendant upon mill property owned by the plaintiffs. The case turned on the question of cancellation. It appeared that one Tillinghast, an insurance broker, was authorized by the plaintiffs to procure $40,000 additional insurance on their mill property, and that he placed this insurance in several companies,-- the defendant being one,-- and sent the policies to the plaintiffs. Within a few days thereafter Tillinghast was notified by the agent of the companies that they did not care no longer continue the risk and a return of the policies was requested. Thereupon he communicated this to the plaintiffs by letter, and proceeded to replace the insurance in other companies. The material issue of fact in the court below was whether Tillinghast was authorized by the plaintiffs to cancel the original policies and substitute new policies. Although the policy contained the usual provision respecting cancellation by the company, or at the request of the insured, by giving...