U.S. Supreme Court AETNA INS. CO. v. KENNEDY, TO USE OF BOGASH, 301 U.S. 389 (1937)

[Page 301 U.S. 389, 393]

by jury; whether, by reversing the judgments for defendants and directing judgments for plaintiff, the Circuit Court of Appeals deprived defendants of that right; and, whether the evidence was sufficient to sustain a finding that Kennedy consented to the cancellation of the policies.

1. The Circuit Court of Appeals erred in holding that, by their requests for peremptory instructions, the parties took the cases from the jury and applied to the judge for decision of the issues of fact as well as of law. The established rule is that where plaintiff and defendant respectively request peremptory instructions, and do nothing more, they thereby assume the facts to be undisputed and in effect submit to the trial judge the determination of the inferences properly to be drawn from them. And upon review a finding of fact by the trial court under such circumstances must stand if the record discloses substantial evidence to support it. [Footnote 1] But, as the right of jury trial is fundamental, courts indulge every reasonable presumption against waiver. [Footnote 2] And unquestionably the parties respectively may request a peremptory instruction and, upon refusal of the court to direct a verdict, have submitted to the jury all issues as to which opposing inferences may be drawn from the evidence. [Footnote 3] Here neither the plaintiff nor the defendants applied for directed verdicts without more. With their requests for peremptory instructions they submitted other requests that reason

[Page 301 U.S. 389, 394]

ably may be held to amount to applications that, if a peremptory instruction is not given, the cases be submitted to the jury. Indeed, we find nothing in the record to support the view that the parties waived their right of trial by jury or authorized the judge to decide any issue of fact.

2. The verdicts were taken unconditionally. Plaintiff moved for new trials, but not for judgments. The court denied her motions and entered judgments for defendants. The Circuit Court of Appeals had jurisdiction to reverse and remand for new trials but was without power, consistently with the Seventh Amendment, to direct the trial court to give judgments for plaintiff. And, as before submission of the case to the jury the trial court denied plaintiff's motion for directed verdicts without reserving any question of law, neither that court nor the Circuit Court of Appeals had jurisdiction to find or adjudge that notwithstanding the verdicts plaintiff was entitled to recover. Slocum v. New York Life Ins. Co., 228 U.S. 364, 387, 33 S.Ct. 523, Ann.Cas.1914D, 1029. Our decision in Baltimore & C. Line v. Redman, , 55 S.Ct. 890, is not applicable.

There is another reason why the direction of judgments for plaintiff cannot stand. Under the Conformity Act, 28 U.S.C. 724 (28 U.S.C.A. 724 ), federal courts follow the practice authorized by state statutes if there be nothing in them that is incongruous with their organization or their fundamental procedure or in conflict with congressional enactment. [Footnote 4] The applicable Pennsylvania statute provides that whenever, upon the trial of any cause, a point requiresting binding instructions has been reserved or de-

[Page 301 U.S. 389, 395]

clined, the party presenting the point may move the court for judgment non obstante veredicto; whereupon it shall be the duty of the court, if it does not grant a new trial, to enter such judgment as should have been entered upon the evidence. From the judgment thus entered, either party may appeal to the supreme or superior court which shall review the action of the court below, and enter such judgment as shall be warranted by the evidence taken in that court. [Footnote 5] As plaintiff failed to make appropriate motions in accordance with Pennsylvania practice, the District Court did not err in failing to give plaintiff judgment notwithstanding the verdicts. 6 The Conformity Act does not extend to the Circuit Court of Appeals. [Footnote 7] In the absence of motions for judgments notwithstanding the verdict in the lower court, the appellate court was without authority to direct entry of judgments for plaintiff.

3. Was the evidence sufficient to sustain a finding that, as to Kennedy's interest, the insurance terminated before the fire? As the period for which the policies were written had not expired when the loss occurred, defendants had the burden to show that the insurance was not in force at that time. Kennedy was not merely a designated beneficiary to whom was payable, as specified, insurance obtained by the bank. The mortgagee clause created a contract of insurance between him and the company and effected separate insurance upon his interest. [Footnote 8]

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Defendants do not claim that they gave Kennedy any notice of intention to cancel his insurance or that the policies had been surrendered by the bank in accordance with their terms or otherwise.

The evidence shows: After bids were received at foreclosure sale, the bank's attorney asked Kennedy to take over the policies and, upon his refusal so to do or to pay the bank anything on account of unearned premiums, informed him that the bank intended to surrender the policies. He expressed no objection, authorization, or consent. There is no evidence that before the fire Kennedy had been notified by the bank or by the defendants, or knew, that the bank had surrendered the policies or received return premiums or that defendants attempted to cancel his insurance. The evidence is not enough to support a finding that he intended the building to become or remain uninsured or authorized the bank to act for him in respect of his insurance, or that he consented to, acquiesced in, or ratified the surrender or cancellation of the policies. Defendants do not claim that they canceled Kennedy's insurance by giving him notice in accordance with the policies. The Circuit Court of Appeals rightly reversed the judgments of the District Court, but erroneously directed judgments for plaintiff.

The judgments of the Circuit Court of Appeals are accordingly modified by eliminating the directions to enter judgments for plaintiff and by substituting orders for new trials. It is so ordered.

Modified. Footnotes

Footnote 1 Beutell v. Magone, 157 U.S. 154, 157, 15 S.Ct. 566; Sena v. America Turquoise Co., 220 U.S. 497, 501, 31 S.Ct. 488; American Nat'l Bank of Nashville v. Miller, 229 U.S. 517, 520, 33 S. Ct. 883; Williams v. Vreeland, 250 U.S. 295, 298, 39 S.Ct. 438, 3 A.L.R. 1038; Oppenheimer v. Harriman Nat'l Bank & Trust Co., , 57 S.Ct. 719, 81 L.Ed. --.

Footnote 2 Hodges v. Easton, 106 U.S. 408, 412, 1 S.Ct. 307; Slocum v. New York Life Ins. Co., 228 U.S. 364, 385, 33 S.Ct. 523, Ann.Cas.1914D, 1029; Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 263, 70 A.L.R. 263; Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 95 A.L.R. 1150; Foust v. Munson S. S. Line, 299 U.S. 77, 84, 57 S.Ct. 90.

Footnote 3 Empire State Cattle Co. v. Atchison, etc., Ry. Co., 210 U.S. 1, 8, 28 S.Ct. 607, 15 Ann.Cas. 70; Sampliner v. Motion Picture Patents Co., 254 U.S. 233, 239, 41 S.Ct. 79, 80.

Footnote 4 Henderson v. Louisville, etc., Railroad, 123 U.S. 61, 64, 8 S.Ct. 60; Amy v. Watertown, No. 1., 130 U.S. 301, 304, 9 S.Ct. 530; Barrett v. Virginian Ry. Co., 250 U.S. 473, 475, 39 S.Ct. 540; Baltimore & C. Line v. Redman, 295 U.S. 654, 658, 55 S. Ct. 890, 892. Cf. Nudd v. Burrows, , 441; Indianapolis, etc., R.R. Co. v. Horst, 93 U.S. 291, 300.

Footnote 5 Act of April 22, 1905, P.L. 286, 1, as amended by Act April 9, 1925, P.L. 221, 1, 12 Purdon's Penna. Statutes Annotated, 681. Quoted in Slocum v. New York Life Ins. Co., 228 U.S. 364, 375, 376 S., 33 S.Ct. 523, Ann.Cas.1914D, 1029.

Footnote 6 West v. Manatawny Mut. F. & S. Ins. Co., 277 Pa. 102, 120 A. 763; Cox v. Roehler, 316 Pa. 417, 419, 420, 175 A. 417.

Footnote 7 Camp v. Gress, 250 U.S. 308, 318, 39 S.Ct. 478.

Footnote 8 Syndicate Ins. Co. v. Bohn (C.C.A.) 65 F. 165, 178, 27 L.R.A. 614; Insurance Co. of North America v. International Trust Co. (C.C.A.) 71 F. 88, 91; Newark Fire Ins. Co. v. Truck (C.C.A.) 6 F.(2d) 533, 535, 43 A.L.R. 496; Westchester Fire Ins. Co. v. Norfolk Building & Loan Ass'n (C.C.A.) 14 F.(2d) 524, 526; Queen Ins. Co. v. People's Union Sav. Bank (C.C.A.) 50 F.(2d) 63, 64; Kimberley & Carpenter v. Fireman's Fund Ins. Co. (C.C.A.) 78 F.(2d) 62, 64; 4 Joyce, Law of Insurance (2d Ed.) 2795, p. 4776; Richards, Law of Insurance (4th Ed.) 279, p. 478; Vance on Insurance (2d Ed.) 170, p. 657.