Germania Fire Ins. Co. v. Kitchens

GARDNER, J. In response to the request in writing filed in this cause by the defendant the court made a special' finding of the facts, as prescribed by section 5360 of the Code of 1907. Much of the argument of counsel for appellant seems to be directed to a discussion of the facts as appear from the testimony of witnesses set out in the bill of exceptions, and seems to question the correctness of the finding of facts by the court from the evidence introduced on the trial. [1] Under the uniform rulings of this court the consideration is confined to the question whether the facts as found by the court are sufficient to support the judgment, and this court may not go behind the facts as found by the court to see whether or not from the evidence introduced it correctly found the facts. Chandler & Jones v. Crossland, 126 Ala. 176, 28 South. 420; Ala. & Ga. Lbr. Co. v. Tisdale, 139 Ala. 250, 36 South. 618; Garrett v. Mayfield Woolen Mills, 153 Ala. 602, 44 South. 1026; Pell City Mfg. Co. v. Cosper, 172 Ala. 532, 55 South. 214; Betancourt v. Eberlin, 71 Ala. 461. It is insisted, however, that the finding of the facts by the court was insufficient, as not being responsive to some issues in the case, and that therefore, under the authority of Betancourt v. Eberlin, supra, the finding made is insufficient to support the judgment, and must work a reversal of the cause. The argument is based upon the reasoning that the defense interposed was that the policy of insurance was not in force at the time of the occurrence of the loss, and that the policy had been canceled by the agent previous thereto, of which cancellation the plaintiff had had notice, and, with knowledge of the facts, had accepted the return premium before the fire occurred, and further that the finding of facts should have specifically stated that the policy of insurance had been canceled. [2] It is not insisted by counsel for appellant that the action of the agent in entering the cancellation on the policy on January 6, 1916, was binding upon the plaintiff, or was effective for that purpose, hut that it became so only after notice was given to the plaintiff and his agreement thereto or acquiescence therein. As to whether or not this formal cancellation became, on account of such agreement or acquiescence on the part of plaintiff, binding! and effective, was a question of fact for the determination of the court from all the evidence in the case. That the policy was canceled, so far as the indorsement thereon by tiie agent was concerned, was without dispute, but as to whether or not the same became effective' by subsequent events was a question of fact. The entire question therefore for the determination of the court was whether or not this policy of insurance, which under its terms was not to expire until February 29, 1916, was in force and effect on January 13, 1916, at the time of the loss by fire. The finding of facts specifically states “that said insurance policy was in full force and effect on January 13, 1916,” and this finding necessarily embraces the conclusion and finding *676 that the attempted cancellation of the policy by the agent was entirely abortive and without any effect, and was without the consent or approval of the plaintiff. This was but another way of stating the negation of the cancellation of the policy. .,[3] We are aware of the rule that the special finding of facts should show affirmatively a finding of every fact in issue essential to the right of recovery, as held in Betancourt v. Eberlin, supra; but we are of the opinion that the finding here in question was a sufficient compliance with the rule there announced. 38 Cyc. 1984. The few remaining questions argued by counsel for appellant relate to the ruling of the court on some objections’ to questions asked the witness Willis by the defendant. The evidence of this witness has been very carefully examined,, and discloses that the witness was permitted to testify to all the facts concerning this transaction, together with the substance of conversations had at the time of the renewal of the note, and giving plaintiff information in regard to the cancellation of the policy. We are of the opinion the questions discussed need no separate treatment here. Suffice it to say that the same have been given very careful consideration in consultation, and we find nothing in any of them of prejudicial error to the defendant. The judgment of the court below will be affirmed. Affirmed. ANDERSON, C. X, and McCLELLAN and SAYI-tE, JJ., concur.