Thornton v. Enterprise Insurance

The opinion of the court was delivered, by Sharswood, J. Upon the facts found by the referee there can be no douht that the judgment below was right. He reported that the Enterprise Insurance Company distinctly refused to insure Mr. Ooolbaugh the owner, and that the policy issued to the mortgagee was intended to insure simply the mortgage-debt. On its face it was “ to indemnify C. Earle Ellis, mortgagee, for all damage or loss (not exceeding the sum or sums hereinafter recited), which may hereafter happen by reason or means of fire to the property herein described.” It might have presented a different question had it been as in Insurance Co. v. Updegraff, 9 Harris'513, “to [239] make good to the assured all suck loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property described.” Here was a contract specifically to indemnify C. Earle Ellis as mortgagee. It would seem, therefore, upon its face, apart from the parol evidence, upon which the referee found the intention of the parties, to have been a contract by which the mortgage was specifically insured, and in such case by the express provision of the policy, upon payment by the insurance company of the amount of the mortgage-debt, they are entitled to require an assignment of such mortgage. We are not, however, to be understood as affirming the principle stated by the referee, that naming the assured as “ mortgagee,” raises any presumption that it is the mortgage-debt alone which is specifically insured where the policy is to pay or make good any loss or damage by fire to the property insured. This disposes of the 7th, 9th, 10th, 11th and 12th assignments. The remaining assignments relate exclusively to the findings of fact by the referee. It is necessary, therefore, to consider the question, whether it is competent for this court to examine these findings as upon a motion for a new trial under the Acts of Assembly which authorize references of this character in Luzerne county. These acts are: “ An act authorizing the reference of civil actions in the county of Bradford,” passed April 6th 1869, Pamph. L. 72o; “An act to extend to the counties of Wayne and Luzerne the provisions of an act authorizing the reference of civil actions in the county of Bradford,” passed March 23d 1870, Pamph. L. 540; and “ A supplement to an act to extend to the counties of Wayne and Luzerne the provisions of an act authorizing the reference of civil actions in the county of Bradford,” &c., passed June 22d 1871, Pamph. L. 1363. In Butterfield v. Lathrop (antea p. 225), decided at Philadelphia, March 30th 1872, we held that under the Act of 1869 the report of the referee on the facts was to be considered in this court as the special verdict of a jury; and if sufficient as such a verdict, the jurisdiction of this court as a court of error was only to determine whether the judgment was right. Under that act the Court of Common Pleas had no power whatever to re-examine and pass upon the report of the referee. The Act of 1871 does afford a remedy in this respect. It provides that exceptions may be filed in the Court of Common Pleas “ to findings of fact or law, and to the admission or rejection of testimony,” and it is made the duty of that court “ to hear and decide upon all exceptions so filed ‘ to the report of the referee, reserving to the court, however, the power of committing the report again to the referee should justice require it.’ ” Thus far the proceeding is conformed to the course of the common law upon a special verdict. The court may award a new trial for any reasons of fact or law; or they may reverse the conclusion of [240] the referee and enter a different judgment upon the verdict, if they are of opinion that the law so requires. What follows relates to the removal of the cause to this court. After enacting that either party may take exceptions to the judgment of the court, and that upon request the court shall reduce their opinion to writing and file the same, it proceeds: “ Upon the judgment of the court a writ of error may be taken to the Supreme Court by either party, 'which shall be heard by the Supreme Court as writs of error in other cases, and they shall enter the proper judgment, or direct a new trial.” It is the settled distinction between writs of error and appeals, that the former bring before the superior court questions of law only — the latter, both questions of fact and law. Very clearly, therefore, when it is provided that the cause shall be heard in this court as writs of error in other cases, it was not intended to confer the discretionary authority of reviewing the evidence, and re-examining the decision below as to the facts. It is supposed that the power “to direct a new trial” implies as much, — but there are of course many cases in which a court of errors awards a venire faeias de novo, which is in effect to direct a new trial — as whenever an error has been committed in the admission or rejection of evidence appearing on the record by bills of exception, the sealing of which by the referee is expressly required by the Act of 1871. We say nothing when, upon the whole evidence filed of record, there is what would be equivalent to no evidence to submit to a jury. That has not been and cannot be pretended in this case. It is our duty to mould the course of proceeding under the special acts providing for the reference of civil cases, so as most nearly to conform to the common law, and to be regulated by principles and rules most familiar to all. Judgment affirmed.