Davis v. Daugherty

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The dispute between the parties is mainly upon the question whether the product of the plaintiff in error was a fermented liquor, within the meaning of the statute. That was a question of fact not covered by the agreed statement, but expressly left open for proof. The propositions submitted to the court, to be found or declared as matters of law, were framed substantially in the terms of the agreed statement of facts, and do not say whether the liquor in question was a fermented product, or whether fermentation occurred in the process of production. They were not propositions of law purely. They implied a determination by the court of the very question of fact which it was stipulated should be the subject of proof. If, therefore, it were a permissible practice to require a finding upon propositions of law in cases where the trial is without a jury,- — on which question see the opinion in Distilling & Cattle-Feeding Co. v. Gottschalk Co., 13 C. C. A. 618, 66 Fed. 609, 24 U. S. App. 638, — (hese propositions were not of that character. It is settled by numerous decisions, some of which are referred to in Distilling & Cattle-Feeding Co. v. Gottschalk Co., that no question of fact involved in a general finding by the court in a case at law, when a jury has been waived, can be the subject of review. In such case “the losing party has no redress on error except for the wrongful admission or rejection of evidence.” Dirst v. Morris, 14 Wall. 484, 491, 20 L. Ed. 722. It may be urged that there is and can be no dispute about the facts of this case, but whether or not that is so is itself a question of fact upon which the court may not be required to enter. “The burden of the statute,” said the supreme court in Lehnen v. Dickson, 148 U. S. 71, 77, 13 Sup. Ct. 481, 37 L. Ed. 373, “is not thrown off simply because the witnesses do not contradict each other, and there is no coniiict in the testimony. It may be an easy thing in one case for this court, when the testimony consists simply of deeds, mortgages, or other written instruments, to make a satisfactory finding of the facts; and in another it may be difficult when the testimony is largely in parol and the witnesses directly contradict each other. But the rule of the statute is of universal application. It is not relaxed in one case because of the ease in determining the facts, or rigorously enforced in another because of the difficulty in such determination.” In the same case, after a review of earlier decisions on the subject, the court said: “But still, as was ruled in Flanders v. Tweed, 9 Wall. 425, 19 L. Ed. 678, this court is disposed to hold parties to a reasonably strict conformity to the provisions of the statute prescribing the proceedings in the case of a trial by the court without a jury; and no mere recital of the testimony, whether in the opinion of the court or in a bill of exceptions, can be deemed a special finding of facts within its scope.” The question whether the article manufactured or produced by plaintiff in error was a fermented liquor, within the meaning of the statute, being, in part at least, one of fact, dependent upon evidence [772] outside of-the agreed statement of facts, this court,\in the absence of a motion below for judgment upon the entire evidence as a matter of'law,;; will not enter upon the inquiry. A party having-the burden of proof may insist upon , a .finding in his favor as a matter of 'law if “the evidence in his favor is adequate, unimpeached, and without conflict or uncertainty.” World’s Columbian Exposition Co. v. Republic of France, 38 C. C. A. 483, 96 Fed. 687; Machine Co. v. Barratt, 40 C. C. A. 571, 100 Fed. 590. But, to raise such a question as one of law, the exception or motion in the trial court must be so specific to that effect as to distinguish it from a question of the weight of evidence. Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862. In the World’s Columbian Exposition Case a proposition was submitted which, though not expressed with entire accuracy, this court treated as sufficient to present the question as one of law whether the evidence adduced was sufficient to sustain the finding. The propositions submitted here cannot be fairly so treated. They were intended for no such purpose, and, if treated as' propositions of law, which, according to the practice indicated in Ex parte Morris, 9 Wall. 605, 19 L. Ed. 799, the court might properly be asked to adopt or reject, the refusal of the court to pass upon them was unimportant, because they are limited by their terms to the stipulated facts, and do not cover the whole case. They do not embrace the one disputed fact of the case; and, if the court had adopted them, and yet had found on the evidence— as presumably it did — that the article in question was a fermented liquor, manufactured by the plaintiff in error “from malt, wholly or in part, ór from any substitute therefor,” the judgment rendered would be right. If the practice of submitting questions of law to the court when trial by jury has been waived were conceded to be permissible, it would still be true that the adoption or rejection of a proposition which is not determinative of the case or of a controlling issue in it could not constitute available error. The judgment below is affirmed.