Pennsylvania Casualty Co. v. Whiteway

GILBERT, Circuit Judge (after stating the facts as above). [1, 2] The burden of the argument of counsel for the plaintiff in error is that [784] tbe evidence overwhelmingly established the fact that Irwin was not a steel man, as he was classified in the policy, and as alleged in the complaint, but was a common laborer, and it ignores the effect of the judgment of the court below, which must be taken as conclusively establishing the contrary, for there was no motion in the court below for a ruling or judgment on that question at the close of the trial, nor does any assignment.of error challenge the finding of the court on the evidence. When an action at law is tried before a jury, their verdict is not subject to review unless there is absence of substantial evidence to sustain it, and even then it is not reviewable unless a request has been made for a peremptory instruction, and an exception taken to the ruling of the court. When a jury is waived, and the cause is tried by the court, the general finding of the court for one or the other of the parties stands as the verdict of a jury, and may not be"reviewed in an appellate court unless the lack of evidence to sustain the finding has been suggested by a request for a ruling thereon, or a motion for judgment, or some motion to present to the court the issue of law so involved, before the close of the trial. Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 Sup. Ct. 55, 46 L. Ed. 113; Boardman v. Toffey, 117 U. S. 271, 6 Sup. Ct. 734, 29 L. Ed. 898; Barnard v. Randle, 110 Fed. 906, 49 C. C. A. 177; United States Fidelity & G. Co. v. Board of Com’rs, 145 Fed. 144, 76 C. C. A. 114; Felker v. First Nat. Bank, 196 Fed. 200, 116 C. C. A. 32; Bell v. Union Pac. R. Co., 194 Fed. 366, 114 C. C. A. 326. There was no such request or motion made in the case in hand, and the judgment of the court below is therefore conclusive of the facts determined thereby. [3] We find no error in the assignment that the court permitted one of the defendants in error to answer the following question: “Q. These payments you made, $90.10, and this further payment of §34.80, what employés’ compensation was included in thesa payments?” To which' the witness answered: “The premiums was paid upon the entire pay roll, everybody enumerated in the different schedules. And I would like to state here that when these' schedules were prepared; they were prepared by the company and not by Wbiteway 6 Lee. Mr. Sheppard, the- agent of the company, when he came soliciting the work, he made these schedules, and I asked him, I said, ‘Now, -Mr. Sheppard, you state brick masons as a schedule. What does that include? Does that include simply the brick men who are laying brick, or does it include everybody connected with that branch of the work — the hod carriers, the mortar mixers, and the scaffold handlers?’ And he said, ‘Yes, it includes everybody.’ ” To the answer an exception was taken on tbe ground that it might tend to vary the written contract. At the time when the $90.10 were paid, that sum was estimated to be the.amount payable as the premium, but the policy reserved to the insurer the right to inspect the pay rolls and to demand further premiums in accordance therewith. The policy covered (section 4) “all such injuries sustained at the locations described in the declarations, by all employés of the assured, whose entire compensation is included in the estimated compensation as shown in statement three of the declarations. * * * All such injuries [785] sustained by drivers and their helpers, lumpers, stevedores, loaders, material handlers, timekeepers, pay clerks, and messengers, whose entire compensation is included in the estimated compensation” upon which the premium for this policy is computed, wherever they may be in the service of the assured in connection with the business operations described in the declarations,” and one of the conditions of the policy was that “the premium is based upon the entire compensation earned during the policy period by all employes of the assured, not herein ■ elsewhere specifically excluded, engaged in connection with the operations described in and covered by this policy,” and statement S of the declarations states that the enumeration in the declarations includes all persons in the service of the assured, in connection with the operations, to whom compensation of any nature is paid or allowed, excepting the members of the firm, drivers, and clerks, for the purpose of computing the premium on the policy. It was proved without objection that after the policy was issued, the auditor of the plaintiff in error inspected the pay roll of the assured, and upon the total amount thereof demanded and received the additional payment of $34.80. The evidence to which the exception was taken was not open to objection on the ground that it tended to vary the written contract. Instead of contradicting or altering the terms of the written contract, it was in harmony therewith, as showing that the intention of the parties was to indemnify the assured against all losses by accident in the operation in which they were then engaged, and that the pay roll was made the basis for the premium rate, and that the occupations of the different workmen enumerated in the declarations were intended by both parties to the insurance contract to include all employés directly engaged in the work in hand. Fidelity & Casualty Co. v. Phœnix Mfg. Co., 100 Fed. 604, 40 C. C. A. 614. [4] Error is assigned to the rulings of the court in sustaining objections to the question propounded to the expert witnesses Hammond and Paradise, as follows: “Where a firm of contractors was engaged in the construction of a certain building, a four-story brick building in Boise, and had in their employ a man, a machinist by trade, the nature of whose work consisted in moving steel, shoveling dirt, handling brick, wheeling concrete and in doing most everything there was to do around the building, and whose wages were $2.50 per day, would you say that this man was working at that time for these contractors in the capacity of a steel man or in the capacity of .a common laborer?” But the record shows that the court did not exclude the testimony so offered, for Hammond answered, “I would class that kind of a man as a general utility man,” and Paradise had already answered that he could not say what a steel man was in the building trade, but that he could answer about a structural steel man, and that a common laborer is a man “who works around a building as a general utility man, and does all kinds of menial labor.” After he had so answered, there was no error in the refusal of the court to sustain an objection to the hypothetical question above quoted. There are other assignments of error; but, as they are not discussed [786] in the brief of the plaintiff in error, and we find no merit in them, we deem it unnecessary to discuss them here. The’ judgment is affirmed.