Boode v. Wolfe ( 1967 )

PER CURIAM.

This appeal, quite fittingly, has been described by plaintiff’s counsel as presenting a case of “unique and unusual character.” Briefly, the plaintiff obtained a judgment below for personal injuries sustained while riding as a passenger in an automobile which overturned while being driven by her employer, the defendant. Although plaintiff appealed from the whole of the judgment, we are informed by her brief and by oral argument of her counsel that the only relief sought is for this court to correct certain special findings of fact and conclusions of law made by the trial court in an interlocutory decision on the question of defendant’s liability. The special findings of fact complained of were to the effect that the accident occurred at a time when plaintiff was occupying the automobile in the discharge of her duties as an employee of the defendant. The basis for the complaint is that the trial courl in making that determination went outside the scope of the issues tendered by the pleadings and it is forthrightly conceded that such findings, if left undisturbed, may endanger, under an exclusionary provision of defendant’s insurance policy, plaintiff’s right of recovery from defendant’s insurer of the amount fixed by the judgment. In essence, as we view it, we are asked simply to expunge from the judgment that portion of which plaintiff complains without in any way disturbing the decretal portion of the judgment.

Quite frankly, we are at a loss to understand just how this might properly be accomplished. The appeal presents a single claim and an indivisible judgment. Thfe only support for the judgment is the special findings of fact of which plaintiff complains. Should we take away that support as plaintiff suggests, it would place plaintiff in the position of holding and attempting to enforce a judgment unsustained by any facts found by the trier of the facts, unless perchance this court radically departed from its role as an appellate court and proceeded initially to determine the facts, if any, that might support the judgment on some other theory, such as plaintiff’s claim that defendant was transporting plaintiff as a passenger for compensation and on a joint enterprise.

The only basis suggested for pursuing that course is the provision contained in Rule 52(b), W.R.C.P., to the effect that when special findings of fact are made by the trial court in an action tried to the court without a jury, such findings may be challenged on appeal for lack of support by sufficient evidence whether or not the aggrieved party raised the question below by an appropriate motion. Apparently counsel is under some misapprehension as to the clear intent and purpose of the provision. It is not a conduit whereby an appeal may be taken for the sole purpose of expunging from the record or amending alleged erroneous special findings of fact and leaving the judgment stand, but on the contrary simply affords this court the authority to review such findings without the necessity of raising such matters below. Actually the rule confers upon the trial court and not this court, should plaintiff’s contentions have merit, the right to accomplish the very thing that plaintiff hoped to accomplish here. Plaintiff having failed to take that step and having also failed to direct our attention to other cogent authority whereby we could solve her dilemma by doing anything more than reversing the judgment and granting a new trial, we are constrained to hold that there is nothing before us to review and the judgment below must be affirmed.

Affirmed.