Konicz v. Orient Insurance

Opinion by

Rice, P. J.,

In concluding his charge the learned trial judge instructed the jury as follows: “ In these two cases we direct you to render verdicts for the plaintiff in the sum of one thousand dollars in each. case, subject to the questions of law set forth in the points submitted to us by the defendants’ counsel, which questions of law we reserve. The points submitted by the defendants’ counsel we need not read now, because they are directed to be filed and made part of the record in the case. There are one or two disputed questions of fact in the cases, but they are of such a nature or character that they only bear on the questions of law which we will have to determine, and it is not necessary to submit those disputed questions of fact to you.” There were seven points submitted by the defendant, the last of which was “ that upon the whole case the verdict should be for the defendant.” The court said': “We reserve the questions of law raised by the above points.” To which charge of -the court and “ the rulings therein ” the plaintiff excepted and prayed that a bill of exceptions be signed and sealed, which, accordingly, was done. It is thus seen that the plaintiff did not forfeit or waive his right to object to the form of the reservation by his failure to except. He is in a position to raise that question and to call upon us to decide it, as he does most vigorously.

The subject of the reservation of questions of law has received thorough consideration by the Supreme Court in two recent cases. Mr. Justice Fell, who delivered the-opinion in each case, said that the decisions have not always furnished a clear guide on the subject, but that the apparent lack of harmony in some of the decisions disappears in a great measure, if not wholly, when attention is given to the substance instead of the form of the reservation. With the evident intention of removing all doubts as to the practice, he restated in clear language the rules established by the cases: “ 1. The question must be one of law purely unmixed with any question of fact. 2. It must be one which rules the case' so completely that its decision will warrant a binding instruction. 3. The question must be clearly stated, and the facts on which it arises must be admitted on the record or found by the jury, in order that exceptions may be taken and a review had. A reservation which violates any of these rules is incurably bad, and a judgment entei’ed in pursuance of it will be reversed whether an exception has been taken or not. But in considering whether a reservation is good, this court will look at its substance notwithstanding the form in which it has been made; and if no exception has been taken to the form, it will be conclusively presumed that the parties acquiesced in the statement of facts as they appear in the point, and assented to the reservation as made: ” Casey v. Penna. Asphalt Paving Co., 198 Pa. 348 ; Mayne v. Fidelity & Deposit Co., 198 Pa. 490. See also Ginther v. Yorkville Boro., 3 Pa. Superior Ct. 403, Koons v. McNamee, 6 Pa. Superior Ct. 445, and Zinnell v. Bergdoll 9 Pa. Superior Ct. 522. It only remains to apply the rules above stated to the several points submitted by the defendant. As they will undoubtedly appear in the report of the case it is unnecessary to quote them here.

As to the first point we remark, that, even if correct both in law and in fact, judgment in favor of the defendant would not necessarily follow the affirmance of the legal proposition. The question raised by the point was not one which ruled the case; therefore the second rule above stated applies. The same is true of the sixth point. "

The second point contains a statement, not of facts, but of what is. claimed to be the “ uncontradicted testimony ” of witnesses called by the defendant. As the plaintiff excepted to the reservation (for so we must construe his exception) it cannot be said that he admitted the truth of the testimony adduced by the defendant. With still less plausibility can it be asserted that he admitted that the point contained a correct statement of all the facts pertinent to the question. But aside from this consideration, it is not alleged that there was any “false swearing by the insured,” and the learned judge in his opinion entering judgment properly held that whether the plaintiff was guilty of such fraud as rendered the policy void was not, under all the evidence or even upon the facts stated in the point, a pure question of law, which it was his duty to decide in favor of the defendant. Even assuming the credibility of the defendant’s witnesses who gave the testimony alluded to in the point, the point is based on the assumption that the intent of the insured and the effect of his acts are immaterial in determining the question of fraud, or, if not based on that assumption, involved the drawing of inferences of fact from their testimony, which is the province of the jury. We think that in either view it could not be affirmed without qualification. If the paper referred to in the point had been the statement which the plaintiff was required by the policy to furnish, a different and more difficult question would be involved. As the court did not enter judgment upon this point it seems unnecessary to discuss it further.

The third point presented a proposition of law which received thorough and exhaustive consideration in the opinion delivered by the court below, with the result that judgment was entered for the defendant non obstante veredicto. The primary question for our determination is, not whether the abstract legal question was correctly decided, but whether it was one which ruled the case on trial so completely that its decision warranted a binding instruction in the defendant’s favor. The question is clearly stated, but, unfortunately, the facts upon which it arose were not stated in the point, nor otherwise admitted on the record, nor found by the jury. Therefore, we are constrained to hold that under the second and third rules above stated the reservation was bad. The same is true of the fourth and fifth points.

By all the authorities the question “ whether under all the evidence” or “upon the whole testimony,” or “upon the whole case,” the plaintiff is entitled to recover cannot be reserved because it involves the drawing of inferences of fact from the evidence which is the province of the juiy. This is all that need be said concerning the seventh and last point, especially as the court did not base its judgment thereon.

The judgment is reversed anda venire facias de novo awarded.