Where a life insurance policy plainly provides for payment of
the stipulated premium within a specified period of grace after the
due day and as plainly excludes any idea of partial payments
distributed between the premium dates, the insured gains nothing by
giving an agent a portion of the premium in the absence of
authority given him by the company to accept it.
One dealing with an agent knowing that his authority is limited
and that his acts transcend the limits cannot hold the
principal.
Where there is a method for extending payment of premiums which
is known to the insured, who also knows that the agent has no power
to extend on any other terms, the insured takes nothing by an
attempt to extend in a different manner in which an element of
substance in the prescribed method is omitted.
The temporary retention by an insurance company of a partial
payment of a premium subject to the direction of the insured
held, under the circumstances of this case, not to
constitute a waiver of full and timely payment.
The federal courts cannot follow state statutes or practice in
opposition to a provision of the federal Constitution.
While the Seventh Amendment is not applicable to proceedings in
the courts of the several states, it is controlling in the federal
courts, and, although under the practice of the state a judgment
may be entered on the evidence
non obstante veredicto, the
federal court may not do so but must order a new trial where the
evidence does not sustain the verdict.
The Constitution, as originally adopted, conferred upon this
Court appellate jurisdiction both as to law and fact subject to
exceptions and regulations prescribed by Congress, but this, as
well as the jurisdiction of the other federal courts, was
subsequently restricted by the Seventh Amendment so far as actions
at law are concerned.
The power of a federal court to reexamine issues of fact tried
by a jury
Page 228 U. S. 365
must under the Seventh Amendment he tested by the rules of the
common law.
Under the rules of the common law, an appellate court may set
aside a verdict for error of law in the proceedings and order a new
trial, but it may not itself determine the issues of fact.
Under the rules of the common law, when the court sets aside a
verdict, there arises the same right of trial by jury as in the
first instance.
In the trial by jury, the right to which is secured by the
Seventh Amendment, both the court and the jury are essential
factors.
Whether the facts are difficult or easy of ascertainment is
immaterial, the guaranty of the Seventh Amendment operates to
require the issues to be settled by the verdict of a jury unless
the right thereto be waived.
The rules of the common law in respect to demurrers to evidence
and nonsuits furnish no warrant for a federal court's setting aside
a verdict and rendering judgment on the evidence without a new
trial.
Nothing in
Central Transportation Co. v. Pullman's Palace
Car Co., 139 U. S. 24, or
Coughran v. Bigelow, 164 U. S. 301,
tends to show that a federal court has power to reexamine,
otherwise than according to the rules of the common law, issues of
fact which have been determined by the verdict of a jury.
The terms of the Seventh Amendment and the circumstances of its
adoption show that one of its purposes was to require adherence to
the rule of the common law that a verdict cannot be disturbed for
an error of law occurring on the trial without awarding a new
trial.
The right to a new trial on the vacation of a favorable verdict
in a case of this nature is a matter of substance, and not of
form.
In this case, the circuit court of appeals properly reversed a
judgment on a general verdict for the plaintiff on the ground that
the defendant's request for a directed verdict should have been
granted by the trial court; but, under the Seventh Amendment, the
only course was to order a new trial, and as the judgment of the
circuit court of appeals directing a judgment to be entered for
defendant notwithstanding the verdict for the plaintiff violated
that amendment, the action of the Circuit Court of Appeals is
modified by substituting for such direction a direction for a new
trial.
177 F. 842 reversed.
The facts, which involve the construction of a life insurance
policy and whether it had expired by reason of nonpayment of
premium and also the power of the circuit
Page 228 U. S. 366
court of appeals under the Seventh Amendment to reverse a
judgment entered on a verdict of a jury and direct judgment for the
other party, in conformity with a state practice, are stated in the
opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action in the Circuit Court for the Western District
of Pennsylvania on a policy of insurance on the life of Alexander
W. Slocum. The policy was for $20,000, was an ordinary life
contract on the twenty-year accumulation plan, was payable to the
executors, administrators, or assigns of the insured, became
effective November 27, 1899, and called for the payment of a
premium of $579.60 on each anniversary of that date. It made
provision for interest-bearing loans by the company to the insured
on terms stated, and also contained the following stipulations:
"
This policy is automatically nonforfeitable from date of
issue, as follows:"
"First. If any premium is not fully paid, and if there is no
indebtedness to the company, this policy will be indorsed for the
amount of paid-up insurance specified in the table on the second
page hereof, on written request therefor within six months from the
date to which premiums were duly paid. If no such request is made,
the insurance will automatically continue from said date for
$20,000 for the term specified in said table, and no longer."
"Second. If any premium or interest is not duly paid,
Page 228 U. S. 367
and if there is an indebtedness to the company, this policy will
be indorsed for such amount of paid-up insurance as any excess of
the reserve held by the company over such indebtedness will
purchase according to the company's present published table of
single premiums, on written request therefor within six months from
the date to which premiums were duly paid. If no such request for
paid-up insurance is made, the net amount that would have been
payable as a death claim on the date to which premiums were duly
paid will automatically continue as term insurance from such date,
for such time as said excess of the reserve will purchase according
to the Company's present published table of single premiums for
term insurance, and no longer."
"
Grace in payment of premiums. -- A grace of one month,
during which the policy remains in full force, will be allowed in
payment of all premiums except the first, subject to an interest
charge at the rate of five percent per annum."
"
General provisions. -- (1) Only the president, a
vice-president, the actuary, or the secretary has power in behalf
of the company to make or modify this or any contract of insurance,
or to extend the time for paying any premium, and the company shall
not be bound by any promise or representation heretofore or
hereafter given by any person other than the above. (2) Premiums
are due and payable at the Home Office, unless otherwise agreed in
writing, but may be paid to an agent producing receipts signed by
one of the above-named officers and countersigned by the agent. If
any premium is not paid on or before the day when due, or within
the month of grace, the liability of the company shall be only as
hereinbefore provided for such case."
The insured died December 31, 1907, and the action was brought
by his executrix. In the plaintiff's statement of claim, recovery
was sought upon two grounds: first, that
Page 228 U. S. 368
all premiums prior to the one of November 27, 1907, had been
duly paid; that the premium of that date had been adequately
adjusted on December 27, 1907, the last day of grace, by an
agreement between the insured's wife, acting in his behalf, and a
duly authorized agent of the company, whereby the wife made, and
the agent accepted, a payment of $264.20, which was to carry the
policy along until May 27, 1908, and whereby the agent was to
accept from the insured a "blue note" for $434, payable May 27,
1908, as covering the balance of the premium, and that the company
had adopted and confirmed the acts of its agent in that regard;
second, that, independently of the adjustment of that premium, the
company, on November 27, 1907, held a reserve on the policy
sufficiently exceeding any indebtedness of the insured to the
company to continue the policy in force, under the latter part of
the automatic nonforfeiture provision before quoted, beyond the
date of his death, and that in consequence of this the policy was
in full force when he died. The company entered a plea of
nonassumpsit, and also filed an affidavit of defense, denying the
alleged adjustment of the premium of November 27, 1907, as also the
existence of any reserve on the policy in excess of the
indebtedness of the insured to the company, and otherwise
adequately setting up the defenses presently to be noticed. The
issues so presented were tried before the court and a jury. At the
conclusion of all the evidence, the defendant requested the court
to direct a verdict in its favor, which the court declined to do,
and the company excepted. A general verdict for the plaintiff was
returned, assessing the recovery at $18,224.02, which sum was
ascertained by deducting from the amount of the policy a loan of
$2,360 from the company to the insured and $434, the amount of the
intended blue note, and then allowing interest on the remainder
from the date when proofs of death were submitted to the company to
the date of the verdict.
Page 228 U. S. 369
The company moved for judgment in its favor on the evidence,
notwithstanding the verdict, but the motion was denied, the company
excepting, and judgment was entered for the plaintiff. A bill of
exceptions, embodying all the evidence with the rulings and
exceptions was seasonably presented and allowed, and the case was
taken on writ of error to the circuit court of appeals, where error
was assigned on the refusal to direct a verdict for the defendant
and on the denial of the motion for judgment notwithstanding the
verdict. That court reversed the judgment, with a direction to
sustain the latter motion on the ground that the evidence did not
legally admit of the conclusion that the policy was a subsisting
contract of insurance at the date of the insured's death. 177 F.
842. A writ of certiorari then brought the case here.
The questions now to be considered are, first, whether the
circuit court of appeals erred in reversing the judgment, and,
second, if it did not err in that regard, whether it should have
awarded a new trial instead of directing a judgment for the
defendant on the evidence notwithstanding the verdict for the
plaintiff.
As a preliminary to the consideration of the first question, it
may be well to repeat what this Court often has said, that, when,
on the trial of the issues of fact in an action at law before a
federal court and a jury, the evidence, with all the inferences
that justifiably could be drawn from it, does not constitute a
sufficient basis for a verdict for the plaintiff or the defendant,
as the case may be, so that such a verdict, if returned, would have
to be set aside, the court may and should direct a verdict for the
other party.
Randall v. Baltimore & Ohio Railroad Co.,
109 U. S. 478;
Delaware &c. Railroad Co. v. Converse, 139 U.
S. 469;
Southern Pacific Co. v. Pool,
160 U. S. 438;
Patton v. Texas & Pacific Railway Co., 179 U.
S. 658. The recognized mode of invoking the application
of this rule is by preferring at the conclusion of the evidence, a
request for
Page 228 U. S. 370
a directed verdict, and the ruling on such a request is subject
to reexamination and approval or disapproval on writ of error in
like circumstances and in like manner as are other rulings in
matter of law during the course of the trial.
The case made by the evidence, in that view of it which is most
favorable to the plaintiff, was as follows:
The plaintiff's right to recover if the policy was a subsisting
contract of insurance at the date of the insured's death, and the
latter's compliance with the terms and conditions of the policy
other than the payment of the premium of November 27, 1907, were
conceded. The month of grace allowed for the payment of that
premium expired four days before the insured died. He had been
seasonably and regularly notified of the time when the premium
would fall due and of the consequences which would follow a default
in its payment. But it had not been paid or adjusted, unless a
payment or adjustment was effected by the negotiations and
transactions presently to be recited.
When the premium fell due, the insured was indebted to the
company in the sum of $2,360 for money theretofore borrowed under
the policy, and that sum represented the full amount of the reserve
on the policy. If there had been no loan, the automatic
nonforfeiture provision before quoted and the reserve would have
entitled the insured, if he so elected, to a paid-up insurance of
$4,000 for the full period of his life, and in the absence of such
an election would have operated to continue the policy in force for
the full sum of $20,000 for a period of seven years and seven
months, without payment of further premiums. But, as the insured
had borrowed the full amount of the reserve, there was no excess
applicable to a continuance of the insurance in either mode. Thus,
the policy expired according to its own terms before the death of
the insured, unless a payment
Page 228 U. S. 371
or adjustment of the premium of November 27, 1907, was effected
in the manner already suggested.
While the policy provided that only the president, a
vice-president, the actuary, or the secretary of the company had
power in its behalf to modify the terms of that or any other
policy, or to extend the time for paying any premium, the company
had qualified this provision by adopting a plan of adjusting the
payment of premiums whereby its agents were authorized to accept
from an insured less than the full amount in cash if accompanied by
a "blue note" for the balance. Notes of this type were distributed
by the company, and contained stipulations upon which its consent
to the adjustment was conditioned, and to which the insured would
necessarily assent by signing the note. The agent at Pittsburgh, to
whom the earlier premiums on this policy were paid, was authorized
to make adjustments conformably to this plan, but, like other
agents, he could not accept a partial payment or grant an extension
of time for the balance unless the blue note was given, nor, so far
as appeared, had anything been done which was calculated to
engender the belief that he could do so. He repeatedly had accepted
payment in cash of part of a premium and extended the time for
paying the remainder, but this was done only where the policy
holder had given a note of the prescribed type, embodying the terms
on which the company's assent depended. The practice in this regard
was known to the insured and his wife, for they had secured three
or four such adjustments in connection with this policy before
1907, the insured being required in each instance to execute such a
note.
On the day before the premium of November 27, 1907, fell due,
the wife of the insured, acting in his behalf, called at the
agent's office and made inquiry respecting the easiest method of
adjusting the premium, explaining at the time that the insured was
short of ready money. The
Page 228 U. S. 372
agent suggested two possible methods, and outlined them upon
memoranda which she took away to show to the insured. The first
method has no bearing here. "By the other method," as is said in
the brief for the plaintiff,
"it was represented that, if she [meaning the insured] paid
$264.20 in cash and gave a blue-note contract for $434, payable in
six months, the insurance would be continued for a period of six
months, and if the note was paid when due, the insurance would be
continued for the remainder of the year."
The aggregate of these sums represented the premium on the
policy and the interest on the loan, settlement of both being
essential to a continuance of the policy. On the last day of grace,
December 27, 1907, the wife returned to the agent's office with a
check for $264.20, payable to her order, and by her indorsed to the
company. Of what then occurred, she testified:
"I gave him [the agent] the check for $264.20, and he handed me
the blue note and another paper in an envelope, and he said that
the note must be signed, and I must return it. I told him Mr.
Slocum was ill, and it might be several days before I could send it
back, and he said that would be all right, 'Mail it as soon as you
can.' She took the blue note home with her, intending to get it
signed, but found the insured too ill to give it attention. He died
four days later without having signed it. The agent did not give a
receipt for the $264.20, nor was one requested. In 1905, that
year's premium was adjusted by a partial payment in cash and the
giving of a blue note for the balance, and when the adjustment was
completed, the agent gave a single receipt for both the cash and
the note, and in the receipt recited the terms upon which the
adjustment was made, as was done in the note."
In 1906, the insured had notified the company that his post
office address was Houston, Texas, and that fact carried matters
pertaining to his policy to the company's St. Louis agency. It was
from that agency that he
Page 228 U. S. 373
received the notice calling for the payment of the premium of
November 27, 1907. On January 6, 1908, the agent at St. Louis, not
knowing of the insured's death, wrote to him, acknowledging receipt
of the check for $264.20 handed to the agent at Pittsburgh (the
letter inaccurately stated the amount), and saying: "Pending the
return by you of the note contract, properly signed, your
remittance is held subject to your order." The check was then
deposited in a St. Louis bank to the credit of the company, and the
latter carried the amount in a suspense account awaiting directions
from the insured.
Subsequently the plaintiff tendered to the company the amount
for which the blue note was to have been given, and the company
tendered to the plaintiff the amount of the check, both tenders
being refused.
The material portions of the agreement set forth in the proposed
blue note, which was to have been signed by the insured and
returned to the company's agent, is as follows:
"This note is accepted by said company at the request of the
maker, together with one hundred forty-five and 60-100 dollars
[
Footnote 1] in cash, on the
following express agreement: that, although no part of the premium
due on the 27th day of November, 1907, under policy No. 3,011, 158,
issued by said company on the life of A. W. Slocum, has been paid,
the insurance thereunder shall be continued in force until midnight
of the due date of said note; that, if this note is paid on or
before the date it becomes due, such payment, together with said
cash, will then be accepted by said company as payment of said
premium, and all rights under said policy shall thereupon be the
same as if said premium had been paid when due; that, if this note
is not paid on or before the day it becomes due, it shall thereupon
automatically cease to be a claim against the maker, and
Page 228 U. S. 374
said company shall retain said cash as part compensation for the
rights and privileges hereby granted, and all rights under said
policy shall be the same as if said cash had not been paid nor this
agreement made."
The circuit court of appeals was of opinion that the evidence
conclusively established that there was no excess of reserve on the
policy applicable to a continuance of the insurance after the
premium of November 27, 1907, fell due, and we fully concur in that
conclusion. Indeed, its correctness is practically conceded by
counsel for the plaintiff. That court also was of opinion that the
evidence afforded no basis for a finding that that premium was
either paid or adjusted. The accuracy of that conclusion is
challenged, but we are constrained to give it our approval for the
following reasons:
1. The policy plainly provided for the payment of the stipulated
premium annually within the month of grace following the due day,
and as plainly excluded any idea that payment could be made in
installments distributed through the year. Concededly, there was no
payment of the whole of the premium in question, and as a partial
payment was not within the contemplation of the policy, nothing was
gained by handing to the agent the check for $264.20, unless what
he did in that connection operated as a waiver of full and timely
payment.
2. One who deals with an agent, knowing that he is clothed with
a circumscribed authority and that his act transcends his powers,
cannot hold his principal, and this is true whether the agent is a
general or a special one, for a principal may limit the authority
of one as well as of the other.
3. Under the terms of the policy, as qualified by the practice
of the company, the agent was without authority to waive full and
timely payment of the premium, save as he could adjust the payment
conformably to the blue-note plan. His authority turned upon the
giving of the note,
Page 228 U. S. 375
which was a matter of real substance, and not of mere from, as
is shown by the terms of the note, before quoted.
See White v.
New York Life Insurance Co., 200 Mass. 510. Without it, he
could neither accept a partial payment nor extend the time for
paying the balance. No note was given, and so no waiver resulted
from his acts. The insured and his wife could not reasonably have
understood it otherwise, for they knew the terms of the policy and
were familiar with the qualifying practice.
4. There was no evidence that the company itself treated the
check as a partial payment or otherwise ratified the agent's acts.
Indeed, the only permissible inference from the evidence was to the
contrary.
We are accordingly of opinion that the evidence did not admit of
a finding that the policy was in force at the time of the insured's
death, and therefore that the circuit court should have granted the
company's request that a verdict in its favor be directed. As that
request was denied, the circuit court of appeals did not err in
reversing the judgment.
It becomes necessary, therefore, to consider whether that court
should have directed a new trial instead of a judgment on the
evidence contrary to the verdict. The latter direction was given
conformity to a statute of Pennsylvania, the state in which the
circuit court was held, and to the practice thereunder in the
courts of the state. The statute reads as follows:
"That whenever, upon the trial of any issue, a point requesting
binding instructions has been reserved or declined, the party
presenting the point may, within the time prescribed for moving for
a new trial, or within such other or further time as the court
shall allow, move the court to have all the evidence taken upon a
trial duly certified and filed so as to become part of the record,
and for judgment
non obstante veredicto upon the whole
record; whereupon it shall be the duty of the court, if it does
not
Page 228 U. S. 376
grant a new trial, to so certify the evidence, and to enter such
judgment as should have been entered upon that evidence at the same
time granting to the party against whom the decision is rendered an
exception to the action of the court in that regard. From the
judgment thus entered, either party may appeal to the supreme or
superior court, as in other cases, which shall review the action of
the court below, and enter such judgment as shall be warranted by
the evidence taken in that court."
Penn.Laws 1905, p. 286, c. 198.
The real question is whether, in the direction given by the
circuit court of appeals, there was an infraction of the Seventh
Amendment to the Constitution of the United States, which
declares:
"In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any court of the United States, than according to the
rules of the common law."
That what was done may be clearly in mind, it is well to repeat
that while, on the trial in the circuit court, the jury returned a
general verdict for the plaintiff, the circuit court of appeals, on
an examination of the evidence, concluded that it was not
sufficient to sustain the verdict, and on that ground directed a
judgment for the defendant. In other words, the circuit court of
appeals directed a judgment for one party when the verdict was for
the other, and did this on the theory not that the judgment was
required by the state of the pleadings, but that it was warranted
by the evidence. It will be perceived, therefore, that the court,
although practically setting the verdict aside, did not order a new
trial, but assumed to pass finally upon the issues of fact
presented by the pleadings and to direct a judgment accordingly. If
this was an infraction of the Seventh Amendment, it matters not
that it was in conformity with the state statute, or with the
Page 228 U. S. 377
practice thereunder in the courts of the state, for neither the
statute nor the practice could be followed in opposition to the
Amendment, which, although not applicable to proceedings in the
courts of the several states, is controlling in the federal
courts.
The Constitution of the United States, as originally adopted,
conferred upon this Court, by Art. III, § 2, "appellate
jurisdiction, both as to law and fact, with such exceptions and
under such regulations as the Congress shall make;" but this and
the absence of any provision respecting the mode of trial in civil
actions were so generally regarded as endangering the right of
trial by jury as existing at common law, and evoked so much
criticism on that ground, that the first Congress proposed to the
legislatures of the several states the Seventh Amendment, which was
promptly ratified. 1 Stat. 21, 97; Story on the Constitution, §§
1763, 1768.
The adjudged cases dealing with the origin, scope, and effect of
the Amendment are numerous, and so comprehensive that little room
for original discussion remains. A reference to some of them will
show its true and settled meaning and point the way to its right
application here.
In
United States v. Wonson, 1 Gall. 5, 20, 28 Fed.Cas.
745, 750, a case decided in 1812, and often cited with approval by
this Court, it was said by Mr. Justice Story, after quoting the
words of the Amendment:
"Beyond all question, the common law here alluded to is not the
common law of any individual state (for it probably differs in
all), but it is the common law of England, the grand reservoir of
all our jurisprudence. . . . Now, according to the rules of the
common law, the facts once tried by a jury are never reexamined
unless a new trial is granted in the discretion of the court before
which the suit is depending, for good cause shown; or unless the
judgment of such court is reversed by a superior tribunal, on a
writ of error, and a
venire facias de novo is awarded.
Page 228 U. S. 378
This is the invariable usage settled by the decisions of
ages."
In
Parsons v.
Bedford, 3 Pet. 433, decided in 1830, the same
learned justice, speaking for this Court, said (p.
28 U. S.
446):
"The trial by jury is justly dear to the American people. It has
always been an object of deep interest and solicitude, and every
encroachment upon it has been watched with great jealousy. . . .
One of the strongest objections originally taken against the
Constitution of the United States was the want of an express
provision securing the right of trial by jury in civil cases. As
soon as the Constitution was adopted, this right was secured by the
Seventh Amendment of the Constitution proposed by Congress, and
which received an assent of the people so general as to establish
its importance as a fundamental guaranty of the rights and
liberties of the people."
And then coming to the clause, and "no fact tried by a jury
shall be otherwise reexamined in any court of the United States,
than according to the rules of the common law," he continued (pp.
28 U. S.
447-448):
"This is a prohibition to the courts of the United States to
reexamine any facts tried by a jury in any other manner. The only
modes known to the common law to reexamine such facts are the
granting of a new trial by the court where the issue was tried, or
to which the record was properly returnable; or the award of a
venire facias de novo by an appellate court for some error
of law which intervened in the proceedings."
In
Walker v. New Mexico &c. Railroad Co.,
165 U. S. 593,
165 U. S. 596,
decided in 1897, where the Amendment was again under consideration,
it was said by this Court, speaking through Mr. Justice Brewer:
"Its aim is not to preserve mere matters of form and procedure,
but substance of right. This requires that questions of fact in
common law actions shall be settled by a jury, and that the court
shall not assume, directly or indirectly, to take from the jury or
to itself such prerogative. . . . Now
Page 228 U. S. 379
a general verdict embodies both the law and the facts. The jury,
taking the law as given by the court, apply that law to the facts
as they find them to be, and express their conclusions in the
verdict. The power of the court to grant a new trial if, in its
judgment, the jury have misinterpreted the instructions as to the
rules of law or misapplied them is unquestioned, as also when it
appears that there was no real evidence in support of any essential
fact. These things obtained at the common law; they do not trespass
upon the prerogative of the jury to determine all questions of
fact."
In
Capital Traction Co. v. Hof, 174 U. S.
1,
174 U. S. 13,
decided in 1899, the subject was much considered, and, following a
careful review of the prior decisions, it was said by Mr. Justice
Gray, who spoke for the Court:
"It must therefore be taken as established, by virtue of the
Seventh Amendment of the Constitution, that either party to an
action at law (as distinguished from suits in equity or in
admiralty) in a court of the United States, where the value in
controversy exceeds $20, has the right to a trial by jury; that,
when a trial by jury has been had in an action at law, in a court
either of the United States or of a state, the facts there tried
and decided cannot be reexamined in any court of the United States
otherwise than according to the rules of the common law of England;
that, by the rules of that law, no other mode of reexamination is
allowed than upon a new trial, either granted by the court in which
the first trial was had or to which the record was returnable, or
ordered by an appellate court for error in law, and therefore that,
unless a new trial has been granted in one of those two ways, facts
once tried by a jury cannot be tried anew, by a jury or otherwise,
in any court of the United States."
These decisions make it plain, first, that the action of the
circuit court of appeals in setting aside the verdict and assuming
to pass upon the issues of fact, and to direct
Page 228 U. S. 380
a judgment accordingly, must be tested by the rules of the
common law; second, that while, under those rules, that court could
set aside the verdict for error of law in the proceedings in the
circuit court, and order a new trial, it could not itself determine
the facts; and, third, that when the verdict was set aside, there
arose the same right of trial by jury as in the first instance.
How, then, can it be said that there was not an infraction of the
Seventh Amendment? When the verdict was set aside, the issues of
fact were left undetermined, and until they should be determined
anew, no judgment on the merits could be given. The new
determination, according to the rules of the common law, could be
had only through a new trial, with the same right to a jury as
before. Disregarding those rules, the circuit court of appeals
itself determined the facts, without a new trial. Thus, it assumed
a power it did not possess, and cut off the plaintiff's right to
have the facts settled by the verdict of a jury.
While it is true, as before said, that the evidence produced at
the trial was not sufficient to sustain a verdict for the
plaintiff, and that the circuit court erred in refusing so to
instruct the jury, this does not militate against the conclusion
just stated. According to the rules of the common law, such an
error, like other errors of law affecting a verdict, could be
corrected on writ of error only by ordering a new trial. In no
other way could an objectionable verdict be avoided and full effect
given to the right of trial by jury as then known and practiced.
And this procedure was regarded as of real value, because, in
addition to fully recognizing that right, it afforded an
opportunity for adducing further evidence rightly conducing to a
solution of the issues. In the posture of the case at bar, the
plaintiff is entitled to that opportunity, and, for anything that
appears in the record, it may enable her to supply omissions in her
own evidence, or to show inaccuracies
Page 228 U. S. 381
in that of the defendant, which will rightly entitle her to a
verdict and judgment in her favor.
We do not overlook the fact that, at common law, there were two
well recognized instances in which the verdict could be disregarded
and the case disposed of without a new trial. One was where the
defendant's plea confessed the plaintiff's cause of action and set
up matter in avoidance which, even if true, was insufficient in law
to constitute a bar or defense, and the other was where the
plaintiff's pleading, even if its allegations were true, disclosed
no right of recovery. If in either instance a verdict was taken,
the court nevertheless could make such disposition of the case as
was required by the state of the pleadings, and this because the
issues settled by the verdict were wholly immaterial. In the first
instance, the court's action was invoked by a motion for judgment
non obstante veredicto, and in the latter by a motion to
arrest judgment on the verdict. Thus we find it said in Smith's
Action at Law, 12th ed. p. 147, a recognized authority on common
law procedure:
"A motion for judgment
non obstante veredicto is one
which is only made by a plaintiff. . . . It is given when, upon an
examination of the whole pleadings, it appears to the court that
the defendant has admitted himself to be in the wrong, and has
taken issue on some point which, though decided in his favor by the
jury, still does not at all better his case. A motion in arrest of
judgment is the exact reverse of that for judgment
non obstante
veredicto. The applicant in the one case insists that the
plaintiff is entitled to the judgment of the court, although a
verdict has been found against him; in the other case, that he is
not entitled to the judgment of the court, although a verdict has
been delivered in his favor. Like the motion for judgment
non
obstante veredicto, that in arrest of judgment must always be
grounded upon something apparent on the face of the pleadings."
To the same effect are 1 Chitty on Pleading
Page 228 U. S. 382
687; Stephen on Pleading 96-98;
Rand v. Vaughan, 1
Bing. N.C. 767;
Pim v. Grazebrook, 2 C.B. 429, 444;
Schermerhorn v. Schermerhorn, 5 Wend. 513;
Bellows v.
Shannon, 2 Hill, 86;
McFerran v. McFerran, 69 Ind.
29, 32;
Lewis v. Foard, 112 N.C. 402;
Manning v.
Orleans, 42 Neb. 712;
McCoy v. Jones, 61 Ohio St.
119, 129. In
Bond v. Dustin, 112 U.
S. 604,
112 U. S. 60,
and
Van Stone v. Stillwell & Bierce Mfg. Co.,
142 U. S. 128,
142 U. S. 135,
this Court, recognizing that this was the extent of the common law
practice, held that a motion in arrest of judgment could not be
sustained for an insufficiency in the evidence, but only for a
defect apparent on the face of the record proper. Thus, it will be
perceived that the rules of the common law, permitting a judgment
non obstante veredicto and the arrest of judgment on a
verdict, did not embrace cases like the present, but only those in
which the pleadings presented no material issue requiring a trial
or verdict.
In the trial by jury, the right to which is secured by the
Seventh Amendment, both the court and the jury are essential
factors. To the former is committed a power of direction and
superintendence, and to the latter the ultimate determination of
the issues of fact. Only through the cooperation of the two, each
acting within its appropriate sphere, can the constitutional right
be satisfied. And so, to dispense with either or to permit one to
disregard the province of the other is to impinge on that
right.
This was plainly recognized in
Barney v.
Schmeider, 9 Wall. 248, decided in 1869. That was
an action in assumpsit, in which the defendant pleaded the general
issue. The trial in the circuit court was before a jury, and the
evidence consisted of the testimony taken a few days before on
another trial. This testimony was voluminous, and was put in with
the consent of the parties and the approbation of the court. But it
was not read to the jury, because the court regarded it as
necessarily
Page 228 U. S. 383
requiring a verdict for the plaintiff. In a charge briefly
referring to it and explaining why it was not read, the court
instructed the jury that their verdict should be for the plaintiff,
and the defendant excepted. Such a verdict was returned, and
judgment was given on it. This Court reversed the judgment, and Mr.
Justice Miller, delivering the opinion, referred to the
constitutional right to a trial by jury and said,
inter
alia:
"As the defendant in this case did not waive his right to have
the facts tried by a jury, it was the duty of the court to submit
such facts to the jury that was sworn to try them. It is needless
to say that this was not done. The statement is clear that the case
was decided upon the testimony taken on a former trial, and not
read before this jury, because the court had heard it in the first
case, and did not deem it necessary to be heard by the jury in this
case."
"It is possible to have a jury trial in which, the plaintiff
having failed to offer any evidence at all, or any competent
evidence, the jury finds for the defendant for that very reason,
and in such case it is strictly correct, if the plaintiff does not
take a nonsuit, for the court to instruct the jury to find for the
defendant."
"But we have never before heard of a case in which the jury were
permitted, much less instructed, to find a verdict for the
plaintiff on evidence of which they knew nothing except what is
detailed to them in the charge of the court. It is obvious that, if
such a verdict can be supported here, when the very act of the
court in doing this is excepted to and relied on as error, the
trial by jury may be preserved in name, but will be destroyed in
its essential value, and become nothing but the machinery through
which the court exercises the functions of a jury without its
responsibility."
"It is insisted with much ingenuity that, in this case, there
was no disputed fact for the jury to pass upon, and
Page 228 U. S. 384
that the only issue in the case being one of law, it was proper
for the court to dispose of it. If this were so, the instruction of
the court might be sustained, provided the undisputed facts
necessary to sustain the verdict had been submitted to the
jury."
A case much in point is
Hodges v. Easton, 106 U.
S. 408, decided in 1882. It was an action in trover,
wherein the allegations of the complaint were all put in issue by
the answer. On a trial by jury in the circuit court, a special
verdict was returned consisting of responses to interrogatories
specially propounded by the court, but not embracing all the issues
presented by the pleadings. Following the reception of the verdict,
the plaintiffs moved for judgment in their favor, and the
defendants for a new trial on the ground that the verdict did not
dispose of all the issues. After hearing these motions, the court
refused to grant a new trial, and gave judgment for the plaintiffs
on "the special verdict of the jury, and facts conceded or not
disputed upon the trial." When the case came here, the defendants
complained that their constitutional right to a trial by jury had
been violated, and the plaintiffs insisted that the circuit court
had but conformed to the local practice sanctioned by numerous
decisions of the supreme court of the state where the circuit court
was held, and that it therefore should be presumed, nothing
appearing to the contrary, that the special verdict and the facts
conceded or not disputed upon the trial disposed of all the issues
presented by the pleadings and justified the action of the circuit
court. Responding to these contentions this Court said, speaking
through Mr. Justice Harlan:
"It is not necessary in this opinion to enter upon an
examination of those decisions, or to consider how far the local
law controls in determining either the essential requisites of a
special verdict in the courts of the United States, or the
conditions under which a judgment will be
Page 228 U. S. 385
presumed to have been supported by facts other than those set
out in a special verdict. The difficulty we have arises from other
considerations. The record discloses that the jury determined a
part of the facts, while other facts, upon which the final judgment
was rested, were found by the court to have been conceded or not
disputed. . . . We then have a case at law, which the jury were
sworn to try, determined, as to certain material facts, by the
court alone, without a waiver of jury trial as to such facts. It
was the province of the jury to pass upon the issues of fact, and
the right of the defendants to have this done was secured by the
Constitution of the United States. They might have waived that
right, but it could not be taken away by the court. Upon the trial,
if all the facts essential to a recovery were undisputed, or if
they so conclusively established the cause of action as to have
authorized the withdrawal of the case altogether from the jury, by
a peremptory instruction to find for plaintiffs, it would still
have been necessary that the jury make its verdict, albeit in
conformity with the order of the court. The court could not,
consistently with the constitutional right of trial by jury, submit
a part of the facts to the jury, and itself determine the remainder
without a waiver by the defendants of a verdict by the jury. . . .
It has been often said by this Court that the trial by jury is a
fundamental guaranty of the rights and liberties of the people.
Consequently, every reasonable presumption should be indulged
against its waiver. For these reasons, the judgment below must be
reversed."
Even more in point is
Baylis v. Travelers' Ins. Co.,
113 U. S. 316,
decided in 1885. It was an action on a policy of accident
insurance, and on the trial before a jury in the circuit court, the
parties differed as to whether the plaintiff's evidence was
sufficient to sustain a verdict in her favor, no evidence being
presented by the defendant. The court directed a verdict for the
plaintiff, subject to
Page 228 U. S. 386
its opinion on the sufficiency of the evidence, and the jury
conformed to that direction. On further consideration, and
construing the evidence in a manner deemed most favorable to the
plaintiff, the court ruled that it was insufficient, because
admitting of but one conclusion -- namely, that the insured's death
resulted from a cause not covered by the policy. Judgment was then
given for the defendant notwithstanding the verdict, and the
plaintiff brought the case here. The judgment was reversed, with
directions to grant a new trial, for reasons stated by Mr. Justice
Matthews as follows:
"If, after the plaintiff's case had been closed, the court had
directed a verdict for the defendant on the ground that the
evidence, with all inferences that the jury could justifiably draw
from it, was insufficient to support a verdict for the plaintiff,
so that such a verdict, if returned, must be set aside, it would
have followed a practice sanctioned by repeated decisions of this
Court.
Randall v. Baltimore & Ohio Railroad,
109 U. S.
478, and cases there cited. And, in that event, the
plaintiff, having duly excepted to the ruling in a bill of
exceptions, setting out all the evidence, upon a writ of error,
would have been entitled to the judgment of this Court whether, as
a matter of law, the ruling against him was erroneous."
"Or if, in the present case, a verdict having been taken for the
plaintiff by direction of the court, subject to its opinion whether
the evidence was sufficient to sustain it, the court had
subsequently granted a motion on behalf of the defendant for a new
trial, and set aside the verdict on the ground of the insufficiency
of the evidence, it would have followed a common practice in
respect to which error could not have been alleged, or it might
with propriety have reserved the question what judgment should be
rendered, and in favor of what party, upon an agreed statement of
facts, and afterwards rendered judgment upon its conclusions of
law. But, without a waiver of
Page 228 U. S. 387
the right of trial by jury, by consent of parties, the court
errs if it substitutes itself for the jury, and, passing upon the
effect of the evidence, finds the facts involved in the issue and
renders judgment thereon."
"This is what was done in the present case. It may be that the
conclusions of fact reached and stated by the court are correct,
and, when properly ascertained, that they require such a judgment
as was rendered. That is a question not before us. The plaintiff in
error complains that he was entitled to have the evidence submitted
to the jury, and to the benefit of such conclusions of fact as it
might justifiably have drawn -- a right he demanded and did not
waive, and that he has been deprived of it by the act of the court
in entering a judgment against him on its own view of the evidence,
without the intervention of a jury. In this particular, we think
error has been well assigned."
"The right of trial by jury in the courts of the United States
is expressly secured by the Seventh Article of Amendment to the
Constitution, and Congress has, by statute, provided for the trial
of issues of fact in civil cases by the court without the
intervention of a jury only when the parties waive their right to a
jury by a stipulation in writing. Rev.Stat. §§ 648, 649."
"This constitutional right this Court has always guarded with
jealousy.
Elmore v. Grymes, 1 Pet.
469;
De
Wolf v. Rabaud, 1 Pet. 476;
Castle v.
Bullard, 23 How. 172;
Hodges v. Easton,
106 U. S.
408."
In principle, these cases are decisive of the question arising
on the motion for judgment on the evidence notwithstanding the
verdict. They show that it is the province of the jury to hear the
evidence and by their verdict to settle the issues of fact, no
matter what the state of the evidence, and that, while it is the
province of the court to aid the jury in the right discharge of
their duty, even to the extent of directing their verdict where the
insufficiency
Page 228 U. S. 388
or conclusive character of the evidence warrants such a
direction, the court cannot dispense with a verdict, or disregard
one when given, and itself pass on the issues of fact. In other
words, the constitutional guaranty operates to require that the
issues be settled by the verdict of a jury unless the right thereto
be waived. It is not a question of whether the facts are difficult
or easy of ascertainment, but of the tribunal charged with their
ascertainment, and this, we have seen, consists of the court and
jury unless there be a waiver of the latter.
But the suggestion is made that sufficient warrant for setting
aside the verdict and rendering judgment on the evidence without a
new trial is to be found in the rules of the common law in respect
of demurrers to evidence and nonsuits. It therefore will be well to
see what those rules were and whether they support the
suggestion.
The leading English cases dealing with demurrers to evidence as
employed at common law are
Middleton v. Baker, Cro.Eliz.
752;
Wright v. Pindar, Aleyn, 18, s.c., Style, 34, and
Gibson v. Hunter, 2 H.Bla. 187, 205. The last, which
adhered to the principle of the other two, was much considered in
the House of Lords, and the opinion delivered by Lord Chief Justice
Eyre, who spoke for all the judges, was to the following effect:
(a) A demurrer to the evidence is a proceeding whereby the court,
whose province it is to answer all questions of law, is called upon
to declare what the law is "upon the facts shewn in evidence," and,
"in the nature of the thing, the question of law to arise out of
the fact cannot arise until the fact is ascertained." (b) Such a
demurrer is permissible only when proposed by one party, joined in
by the other, and allowed by the court. It must contain an express
and distinct admission by the demurrant of every fact which the
evidence of his adversary conduces to prove, else he cannot insist
that the latter join in the demurrer, and the admission, to be
effective to that end, must be of the facts,
Page 228 U. S. 389
and not merely the evidence from which their existence is
inferable. (c) When the matter of fact is so ascertained and shown
in the demurrer, the case is deemed ripe for judgment in matter of
law, and the jury properly may be discharged from giving a
verdict.
This statement of the true office and use of a demurrer to
evidence was both accepted and applied by this Court in
Fowle v.
Alexandria, 11 Wheat. 320, decided in 1826. There,
the court below had sustained such a demurrer, which merely set
forth and admitted the evidence as introduced at the trial, as well
the testimony of witnesses as written documents. We excerpt the
following from the opinion, which was by Mr. Justice Story:
"There is no joinder in demurrer on the record, which is
probably a mere defect in the transcript, as the court proceeded to
give judgment upon the demurrer in favor of the defendants. Without
a joinder in demurrer, no such judgment could be properly entered,
and such joinder ought not to have been required or permitted while
there was any matter of fact in controversy between the parties. .
. . The true and proper object of such a demurrer is to refer to
the court the law arising from facts. It supposes, therefore, the
facts to be already admitted and ascertained, and that nothing
remains but for the court to apply the law to those facts. . . .
Indeed, the case made for a demurrer to evidence is, in many
respects, like a special verdict. It is to state facts, and not
merely testimony which may conduce to prove them. It is to admit
whatever the jury may reasonably infer from the evidence, and not
merely the circumstances which form a ground of presumption. . . .
Upon examination of the case at bar, it will be at once perceived
that the demurrer to evidence, tried by the principles already
stated, is fatally defective. The defendants have demurred not to
facts, but to evidence of facts; not to
Page 228 U. S. 390
positive admissions, but to mere circumstances of presumption
introduced on the other side."
And that this was not a new doctrine in this Court is shown in
Young v.
Black, 7 Cranch 565,
11 U. S. 568,
decided thirteen years before, where, in declining to disturb the
action of the court below in refusing to compel a joinder in a
demurrer to the evidence, it was said:
"The party demurring is bound to admit as true not only all the
facts proved by the evidence introduced by the other party, but
also all the facts which that evidence legally may conduce to
prove. It follows that it [the demurrer] ought never to be admitted
where the party demurring refuses to admit the facts which the
other side attempts to prove, and it would be as little justifiable
where he offers contradictory evidence, or attempts to establish
inconsistent propositions."
True, in
United States Bank v.
Smith, 11 Wheat. 171, and
Columbian
Insurance Co. v. Catlett, 12 Wheat. 383,
25 U. S. 389,
the rule that the demurrer should set forth the facts, rather than
the evidence from which they are inferable was not strictly
enforced, but, in each of those cases, the opposite party
voluntarily joined [
Footnote 2]
in the demurrer, thereby consenting that the case be withdrawn from
the jury and submitted to the court on the evidence embodied in the
demurrer; so, they are without bearing here, save as the opinions
contain some observations making strongly for the views expressed
in
Fowle v. Alexandria. Thus, in
United States Bank v.
Smith, the demurrer was criticized as substituting the court
in the place of the jury, which, while true of the demurrer there,
would not be true of one rightly drafted and allowed, and in
Columbian Insurance Co. v. Catlett, it was said:
"The plaintiff was not bound to have joined in the demurrer
without the defendant's
Page 228 U. S. 391
having distinctly admitted, upon the record, every fact which
the evidence introduced on his behalf conduced to prove, and that,
when the joinder was made without insisting on this preliminary,
the court is at liberty to draw the same inferences in favor of the
plaintiff which the jury might have drawn."
Pawling v. United
States, 4 Cranch 219, and
Chinoweth
v. Haskell, 3 Pet. 92, are also cases in which, as
shown by the record, there was a voluntary joinder in the demurrer.
In the former, the record, after setting forth the demurrer, shows
this order: "Wherefore let the jury aforesaid be discharged by the
court here, by the assent of the parties, from giving any
verdict."
The doctrine stated in
Gibson v. Hunter, and recognized
by this Court in
Young v. Black and
Fowle v.
Alexandria, has been applied not only in the lower federal
courts, but in several of the state courts.
Pickel v.
Isgrigg, 6 F. 676;
Johnson v. United States, 13
Fed.Cas. 868, 872;
Miller v. Baltimore & Ohio R. Co.,
17 Fed.Cas. 304;
Patty v. Edelin, 18 Fed.Cas. 1344;
Copeland v. New England Insurance Co., 22 Pick. 135;
Golden v. Knowles, 120 Mass. 336;
Dormady v. State
Bank, 3 Ill. 236;
Ware v. McQuillan, 54 Miss. 703;
Ingram v. Jacksonville Street R. Co., 43 Fla. 324;
Bass v. Rublee, 76 Vt. 395, 401;
Chapize v. Bane,
1 Bibb 612;
Sawyer v. Fitts, 2 Port. 9.
At common law, if, on a demurrer to the evidence, judgment was
given for one party when it should have been for the other, the
error was corrected in the appellate tribunal by directing the
proper judgment, and this because the error was confined to the
judgment, and did not reach the facts as ascertained and shown in
the demurrer. But when the reversal was for error in allowing the
demurrer, the latter necessarily went for naught, and, as there
remained no ascertained facts on which to base a judgment, a new
trial was deemed essential. Thus, in
Page 228 U. S. 392
Gibson v. Hunter, supra, one of the questions was
whether, considering the state of the evidence and the admissions
in the demurrer, the plaintiff was obliged to join in it. The
question was resolved in the negative, and, as this eliminated the
demurrer on which judgment had been given in the Court of King's
Bench, the judgment of reversal was accompanied by a direction for
a new trial. And in
Fowle v. Alexandria, supra, where this
Court ruled that the demurrer ought not to have been allowed, the
judgment rendered thereon was reversed with a like direction. So,
in the present case, when the verdict was set aside, there remained
no ascertained facts on which a judgment might be rested, and that
made a new trial necessary.
Enough has been said to make it plain, as we think, that there
was nothing in the nature or operation of the demurrer to evidence
at common law which has any tendency to show that issues of fact
tried by a jury could be reexamined otherwise than on a new
trial.
We come, then, to the other branch of the suggestion. A nonsuit
at common law was a dismissal of the plaintiff's action without an
adjudication, other than the imposition of costs, and constituted
no bar to another action for the same cause. Originally granted
where the plaintiff made default when his presence was required, or
otherwise failed to proceed in due course, it came to be applied on
the trial when, although actually present, he chose, in view of the
state of his evidence, not to risk an adverse verdict. But unless
he assented to being nonsuited on the evidence, it was essential
that a verdict be taken, even although it was certain to be against
him. In other words, such a nonsuit was always voluntary, and never
compulsory. Mr. Starkie says of this proceeding:
"The doctrine of nonsuits is founded on the ancient practice
according to which the plaintiff was bound by himself or his
attorney to appear at the trial, prosecute his suit, and hear the
verdict,
Page 228 U. S. 393
and in case, after being called, he made default, he was decreed
to have abandoned his suit, and was nonsuited. This ancient
practice has long been used as the medium by which the court
intimates an opinion that the plaintiff has not made out a
sufficient case for the consideration of the jury. The plaintiff is
therefore formally called, although by himself or his counsel he
has actually appeared in court. In conformity, however, with the
old practice, being called, he may, if he choose, appear, and if he
do, the case must go to the jury."
Starkie, Ev. 806, 4th London ed. In the course of a similar
statement, Mr. Tidd says:
"The plaintiff in no case is compellable to be nonsuited, and
therefore, if he insist upon the matter being left to the jury,
they must give in their verdict, which is general or special."
2 Tidd's Pr. 796, 1807 ed. Mr. Lilly describes the office and
nature of the proceeding as follows:
"Nonsuit is when a man brings a personal action, and doth not
prosecute it with effect, or else upon the trial refuses to stand a
verdict; then he becomes nonsuited, which is recorded by the court,
and the defendant recovers his costs against him. . . . The court
cannot compel the plaintiff to appear and stand a verdict; but if
the plaintiff appears, or his counsel or attorney appears for him,
he cannot be afterwards nonsuit, but the jury must deliver in their
verdict."
2 Lil.Reg. 230, 231, 1719 ed. And Mr. Chitty says:
"A nonsuit must always be voluntary,
i.e., by the
plaintiff's counsel submitting to the same or not appearing, and in
no case can it be adverse or without implied consent."
3 Chitty's Gen.Pr. 910. To the same effect are 3 Bl.Com. 376,
377;
Dewar v. Purday, 3 Ad. & E. 166, 170;
Corsar
v. Reed, 21 L.J.R. (N.S.) Q.B. 18;
Stancliffe v.
Clarke, 21 L.J.R. (N.S.) Ex h. 129;
Minchin v.
Clement, 1 B. & Ald. 252. In the last case, the court, on
ruling that a verdict theretofore given for the plaintiff could not
be sustained, was requested to order a nonsuit instead of a new
trial, but the request was denied, Lord
Page 228 U. S. 394
Ellenborough, C.J., observing: "It is in the plaintiff's option
to be nonsuited or not."
The question whether a compulsory nonsuit could be ordered on
the evidence was presented to this Court in 1828 in
Elmore v.
Grymes, 1 Pet. 469, a case in which the circuit
court, conceiving that the plaintiff's evidence was insufficient to
sustain a verdict in his favor, had nonsuited him without his
assent. Speaking for all the members of this Court but one, Chief
Justice Marshall disposed of the question by saying:
"The circuit court had no authority to order a peremptory
nonsuit, against the will of the plaintiff. He had a right by law
to a trial by a jury, and to have had the case submitted to them.
He might agree to a nonsuit, but if he did not so choose, the court
could not compel him to submit to it."
The decision in that case was approved and reaffirmed in
D'Wolf v.
Rabaud, 1 Pet. 476,
26 U. S. 497;
Crane v.
Morris, 6 Pet. 598,
31 U. S. 609,
where Mr. Justice Story said the point was not longer "open for
controversy;"
Silsby v.
Foote, 14 How. 218,
55 U. S. 222,
and
Castle v.
Bullard, 23 How. 172,
64 U. S.
183.
It being thus certain that the common law rules in respect of
nonsuits recognized that the plaintiff had a right to have the
verdict of the jury taken, which he could waive or assert at his
option, it follows that those rules give no support to the
suggestion before mentioned.
In what has been said, we would not be understood as implying
that a motion for a compulsory nonsuit and a demurrer to the
evidence are equivalents of a request for a directed verdict, for
while they are sometimes spoken of as analogous to it, this only
means that, for the purpose of each, the evidence must be taken
most strongly in favor of the opposite party. In other respects,
they are essentially unlike. A motion for a compulsory nonsuit
looks to an arrest of the trial and a dismissal of the cause,
leaving the merits undetermined and the plaintiff free
Page 228 U. S. 395
to sue again, while a request for a directed verdict looks to a
completion of the trial and an adjudication of the merits through
the accustomed cooperation of the court and jury. Full recognition
of this, as also of its bearing here, is found in
Oscanyan v.
Winchester Repeating Arms Co., 103 U.
S. 261,
103 U. S. 264,
where it is said:
"The difference in the two modes is rather a matter of form than
of substance,
except in the case of a nonsuit a new action may
be brought, whereas in the case of a verdict the action is ended,
unless a new trial be granted, either upon motion or upon
appeal."
Equally pronounced is the difference between a demurrer to the
evidence and a request for a directed verdict, for if on such a
demurrer, properly joined in and allowed, judgment is not given for
the demurrant, it is necessarily given for his opponent, while if a
request for a directed verdict is denied, the party making the
request may yet receive the jury's verdict and a judgment thereon.
And when a judgment on a demurrer to the evidence is reversed
because given for the wrong party, the error is corrected by
ordering a judgment for the other party, whereas when a judgment is
reversed for error in granting or refusing a request to direct a
verdict, judgment is not ordered for either party, but a new trial
is awarded. This was so at common law, and it has been the uniform
course of action in this Court from the beginning. These
distinctions are so substantial as to show that the suggested
analogy is far from complete.
We come now to two decisions in this Court which, although not
involving the real question here, namely, the power of a federal
court to reexamine, otherwise than according to the rules of the
common law, issues of fact which have been determined by the
verdict of a jury, yet have such an indirect bearing thereon that
they ought not to be passed unnoticed.
In
Central Transportation Co. v. Pullman's Palace Car
Co., 139 U. S. 24,
139 U. S. 38, a
case coming here from the Eastern
Page 228 U. S. 396
District of Pennsylvania, it appeared that, on a trial to the
circuit court and a jury the court, following a statute of the
state, had entered a compulsory nonsuit which, according to the
state law, terminated that suit, but was not an adjudication of the
merits or a bar to another suit on the same cause of action. This
Court, deeming it important to notice the question of its own
jurisdiction, proceeded to inquire whether such a judgment was
subject to review on writ of error, and in the course of the
inquiry expressed the opinion that the state statute established a
practice or mode of procedure which the conformity provisions of
the federal statutes required the circuit court to follow. But it
was stated that the question was "not mentioned by counsel in
argument," and, as the opinion contains no reference to the right
of trial by jury or to the Seventh Amendment, it well may be that
the bearing of the latter on the applicability of the state statute
to the trial in the circuit court was not actually considered.
The other case is
Coughran v. Bigelow, 164 U.
S. 301, which originated in a territorial court, where
the Seventh Amendment was applicable. On a trial by jury, a
compulsory nonsuit was entered according to a local statute for an
insufficiency in the plaintiff's evidence, without prejudice to his
right to sue again, and when the case came here, the judgment was
affirmed, it being directly held that granting such a nonsuit does
not infringe the constitutional right.
Of these two cases it is to be observed: (1) although they hold,
one by implication and the other expressly, that the constitutional
right of trial by jury is not invaded by a statute authorizing the
court to enter a compulsory nonsuit against a plaintiff for an
insufficiency in his evidence, when he is not thereby prevented
from suing again on the same cause of action, they neither hold nor
suggest that, consistently with that right, the court can refuse to
take the verdict of the jury, or disregard it when taken,
Page 228 U. S. 397
and enter a binding judgment on the evidence; (2) assuming,
without so deciding, that they should be accepted and followed in
respect of the particular matter to which they are addressed --
that is, the granting of an involuntary nonsuit which leaves the
merits unadjudicated -- they afford no justification whatever for
overruling or departing from the repeated decisions of this Court,
reaching back to the beginning of the last century, wherein it
uniformly has been held (a) that we must look to the common law for
a definition of the nature and extent of the right of trial by jury
which the Constitution declares "shall be preserved;" (b) that the
right so preserved is the right to have the issues of fact
presented by the pleadings tried by a jury of twelve, under the
direction and superintendence of the court; (c) that the rendition
of a verdict is of the substance of the right, because to dispense
with a verdict is to eliminate the jury, which is no less a part of
the tribunal charged with the trial than is the court, and (d)
that, when the issues have been so tried and a verdict rendered,
they cannot be reexamined otherwise than on a new trial granted by
the court in which the first trial was had, or ordered by the
appellate court for some error of law affecting the verdict.
Coughran v. Bigelow recognizes that this is the true
conception of trial by jury, for it is there said,
"if the evidence be not sufficient to warrant a recovery, it is
the duty of the court to instruct the jury accordingly, and, if the
jury disregard such instruction, to set aside the verdict."
Why instruct the jury in such a case if they have no office to
perform? Why contemplate that they may not conform to the
instruction if it be immaterial whether they do or not? And why
take their verdict or have any concern about it if none is
required? The answers are given in prior decisions, which hold, as
before shown, that in such a case it is essential "that the jury
make its verdict, albeit in conformity with the order of the
Page 228 U. S. 398
court," and that, if there be a verdict, "the action is ended,
unless a new trial be granted, either upon motion or upon
appeal."
Whether in a given case there is a right to a trial by jury is
to be determined by an inspection of the pleadings, and not by an
examination of the evidence. If the pleadings present material
issues of fact, either party is entitled to have them tried to the
court and a jury, and this is as true of a second trial as of the
first. Whether the evidence is sufficient to sustain a verdict for
one party or the other is quite another matter, and does not affect
the mode of trial, but only the duty of the court in instructing
the jury, and of the latter in giving their verdict. The issues to
which the jury must respond are those presented by the pleadings,
and this whether the evidence be disputed or undisputed, and
whether it be ample or meager. To speak, therefore, of the evidence
as determinative of the right to a trial by jury is to confuse the
test or that right with a different test, applicable only in
determining whether a particular verdict should be directed.
In the present case, certain well defined issues of fact were
presented by the pleadings, which the plaintiff, as also the
defendant, was entitled by the Constitution to have tried to the
court and a jury. Such a trial was had and resulted in a general
verdict resolving all the issues in the plaintiff's favor. That
verdict operated, under the Constitution, to prevent a
reexamination of the issues save on a new trial granted by the
trial court in the exercise of its discretion, or ordered by the
appellate court for error of law. At the trial, the defendant
requested that a verdict in its favor be directed, and, had the
court indicated its purpose to do that, it would have been open to
the plaintiff, under the then prevailing practice, to take a
voluntary nonsuit, which would have enabled her to make a fuller
and better presentation of her case, if
Page 228 U. S. 399
the facts permitted at another trial in a new suit. But the
defendant's request being denied and a verdict being returned for
the plaintiff, she recovered a judgment. That judgment the circuit
court of appeals reversed, and rightly so, because the defendant's
request, in the State of the evidence, ought, as matter of law, to
have been granted. The reversal operated to set aside the verdict
and to put the issues at large, as they were before it was given.
But, instead of ordering a new trial, as was required at common
law, the circuit court of appeals itself reexamined the issues,
resolved them in favor of the defendant, and directed judgment
accordingly. This, we hold, could not be done consistently with the
Seventh Amendment, which not only preserves the common law right of
trial by jury, but expressly forbids that issues of fact settled by
such a trial shall be reexamined otherwise than "according to the
rules of the common law."
To the suggestion that, in so holding, we are but adhering to a
mere rule of procedure at common law there is a two-fold answer:
first, the terms of the Amendment and the circumstances of its
adoption unmistakably show that one of its purposes was to require
adherence to that rule, which, in long years of practice, had come
to be regarded as essential to the full realization of the right of
trial by jury, and, second, the right to a new trial in a case such
as this, on the vacation of a favorable verdict secured from a
jury, is a matter of substance, and not of mere form, for it gives
opportunity, as before indicated, to present evidence which may not
have been available or known before, and also to expose any error
or untruth in the opposing evidence. As is said in Blackstone's
Commentaries, vol. 3, p. 391:
"A new trial is a rehearing of the cause before another jury. .
. . The parties come better informed, the counsel better prepared,
the law is more fully understood, the judge is more master of
the
Page 228 U. S. 400
subject, and nothing is now tried but the real merits of the
case."
The judgment of the circuit court of appeals is accordingly
modified by eliminating the direction to enter judgment for the
defendant notwithstanding the verdict, and by substituting a
direction for a new trial.
[
Footnote 1]
The remaining portion of the check represented interest on the
loan made under the policy.
[
Footnote 2]
In
United States Bank v. Smith, the joinder is shown in
the record, although not mentioned in the opinion. It also is shown
in the report of the decision of the lower court. 1 Fed.Cas.
733.
MR. JUSTICE Hughes, dissenting:
I concur in the decision of the Court so far as it holds that
the circuit court of appeals was right in reversing the judgment,
but I am unable to agree with the conclusion that the circuit court
of appeals was bound to order a new trial, and was without power,
under the Seventh Amendment, to follow the state practice in
directing the entry of the judgment to which, as matter of law, the
defendant was entitled.
The serious and far-reaching consequences of this decision are
manifest. Not only does it overturn the established practice of the
federal courts in Pennsylvania in applying, under the conformity
act, the provisions of the state law, but it erects an impassable
barrier -- unless the Constitution be amended -- to action by
Congress along the same line for the purpose of remedying the
mischief of repeated trials, and of thus diminishing in a highly
important degree the delays and expense of litigation. It cannot be
gainsaid that such a conclusion is not to be reached unless the
constitutional provision compels it. I cannot see that it does
compel it. On the contrary, I submit with the utmost respect that
the Pennsylvania practice adopted by the circuit court of appeals
is entirely in conformity with the Seventh Amendment.
What, then, is this case? It was an action upon a policy of
insurance. It was triable by jury, but the province of
Page 228 U. S. 401
the jury was to decide questions of fact, not questions of law.
This Court concludes, as did the court of appeals, that "the
evidence did not admit of a finding that the policy was in force at
the time of the insured's death." In other words, after the
plaintiff had had full opportunity to present her case and to show
facts for the consideration of the jury, and the case on both sides
had been closed, it appeared that there were no facts whatever upon
which the jury would be warranted in finding a verdict in her
favor. Hence, says this Court, the defendant was entitled to a
direction of a verdict in its favor, as it requested. Had the trial
court rightly applied the law, the case would properly have ended
in a final judgment for the defendant. But the trial court erred in
the law, and consequently the jury found a verdict for the
plaintiff -- not upon facts, but without any facts upon which they
could rest it. Now it is said that a statute which permits the
trial court or the appellate court, after that wrongful verdict, to
correct the error, and in so doing not only to set aside the
verdict but to direct the entry of the judgment to which the
defendant in law was entitled, is, as applied to a case in the
federal court, contrary to the Constitution.
The Seventh Amendment provides that "no fact tried by a jury
shall be otherwise reexamined in any court of the United States
than according to the rules of the common law." But wherein has any
matter of fact tried by a jury been reexamined? Concededly there
was no fact to be tried by a jury; the case as made was barren of
any such fact, and there being none, there has been no
reexamination of it. How can it be said that the circuit court of
appeals has determined the facts or has passed upon issues of fact?
Whether there was any evidence for the jury was a question of law.
The trial court, in wrongly deciding it, did not convert it into a
question of fact; it was not altered by the verdict, but remained
the same in its nature -- a question for the determination of the
court.
Page 228 U. S. 402
That, it seems to me, is the substance of the matter, and all
else is form and procedure. Whether in such a case, on the error
being shown, a new trial should be ordered, or whether the
litigation should be ended by a prompt entry of the judgment which
should have followed a right decision in the first instance, is a
matter to be governed by the applicable rules of practice, but, as
I view it, it is not a matter withdrawn from legislative control by
the constitutional provision for trial by jury, which is concerned
with the settlement of disputes of fact, and not with the
determination of legal questions, or with the consequences, which
should ensue when that determination is decisive of the right of
recovery on the case made.
It is well to note what has been ruled in the third circuit upon
this precise question. For the practice was there deliberately
adopted after careful consideration. It has commended itself to the
bench and bar as a salutary measure, making for the improvement of
the administration of justice. And it should be observed that the
Constitution of the State of Pennsylvania, where the practice
obtains, also provides that the right of trial by jury shall remain
inviolate. (
See Const.Pa. 1776; Declaration of Rights, XI;
1790, Art. IX, § 6; 1838, Art. IX, § 6; 1873, Art. I, § 6.) In
Smith v. Jones, 181 F. 819, 823, the circuit court of
appeals for that circuit thus reviewed the matter:
"The practice of entering judgments
non obstante
veredicto has long existed in Pennsylvania, and it enables the
case to be concluded by a verdict, while the entry of judgment
thereon is made dependent on the court's opinion on a reserved
question of law. This permits the judge to give to the decisive law
question on which a case turns a more careful examination than he
can do in the stress of trial. Moreover, if an appellate court, on
review of such judgment, finds error, it can reverse and direct
entry of judgment for the other party, and avoid a retrial.
Long
Page 228 U. S. 403
experience in this practice has convinced the bar and bench of
the state of its value in conducing to a more careful and
deliberate consideration of the law by the trial judge, and to the
avoidance of retrials. The practice in Pennsylvania is of statutory
origin, as stated by Judge Acheson in
Casey v. Pennsylvania
Asphalt Co., 109 F. 746, adopted in 114 F. 189, and the
principles involved in its application are set out in
Fisher v.
Scharadin, 186 Pa. 568, and
Boyle v. Mahanoy City,
187 Pa. 1. Under the Conformity Act, this practice has long been
followed in the federal courts in Pennsylvania, and met with the
approval of this court in
Carstairs v. American Bonding &
Trust Co., 116 F. 449."
In the
Carstairs case to which the court thus refers,
decided over ten years ago, the action was brought in the Circuit
Court for the Eastern District of Pennsylvania upon a policy of
fidelity insurance. The defendant asked for a binding instruction.
The court, reserving that question, submitted the case to the jury,
which found a verdict for the plaintiff. After argument, the court
concluded that the defendant was right, that there was no case for
the jury, and hence set aside the verdict and directed judgment for
the defendant upon the point reserved. 112 F. 620. The court of
appeals sustained this action of the circuit court (116 F. 449),
Circuit Judge Gray delivering the opinion. There was, however, a
dissent by Circuit Judge Acheson, who thought the mode of procedure
was an unwarrantable departure from the constitutional provision.
Id., p. 455. This called forth a concurring opinion from
Circuit Judge Dallas, who said (
id., pp. 456-457):
"The judgment here complained of was entered upon a point which
the learned trial judge reserved in these words: 'I reserve the
question whether there is any
Page 228 U. S. 404
evidence to go to the jury in support of the plaintiffs' claim.'
In our opinion, this was a good reservation. The Supreme Court of
Pennsylvania has, after argument and reargument before a full
bench, distinctly so decided (
Fisher v. Scharadin, 186 Pa.
565;
Boyle v. Mahanoy City, supra), and within the
knowledge of the writer, the Circuit Court for the Eastern District
of Pennsylvania, from which this case comes, has, in a number of
instances, and without protest or disapproval in any, reserved
precisely the same point. Indeed, counsel in this cause appear to
have regarded the practice as settled, for 'the record shows no
objection or any exception to the form of the reservation.'
Boyle v. Mahanoy City, supra. . . . But, in our opinion,
there is no substantial difference between a judgment entered upon
a directed verdict for defendant and one entered in his favor
notwithstanding a verdict rendered for plaintiff, subject to the
question whether there was any evidence to warrant it. 'Whether
there be any evidence which entitles the plaintiff to recover is
necessarily a question of law' (
Fisher v. Scharadin,
supra), and that question it is which, by either method of
procedure, and with like effect in each, the court decides. No
encroachment is made upon the domain of the jury where either
course is pursued. Its province of finding facts from evidence is
not at all invaded. All that is adjudged is that a verdict which is
unsupported by any evidence cannot properly be made the basis of a
legal judgment, and the soundness of this fundamental proposition
is now, we think, too well established to admit of question or to
be open to debate."
See also Spencer v. Duplan Silk Co., 112 F. 638, 115 F.
689,
191 U. S. 191 U.S.
526-527,
191 U. S. 532.
The practice which had been followed before the
Carstairs case, and was expressly sanctioned in that case,
continued to be observed. In 1905, the Legislature of
Page 228 U. S. 405
Pennsylvania broadened it by permitting a reservation not simply
of leave to enter judgment for the defendant, but for either party
when there was a request for binding instructions. As the Supreme
Court of Pennsylvania pointed out, in construing the statute, in
Dalmas v. Kemble, 215 Pa. 410, it was not intended in any
way to impair and did not impair the function of the jury to deal
with disputed questions of fact, but its purpose was to facilitate
the disposition of questions of law. It was classed as one of the
"practical reforms" instituted by the state "for facilitating
business without impairing settled legal principles." It took
account of the
"growing complexity of issues, the constantly increasing
pressure upon the trial lists, the taking of testimony in
shorthand, and the consequent hurry of trials."
and it promoted the proper dispatch of the work of the courts,
while conserving the essential rights of suitors.
Chief Justice Mitchell, in delivering the opinion of the court,
said (
id., pp. 411-413):
"The act being so recent, it is important that it should be
examined closely, and its proper construction settled. Its terms
are:"
" Whenever upon the trial of any issue, a point requesting
binding instructions has been reserved or declined, the party
presenting the point may . . . move the court to have all the
evidence taken upon the trial duly certified and filed, so as to
become part of the record, and for judgment
non obstante
veredicto upon the whole record, whereupon it shall be the
duty of the court . . . to enter such judgment as should have been
entered upon that evidence."
"This statute makes no radical innovation on the settled line of
distinction between the powers of the court and the jury. It shows
no intention to infringe, even if it could constitutionally do so,
the province of the jury to pass upon the credibility of witnesses
and the weight of oral testimony. The court has long had authority
to direct
Page 228 U. S. 406
a verdict for defendant when it was of opinion that the
plaintiff, even if all his evidence be believed, has failed to make
out his case. . . ."
"The Act of 1905 is another step in the same direction. It
broadens the power of the judge in this respect: that, whereas
heretofore the verdict was required to be for the plaintiff, and
the reservation to be of leave to enter judgment for the defendant
non obstante, now what is reserved is a request for
binding direction to the jury, and may be for either plaintiff or
defendant. But though thus enlarged so as to include both parties,
the power of the judge is the same as it was before. He is 'to
enter such judgment as should have been entered upon that
evidence,' or, in other words, to treat the motion for judgment as
if it was a motion for binding directions at the trial, and to
enter judgment as if such direction had been given and a verdict
rendered in accordance. What the judge may do is still the same in
substance, but the time when he may do it is enlarged so as to
allow deliberate review and consideration of the facts and the law
upon the whole evidence. If, upon such consideration, it shall
appear that a binding direction for either party would have been
proper at the close of the trial, the court may enter judgment
later with the same effect. But, on the other hand, if it should
appear that there was conflict of evidence on a material fact, or
any reason why there could not have been a binding direction, then
there can be no judgment against the verdict now. As already said,
there is no intent in the act to disturb the settled line of
distinction between the provinces of the court and the jury. The
act is capable of usefulness in allowing time for mature
consideration, but it should not be carried beyond its legitimate
intent."
The provisions of this statute, as thus construed, were applied
in the federal courts in Pennsylvania. The propriety of the
practice was challenged in
Fries-Breslin Co.
Page 228 U. S. 407
v. Bergen, 168 F. 360-364, and it was sustained by both
the circuit court and the circuit court of appeals. Circuit Judge
Gray, in delivering the opinion of the latter court, said:
"This Pennsylvania practice act has been referred to, and has
not infrequently been brought to the attention of this Court in
cases where the granting or refusal of judgments
non obstante
veredicto have been the subjects of review. The act enlarges
the scope of the common law motion for judgment for plaintiff,
notwithstanding the verdict for the defendant, by permitting it to
be made by either plaintiff or defendant, when the verdict is
against either. It is in general a more convenient method, so far
as a defendant is concerned, of reaching practically the same
result as was sought by a motion for a compulsory nonsuit, or for
peremptory instructions at the close of the evidence, or by a
motion in arrest of judgment, made by the defendant after the
verdict, or by the practice prevalent in the Pennsylvania courts,
of directing a verdict for the plaintiff, and reserving the
question whether there is any evidence in the case entitling the
plaintiff to recover. We think, under the conformity provisions of
§ 914 of the Revised Statutes, the circuit court was required to
recognize the practice authorized by the said Pennsylvania Act of
1905, there being nothing incongruous therein with the organization
of the federal courts or their settled rules of procedure."
The plaintiff then petitioned this Court for a writ of
certiorari, and one of the grounds stated was that the circuit
court had no power to enter judgment for the defendant
notwithstanding the verdict. The petition was denied.
Fries-Breslin Co. v. Bergan, 215 U.S. 609. And the same
practice has been followed since.
Smith v. Jones, 181 F.
819, 823.
See also Pittsburgh Construction Co. v. West Side
Belt R. Co., 151 F. 125, 154 F.
Page 228 U. S. 408
929;
West Side Belt R. Co. v. Pittsburgh Construction
Co., 219 U. S. 92,
219 U. S. 96,
219 U. S.
102.
The Seventh Amendment, it cannot be doubted, deals with matters
of substance, and not with mere matters of form. It guarantees the
right of trial by jury, but it does not raise forms of motions or
merely modal details to the dignity of constitutional rights. In
numerous particulars, common law practice has been altered by
statute in many states, and the new procedure of the so-called code
states has been followed, as near as may be, by virtue of the Act
of Congress, in the courts of the United States. When the question
is raised of invasion of the constitutional right, we must always
look to the substance of what is done, and not to mere names or
formal changes. It is of no consequence that, at common law, the
motion for judgment
non obstante veredicto was made only
by the plaintiff, or was granted on something apparent on the face
of the pleadings. We are not concerned with the mere use of this or
any other descriptive term.
The substantial thing is that the common law recognized that the
function of the jury was to deal with controversies of fact. If
there was a question of law, it was for the court.
The dominating idea in overturning the practice below seems to
be that, at common law, if there was an issue of fact upon the
pleadings, the plaintiff was entitled to have a verdict taken in
any event -- that is, if he did not voluntarily take a nonsuit, it
was essential that a verdict be rendered, notwithstanding that,
upon the evidence, there was no question of fact for the jury.
This would seem to be a misconception of the fundamental
principles of the common law with respect to jury trials, and to
result from unjustified implications from the practice as to
nonsuits, as well as from a failure to regard the full scope and
import of common law procedure.
It is not a new thing that a party should be able to challenge
the legal sufficiency of the evidence adduced
Page 228 U. S. 409
against him, and call upon the court to answer the question of
law whether, upon the facts shown, there should be a recovery, nor
is it a new thing that, when he does so, the court should give
judgment without the intervention of the jury, and if the trial
court errs in its ruling upon the law, the reviewing court should
set the matter right and order the proper judgment to be
entered.
This was accomplished by demurring to the evidence. This was a
proceeding by which the judges of the court were called upon to
declare what the law was upon the facts shown in evidence. It was
analogous to the demurrer upon the facts alleged in pleading. The
reason, it is said, for demurring to the evidence was that the
jury, if they pleased, might refuse to find a special verdict, and
then the facts would not appear upon the record. The party
demurring had to admit the truth of all the evidence against him,
and if this were circumstantial, he was bound to admit every fact
in favor of his adversary which the circumstances might tend to
prove. Unless he did so, the other party was not bound to join in
the demurrer. If, however, the demurrer was in proper form and
embraced all the requisite concessions, the other party was bound
to join. The result was that there was nothing left for the
consideration of the jury, and the usual practice was to discharge
it, although it was recognized as proper for the jury to assess the
damages
conditionally, subject to the determination of the
demurrer. 2 Tidd's Pr. *865-*867.
This matter was reviewed by the House of Lords in the leading
case of
Gibson v. Hunter, 2 H.Bl. 187, decided in the year
1793, where Lord Chief Justice Eyre, in delivering the answer of
the judges, said:
"All our books agree that, if a matter of
record, or
other matter in
writing, be offered in evidence in
maintenance of an issue joined between the parties, the adverse
party may insist upon the jury's being discharged from giving a
verdict by demurring to the evidence and obliging the party
offering the evidence
Page 228 U. S. 410
to join in demurrer. He cannot refuse to join in demurrer, he
must join, or waive the evidence. Our books also agree that if
parol evidence be offered, and the adverse party demurs,
he who offers the evidence
may join in demurrer if he
will. We are therefore thus far advanced that the demurrer to
evidence is not necessarily confined to
written evidence.
The language of our books is very indistinct upon the question
whether the party offering parol evidence should be
obliged to join in demurrer. Why is he obliged to join in
demurrer when the evidence which he has offered is in writing? The
reason is given in Croke's report of
Baker's case,
[
Footnote 2/1] because, says the
book, '
there cannot be any variance of matter in writing.'
Parol evidence is sometimes certain, and no more admitting of any
variance than a matter in writing, but it is also often loose and
indeterminate, often circumstantial. The reason for obliging the
party offering evidence in writing to join in demurrer applies to
the first sort of parol evidence, but it does not apply to parol
evidence which is loose and indeterminate, which may be urged with
more or less effect to a jury, and least of all will it apply to
evidence of circumstances, which evidence is meant to operate
beyond the proof of the existence of those circumstances, and to
conduce to the proof of the existence of other facts. And yet, if
there can be no demurrer in such cases, there will be no
consistency in the doctrine of demurrers to evidence, by which the
application of the law to the fact on an issue is meant to be
withdrawn from a jury and transferred to the judges. If the party
who demurs will admit the evidence of the fact, the evidence of
which fact is loose and indeterminate, or, in the case of
circumstantial evidence, if he will admit the existence of the fact
which the circumstances offered in evidence conduce to prove, there
will then be no more variance in this parol evidence than
Page 228 U. S. 411
in a matter in writing, and the reasons for compelling the party
who offers the evidence to join in demurrer will then apply, and
the doctrine of demurrers to evidence will be uniform and
consistent. That this is the regular course of proceeding in
respect to parol evidence of the nature that I have been describing
I think may be collected from the known case upon this subject,
Baker's case. There is also another case,
Wright v.
Pindar, as it stands reported in Aleyn's Reports, [
Footnote 2/2] which carries the doctrine
further, and home to every case of evidence circumstantial in its
nature, affording ground for a conclusion of fact from fact, and
the two cases taken together, I think, prove satisfactorily that
the course is that which I have already supposed, and which would
remove all the difficulties that are in the way of obliging the
party to join in demurrer upon parol evidence.
Baker's
case, after stating that the party must join in demurrer or waive
his evidence, where a matter in writing is shewn in evidence, goes
on thus:"
"If the plaintiff produces witnesses to prove any matter in fact
upon which a question in law arises, if the defendant admits their
testimony to be true, there also the defendant may demur in law
upon it, but then he ought to admit the evidence given by the
plaintiff to be true."
"Those cases have very carefully marked the precise ground upon
which a party may demur to evidence, and prove that, if a party may
demur, the other party must join in demurrer. According to Aleyn's
report of the case of
Wright v. Pindar, which case
underwent very serious consideration, it was resolved"
"that he that demurs upon the evidence ought to confess the
whole matter of fact to be true, and not refer that to the judgment
of the court,
and if the matter of fact be uncertainly alleged,
or that it be doubtful whether it be true or no, because offered to
be proved by presumptions or probabilities, and the
Page 228 U. S. 412
other party demurs thereupon, he that alleges this matter cannot
join in demurrer with him, but ought to pray the judgment of the
court, that he
may not be admitted to his demurrer, unless
he will
confess the matter of fact to be true."
"It seems to follow as a necessary conclusion that, if he will
confess the matter of fact to be true, there he is to be admitted
to his demurrer, and that if he is admitted, the other party must
join in demurrer. My Lords, it is said in some of our books that,
upon a demurrer entered upon parol evidence, the party offering the
evidence may choose whether he will join in demurrer or not. But,
after having stated the two authorities which I have mentioned, I
think those passages in the books must be understood with the
qualification mentioned in both those authorities, 'unless the
adverse party will confess the evidence to be true.' The matter of
fact being confessed, the case is ripe for judgment in matter of
law upon the evidence, and may then be properly withdrawn from the
jury, and, being entered on record, will remain for the decision of
the judges."
Id., pp. 206-209.
If, on a demurrer to the evidence, judgment was given for one
party when it should have been given for the other, the error was
corrected in the appellate tribunal by directing the proper
judgment. It is now said, in referring to this practice, that this
was because the error was confined to the judgment, and did not
reach the facts as ascertained and shown in the demurrer. But what
was the error? What was the basis of the judgment, and upon what
ground was it reversed and the proper judgment directed? The facts,
by the proceeding on the demurrer, were made a part of the record,
and the question of the legal sufficiency of the evidence was thus
one of law arising upon the record. The court dealt with the
question of law -- that is, with the legal insufficiency of the
evidence -- and directed judgment which, as matter of law, followed
the case made.
Page 228 U. S. 413
It is also said that, when the reversal was for error in
allowing the demurrer, the latter necessarily went for naught, and
as there remained no ascertained facts on which to base a judgment,
a new trial was deemed essential, and
Gibson v. Hunter,
supra, and
Fowle v.
Alexandria, 11 Wheat. 320, are cited. But, in
Gibson v. Hunter, supra, the reason for holding that the
demurrer could not be allowed and that no judgment could be given,
was thus stated:
"The examination of the witnesses in this case has been
conducted so loosely, or this demurrer has been so negligently
framed, that there is no manner of certainty in the state of facts
upon which any judgment can be founded."
In other words, the case was lacking in the record of facts with
the essential admissions of the demurring party which were
necessary to support a judgment, and there was no option but to
award a new trial because of the way the record had been made up.
And in
Fowle v. Alexandria, supra, the ruling was that
issue could not be joined upon the demurrer so long as any matter
of fact remained in controversy between the parties; that no party
could insist upon the other party's joining in the demurrer without
distinctly admitting upon the record every fact and every
conclusion of fact which the evidence given for his adversary
conduced to prove. The Court said:
"Upon examination of the case at bar, it will be at once
perceived that the demurrer to evidence, tried by the principles
already stated, is fatally defective. The defendants have demurred
not to facts, but to evidence of facts; not to positive admissions,
but to mere circumstances of presumption introduced on the other
side. . . . Even if the demurrer could be considered as being
exclusively taken to the plaintiff's evidence, it ought not to have
been allowed without a distinct admission of the facts which that
evidence conduced to prove. But when the demurrer was so framed as
to let in the defendant's evidence, and thus to rebut what the
Page 228 U. S. 414
other side aimed to establish, and to overthrow the presumptions
arising therefrom, by counter-presumptions, it was the duty of the
circuit court to overrule the demurrer, as incorrect, and untenable
in principle. The question referred by it to the court was not a
question of law, but of fact."
The Court therefore concluded that, in this posture of the case,
it was bound to order a new trial, and it was added:
"We may say, as was said by the judges in
Gibson v.
Hunter, that this demurrer has been so incautiously framed
that there is no manner of certainty in the state of facts upon
which any judgment can be founded. Under such a predicament, the
settled practice is to award a new trial upon the ground that the
issue between the parties, in effect, has not been tried."
(
Id., pp.
24 U. S.
323-324.) The necessary implication is that, had the
demurrer been properly framed and the record properly made, so that
there had been certainty in the facts and the proper basis for the
determination of a question of law, no new trial would have been
ordered.
How can it be said that these authorities furnish any support
for the conclusion which has been reached in this case? For this
Court has found no uncertainty in the state of facts shown by the
record, and it has not been unable to determine the question
arising thereon. On the contrary, the record being made up in an
appropriate manner and the question being properly raised, this
Court holds that there was no evidence whatever to sustain a
verdict for the plaintiff, and, because there is certainty in the
record, adjudges that the trial court erred in refusing a binding
instruction.
The practice of demurring to the evidence was recognized in
Pawling v. United
States, 4 Cranch 219;
Young v.
Black, 7 Cranch 565;
United
States Bank v. Smith, 11 Wheat. 171,
24 U. S. 182;
Columbian Insurance Co. v.
Catlett, 12 Wheat. 383,
25 U. S. 389;
Thornton v. Bank of
Washington, 3 Pet.
Page 228 U. S. 415
36;
Chinoweth v.
Haskell, 3 Pet. 92;
Corfield v. Coryell, 4
Wash.C.C. 371, 386;
Johnson v. United States, 5 Mason,
425, 436;
Pickel v. Isgrigg, 6 F. 676, and other
cases.
After the decision of this Court in
Fowle v. Alexandria,
supra, Mr. Justice Story, who delivered the opinion in that
case, thus laid down the rules with regard to demurrers to evidence
in
Johnson v. United States, supra, (p. 436):
"The general nature and operation of such a demurrer has been
expounded with great force and correctness in the opinion delivered
by Lord Chief Justice Eyre, in the case of
Gibson v.
Hunter, 2 H.Bl. 187. The Supreme Court of the United States
has also, on various occasions, been called upon to discuss the
nature and effect of the proceeding. But I shall do no more at
present than to refer to some of the leading cases, not meaning to
comment on them. The result of the whole is that the party
demurring is bound to admit not merely all the facts which the
evidence directly establishes, but all which it conduces to prove.
The demurrer should state the facts, and not merely the evidence of
facts, and it is utterly inadmissible to demur to the evidence when
there is contradictory testimony to the same points, or
presumptions leading to opposite conclusions, so that what the
facts are remains uncertain, and may be urged with more or less
effect to a jury. The court, however, will, in favor of the party
against whom the demurrer is sought, as it withdraws from the jury
the proper consideration of his case, make every inference for him
which the facts in proof would warrant a jury to draw. But if the
facts are so imperfectly and loosely stated that the court cannot
arrive at a satisfactory conclusion that the judgment can be
maintained upon the actual presentation of the evidence of these
facts, then the course is to reverse the judgment, and to award a
venire facias de novo."
In
Pawling v. United
States, 4 Cranch 219, the United
Page 228 U. S. 416
states sued in debt upon an official bond. The defendants
pleaded that the bond had been delivered as an escrow upon a
condition which had not been performed. The United States demurred
to the evidence produced on behalf of the defendants. The court
held the evidence insufficient and judgment went in favor of the
United States. This Court reversed the judgment, and directed that
judgment be entered for the defendants in the court below.
That the practice in the present case did not differ in its
essential features from that permitted at common law is shown by
the decision of this Court in
Chinoweth v.
Haskell, 3 Pet. 92. That was an action in
ejectment. What took place on the trial is thus stated by Chief
Justice Marshall (p.
28 U. S. 94):
"At the trial, the defendants demurred to the plaintiffs'
testimony, and the jury found a verdict for the plaintiffs, subject
to the opinion of the court on the demurrer. The court overruled
the demurrer and gave judgment for the plaintiffs."
The applicable principles were thus stated (p.
28 U. S. 96):
"The defendants in the district court having withdrawn their
cause from the jury by a demurrer to evidence, or having submitted
to a verdict for the plaintiffs subject to that demurrer, cannot
hope for a judgment in their favor, if, by any fair construction of
the evidence, the verdict can be sustained. If this cannot be done,
the judgment rendered for the defendants in error must be
reversed."
On reviewing the evidence, this Court found that the demurrer
ought to have been sustained. And this was its judgment: "The
judgment is reversed, and the cause remanded with directions to
enter judgment in favor of the defendants in the district
court."
Here, then, is a case in this Court which contradicts the
conclusion that there is no permissible practice under the
Constitution by which, when a verdict has been taken
Page 228 U. S. 417
for the plaintiff, and it has been found, the point being duly
made, that there is no legal basis for it in the evidence, judgment
can be directed for the defendant.
It is said that there was a voluntary joinder in demurrer.
Undoubtedly the plaintiffs in the district court did join in the
demurrer, but in what sense did they join voluntarily? The demurrer
to the evidence in the
Chinoweth case was manifestly well
taken. And, this being so, the other party was bound to join in it.
As it was said in
Gibson v. Hunter, supra, the cases
"prove that if a party may demur, the other party must join in the
demurrer." Whether a demurrer should be allowed was the initial
question for the trial court, but if the case was one where it was
proper to allow the demurrer, and it was duly taken and allowed,
the other party was not entitled to stand on his evidence and go to
the jury. Let it be assumed that he could take a nonsuit; but this
is not to say that, by refusing to join in the demurrer, he had the
right to have his case, although insufficient in law for that
purpose, submitted to the decision of the jury. Of course, if there
were some defect or variance which he believed he could remedy, it
would be natural for him to withdraw his case; but if he had proved
all he could possibly prove, there would be no reason for a
withdrawal unless he was willing to abandon the litigation. If he
did not desire to do this, but wished to proceed, insisting upon
the legal sufficiency of the evidence to which the demurrer was
taken, he had to join in it. For, unless he did so, he waived his
evidence (
Baker's Case, supra; Gibson v. Hunter, supra)
and was left without any evidence to go upon, while if he did join
in the demurrer, he had to abide the judgment of the court upon the
point of law. He had no right to reach the jury, against proper
objection, when his evidence raised no question of fact. In the
Chinoweth case, the plaintiffs, confronted with the
demurrer, and desiring to stand upon their evidence, and not to
waive it, complied with the rules
Page 228 U. S. 418
of law which required them to join in the demurrer. The judgment
was determined by the decision of the question of law. This Court,
finding no basis for the verdict which had been taken for the
plaintiffs subject to the opinion of the court on the demurrer, did
not order a new trial, but directed judgment for the
defendants.
The practice of demurring to the evidence was cumbrous. It fell
into disuse, and the practice of moving for a direction of a
verdict came to take its place. The fundamental question, however,
of the legal insufficiency of the evidence remained the same. As
this Court said in
Parks v. Ross,
11 How. 362,
52 U. S.
373:
"But a jury has no right to assume the truth of any material
fact without some evidence legally sufficient to establish it. It
is therefore error in the court to instruct the jury that they may
find a material fact of which there is no evidence from which it
may be legally inferred. Hence, the practice of granting an
instruction like the present, which makes it imperative upon the
jury to find a verdict for the defendant, and which has in many
states superseded the ancient practice of a demurrer to evidence.
It answers the same purpose, and should be tested by the same
rules. A demurrer to evidence admits not only the facts stated
therein, but also every conclusion which a jury might fairly or
reasonably infer therefrom."
Can it be doubted that it would be competent for Congress, if it
saw fit, to reinstate the old practice of demurring to the
evidence, and on a proper demurrer to its legal sufficiency, with
an admission of all facts that his evidence tended to prove, to
compel the other party to join in the demurrer, and to provide that
thereupon the court should decide the question of law and enter
judgment accordingly? Or that, if the trial court decided wrongly,
the appellate court should be at liberty to direct the entry of the
judgment to which, as matter of law, a party was entitled? And
could not Congress, following the analogies
Page 228 U. S. 419
of a still earlier day, before written pleadings were
introduced, permit the question to be raised by a motion upon the
trial? Could it not now provide, when the testimony is reported
stenographically, that the record so made and appropriately
approved by the court should constitute the record of the evidence
for the purpose of determining the question of law thus raised?
Again, the court having this power to decide the question of law
and to enter judgment accordingly, can it not be authorized to take
provisionally the verdict of the jury to avoid the delay and
expense of a new trial in case it should appear on a careful
consideration of the evidence that it involved a dispute of fact
which the jury should have resolved?
This is all, as it seems to me, that the Pennsylvania practice
comes to. Had the old practice obtained, and had there been a
demurrer to the evidence in this case, this Court, in view of its
holding that the "evidence did not admit of a finding that the
policy was in force at the time of the insured's death," must
necessarily have concluded that the demurrer was well taken; that
the trial court would have been justified in directing judgment for
the defendant without submitting the case to the jury, and that, if
it had not decided the question correctly, the appellate court
could so decide it and direct the entry of that judgment. The rest
of the matter was simply the exercise of caution to avoid
unnecessary litigation by taking the verdict of the jury so that it
might be available if it appeared that the case was one for the
jury.
The plaintiff did not take a nonsuit, or attempt in any way to
dismiss her case. No question is presented with respect to her
right to withdraw the suit, or to start again, if it had been
withdrawn. It is said that, had the court indicated a purpose to
direct a verdict for the defendant, the plaintiff might have taken
a nonsuit; but the practice in the state and federal courts had
long been established,
Page 228 U. S. 420
and must have been well understood. There is nothing to indicate
to the contrary. The situation disclosed is that the plaintiff was
standing upon her evidence, contending, as she still contends, that
it was sufficient to permit the jury to find in her favor. The
defendant insisted that, conceding all that the evidence tended to
prove, the plaintiff had no case for the jury. In this, the court
now finds that the defendant was right. The defendant having made
this point, and the plaintiff, on the other hand, having asserted
the sufficiency of the evidence, and stood thereon, I find no
ground for saying that the local practice was opposed to the
principles of the common law in providing, in effect, that the
question of law thus raised should be determined by the court,
which should render judgment for the party entitled thereto.
This Court has frequently said that it would deal with questions
of this sort according to the substance of the matter. Thus, in
Oscanyan v. Winchester Repeating Arms Co., 103 U.
S. 261, it was held that, where it was shown by the
opening statement of counsel that the contract on which the suit
was brought was void as being either in violation of law or against
public policy, the trial court might properly direct the jury to
find a verdict for the defendant. The Court, by Mr. Justice Field,
said (
id., p.
103 U. S.
266):
"Indeed, there can be at this day, no serious doubt that the
court may at any time direct a verdict when the facts are
undisputed, and that the jury should follow such direction. The
maxim that questions of fact are to be submitted to the jury, and
not to be determined by the court, is not violated by this
proceeding any more than by a nonsuit in a state court where the
plaintiff fails to make out his case. The intervention of the jury
is required only where some question of fact is controverted."
In
Central Transportation Co. v. Pullman's Palace Car
Co., 139 U. S. 24, it
was held that a state statute which authorized the judge presiding
at the trial to order a judgment
Page 228 U. S. 421
of nonsuit where the evidence introduced by the plaintiff was
insufficient in law to sustain a verdict might be followed in the
federal court under Rev.Stat. § 914, and that the judgment so
rendered might be reviewed here upon writ of error. The Court
said:
"The difference between a motion to order a nonsuit of the
plaintiff and a motion to direct a verdict for the defendant is, as
observed by Mr. Justice Field, delivering a recent opinion of this
Court,"
"rather a matter of form than of substance, except [that], in
the case of a nonsuit, a new action may be brought, whereas in the
case of a verdict, the action is ended unless a new trial be
granted either upon motion or upon appeal."
"
Oscanyan v. Winchester Repeating Arms Co.,
103 U. S.
261,
103 U. S. 264."
"Whether a defendant in an action at law may present in the one
form or in the other, or by demurrer to the evidence, the defense
that the plaintiff, upon his own case, shows no cause of action, is
a question of 'practice, pleadings, and forms and modes of
proceeding,' as to which the courts of the United States are now
required by the Act of Congress of June 1, 1872, c. 255, § 5, 17
Stat.197, reenacted in § 914 of the Revised Statutes, to conform as
near as may be to those existing in the courts of the state within
which the trial is had.
Sawin v. Kenny, 93 U. S.
289;
Ex Parte Boyd, 105 U. S.
647;
Chateaugay Ore & Iron Co.,
128 U. S.
544;
Glenn v. Sumner, 132 U. S.
152,
132 U. S. 156."
Id., pp.
139 U. S.
39-40.
In other words, a practice which would not have been allowed in
the absence of statute was permitted under the statute because, in
the substance of the thing, it was entirely in accord with the
principles of the common law. In
Coughran v. Bigelow,
164 U. S. 301, the
constitutional question was directly presented, and, after
referring to the ruling in
Elmore v.
Grymes, 1 Pet. 469, that, in a federal court, there
was no authority to order a peremptory nonsuit against the will of
the plaintiff (
Crane v.
Morris, 6 Pet 598;
Castle v.
Bullard, 23 How. 172), the Court said:
Page 228 U. S. 422
"The foundation for those rulings was not in the constitutional
right of a trial by jury, for it has long been the doctrine of this
Court that, in every case, before the evidence is left to the jury,
there is a preliminary question for the judge, not whether there is
literally no evidence, but whether there is any upon which a jury
can properly proceed to find a verdict for the party producing it
upon whom the
onus of proof is imposed, and that, if the
evidence be not sufficient to warrant a recovery, it is the duty of
the court to instruct the jury accordingly, and, if the jury
disregard such instruction, to set aside the verdict.
Parks v.
Ross, 11 How. 362;
Schuchardt v.
Allen, 1 Wall. 359;
Pleasants v.
Fant, 22 Wall. 116,
89 U. S.
120. And, in the case of
Oscanyan v. Arms Co.,
103 U.
S. 264, it was said by Mr. Justice Field, in delivering
the opinion of the Court, that the difference between a motion to
order a nonsuit of the plaintiff and a motion to direct a verdict
for the defendant is 'rather a matter of form than of
substance.'"
"That the cases above cited, which held that the circuit court
of the United States had no authority to order peremptory nonsuits,
were based not upon a constitutional right of a plaintiff to have
the verdict of a jury, even if his evidence was insufficient to
sustain his case, but upon the absence of authority, whether
statutory or by a rule promulgated by this Court, is shown by the
recent case of
Central Transportation Co. v. Pullman's Palace
Car Co., 139 U. S. 24,
139 U. S.
38, where it was held that, since the Act of the
Congress of June 1, 1872, c. 255, § 5, 17 Stat.197, reenacted in §
914 of the Revised Statutes, courts of the United States are
required to conform, as near as may be, in questions of 'practice,
pleadings, and forms and modes of proceeding,' to those existing in
the courts of the state within which the trial is had, and a
judgment of the Circuit Court of the United States for the Eastern
District of Pennsylvania ordering a peremptory nonsuit in pursuance
of a state statute was upheld. It is the clear implication
Page 228 U. S. 423
of this case that granting a nonsuit for want of sufficient
evidence is not an infringement of the constitutional right of
trial by jury."
"As there was a statute of the territory of Utah authorizing
courts to enter judgments of peremptory nonsuit, there was no error
in the trial court in granting the motion for a nonsuit in the
present case, nor in the judgment of the supreme court, affirming
such ruling; if, indeed, upon the entire evidence adduced by the
plaintiffs, enough did not appear to sustain a verdict."
Id., pp.
164 U. S.
307-308.
In the present case, the point is not that the ordinary practice
on a motion for the direction of a verdict is identical with that
on a demurrer to the evidence, but that the latter as well as the
former was clearly permitted by the Constitution, and that the
modern application of it, in a convenient form, through the local
statute in question, was not a substantial departure.
I do not see that the authorities relied upon in the opinion of
the Court sustain its ruling. They may be briefly reviewed. In
United States v. Wonson, 1 Gall. 5, 20, it was held that,
where a cause had once been tried by a jury in the district court,
there could not be a new trial by a jury in the circuit court. The
statement of Mr. Justice Story with regard to the constitutional
provision and the importance of trial by jury have obvious
reference to cases of disputed questions of fact with which it is
the province of the jury to deal. Facts once tried by a jury are
not reexamined, and the court is not to substitute its judgment of
the facts for the judgment of the jury, but, in such case, should
order a new trial.
Applying this rule to the present case, if this Court found
that, on the trial, there was any question of fact for the jury to
decide, it could not sustain, as it does sustain, the circuit court
of appeals in reversing the judgment for the plaintiff.
Page 228 U. S. 424
In
Parsons v.
Bedford, 3 Pet. 433, it was held that it was not
the intention of Congress, by the Act of May 26, 1824, c. 181, 4
Stat. 62, to confer upon this Court the power, in reviewing a
judgment of the district court of Louisiana, to decide questions of
fact which had been passed upon by the jury. The Court said that no
points of law were brought under review, and that the whole object
was "to present the evidence here in order to establish the error
of the verdict in matters of fact." The remarks of the Court in
Walker v. New Mexico & Southern Pacific R. Co.,
165 U. S. 593,
165 U. S. 596,
plainly have reference to the same subject. Thus, it is said that
the Seventh Amendment "does not attempt to regulate matters of
pleading or practice," that "its aim is not to preserve mere
matters of form and procedure, but substance of right," and
that
"this requires that questions of fact in common law actions
shall be settled by a jury, and that the court shall not assume
directly or indirectly to take from the jury or to itself such
prerogative."
In
Barney v.
Schmeider, 9 Wall. 248, the court received the
testimony taken on a former trial, but did not have it read to the
jury. The court informed the jury of its purport, and directed them
to find a verdict in favor of the plaintiff. In other words, the
court followed the practice of directing a verdict by a jury
without the evidence upon which it should rest being properly
presented to the jury. The court overruled the contention that
there was not a disputed question of fact, saying, after reviewing
the case:
"Where there is any discrepancy, however slight, the court must
submit the matter to which it relates to the jury, because it is
their province to weight and balance the testimony, and not the
court's. The proposition is not therefore sustained, that nothing
but a question of law was to be decided."
Id., p.
76 U. S.
253.
The cases mostly relied upon are those of
Hodges v.
Easton, 106 U. S. 408, and
Baylis v. Travelers'
Insurance
Page 228 U. S. 425
Co., 113 U. S. 316. But
it is submitted that these cases neither control the matter nor are
inconsistent with the principles which I have urged as
determinative of this question.
In
Hodges v. Easton, supra, there was a so-called
special verdict, in answer to questions propounded by the court.
But the questions and the verdict in response thereto covered only
a part of the material issues of fact. The court gave judgment upon
the special verdict and upon what is described as "facts conceded
or not disputed upon the trial." What these facts were, which lay
outside the verdict, did not appear from the record. "No bill of
exceptions was taken showing the evidence introduced by either
party, nor was there a general verdict." This Court said that,
having regard alone to the questions and answers propounded to the
jury, it was clear that the plaintiffs had not proved their case.
If it were presumed that there were no material facts beyond those
found by the jury, then the judgment was unauthorized; on the other
hand, if there were other material facts, they were found by the
court, and not by the jury. As the Court pointed out, there was no
waiver of a jury by a stipulation in writing, as provided by the
statute (Rev.Stat. §§ 648, 649), and there was "nothing in the
record from which such stipulation or waiver may be inferred." The
case, then, was one in which the record afforded no basis for a
judgment, and there was no alternative but to direct that a trial
be had "upon all the material issues of fact."
In
Baylis v. Travelers' Insurance Co., supra, the
action was upon a policy of insurance to be paid to the plaintiff
in case his father "should accidentally sustain bodily injury which
should produce death within ninety days." After the close of the
testimony, the defendant moved to dismiss on the ground that the
evidence was insufficient to support a verdict. The motion was
denied, the plaintiff insisting that there were questions of fact
which should be
Page 228 U. S. 426
submitted to the jury. The court then directed the jury to find
a verdict for the plaintiff, subject to its opinion upon the
question whether the facts warranted a recovery. Subsequently the
court denied a motion for judgment on the verdict in favor of the
plaintiff, and directed judgment to be entered for the defendant.
This Court reversed the judgment and ordered a new trial.
The pith of the decision is that, despite what the trial judge
said regarding the matter, there were really questions of fact for
the jury, and that the trial judge could not take the place of the
jury in deciding them. The appellant challenged the judgment in
this Court upon that ground, which was found to be well taken. What
was actually decided appears from the following statement of the
opinion:
"But, without a waiver of the right of trial by jury, by consent
of parties, the court errs if it substitutes itself for the jury,
and, passing upon the effect of the evidence, finds the facts
involved in the issue and renders judgment thereon."
"This is what was done in the present case. It may be that the
conclusion of fact reached and stated by the court are correct,
and, when properly ascertained, that they require such a judgment
as was rendered. That is a question not before us. The plaintiff in
error complains that he was entitled to have the evidence submitted
to the jury, and to the benefit of such conclusions of fact as it
might justifiably have drawn -- a right he demanded and did not
waive -- and that he has been deprived of it by the Act of the
court in entering a judgment against him on its own view of the
evidence, without the intervention of a jury."
"In this particular, we think error has been well assigned."
Id., pp.
113 U. S.
320-321.
This being the point of the case, it would seem to be rather an
extreme construction of the rest of the opinion,
Page 228 U. S. 427
in its references to practice, to treat it as an exhaustive
statement of all the possibilities of legislative control over
procedure within constitutional limits, or as laying down rules
which would preclude the court in a case where there was no
question of fact for the jury, from following the applicable state
practice, or an act of Congress, in entering judgment for the party
who, upon the record, was, as matter of law, entitled to it. That,
as I regard the decision, is very far from its purpose and
effect.
It is said, however, that a new trial affords opportunity to a
plaintiff to better his case by presenting evidence which may not
have been available before. But we are not dealing with an
application for a new trial upon the ground of newly discovered
evidence, or with the principles controlling an application of that
sort. We are concerned with the question whether a party has a
constitutional right to another trial simply because the trial
court erred in its determination of a question of law which was
decisive of the case made. Had the trial court done what this Court
says it should have done, it would have directed a verdict for the
defendant, and if the jury, simply following the instruction of the
trial court, had so found, final judgment would have been entered
and no new trial would now be granted. Still the jury would not
have passed upon any question of fact, but would simply have obeyed
the judge. The opportunity to better the case on a second trial
would probably be as welcome, but it would not be accorded. I am
unable to see any basis for a constitutional distinction which
raises a constitutional right to another trial in the one case and
not in the other.
Of course, in any case, where there are questions of fact for
the jury, the court cannot undertake to decide them unless a jury
trial is waived. But it would seem to be an entire misapprehension
to say that trial by jury, in its constitutional aspect, requires
the submission to the jury of evidence which presents no question
for their
Page 228 U. S. 428
decision, and that, although there be no facts for the jury to
pass upon, still the judgment which follows as matter of law can be
arrived at only through a verdict. This is to create a
constitutional right out of the practice of taking verdicts by
direction. The ancient method of challenging the sufficiency of the
evidence by demurrer, and thereupon either discharging the jury
altogether or assessing the damages conditionally to await the
decision of the demurrer (
Darrose v. Newbott, Cro.Car.
143), reveals the function of court and jury in a clearer light,
and shows that the idea that the jury upon a trial where there is
no evidence to sustain a finding by the jury can be reached only
through a verdict could not have been entertained at the time the
Constitution was adopted.
To repeat and conclude: all that has been done in the present
case could, in substance, have been done at common law, albeit by a
more cumbrous method. There has been no invasion of the province of
the jury. That conclusively appears from the fact that this Court
holds that there was no basis for a finding by the jury in favor of
the plaintiff. We have here a simplification of procedure adopted
in the public interest to the end that unnecessary litigation may
be avoided. The party obtains the judgment which in law he should
have according to the record. I submit, with deference, that in now
condemning this practice, long followed in the courts below, this
Court is departing from, instead of applying, the principles of the
common law, and is extending, rather than enforcing, the
constitutional provision.
I am authorized to say that MR. JUSTICE HOLMES, MR. JUSTICE
LURTON, and MR. JUSTICE PITNEY concur in this dissent.
[
Footnote 2/1]
Cro.Eliz. 753.
[
Footnote 2/2]
Al. 18.