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SLOCUM v. NEW YORK LIFE INSURANCE CO.

decided: April 21, 1913.

SLOCUM
v.
NEW YORK LIFE INSURANCE CO.



CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

Author: Van Devanter

[ 228 U.S. Page 366]

 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 20-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 non-forfeitable from date of issue, as follows:

"First. If any premium is not duly paid, and if there is no indebtedness to the Company, this policy will be endorsed 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,

[ 228 U.S. Page 367]

     and if there is an indebtedness to the Company, this policy will be endorsed 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 per cent. 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

[ 228 U.S. Page 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 $434.00, 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 non-forfeiture 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 non-assumpsit 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 $2,360.00 from the company to the insured and $434.00, 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.

[ 228 U.S. Page 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 Fed. Rep. 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

[ 228 U.S. Page 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 $2,360.00 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 non-forfeiture provision before quoted and the reserve would have entitled the insured, if he so elected, to a paid-up insurance of $4,000.00 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 $20,000.00 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

[ 228 U.S. Page 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 Pittaburgh, 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

[ 228 U.S. Page 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 $434.00, 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 endorsed 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 postoffice 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

[ 228 U.S. Page 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 portion 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*fn1 in cash, on the following express agreement: That although no part of the premium due on the 27th day of Nov. 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

[ 228 U.S. Page 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,

[ 228 U.S. Page 375]

     which was a matter of real substance, and not of mere form, as is shown by the terms of the note, before quoted. See White v. New York Life Insurance Co., 200 Massachusetts, 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 conformably 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 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, if it does not

[ 228 U.S. Page 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

[ 228 U.S. Page 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 Article 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.

[ 228 U.S. Page 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. 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 guarantee 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. 447, 448): "This is a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner. The only modes known to the common law to re-examine 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, 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

[ 228 U.S. Page 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 of 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, 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 twenty dollars, 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

[ 228 U.S. Page 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 know 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

[ 228 U.S. Page 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 is 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, 687;

[ 228 U.S. Page 382]

     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 Indiana, 29, 32; Lewis v. Foard, 112 N. Car. 402; Manning v. City of Orleans, 42 Nebraska, 712; McCoy v. Jones, 61 Oh. St. 119, 129. In Bond v. Dustin, 112 U.S. 604, 608, and Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 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

[ 228 U.S. Page 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 (pp. 251, 252):

"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 non-suit, 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 ...


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