subject to review had the trial been before a jury, there seems to me to be no secure middle ground. If we depart from both these rules, it will be difficult, and I think impossible, to draw the line by any rule so that the courts and the gentlemen of the bar may know what requests for declarations of law are, and what are not, reviewable in this court. For this reason, and because the statute provides that the general finding of the court shall have the same effect as the verdict of a jury, and that the rulings of the court in the progress of the trial of a cause may be reviewed upon a writ of error, and because I think both the earlier and later decisions of the Supreme Court point to this result, I have been forced to the conclusion that the true test for determining whether or not a ruling of the trial court may be reviewed when a jury has been waived is whether it would have been subject to review if the trial had been by jury. As the statute declares the general finding shall have the same effect as the verdict of a jury, I think it ought not to be given any greater or other effect. Trust Co. v. Wood, 8 C. C. A. 658, 60 Fed. 346, 348; Clement v. Insurance Co., supra [7 Blatchf. 51, Fed. Cas. No. 2,882]; St. Louis v. W. U. Tel. Co., supra [148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380]. Tested by this rule, the application of the plaintiff for a declaration of law 'that, upon the whole case, the finding of the court should be for the plaintiff for the amount of the warrants sued on, without deduction of any kind,' presented the question whether or not, if all the evidence adduced by the defendant was admitted to be true, the plaintiff was entitled to a judgment for the amount he claimed. This application had the same effect that a request to the court to instruct the jury peremptorily to find for the plaintiff for the amount of the warrants would have had if the trial had been before a jury. Nor does it appear to me that there is any greater difficulty in reviewing and deciding this question in a case tried before the court than there would have been if the trial had been by jury. There is in this record a bill of exceptions which declares that it contains all the evidence. It is not necessary to pass upon the weight or sufficiency of the evidence to determine this question of law. It is to be decided, like the question which arises upon a request for a peremptory instruction to the jury, on the concession that the evidence for the defendant must prevail on all disputed material issues. Indeed, this application is, both in form and in substance, substantially the same as that which Mr. Justice Brewer declared, in St. Louis v. W. U. Tel. Co., supra, properly presented a question for the consideration of the Supreme Court." In Cooper v. Omohundro, 19 Wall. 65, 22 L. Ed. 47, it was said: "'Rulings of the court in the progress of the trial' does not include the general finding of the Circuit Court, nor the conclusions embodied in such general finding."

See, also, Martinton v. Fairbanks, 112 U. S. 673, 5 Sup. Ct. 321, 28 L. Ed. 862.

2. In such cases a bill of exceptions cannot be used to bring up the whole testimony for review, any more than on a trial by jury. Norris v. Jackson, supra; Insurance Co. v. Folsom, 18 Wall. 250, 21 L. Ed. 827; Martinton v. Fairbanks, 112 U. S. 672, 5 Sup. Ct. 321, 28 L. Ed. 862.

3. If the parties desire a review of the law involved in the case, they must get the court to find a special verdict, which raises the legal propositions. Norris v. Jackson, supra (see cases cited next below). Or they must present to the court their propositions or declarations of law, and require the court to rule on them. Norris v. Jackson, supra; Martinton v. Fairbanks, 112 U. S. 670, 672, 5 Sup. Ct. 321, 28 L. Ed. 862; St. Louis v. W. U. Tel. Co., 148 U. S. 92, 96, 13 Sup. Ct. 485, 487, 37 L. Ed. 380, where Mr. Justice Brewer said:

"It is enough to say that in this case there was, as appears by the bill of exceptions, an application at the close of the trial for a declaration of law that

the plaintiff was entitled to judgment for the sum claimed, which instruction was refused, and exception taken; and this, as was held in Norris v. Jackson, 9 Wall. 125 [19 L. Ed. 608], presents a question of law for our consideration."

In Clement v. Insurance Co., 7 Blatchf. 51, Fed. Cas. No. 2,882, Judge Blatchford said:

"The trial is to proceed in all respects as if before a jury, except that there is to be no charge to a jury, and, instead of a verdict by a jury, there is to be a finding by the court on the facts, which finding, if general, is to have the same effect as the general verdict of a jury, and, if special, is to have the same effect as the special verdict of a jury. The rulings of the court in admitting or rejecting evidence are to be made and excepted to as on a trial before a jury. When the evidence is concluded, the respective parties are to propound to the court the propositions of law which they respectively conceive to arise therefrom, as on a trial before a jury, except that a proposition of law, instead of running to the effect that, if the jury find thus and so, the law on such a state of facts is thus and so, will run that, if the court find thus and so, the law on such a state of facts is thus and so. The court must pass on such a proposition of law when it tries an issue of fact, just as it must pass on a proposition of law, when made at a like stage of the trial, on a trial before a jury. And such ruling being, within the fourth section of the act of 1865, a ruling of the court in the cause, in the progress of the trial, and being excepted to at the time, may under that section, when duly presented by a bill of exceptions, be reviewed by the Supreme Court upon a writ of error or upon appeal."

In Mercantile Trust Co. v. Wood, 60 Fed. 348, 8 C. C. A. 659, it is said:

"The only question the special finding presents that would not be presented by a general finding is whether or not, in any view, the facts found in it are sufficient to support the judgment. With the single exception of this question, which is presented by the special finding itself, there are only two methods by which questions of law can be so presented to the court that tries the facts that this court can review them by writ of error. These methods are, first, by seasonable objections and exceptions to the rulings of the court upon the admission or rejection of evidence, and, second, by requesting the court, before the trial is ended, to make declarations of law, and excepting to its refusal to do so, and to its declarations of law, if any, that do not accord with the propositions asked, in exactly the same way as instructions to the jury would be requested, and the rulings of the court giving or refusing them would be excepted to, if the trial was before a jury. The finding of the court, whether general or special, performs the office of a verdict of a jury. When it is made and filed, the trial is ended."

To the same effect are Walker v. Miller, 59 Fed. 870, 8 C. C. A. 331; Adkins v. W. & J. Sloane, 60 Fed. 344, 8 C. C. A. 656; Searcy County v. Thompson, 66 Fed. 92, 13 C. C. A. 349; Barnard v. Randle, 110 Fed. 906, 49 C. C. A. 177.

There is some judicial statement that a party cannot raise a question of law by tendering requests for instructions and obtaining a ruling. Consolidated Coal Co. v. Polar Wave Ice Co., 106 Fed. 798, 45 C. C. A. 638. The question was specifically left undecided in Insurance Co. v. Folsom, 18 Wall. 253, 254, 21 L. Ed. 827, although it was said in that case (page 251, 18 Wall., 21 L. Ed. 827) that defendant's exception to refusal to nonsuit, at end of plaintiff's case was reviewable because it was taken to a ruling in the course of the trial. See, also, Lehnen v. Dickson, 148 U. S. 78, 13 Sup. Ct. 481, 37 L. Ed. 373, and the remark in Dirst v. Morris, 14 Wall. 484, 490, 20 L. Ed. 722, which Judge Thayer calls obiter dictum (66 Fed. 98, 13 C. C. A. 349),

and which he states was overruled in St. Louis v. W. U. Tel. Co., 148 U. S. 92, 96, 13 Sup. Ct. 485, 37 L. Ed. 380.

4. Objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the parties may ask, must appear by bill of exceptions. Norris v. Jackson, supra; Insurance Co. v. Folsom, 18 Wall. 249, 21 L. Ed. 827.

5. Whether the finding be general or special, it shall have the same effect as the verdict of a jury; it is conclusive as to the facts found. The sufficiency of the evidence to support the findings cannot be considered by the appellate court. Section 1011, Rev. St. U. S. [U. S. Comp. St. 1901, p. 715]; Insurance Co. v. Folsom, 18 Wall. 249, 252, 21 L. Ed. 827; Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457; Stanley v. Supervisors, 121 U. S. 535, 7 Sup. Ct. 1234, 30 L. Ed. 1000; Walker v. Miller, 59 Fed. 870, 8 C. C. A. 331; Smiley v. Barker, 83 Fed. 688, 28 C. C. A. 9; Hoge v. Magnes, 85 Fed. 355, 29 C. C. A. 564.

6. A general verdict, which may include mixed questions of law and fact, is conclusive as to both, except so far as they may be saved by some exception which the party has taken to the ruling of the court upon a question of law. Insurance Co. v. Folsom, 18 Wall. 248, 21 L. Ed. 827; Martinton v. Fairbanks, 112 U. S. 674, 5 Sup. Ct. 321, 28 L. Ed. 862; Boardman v. Toffey, 117 U. S. 271, 6 Sup. Ct. 734, 29 L. Ed. 898; St. Louis v. Rutz, 138 U. S. 241, 242, 11 Sup. Ct. 337, 34 L. Ed. 941.

7. In the case of a special verdict the question is presented, as it would be if tried by a jury, whether the facts thus found require a judgment for plaintiff or defendant, and, this being matter of law, the ruling of the court on it can be reviewed in this court on that record. Insurance Co. v. Folsom, 18 Wall. 253, 21 L. Ed. 827; Lehnen v. Dickson, 148 U. S. 73, 13 Sup. Ct. 481, 37 L. Ed. 373; Stanley v. Supervisors, 121 U. S. 535, 7 Sup. Ct. 1234, 30 L. Ed. 1000; Smiley v. Barker, 83 Fed. 688, 28 C. C. A. 9; Mercantile Trust Co. v. Wood, 60 Fed. 348, 8 C. C. A. 658.

8. Errors alleged in the findings of the court are not subject to revision by the Circuit Court of Appeals or by the Supreme Court, but the court may consider whether there is any evidence upon which such findings could be made. Dooley v. Pease, 180 U. S. 131, 132, 21 Sup. Ct. 329, 45 L. Ed. 457; Hathaway v. National Bank, 134 U. S. 498, 10 Sup. Ct. 608, 33 L. Ed. 1004; Runkle v. Burnham, 153 U. S. 225, 14 Sup. Ct. 837, 38 L. Ed. 694; Case Manufacturing Co. v. Soxman, 138 U. S. 431, 438, 11 Sup. Ct. 360, 34 L. Ed. 1019; Martinton v. Fairbanks, 112 U. S. 670, 672, 5 Sup. Ct. 321, 322, 28 L. Ed. 862, where Mr. Justice Woods said:

"If the question was whether all the evidence was sufficient in law to warrant a finding for the plaintiff, he should have presented the question by a request for a definite ruling upon that point."

Lehnen v. Dickson, 148 U. S. 71, 72, 13 Sup. Ct. 481, 482, 37 L. Ed. 373, where it is said:

"As said by Mr. Justice Blatchford in Lancaster v. Collins, 115 U. S. 222, 225, 6 Sup. Ct. 33, 34 [29 L. Ed. 373]: "This court cannot review the weight

of the evidence, and can look into it only to see whether there was error in not directing a verdict for the plaintiff on the question of variance, or because there was no evidence to sustain the verdict rendered.'"

Consolidated Coal Co. v. Polar Wave Ice Co., 106 Fed. 798, 45 C. C. A. 638, where it is said:

"This court" will not "examine the record with a view of ascertaining what the testimony established or did not establish, except in that class of cases where at the conclusion of all the evidence a request is preferred to direct a verdict for the defendant upon the ground that there is no substantial evidence to support a judgment against the defendant."

See, also, Hall v. Houghton, etc., Mercantile Co., 60 Fed. 350, 8 C. C. A. 661.

It seems that the power of the appellate court to review the rulings of this court upon questions of law involved in the motion to dismiss is ample. It is difficult to conceive of its nonexistence. The plaintiff in this case admits that it exists, and, but for some expressions in certain opinions to which attention has been called, no doubt would have arisen. The request for special findings of fact is denied, in reliance upon the repeated utterances of the appellate courts that the rulings of this court upon questions of law may be reviewed in the manner pointed out by them as hereinbefore considered.

CHICAGO-COULTERVILLE COAL CO. v. FIDELITY & CASUALTY CO OF NEW YORK.

(Circuit Court, W. D. Missouri, W. D. June 11, 1904.)

No. 2,880.

1. INDEMNITY INSURANCE-DEFENSES-WAIVER.

Plaintiff, after having been sued for injuries to its servant, notified defendant indemnity company, by which plaintiff was insured, thereof, and the latter, after having examined the claim, advised settlement, but denied liability on the ground that the injury was caused by plaintiff's breach of a statutory obligation within an exemption from liability contained in the policy. Defendant, however, agreed that its attorney should defend the suit, but plaintiff employed other attorneys, and, without relying on the opinion of defendant's counsel, settled the claim. Held, that defendant was not liable to reimburse plaintiff for the amount of the settlement, on the ground of an express or implied promise.

2. MINES AND MINING-INJURIES TO MINERS-STATUTES-CONTRIBUTORY NEGLIGENCE.

Where a miner was injured by reason of the mine owner's willful failure to maintain an open passageway around the landing place at the bottom of the shaft, as required by 4 Starr & C. Ann. St. 1902, pp. 845, 864, c. 93, §§ 2, 33, declaring that, for any injury occasioned by any willful violation of the act or willful failure to comply with its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby, the contributory negligence of such miner was no defense. 3. SAME-NEW MINES.

Where, long prior to an injury to a miner who was struck by a descending cage in a shaft, the owner of the mine had complied with 4 Starr & C. Ann. St. 1902, p. 815, c. 93, § 2b, requiring a passageway to be constructed 14 feet wide around the bottom of the shaft, but, by reason of a cave

2. See Master and Servant, vol. 34, Cent. Dig. §§ 670, 671.

in, the passage had become blocked and obstructed so that a man could get through the passageway only by crawling over the rock and débris, and then by squeezing through a narrow passage, which condition existed for about six weeks before the injury, whereas the passage might have been cleared in two or three days' time, it was no defense to an action for injuries under the statute that the mine was in the early stages of development, as to which the statute ought not to apply.

4. SAME POLICY-CONSTRUCTION.

An indemnity policy providing that insurer should not be liable for any loss or liability for injuries occasioned by the failure of insured to observe any statute affecting the safety of persons was not repugnant to a preceding general statement of the policy that insurer agreed to indemnify insured against loss from common-law or statutory liability to servants, etc.

5. SAME-WAIVER.

Evidence that the general agent of an indemnity company insuring plaintiff against loss by injuries to employés was informed that plaintiff was engaged in developing a new mine, and that it was not in full operation, but was not advised that the mine was being operated in violation of a statute of the state requiring a safe and commodious passageway around the bottom of the shaft, or that the passage constructed was then obstructed by a cave-in, was insufficient to establish a waiver of a provision in the policy exempting the insurer from liability for injuries caused by a failure of plaintiff to observe the statutory requirements.

H. L. McCune, for plaintiff.

Harkless, Crysler & Histed, for defendant.

PHILIPS, District Judge. This cause having been submitted for earing and determination to the court by written stipulation of the parties herein waiving a trial by jury, the cause was submitted on the pleadings and the evidence.

The suit is based on what is known as an "employer's indemnity policy," issued by the defendant company to the plaintiff company, beginning on the 1st day of October, 1902, at noon, and ending on the 1st day of January, 1903, at noon, "against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any employé of the assured while on duty at the places and in the occupations mentioned in the schedule hereinafter given, in and during the continuance of the work described in the said schedule." Willard A. Pettigrew, an employé of the assured, received an injury on the 23d day of October, 1902, while acting as cager and driver in the plaintiff's coal mine in Illinois, the mine covered by said policy; and to the March term, 1903, of the circuit court of Randolph county, state of Illinois, he brought suit against the said Chicago-Coulterville Coal Company to recover the sum of $5,000 as damages for said injuries. The petition in that case alleged, in substance, that the said coal company was operating a certain coal mine in Perry county, Ill., and was then engaged in mining, removing, and shipping coal from said coal mine; that said coal mine had a shaft in which a cage was lowered and raised, and from the bottom of said shaft were driven entries, and the plaintiff (Pettigrew) was then and there in the employ of said defendant in said coal mine as a driver and cager, his duties being to drive a mule in and along the entries in said coal mine, and to haul empty coal cars from the bottom of said shaft to where the men were mining and dig.