Ætna Insurance v. Rico

252 P. 815, 80 Colo. 536, 1927 Colo. LEXIS 291

• Court: Supreme Court of Colorado
• Decided: January 24, 1927
• Docket: 11,720
• Status: Published

Opinion

Mr. Justice Denison

delivered the opinion of the court.

Rico had judgment on trial to the court on insurance policies for losses of certain grain stacks by fire. The company brings error and moves for supersedeas.

The policies contained a clause which required proof of loss within sixty days. The proof was never given. The plaintiff pleaded express waiver and the evidence thereof was in dispute. There were no special findings. The judgment therefore must be regarded as based on a general finding for the plaintiff, (Montrose Co. v. Greeley Bank, 78 Colo. 240, 242, 241 Pac. 527) and this requires us to presume waiver.

The defendant claims that there were special findings, but we cannot so regard them. There was an opinion by the court, at the end of the evidence and argument, but, as we have many times held, findings so expressed do not control this court. Montrose Co. v. Greeley Bank, supra. McMillan v. Harbert, 74 Colo. 161, 162, 219 Pac. 1070; Jones v. Boyer, 68 Colo. 568, 193 Pac. 492; Soule v. Kunkle, 71 Colo. 221, 223, 205 Pac. 529.

When special findings are made in an equity cause, they should be incorporated in the decree. In an action at law, like the present, they should be drawn up and signed by the court, and should contain no comment any more than a special verdict. An example of formal findings appears in Larimer, etc., Co. v. Wyatt, 23 Colo. 480, 483, 48 Pac. 528.

These considerations require us to affirm the judgment. Supersedeas denied and judgment affirmed.

Mr. Chiee Justice Burke, Mr. Justice Whiteord and Mr. Justice Sheaeor concur.