with whom concur
Mr. Justice Holmes, Mr. Justice Lubton and. Me. Justice Pitney, 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 judgmént to which, as matter of law, the defendant was entitled.
The serious ¿nd 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 *401the 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,. *402That, 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 Fed. Rep. 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 *403experience 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. (C. C.), 109 Fed. Rep. 746, adopted in 114 Fed. Rep. 189, 52 C. C. A. 145, and the principles involved in its application are set out in Fisher v. Sharadin, 186 Pa. St. 568, 40 Atl. Rep. 1091, and Boyle v. Mahanoy City, 187 Pa., St. 1, 40 Atl. Rep. 1093. 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 Fed. Rep. 449, 54 C. C. A. 85.”
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 Fed. Rep. 620. The Court of Appeals sustained this action of the Circuit Court (116 Fed. Rep. 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 evi*404dence 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, 40 Atl. 1091; Boyle v. Borough of Mahanoy City, 187 Pa. 1, 40 Atl. 1093); 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. Borough of 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 pursuéd. 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. Fed. Rep. 638; 115 Fed. Rep. 689; 191 U. S. 526, 527, 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 *405Pennsylvania 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. St. 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 despatch 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 arid 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 *406a 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 judg-: ment 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. *407v. Bergen, 168 Fed. Rep. 360-364; 176 Fed. Rep. 76, 81; 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 iii 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 section 914 of the Revised Statutes (U. S. Comp. St. 1901, p. 684), 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., Petitioner, v. Bergen, 215 U. S. 609. And the same practice has been followed since. Smith v. Jones, supra. See also Pittsburgh Construction Co. v. West Side Belt R. R. Co., 151 Fed. Rep. 125; 154 Fed. Rep. *408929; West Side Belt R. R. Co. v. Pittsburgh Construction Co., 219 U. S. 92, 96, 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, ip 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 wás 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 fundámental 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 evidencé adduced *409against 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 sét 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 fácts 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 dámages 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 being discharged from giving a verdict, by demurring to the evidence, and obliging the party offering the evidence *410to 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 offered is in writing? The reason is given in Croke’s report of Baker’s Case,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 *411in 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 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,1 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 witness to prove any matter in fact upon which a matter of law arises, if thé defendant admits their testimony tó 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 to 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 only- by presumptions or probabilities, and the *412other 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.
*413It is also said thát 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 (p. 209): “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 (p. 323): “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 *414other 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, 2 H. Bl. 187, 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., p. 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, 182; Columbian Insurance Co. v. Catlett, 12 Wheat. 383, 389; Thornton v. Bank of Washington, 3 Pet. *41536; Chinoweth v. Lessee of 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 Fed. Rep. 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 á jury.. The court, however, will, in favour, 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 aré 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 novó.”
In Pawling v. United States, 4 Cranch, 219, the United *416States 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. Lessee of Haskell, 3 Pet. 92. That was.an action in ejectment; What took place on the trial is thus stated by Chief Justice Marshall (p. 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. 96):
.“The defendants in the district court having withdrawn their cause from the jury by a demurrer to evidence, or haying submitted to a verdict for the plaintiffs subject to that demurrer, cannot hope for a judgment in their favour, 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 (p. 98):
“The judgment is reversed, and the cause remanded, with directions tQ enter judgment in favour of the defendants in the district court.”
Here then is. a cáse, in this court, which contradicts the conclusion that there is no permissible practice under the Constitution by which, when a verdict has been taken *417for 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 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 iyas 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 *418of 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, 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 imperativé upon the jury to find a verdict for the defendant, and which has in many States superseded the ancient practice of a demurrer tó 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 anal*419ogies 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 vits 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 ease 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 i>f 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 *420and 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. 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 brpught 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. 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 *421of 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. Arms Co., 103 U. S. 261, 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 defence , 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 cpnform, 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 Co., Petitioner, 128 U. S. 544; Glenn v. Sumner, 132 U. S. 152, 156.” (Id., pp. 39-40.)
In other words, a practice which would not have been allowed in the absence of statute was permitted under the statute because ih 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 non-suit against the will of the plaintiff (Crane v. Morris, 6 Pet. 598; Castle v. Bullard, 23 How. 172), the court said:
*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. Allens, 1 Wall. 359; Pleasants v. Fant, 22 Wall. 116, 120. And, in the case of Oscanyan v. Arms Co., 103 U. S. 264, it was said by Mi% 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 Ünited 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 Car Co., 139 U. S. 24, 38, where it was held that, since the act of Congress of June 1, 1872, c. 255, § 5, 17 Stat. 197, reenacted in § 914 of the Revised Statutes, courts of the Únited 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 thé 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 im-.’ *423plication 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 non-suit, 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. 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.
*424In Parsons v. Bedford, 3 Pet. 433, it was held that it was not the intention of Congress by the act of May 26, 1824, 4 Stat. 62, c. 181, 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. R. Co., 165 U. S. 593, 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 á 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 weigh 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. 253.)
The eases mostly relied upon are those of Hodges v. Easton, 106 U. S. 408; and Baylis v. Travellers’ Insurance *425Co., 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 it 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. Travellers’ 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 *426submitted 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 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.” (Id., pp. 320-321.)
This being the point of the case, it would seem to be rather an extreme construction of the rest of the opinion, *427in its references to practice, to treat it as an exhaustive statement of all the possibilities of legislative contróf 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 benccorded. 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 *428decision; 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 (Cro. Car. 143), reveals the function of court and jury in a clearer light, and shows that the idea that the judgment 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 tó say that Mr. Justice Holmes, Mr. Justice Lurton and'Mr. Justice Pitney concur in this dissent.Cro. Eliz. 753.
Al. 18.