Mutual Ben. Health & Accident Ass'n v. Thomas

• Citation: 123 F.2d 353
• Decision Date: 17 November 1941
• Docket Number: No. 12018.,12018.
• Parties: MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. THOMAS.
• Court: U.S. Court of Appeals — Eighth Circuit

123 F.2d 353 (1941)

MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. THOMAS.

No. 12018.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1941.

M. W. Gannaway and A. F. House, both of Little Rock, Ark., for appellant.

Sam Robinson, of Little Rock, Ark. (Ward Martin, of Little Rock, Ark., C. E. Johnson, of Ashdown, Ark., and John S. Gatewood, of Little Rock, Ark., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellee as plaintiff to recover on a policy issued to her husband, Henry A. Thomas, which provided indemnity for both accident and sickness disability. The policy contained exception of liability for death, disability, or other loss, resulting from insanity. It provided indemnity in the amount of $200 a month so long as the insured should live, for whole and continuous or total disability resulting in total loss of time caused directly and independently of all other means from bodily injuries sustained through purely accidental means. Plaintiff alleged that on or about April 21, 1932, the policy being then in full force and effect, the insured sustained bodily injuries through purely accidental means while he was driving an automobile which ran off the highway and into a creek. It was alleged that as a result of such injuries, he suffered concussion of the brain and a profound shock to his mental and nervous system, resulting in total disability since June 1, 1932. The defendant admitted the issuance of the policy but denied that the insured suffered bodily injuries through accidental means, admitted that he was incapacitated by mental disturbances since July, 1932, but denied that it had been continuous, and alleged that the policy properly construed excepted disability resulting from insanity and pleaded that plaintiff had failed to furnish notice and proofs of loss as required by the provisions of the policy. The case has been twice tried, the judgment for plaintiff entered on the first trial having been set aside by the lower court.

At the conclusion of all the evidence, defendant moved the court for a directed verdict in its favor. This motion was denied and the case was submitted to the jury upon instructions to which defendant saved a number of exceptions. The jury returned a general verdict in favor of the plaintiff in the sum of $1,750. So far as is disclosed by the record, the verdict was received and filed without objection from the plaintiff. Four days subsequent to the return of the verdict, plaintiff filed a motion asking the court to enter judgment in her favor on the verdict of the jury for the amount due according to the terms of the policy; to-wit, $20,150, with interest thereon at the rate of six per cent per annum from the due date of each monthly installment until paid, together with the statutory penalty of twelve per cent on the principal amount and a reasonable attorney's fee, besides costs. Defendant opposed the granting of this motion but the court granted the same and entered judgment for $22,276.25. It is recited in the judgment that, "To the action of the Court in entering a judgment in favor of the plaintiff, upon the verdict of the jury, in an amount greater than specified in the verdict, the defendant objected, at the time, and the Court overruled its objections to which defendant, at the time, excepted and asked that its exceptions be noted, which is accordingly done."

Following the entry of this judgment, the defendant filed its motion to set aside the judgment and to grant a new trial, which motion was denied. From the judgment so entered, defendant prosecutes this appeal, urging, among other things, that the court erred in rendering judgment for $22,276.25 on a verdict in the amount of $1,750. It is also urged that the court erred in denying defendant's motion for a directed verdict, and in the giving of certain instructions. In our view of the issues, it will only be necessary to consider the action of the court in entering judgment for an amount greater than that found by the jury.

Plaintiff did not move for an instructed verdict; neither did she except to the verdict as returned by the jury. The verdict, as has been observed, was a general one. Plaintiff contends that the court properly entered judgment non obstante veredicto because defendant tried the case solely upon the theory that there was no liability under the policy and the question of the amount due plaintiff was not made an issue. By the Seventh Amendment to the Constitution, it is provided that, "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 re-examined in any Court of the United States, than according to the rules of the common law."

The courts of the United States are by this amendment prohibited from re-examining any facts tried by a jury otherwise than according to the rules of the common law. It has often been pointed out that the only modes known to the common law to re-examine such facts were the granting of a new trial by the court when the issue was tried to a jury, or by granting a motion for a directed...