Barnett v. Life Ins. Co. of the Southwest

• Citation: 562 F.2d 15
• Decision Date: 18 October 1977
• Docket Number: Nos. 76-1367 and 76-1518,s. 76-1367 and 76-1518
• Parties: James F. BARNETT, Appellant, v. LIFE INSURANCE COMPANY OF THE SOUTHWEST, Appellee. . Argued &
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 15

562 F.2d 15

James F. BARNETT, Appellant, v. LIFE INSURANCE COMPANY OF THE SOUTHWEST, Appellee.

Nos. 76-1367 and 76-1518.

United States Court of Appeals Tenth Circuit.

Argued & Submitted May 18, 1977.

Decided Aug. 18, 1977.

Rehearing Denied Oct. 18, 1977.

Ben T. Lampkin, Jr., and Larry A. Tawwater, Lampkin, Wolfe, Burger, McCaffrey & Norman, Oklahoma City, Okl., for appellant.

George W. Dahnke, Hastie, Kirschner & Brown, Oklahoma City, Okl., for appellee.

Before SETH and HOLLOWAY, Circuit Judges, and CHILSON, Senior District Judge ^*.

SETH, Circuit Judge.

This suit was tried as an action for fraud based on an application for conversion of a policy brought against the defendant, Life Insurance Company of the Southwest, by one of its former selling agents. The plaintiff had been an agent for defendant for some eleven years, and had worked for its parent company before that.

The complaint sought compensatory and punitive damages. The case was tried to a jury, defendant moved for a directed verdict which was denied, the case was submitted and the jury awarded plaintiff compensatory damages, and also punitive damages. The punitive damages were in the amount of two million dollars, and the compensatory damages $3,500.74. The trial judge granted judgment for the defendant n. o. v. on punitive damages immediately after the verdict was received. A judgment n. o. v. was entered later as to compensatory damages.

The jury returned a verdict on March 15th and the court on March 16th entered judgment for the defendant on the issue of punitive damages which had been the subject of various motions and rulings before trial. The court indicated, as it had done before, that plaintiff's case was very weak, but said it would not then take action on the compensatory damage portion of the verdict. On March 16th the plaintiff filed a notice of appeal. Within the permitted time from verdict the defendant filed a motion for judgment n. o. v. as to the compensatory damages portion of the verdict, and, in the alternative, for a new trial. The trial court asked for briefs on the issue and the parties responded. The plaintiff in his presentation urged that the trial court had lost jurisdiction by reason of the notice of appeal plaintiff had filed on March 16th. The trial court granted judgment n. o. v.

The plaintiff also urges on this appeal that the trial court did not have jurisdiction to consider the judgment n. o. v. as to compensatory damages. It is apparent from the record that the trial court had not completed its consideration of the jury verdict at the time appellant's first notice of appeal was filed. The matter thus was not final, and the notice of appeal filed in an attempt to prevent further consideration of the verdict by the trial court was not effective. Thus the usual rule as to the effect of a notice of appeal of a final judgment was not applicable. Plaintiff filed a second notice of appeal from the court's order of April 28th.

We will consider the appeal as having been taken from both aspects of the case, and both orders of the trial court to be valid.

The trial court on this motion for judgment n. o. v. by the defendant should have examined the evidence in a light most favorable to the plaintiff, together with the reasonable inferences to be drawn from the facts. The standard to be used by the trial courts is essentially the same as applied for directed verdicts. See Oldenburg v. Clark, 489 F.2d 839 (10th Cir.); Taylor v. National Trailer Convoy, Inc., 433 F.2d 569 (10th Cir.); Rule 50(b), Fed.R.Civ.P., and the general common law practice. In Taylor v. National Trailer Convoy, Inc., we held that judgment n. o. v. is proper where ". . . the evidence and all the inferences to be drawn therefrom are so patent that minds of reasonable men could not differ as to the conclusions to be drawn therefrom." We said in Symons v. Mueller Co., 493 F.2d 972 (10th Cir.):

". . . A scintilla of evidence is insufficient, of course, to justify submission of a case to the jury. Nevertheless, a directed verdict or judgment n. o. v. may not be granted unless the evidence points but one way and is susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made. Swearngin v. Sears Roebuck & Co., 376 F.2d 637, 639 (10th Cir. 1967)."

And in C. H. Codding & Sons v. Armour & Co., 404 F.2d 1 (10th Cir.):

"The rule for the granting of a directed verdict has been often repeated. Its essence requires that before a motion for a directed verdict shall be sustained the evidence must be 'all one way or so overwhelmingly preponderant in favor of the movant that the trial court in the exercise of its sound discretion would be required to set the verdict aside.' Chicago, Rock Island and Pacific R. R. v. Howell, 10th Cir., 401 F.2d 752 . . ."

See also Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 affirming 344 F.2d 482 (10th Cir.).

The federal standards applicable in this Circuit as indicated above provide the procedural framework and standards for consideration of the motions while the law of Oklahoma provides the substantive measure. There is no issue of credibility of witnesses present.

The record shows that plaintiff had a life policy with the company which contained certain rights to convert the term coverage portion into a 30-pay life policy. The plaintiff certified that he sought to so convert and also to add an additional benefit of accidental death or double indemnity. He submitted an application to accomplish this change and the addition, which he testified had check marks in the squares for double indemnity and waiver of premiums. This application was handed by plaintiff to a Mr. Phillips, a company vice president from the home office, who happened to be then visiting at the local office out of which plaintiff worked. There was a conflict in the testimony as to whether plaintiff was then asked by Mr. Phillips to answer all of a series of questions on the form or only one such question. These questions related to insurability, and it was established that answers were ordinarily required when additional coverage was requested. In any event, these questions were not answered on the application form. The application was also not completed in that the names of the beneficiaries had not been entered. These names were inserted on plaintiff's request by telephone by a secretary in the home office after the application was taken there by Mr. Phillips. Plaintiff testified that he submitted a check for additional premium for the double indemnity coverage to Mr. Phillips with the application for conversion.

As the application was processed...