Beckett v. Nw. Masonic Aid Ass'n
| Decision Date | 22 January 1897 |
| Citation | 67 Minn. 298,69 N.W. 923 |
| Parties | BECKETT v NORTHWESTERN MASONIC AID ASS'N. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
1. Held, the district court has power to set aside an order granting a new trial on the ground that such order was erroneously granted, at least, if set aside before the time to appeal from it expires.
2. The complaint duly alleged that the probate court appointed G. B. guardian of the infant plaintiff, A. B. The plaintiffs were named in the title of the complaint as Held, the court might, after verdict, grant leave to amend such title, so as to read
3. Held, the widow and beneficiary of the insured could not, on cross-examination, in an action brought by her on the life insurance policy, be questioned as to statements made to her by her deceased husband in his lifetime.
4. The insured was found dead, with a bullet hole in the back of his head, and a revolver in his hand. The defense to the action was that he committed suicide. There was evidence tending to prove that there were no powder marks around the wound. Held, for the purpose of rebutting the theory of suicide, it was competent to prove experiments made in discharging the same revolver loaded with similar cartridges, and noting at what distances from the muzzle of the revolver the object fired at was found to be singed or powder-burned.
5. Held, whether a witness is sufficiently qualified as an expert is a question of fact for the trial court, and an appellate court will not hold the ruling thereon erroneous unless it is clearly so.
6. The policy required proofs of death to be furnished to the insurer, but did not state what such proofs should contain. Held, plaintiff could, on the trial, explain and contradict statements made in such proofs as to the manner of death.
7. Held, the verdict is sustained by the evidence.
Appeal from district court, Hennepin county; Charles M. Pond, Judge.
Action by Georgietta Beckett, for herself and as guardian, against the Northwestern Masonic Aid Association. There was a verdict for plaintiff, and from an order setting aside an order granting a new trial, and from a subsequent order denying a new trial, defendant appeals. Affirmed.
John H. Randall and Fred A. Gilman, for appellant.
Child & Fryberger, for respondent.
This is an action on a life insurance policy which provides that, “if the insured shall die by his own hand or act, whether sane or insane, within three years from the date of the policy,” the policy shall be void. He died within the three years after the date of the policy, and the defense is that he died by his own hand. On April 14, 1895, he was found dead, lying on some dry leaves, among some scattering trees on the outskirts of a farm. The body was lying on the face, leaning a little towards the left side, with a bullet hole about an inch and a quarter back of the right ear, just at the edge of the hair above the back of the neck. A revolver was held loosely in the right hand. On the trial plaintiff had a verdict. The court, on defendant's motion, granted a new trial, then ordered a rehearing of the motion, then set aside the order granting a new trial, and then heard again the motion for a new trial on its merits, and denied it. Defendant appeals from the order setting aside the order granting a new trial, and also from the last order made, denying a new trial.
1. On the authority of Grant v. Schmidt, 22 Minn. 1,Semrow v. Semrow, 23 Minn. 214, and Weld v. Weld, 28 Minn. 33, 8 N. W. 900, appellant contends that the court below exhausted its jurisdiction when it granted the motion for a new trial, and had no power subsequently to set the order aside. In answer we will say that in 1877, after the first two of those cases arose, the statute (section 5267, Gen. St. 1894) was amended so as to add the following provision to the section: “And the court may, as well in vacation and out of term as in term, and without regard to whether such judgment or order was made and entered or proceedings had, in or out of term, upon good cause shown, set aside or modify its judgments, orders or proceedings, although the same were made or entered by the court or under or by virtue of its authority, order or direction.” This was clearly intended to do away with the rule of law laid down in the Grant Case. The case of Weld v. Weld arose after this amendment, but the court in a dictum approved the Grant Case, evidently without having its attention called to the amendment. In the case at bar, the order granting a new trial was set aside before the time to appeal from it expired, and we are clearly of the opinion that said amendment gave the court below authority to set it aside, if deemed erroneous. Manufacturing Co. v. Adams, 47 Minn. 401, 50 N. W. 360.
2. The policy was made payable to the surviving widow of the insured “and his surviving...
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