Berggren v. Mut. Life Ins. Co. of New York

• Decision Date: 10 October 1918
• Parties: BERGGREN et al. v. MUTUAL LIFE INS. CO. OF NEW YORK (two cases). SAME v. TRAVELERS' INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 173

120 N.E. 402

BERGGREN et al.

v.MUTUAL LIFE INS. CO. OF NEW YORK (two cases).

SAME

v.TRAVELERS' INS. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 10, 1918.

Exceptions from Superior Court, Worcester County; Marcus Morton, Judge.

Actions by Olaus Berggren and others, administrators, against the Mutual Life Insurance Company of New York and the Travelers' Insurance Company. After verdicts for plaintiffs, motions for new trial in each case were granted, and plaintiffs except. Cases ordered to stand for trial.

Marvin M. Taylor and Marvin C. Taylor, both of Worcester, for plaintiffs.

Chas. C. Milton and Frank L. Riley, both of Worcester, for defendant Travelers' Ins. Co.

Reginald Foster and Geo. Hoague, both of Boston, for defendant Mutual Life Ins. Co. of New York.

RUGG, C. J.

This record relates to the granting of motions for a new trial on the ground of newly discovered evidence. The actions are to recover upon policies of insurance on the life of Karl W. Leaf. He died as the result of taking cyanide of potassium, which was contained in the neck of a bottle of medicine imported from England and bought for him in some drug store. There was no claim or evidence that he had been murdered. The chief question at the trial before the jury was whether the insured came to his death by accident, as contended by the plaintiffs, or by suicide, as contended by the defendants. The trial lasted several days and many witnesses testified. The jury in answers to questions found in favor of the contentions of the plaintiffs and verdicts were ordered accordingly.

After the trial an agent of the defendants, who previously had spent about a month in trying to ascertain the facts, was sent again to the neighborhood where the insured lived with instructions to reinvestigate the cases to see if there might be any evidence previously missed and if people had talked more freely after the trial. The result was that one Olson, who before the trial had stated that he knew nothing about the case, made an affidavit tending to show an intimate acquaintance with the insured and in minute detail conversations with him within a comparatively short time before his death, wherein the insured expressed a purpose to commit suicide and the reasons actuating him, one being business adversity. There was talk also as to taking poison. Counter affidavits were filed tending to discredit some or all of the statements in the affidavit of Olson. This agent of the defendants testified orally in court on the motion for a new trial.

The principles governing the review by this court of the action of the trial judge in granting or denying a motion for a new trial, whether on the ground of newly discovered evidence or for other reasons, are well settled. Except where questions of law are raised for the first time on the motion for a new trial (Loveland v. Rand, 200 Mass. 142, 85 N. E. 948;Boyd v. Boston Elevated Railway, 224 Mass. 199, 202,112 N. E. 607;Ramsey v. Le Bow, 220 Mass. 227, 229, 107 N. E. 926;Matter of Carver, 224 Mass. 169, 174,112 N. E. 877), the right of the judge to set aside a verdict on any ground recognized by law in the ordinary case is limited only by sound judicial discretion and is not subject to revision by this court. It is only in an extraordinary case revealing an abuse of judicial power, or an excess of jurisdiction or similar error, that the action of the trial court upon a motion for a new trial can be reversed. Edwards v. Willey, 218 Mass. 363, 365, 105 N. E. 986,and cases there collected; Centennial Electric Co. v. Morse, 227 Mass. 486, 490, 116 N. E. 901;Harrington v. Boston Elevated Railway, 229 Mass. 421, 433, 118 N. E. 880;Herrick v. Waitt, 224 Mass. 415, 418, 113 N. E. 205;Damm v. Boylston, 218 Mass. 557, 106 N. E. 177;People v. Shilitano, 218 N. Y. 161, 180,112 N. E. 733, L. R. A. 1916F, 1044. Doubtless new trials are not to be granted, on the ground of newly discovered evidence except upon proof of important evidence of such nature as to be likely to have a material effect upon the result, which could not reasonably have been discovered before trial by the exercise of proper diligence and respecting the production of which on motion there has been an entire want of laches. A new trial ordinarily will not be granted upon the discovery of evidence which is cumulative and in most such cases will and ought to be denied. Sawyer v. Merrill, 10 Pock. 16, 18; Gardner v. Mitchell, 6 Pick. 114, 116,17 Am. Dec. 349;Oelricks v. Supreme Court, 10 Wend. (N. Y.) 289;Gardner v. Gardner, 2 Gray, 434, 443;Plymouth v. Russell Mills, 7 Allen, 438, 443; McLaughlin v. Doane, 56 Me. 289. See Keet v. Mason, 167 Mass. 154, 45 N. E. 81. The mischief naturally flowing from retrials based upon the discovery of alleged new evidence leads to the establishment of a somewhat stringent practice against granting such motions unless upon a survey of the whole case a miscarriage of justice is likely to result if a new trial is denied. This is the fundamental test, in aid of which most if not all the rules upon the matter from time to time alluded to have been formulated. Ease in obtaining new trials would offer temptations to the securing of fresh evidence to supply former deficiencies. But courts cannot close ‘their eyes to injustice on account of facility of abuse.’ Nevertheless, most critical scrutiny must be given to the kind of evidence offered in support of the motion, to the sources from which it comes, and the circumstances under which it is produced.

The findings of fact made on the motion for new trial show that the judge had a full appreciation of these principles and of the gravity...