O'BRIEN v. General Accident, Fire & Life Assurance Corp.

• Decision Date: 09 June 1930
• Docket Number: No. 8716.,8716.
• Citation: 42 F.2d 48
• Parties: O'BRIEN v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED, OF PERTH, SCOTLAND.
• Court: U.S. Court of Appeals — Eighth Circuit

42 F.2d 48 (1930)

O'BRIEN v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED, OF PERTH, SCOTLAND.

No. 8716.

Circuit Court of Appeals, Eighth Circuit.

June 9, 1930.

Arthur F. Mullen, of Omaha, Neb. (Richard C. Hunter and Charles C. Sheppard, both of Omaha, Neb., on the brief), for appellant.

Yale C. Holland, of Omaha, Neb. (J. A. C. Kennedy, G. L. De Lacy, and Charles F. McLaughlin, all of Omaha, Neb., on the brief), for appellee.

Before STONE and VAN VALKENBURGH, Circuit Judges, and OTIS, District Judge.

OTIS, District Judge.

Appellant, who was plaintiff in the court below, was beneficiary in a policy of accident insurance issued by appellee August 11, 1926, to one James O'Hara and, in the capacity of beneficiary, brought this suit to recover on the policy. In her petition she alleged that O'Hara was accidentally killed on August 29, 1926, when the policy was in full force and effect. The defense, at least in part, was that O'Hara committed suicide. What the evidence upon that issue was we do not know, since much of the evidence appears to have been omitted from the transcript. Even the policy sued on is not included. The verdict of the jury was for appellee. A motion for new trial was overruled.

The assignment of errors, four in number, is as follows:

"1. The court erred in overruling the motion for a new trial.

"2. There was misconduct of the juror, Charles Connor, as shown by the affidavits that appear in the transcript.

"3. The court erred in permitting the witness, Dr. Vernon Thomas, to testify at the trial regarding communications had between the deceased, James O'Hara, and himself, which evidence was admitted over the objection of the plaintiff, the specific ground of objection being that said communications were privileged between the deceased, James O'Hara, and the witness, Dr. Vernon Thomas, and the evidence of said Dr. Vernon Thomas was incompetent, irrelevant and immaterial and said communications were professional communications made to him by the deceased at the time when the said deceased was a patient of the said Dr. Vernon Thomas.

"4. The court erred in permitting the introduction of evidence, over the objection of the plaintiff, as to transactions and conversations had between the deceased and other witnesses, in particular, the witness, Dr. Vernon Thomas, which evidence was hearsay and was incompetent, irrelevant and immaterial."

1. The first assignment may be disposed of briefly. Rule 11 of this court, governing assignments of errors on appeals, as it was when this appeal was taken and presented, provides that:

"The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record and be printed with it. When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned."

The rule requires that the assignment "shall set out separately and particularly each error asserted and intended to be urged," and that "errors not assigned according to this rule will be disregarded." The first assignment certainly does not particularize as to the asserted error. There is no suggestion as to why it was an error to overrule the motion for a new trial. It is simply asserted it was an error and that is all.

Moreover, the granting or sustaining of a motion for a new trial is within the discretion of the trial court, and, generally speaking, its ruling on such a motion is not reviewable. Holmgren v. United States, 217 U. S. 509, 521, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Mattox v. United States, 146 U. S. 140, 147, 13 S. Ct. 50, 36 L. Ed. 917; Reagan v. Aiken, 138 U. S. 109, 113, 11 S. Ct. 283, 34 L. Ed. 892; Pittsburgh, C. & St. L. Railway Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58; McLanahan et al. v. Insurance Co., 1 Pet. 170, 182, 7 L. Ed. 98. It is only when the court has abused or refused to exercise its discretion that its action may be reviewed. Paine v. St. Paul Union Stockyards Co. (8 C. C. A.) 35 F.(2d) 624, 627; United Press Ass'ns v. National Newspaper Ass'n (8 C. C. A.) 254 F. 284, 285. It follows that, before there is anything for review, the assignment must set out facts indicating abuse of or failure to exercise discretion. There is nothing of that nature in the first assignment.

2. Although upon the oral argument it was vigorously maintained by appellant's counsel that the second assignment of error was in no way involved in the first assignment or intended as a part thereof, obviously it is either so involved or it is nothing. It too does not conform to Rule 11. It asserts as error that "there was misconduct of the juror, Charles Connor." But there is no hint in the assignment as to what that misconduct was, no suggestion as to wherein the trial court erred in connection with the alleged misconduct.

But we assume, notwithstanding the contention of appellant's counsel, that it was intended by the second assignment to particularize assignment No. 1, to indicate the ground on which the motion for new trial ought to have been sustained, and to suggest perhaps that the trial court abused its discretion when it denied the motion.

We consider then whether the trial court did abuse its discretion by denying a new trial notwithstanding the showing made concerning the juror Charles Connor.

The showing as to this juror was in the form of an affidavit of counsel for appellant, filed after verdict, and of the juror's testimony under oath. Counsel's affidavit set out that whereas on the voir dire examination of the panel Connor, who was an insurance agent, testified that he was not an agent of appellee, that he had no connection with it, and that he had had no business relations with it, he was in fact an agent of appellee and had had business with it. Connor testified that he was not an agent of appellee and had never been, that he had had no connection with, and that at the time of the voir dire examination he had no knowledge of ever having had any business with the appellee, but that after the verdict he learned that several years before certain applications for insurance secured by him had been placed by another agent with the appellee company. Upon this business the commissions received by him had been about $60. He was ignorant of the fact when he was examined and while he was serving as a juror that any insurance business originating with him ever had been placed with the appellee. It was his further testimony that on the voir dire examination he was not asked whether he had had any business with the appellee. He said he would have answered in the negative had he been asked that question.

Clearly upon this showing the trial court was justified in finding that the juror had been guilty of no misconduct and in overruling the motion for a new trial. The trial court might well have found and most probably did find that the juror had answered every question asked him fully and truthfully and that in no real sense did he have or had he had any connection with the appellee company.

In this connection appellant has cited cases announcing the rule that the employee of a corporation is not competent to act as a juryman in a case in which the corporation is a party. Burnett v. Railroad Co., 16 Neb. 332, 334, 20 N. W. 280; Louisville, etc., R. Co. v. Cook, 168 Ala. 592, 53 So. 190, 192; Central Railroad Co. v. Mitchell, 63 Ga. 173, 179; Hubbard v. Rutledge, 57 Miss. 7, 12; Pearce v. Mining Co., 149 Mich. 112, 112 N. W. 739, 740, 12 Ann. Cas. 304; Blevins v. Cotton Mills Co., 150 N. C. 493, 497, 64 S. E. 428; Norris v. Morgan Mills, 154 N. C. 474, 480, 70 S. E. 912; State v. Dushman, 79 W. Va. 747, 91 S. E. 809, 810; Ensign v. Harney, 15 Neb. 330, 18 N. W. 73, 48 Am. Rep. 344; Crawford v. U. S., 212 U. S. 183, 192, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392. Other cases are cited holding that a stockholder is not qualified to act as juryman in a case when the corporation is a party. Miller v. United States, 38 App. D. C. 361, 40 L. R. A. (N. S.) 973; McElhanon v. State, 99 Ga. 672, 26 S. E. 501, 504; State v. Thompson, 24 Utah, 314, 67 P. 789, 790. And cases are cited holding that, where a juror deceives or misleads a party by falsely testifying that he has no interest and is unprejudiced and impartial, on discovery of the fact, after verdict, a new trial will be ordered, even though he claims to have acted impartially. Hyman v. Eames (C. C.) 41 F. 676; State v. Wright, 112 Iowa, 436, 84 N. W. 541, 542; State v. Cleary, 40 Kan. 287, 19 P. 776, 779; State v. Thompson, 24 Utah, 314, 67 P. 789, 790; Seaton v. Swem, 58 Iowa, 41, 11 N. W. 726; Pearcy v. Ins. Co., 111 Ind. 59, 12 N. E. 98, 99, 60 Am. Rep. 673; Ensign v. Harney, 15 Neb. 330, 18 N. W. 73, 48 Am. Rep. 344; Bennett v. Howard, 3 Day (Conn.) 219, 223; State v. Watkins, 9 Conn. 47, 21 Am. Dec. 712. Still other cases are cited for the rule that a juror who has deceived or misled the court and counsel by false or incorrect answer cannot, by a subsequent statement, repair the legal injury caused by his conduct on his preliminary examination. Pearcy v. Ins. Co., 111 Ind. 59, 12 N. E. 98, 99, 60 Am. Rep. 673; Hudspeth v. Herston, 64 Ind. 133, 134; ...