Community Nat. Life Ins. Co. v. PARKER SQUARE SAV. & L. ASS'N
| Decision Date | 29 January 1969 |
| Docket Number | No. 9961.,9961. |
| Citation | 406 F.2d 603 |
| Parties | COMMUNITY NATIONAL LIFE INSURANCE COMPANY, an Insurance Corporation, Appellant, v. PARKER SQUARE SAVINGS AND LOAN ASSOCIATION, a Corporation, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
H. G. Bill Dickey, Tulsa, Okl., for appellant.
Philip L. Savage and John A. Johnson, Oklahoma City, Okl., for appellee.
Before LEWIS and HICKEY, Circuit Judges, and THEIS, Judge.
The beneficiary in a life insurance policy sued the insurer to recover death benefits under the policy. The insurer defended on the grounds that the policy had lapsed for nonpayment of premiums. The first trial was tried to a jury and resulted in a verdict for the insurer. Thereafter the trial court, upon a timely motion, set aside the verdict and granted a new trial. An appeal was perfected to this court which was dismissed on the grounds that an order granting a new trial was not an appealable order. The retrial produced a verdict for the beneficiary, and this appeal followed.
Several questions are presented by appellant. Appellant charges that it was error for the court to grant a new trial; that it was prejudiced in the lower court because of the court's denial of its request for a continuance, and because the new trial proceeded without a pretrial hearing or order. Appellant also objects to certain instructions given to the jury.
On January 31, 1964, defendant-appellant, Community National Life Insurance Co., an Oklahoma corporation, issued an insurance policy on the life of Robert Maclin in the sum of $50,000. The beneficiary of the policy was plaintiff-appellee Parker Square Savings and Loan Association.
In December of 1964, Maclin and Williams, an associate, acquired a loan from Parker Square State Bank. As collateral the bank required insurance on the life of each debtor. Therefore both Williams and Maclin made application to Community for life insurance. Payment of the initial premium on both applications was tendered from money loaned by the bank to Williams and Maclin by a check on their escrow account. The check was in the amount of $4,112 or the full amount of both premiums. Kolb, the person who handled the applications, then delivered a receipt for $2,714 to Williams and one to Maclin for the remainder, or $1,398. The second policy Maclin applied for was either never issued, or if it was issued, was cancelled by the appellant as of the date of issue.
On January 31, 1965, the renewal premium of $343.50 became due on Maclin's first policy. The policy provided a grace period of thirty-one days for the payment of premiums. Maclin paid that amount by check within the grace period, but the check was returned to Community marked "insufficient funds." Community informed Parker Square that it would be necessary for Community to receive a cashier's check in the proper amount within three days from March 31, 1965, or the policy would lapse. The check was not forthcoming. The bank, learning of the refusal on the second application for insurance by Maclin, requested that the first policy be assigned to it. On March 29, 1965, Johnson, president of Parker Square State Bank, sent the president of Community a policy assignment form. Thereafter a copy of the assignment was attached to the policy by appellant indicating the bank was now beneficiary. Maclin died May 16, 1965, and following his death the bank assigned its rights to the proceeds of the policy to Parker Square.
No issue is raised regarding the application of Texas law as controlling the substantive question involved. Neither is the rule challenged that unencumbered funds, not dividends of other policies, belonging to the insured in the possession of insurer must be returned to the insured or applied against premiums due for insured's benefit to prevent a forfeiture.
The first challenge raised by Community is that the trial court committed error in granting a new trial. Community asserts that the court gave no reason for sustaining the motion other than the judge's statement, "I don't know why to sustain the motion for new trial except that I was just not satisfied", in support of the challenge.
The record, however, shows that Parker Square's motion for a new trial was based upon eight specific grounds. The order, contained in the record, granting the new trial recites that the order was based upon the grounds stated in Parker Square's motion. Among the grounds alleged in the motion was that the verdict was against the weight of the evidence and also that the verdict was contrary to the law and the facts.
This court has indicated that it will look beyond the remarks of the trial judge to the record in determining the reasons for granting a new trial.1 In any event this court has frequently held that, "A motion for a new trial on the ground that the verdict of the jury is against the weight of the evidence is normally one of fact and not of law and is addressed to the discretion of the trial court and the decision of the trial court on such a motion will not be reviewed in the absence of a showing of abuse of discretion."2
Appellant also charges that the court's remarks, quoted above, constitute an abuse of discretion. This court has had occasion to consider remarks made by the trial court when a new trial was granted. 3 The trial judge is best equipped to apply the standard enunciated.
The trial court set May 31, 1967, the date for retrial. Upon application by Community, the case was continued. On September 15, 1967, the court ordered October 23, 1967, as the date for retrial. Community applied for a second continuance on October 18, 1967. This application was denied and the trial proceeded on October 23, 1967, over the objections of substituted counsel. Community now contends that the trial court abused its discretion in denying another continuance.
Granting of continuances is within the sound discretion of the trial court,4 and unless the discretion is abused, there is no ground for reversal.5
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