Cornwell v. Cornwell, 7389.
Decision Date | 17 February 1941 |
Docket Number | No. 7389.,7389. |
Citation | 118 F.2d 396,73 App. DC 233 |
Parties | CORNWELL v. CORNWELL et al. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Aubrey B. Fennell and L. Q. C. Lamar, both of Washington, D. C., for appellant.
David A. Pine, Lucien H. Mercier, and James B. Costello, all of Washington, D. C., for appellees.
Before GRONER, Chief Justice, and MILLER, and RUTLEDGE, Associate Justices.
The suit in the lower court was instituted by appellant to compel the United States to pay to her the proceeds of a policy of war risk insurance on her husband's life. The United States admitted liability under the policy. It remained to be determined whether appellant or appellee Cornwell was the beneficiary thereunder. The questions presented by this appeal, however, do not go to the merits, but are exclusively procedural in nature, namely, whether the trial judge abused his discretion, first, in overruling appellant's motion to postpone the trial; second, in denying appellant's motions for new trial and to vacate the judgment. We are satisfied that the second question must be answered in the affirmative; hence, that it is unnecessary to consider the first one, except as it may relate to the second.
The cause was originally set for trial in the District Court on June 6, 1938. On the preceding 23d of May, appellant's attorney sought and obtained a continuance until June 20, 1938. One of the reasons urged in support of that continuance was the illness of appellant. Definite assurance was given by counsel, however, that the case would go to trial on the day set. Thereafter, from June 4th to June 8th, 1938, inclusive, appellant was present in person, on the taking of depositions in Plainfield, New Jersey, and in New York. Although the weather was very hot, appellant insisted, over objection of counsel, upon being present at their taking. At that time she appeared to counsel for appellee Cornwell to be in good health, in excellent physical condition, and neither mentally nor physically fatigued.
On June 16, 1938, appellant's counsel moved for another continuance, based upon the following letter from a physician:
"I was called in to see Mrs. Elizabeth J. Cornwell on June 9th, 1938, and after obtaining history and after examination in my judgment she will be unable to be present at the hearing, in Washington, on June 20th, 1938."
On June 19, 1938, appellant called the trial judge on the telephone, and when the case went to trial on June 21st, the latter made the following notation for the record concerning that conversation:
During the first day of the trial the judge made the following further notation for the record:
Appellant was not present during the trial.
On June 24th, the jury gave its verdict in favor of appellee Cornwell; judgment was entered on July 1st. From July 4th to July 9th, appellant was in Washington, during which time she was exceedingly active in investigating her case; she spent several hours with an assistant United States attorney, and had lengthy conferences with her attorney, with officials of the Department of Justice, and with deputies in the office of the clerk of the court.
Under date of July 13th, Ray T. Munger, M. D., sent the following letter to the trial judge:
Italics supplied
The motions to vacate the judgment and for new trial were supported, also, by a number of affidavits; two of which are referred to hereafter. The others were made by appellant, by her acquaintances, and by the proprietor and various employees of the Park Hotel in Plainfield, New Jersey, at which hotel appellant then resided. These latter affidavits set forth, in substance, that appellant had been ill and confined to her bed for a long time; that she left her sickbed at the time of taking depositions in June; returned to it immediately; rose again when she made her trip to Washington and returned to her sickbed immediately thereafter. All affidavits agreed that she was not in condition to be present for the trial. Appellant's counsel had represented to the court that his client had been unable to be present at the trial; that she was not only the party plaintiff but the most important witness; and that the case could not be fairly and properly tried in her absence.
Appellee Cornwell contends that the efforts of appellant's counsel to secure, first, a continuance and, later, a new trial, were not made in good faith. But there is nothing in the record to support such a contention or to suggest that injury might have resulted to appellee Cornwell from a continuance.1 On the other hand, there is the significant statement in Dr. Munger's letter to the effect that appellant was suffering from "a very definite nervous condition." And in the affidavits of the psychiatrists, Dr. Thibadeau and Dr. Foxwell, the court was advised, as of the 20th of July, 1938, upon the basis of examinations made on July 9, 1938, that:
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