Eller v. Paul Revere Life Ins. Co., No. 45739.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGARFIELD
Citation230 Iowa 1255,300 N.W. 535
PartiesELLER v. PAUL REVERE LIFE INS. CO.
Docket NumberNo. 45739.
Decision Date20 February 1942

230 Iowa 1255
300 N.W. 535

ELLER
v.
PAUL REVERE LIFE INS.
CO.

No. 45739.

Supreme Court of Iowa.

Nov. 12, 1941.
As modified on Denial of Rehearing Feb. 20, 1942.


Appeal from Municipal Court, City of Des Moines; Charles S. Cooter, Judge.

Defendant insurance company appeals from order setting aside verdict and judgment in its favor and granting plaintiff policyholder a new trial on the grounds of newly discovered evidence.

Reversed and Remanded.

[300 N.W. 536]

Mills, Hewitt & Diltz, of Des Moines, for appellant.

C. B. Hextell, of Des Moines, for appellee.


GARFIELD, Justice.

Plaintiff brought suit on an accident policy, claiming disability benefits from March 21 to August 21, 1938. The claimed disability was a result of injuries suffered in a fall by plaintiff on January 21, 1937. After an extended trial, a jury verdict against plaintiff was returned on March 20, 1939. Thereafter, plaintiff obtained three extensions of time to file motion for new trial or amendment thereto. In all, he was granted until May 9, 1939, within which to move for a new trial. The last extension of time was granted on April 18. Plaintiff amended his motion for new trial on the last day allotted to him, May 9. The trial court, Judge Allen who presided at the trial, overruled the motion for new trial. Thereafter, plaintiff appealed to this court, where judgment was affirmed on May 7, 1940. See 228 Iowa 1247, 291 N.W. 866.

On June 17, 1939, plaintiff filed in the trial court a petition for new trial under section 12788, Code 1939, on the grounds of newly discovered evidence. Plaintiff finally amended this petition on January 2, 1941, at which time he also filed an application asking that the same be heard by Judge Cooter, one of four judges of the trial court. The application alleges that Judge Allen, who presided over the jury trial, was occupied with other matters and also “that plaintiff feels he cannot secure a fair and impartial trial before Judge Allen”; that Judge Moore was fully occupied with other business; that Judge Powers

[300 N.W. 537]

“had admitted his prejudice and disqualifications,” and that there are no reasons why the petition could not be heard by Judge Cooter. On January 2, 1941, presiding Judge Allen assigned the hearing of the petition to Judge Cooter. The order of Judge Allen recites, however “that if the matter were submitted to him (Judge Allen), plaintiff would receive a fair and impartial trial.” Trial of the petition before Judge Cooter commenced on January 20, 1941. On March 25, 1941, Judge Cooter sustained plaintiff's petition for new trial and set aside the original verdict and judgment which this court had theretofore affirmed. Six days later, the insurance company appealed from said order to this court.

Much evidence was taken at the hearing upon the petition. The controlling facts, as we view them, are not seriously in dispute. On April 13, 1939, 26 days before the expiration of the time granted appellee to file amended motion for new trial, appellee obtained the X-ray pictures of his neck which had been taken by Dr. Dickson in Kansas City about April 1, 1938, and which had been offered in evidence at the trial, and went to Iowa City to see Dr. Steindler. These X-rays were examined by Dr. Steindler who on the following day caused Dr. Gillies, an X-ray technician at the University hospital, to take additional X-rays. It is the contention of appellee that from an examination of the Dickson X-rays, one in particular, and the new X-rays taken on April 14, 1939, as well as from an examination of appellee, Dr. Steindler for the first time gave it as his opinion that the foramina between the third and fourth and fifth and sixth cervical vertebrae had been injured. The foramina, in the language of laymen, are openings in the vertebrae through which nerves pass. It is claimed for this alleged newly discovered evidence that Dr. Steindler would testify upon a new trial that in his opinion the vertebrae were injured so there was a pressing against the nerves passing through these foramina or openings. Also, the claim is that Dr. Gillies and one Dr. Magnuson would confirm the opinion of Dr. Steindler.

Appellee first consulted Dr. Steindler on June 17, 1937. From June 28 to July 15, 1937, he was at the University hospital in Iowa City under the care of Dr. Steindler. At that time X-rays of vertebrae in appellee's neck were taken. Again, on January 6, 1938, Dr. Steindler examined appellee and more X-rays were taken by Dr. Gillies, the X-ray technician, at the direction of Dr. Steindler. Appellee was in frequent communication with Dr. Steindler from the time of the first consultation in June, 1937.

On September 10, 1937, appellee took the deposition of Dr. Steindler for use in another case brought by him against appellant company. Appellee, a lawyer of wide experience, therefore knew what Dr. Steindler's testimony was regarding his injuries. Appellee did not call Dr. Steindler as a witness nor was his deposition received upon the jury trial. On September 27, 1939, appellee caused to be taken the depositions of Dr. Steindler and Dr. Gillies, which were offered in evidence in support of the petition for new trial. We have carefully examined these depositions which form much of the basis of the claim to a new trial. Dr. Steindler testified that at no time prior to April 13, 1939, did appellee exhibit to him any X-rays taken by any other technician. He further testified on cross-examination:

“Q. The conclusions you have stated today with reference to the condition of Mr. Eller could have all been as definitely stated prior to March 1, 1939, could they not? A. Yes, sir.

Q. You could have given all the testimony you have given today prior to March 1, 1939, couldn't you, had you been called upon to do so? A. Yes, sir.”

Insofar as Dr. Steindler's opinion is not based on the X-ray pictures which were exhibited to him, he said it is largely based upon appellee's complaints of pain rather than any objective symptoms.

The deposition of Dr. Gillies consists largely of his identifying the X-rays taken by him on April 14, 1939, and the earlier X-rays taken at the University hospital in June, 1937, and January 6, 1938, although he does give his opinion as to the X-rays. Dr. Gillies testified that the X-rays taken on April 14 could have been taken at any previous time and that they would...

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22 practice notes
  • Maland v. Tesdall, No. 45928.
    • United States
    • United States State Supreme Court of Iowa
    • November 27, 1942
    ...evidence unless diligence is shown in discovering and producing it. Sec. 11550(7), Code 1939; Eller v. Paul Revere Life Ins. Co., 230 Iowa 1255, 1262, 300 N.W. 535, and citations. Without reviewing the showing of diligence here, we think it was sufficient. See Wilbur v. Iowa P. & L. Co., 22......
  • Primary Road No. Iowa 141, In re, No. FN-334
    • United States
    • United States State Supreme Court of Iowa
    • October 15, 1963
    ...in ruling on requests for new trial is because of the knowledge gained by them during the trial.' Eller v. Paul Revere Ins. Co., 230 Iowa 1255, 1261, 300 N.W. 535, 538. Here of course Judge Braginton gained no knowledge of the case during the What consideration Judge Braginton gave the moti......
  • Groves v. Groves, No. 49139
    • United States
    • United States State Supreme Court of Iowa
    • April 3, 1957
    ...495, 52 N.W.2d 39; Modern Heat & Power Co. v. Bishop Steamotor Corp., 239 Iowa 1267, 34 N.W.2d 581; Eller v. Paul Revere Life Ins. Co., 230 Iowa 1255, 300 N.W. 535. All say the trial court has a good deal of discretion in such a matter and we will not interfere with its ruling unless it is ......
  • Peterson v. Bober, No. 7329
    • United States
    • United States State Supreme Court of North Dakota
    • December 19, 1952
    ...for a showing [79 N.D. 311] of diligence. Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; Eller v. Paul Revere Life Insurance Co., 230 Iowa 1255, 300 N.W. 535; Shivers v. Palmer, 59 Cal.App.2d 572, 139 P.2d 952. McGregor v. G. N. Ry. Co., Judge Christianson in the opinion of this court in the......
  • Request a trial to view additional results
22 cases
  • Maland v. Tesdall, No. 45928.
    • United States
    • United States State Supreme Court of Iowa
    • November 27, 1942
    ...evidence unless diligence is shown in discovering and producing it. Sec. 11550(7), Code 1939; Eller v. Paul Revere Life Ins. Co., 230 Iowa 1255, 1262, 300 N.W. 535, and citations. Without reviewing the showing of diligence here, we think it was sufficient. See Wilbur v. Iowa P. & L. Co., 22......
  • Primary Road No. Iowa 141, In re, No. FN-334
    • United States
    • United States State Supreme Court of Iowa
    • October 15, 1963
    ...in ruling on requests for new trial is because of the knowledge gained by them during the trial.' Eller v. Paul Revere Ins. Co., 230 Iowa 1255, 1261, 300 N.W. 535, 538. Here of course Judge Braginton gained no knowledge of the case during the What consideration Judge Braginton gave the moti......
  • Groves v. Groves, No. 49139
    • United States
    • United States State Supreme Court of Iowa
    • April 3, 1957
    ...495, 52 N.W.2d 39; Modern Heat & Power Co. v. Bishop Steamotor Corp., 239 Iowa 1267, 34 N.W.2d 581; Eller v. Paul Revere Life Ins. Co., 230 Iowa 1255, 300 N.W. 535. All say the trial court has a good deal of discretion in such a matter and we will not interfere with its ruling unless it is ......
  • Peterson v. Bober, No. 7329
    • United States
    • United States State Supreme Court of North Dakota
    • December 19, 1952
    ...for a showing [79 N.D. 311] of diligence. Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; Eller v. Paul Revere Life Insurance Co., 230 Iowa 1255, 300 N.W. 535; Shivers v. Palmer, 59 Cal.App.2d 572, 139 P.2d 952. McGregor v. G. N. Ry. Co., Judge Christianson in the opinion of this court in the......
  • Request a trial to view additional results

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