Eller v. Paul Revere Life Ins. Co.

• Decision Date: 26 October 1943
• Docket Number: No. 12640.,12640.
• Citation: 149 ALR 1191,138 F.2d 403
• Parties: ELLER v. PAUL REVERE LIFE INS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

149 ALR 1191, 138 F.2d 403 (1943)

ELLER v. PAUL REVERE LIFE INS. CO.

No. 12640.

Circuit Court of Appeals, Eighth Circuit.

October 26, 1943.

Chester J. Eller, of Des Moines, Iowa (H. M. Havner, of Des Moines, Iowa, on the brief), pro se.

Volney Diltz, of Des Moines, Iowa (Earl C. Mills, of Des Moines, Iowa, on the brief), for appellee.

Before WOODROUGH, THOMAS, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is to reverse a judgment rendered in summary proceedings under Rule 56, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, dismissing the plaintiff's suit at his costs.

The suit was to recover total disability benefits claimed to be due under an accident insurance policy issued by defendant to plaintiff in 1934. Mr. Eller accidentally fell on an icy sidewalk and was injured January 21, 1937, while the policy was in force, and the insurance company paid him monthly installments due him on account of his resultant total disability in accord with the policy for the period from the date of the accident to March 21, 1938. The last payment was not made until after Mr. Eller had sued the company on the policy, which suit was dismissed on account of the payment. The company refused thereafter to make further payments, and Mr. Eller, claiming that his total disability had continued, again brought suit against the company on the policy for total disability payments for the period from March 21, 1938, to August 21, 1938. Trial of the case resulted in judgment of dismissal.

In the present action it was alleged that the plaintiff's total disability resulting from the accidental fall on the sidewalk had continued during all of the period from March 21, 1938, to December 5, 1940, and judgment was prayed on account thereof, together with hospital benefits which would be payable under the policy during such continued total disability. The insurance company defended on the ground that by the terms of its policy it was bound to pay Mr. Eller only on account of such total disability as was continuous from the accident and that he was estopped by the final adjudication in his former suit against the company to assert in this action that his accident of January 21, 1937, had caused him to be totally disabled during the period from March 21, 1938, to August 21, 1938, which was involved in that action. The proceedings had in the former action were set out in the company's pleadings, in exhibits attached, and in exemplified copies referred to and contemporaneously filed with the clerk of court. No reply was filed to the company's answer as amended, but both parties moved the court to render summary judgment under Rule 56, Rules of Civil Procedure.

On the hearing of the motions the proceedings had in the former contested lawsuit between the same parties were argued by both parties and were considered by the court without objection to foundation for their introduction.¹ They show that the former contested suit against the insurance company on the same insurance policy was brought in the Municipal Court of the City of Des Moines, a court of record in Iowa. That plaintiff there alleged the same accident occurring on January 21, 1937, and that injuries had resulted therefrom and that in consequence he had been continuously and totally disabled during the period March 21, 1938, to August 21, 1938. The company there denied that he had been totally disabled during the period. The issue so joined was submitted to the jury on instructions which clearly explained to the jury that the plaintiff claimed that as the result of his fall on January 21, 1937, he had "since January 21, 1937, been continuously and totally disabled" and that the defendant "specifically denies that the plaintiff was so continuously and physically disabled during the period from March 21, 1938, to August 21, 1938," and that the burden of proof was on plaintiff "to prove by a preponderance of the evidence that as the result of an accident on January 21, 1937, he sustained bodily injuries which directly and independently of all other causes resulted in continuous total disability from and after March 21, 1938." The jury's verdict was for defendant insurance company and judgment of dismissal followed. An appeal to the Supreme Court of Iowa resulted in affirmance. Eller v. Paul Revere Life Insurance Co., 228 Iowa 1247, 291 N.W. 866. Mr. Eller obtained an order granting him a new trial, but on second appeal to the Supreme Court such order was reversed and the judgment against him was reinstated and affirmed. Eller v. Paul Revere Life Insurance Co., 230 Iowa 1255, 300 N.W. 535.

It thus appears that the right to recover for total disability continuing after March 21, 1938, which Mr. Eller asserts in this action, has been fully litigated between him and the insurance company in the court of competent jurisdiction to which he submitted the issue and has been finally adjudicated against him.

He has contended in the trial court and on this appeal that the issue in this case is not the identical issue determined in the former case. His position is that in the former case he pleaded and adduced testimony to show that certain personal injuries were inflicted upon him by his fall but that he subsequently discovered through further experiences, medical examinations and diagnoses, and has pleaded here, that the injuries had been in fact different from and more severe than those he pleaded and sought to prove in the municipal court suit.²

But the record herein shows, as has been stated, that long after the entry of the former judgment Mr. Eller applied for a new trial of the case in which the judgment against him was rendered, on the ground of newly discovered evidence showing that the injuries inflicted when he fell were different from and more serious than he had believed and alleged them to be on the first trial. In Eller v. Paul Revere Life Insurance Co., 230 Iowa 1255, 300 N.W. 535, the Supreme Court carefully and fully reviewed the evidence of the first trial which included the diagnoses and opinion testimony of competent experts disclosing the nature and extent of the injuries inflicted upon Mr. Eller as well as the testimony claimed to constitute newly discovered evidence. The court decided that the fact question of the nature and extent of the injuries had been fairly tried, and that the further testimony...