Herzberg's Inc. v. Ocean Accident & Guarantee Corporation

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: SANBORN, JOHNSEN, and RIDDICK, Circuit
• Citation: Herzberg's Inc. v. Ocean Accident & Guarantee Corporation, 132 F.2d 438 (8th Cir. 1943)
• Decision Date: 07 January 1943
• Docket Number: No. 12302.,12302.
• Parties: HERZBERG'S, Inc., v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Ltd.

132 F.2d 438 (1943)

HERZBERG'S, Inc., v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Ltd.

No. 12302.

Circuit Court of Appeals, Eighth Circuit.

January 7, 1943.

Sam Beber, of Omaha, Neb. (Robert J. Webb, Philip M. Klutznick, Harold M. Kelley, Harold R. Lebens, and Charles F. Bongardt, all of Omaha, Neb., on the brief), for appellant.

George L. DeLacy, of Omaha, Neb. (J. A. C. Kennedy, Yale C. Holland, and R. E. Svoboda, all of Omaha, Neb., on the brief), for appellee.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment dismissing the amended complaint of the appellant, which sought a reformation of a public liability policy issued by the appellee to the appellant in 1924, and a recovery upon the policy as reformed. The parties will be referred to as plaintiff and defendant. The plaintiff (appellant) asserts that, under the evidence and the law, it was entitled to prevail.

This is the second time this case has appeared in this Court. When it was here before it was an action to recover upon the same policy which the plaintiff now seeks to have reformed. That action had been tried to the court below without a jury. The court had entered judgment in favor of the plaintiff, and the defendant had appealed. The evidentiary facts were not in dispute and the only question for decision was whether the loss which the plaintiff had sustained — which had been occasioned by the recovery of damages from it by a patron of its store for personal injuries caused by an electrical treatment administered by a cosmetician in a beauty shop operated in the store — was excluded from the coverage of the policy by a malpractice endorsement. The court below had ruled that the loss was not caused by malpractice within the meaning of the endorsement, and had entered judgment in favor of the plaintiff for $14,843.46 and costs. This Court, with one judge dissenting, held that the loss was excluded from the coverage of the policy, by the malpractice endorsement. Ocean Accident & Guarantee Corporation v. Herzberg's, Inc., 8 Cir., 100 F.2d 171, 173. The concluding lines of the opinion of this Court are:

"The obvious error involved in the professional application of the Tricho apparatus the electrical appliance which caused the injury to the patron, whether due to negligence or ignorance, amounted to malpractice under the terms of this endorsement. In consequence thereof appellant defendant is expressly not liable under its policy. The judgment below is reversed and the cause remanded to the district court for further proceedings not inconsistent herewith. It is so ordered."

The plaintiff applied to the Supreme Court of the United States for certiorari, but the application was denied. 306 U.S. 645, 59 S.Ct. 584, 83 L.Ed. 1044.

The mandate of this Court provided, in part, as follows:

"* * * it is now here ordered and adjudged by this Court, that the judgment of the said District Court, in this cause, be, and the same is hereby, reversed with costs; and that the Ocean Accident and Guarantee Corporation, Inc., a corporation, have and recover against Herzberg's, Inc., a corporation, the sum of Three Hundred Twenty-six and 30/100 Dollars for its costs in this behalf expended and have execution therefor.

"And it is further ordered by this Court that this cause be and the same is hereby remanded to the said District Court for further proceedings not inconsistent with the opinion of this Court this day filed herein."

After the mandate went down, the plaintiff moved the court below for leave to file an amended complaint and for a new trial. The court granted leave to amend. The amended complaint converted the action into one for reformation of the policy and for judgment upon the policy as reformed. The defendant made a motion to dismiss the amended complaint on the grounds that the plaintiff's cause of action for reformation of the policy was barred by the statute of limitations of Nebraska, and that the decision of this Court had adjudicated all rights of the plaintiff and that it was not entitled to proceed further. The motion to dismiss was denied. The defendant then answered, denying the existence of any facts or grounds for reformation of the policy in suit, asserting that all matters had been adjudicated by the opinion of this Court, and praying for a dismissal. After a trial, the court determined that the plaintiff was not entitled to recover, (1) because the decision of this Court was res judicata, and (2) because the plaintiff's evidence was not so clear and convincing as to justify the reformation of the policy. Judgment was entered dismissing the plaintiff's amended complaint.

A majority of this Court thinks that, while the opinion and mandate on the former appeal of this case did not specifically direct the entry of judgment in favor of the defendant, the effect of the mandate, of which the opinion was a part (Pike Rapids Power Co. v. Minneapolis, St. P. & S. S. M. R. Co., 8 Cir., 106 F.2d 891, 894), was to require that to be done, since every issue of law and fact raised by the pleadings had then been decided, and nothing remained to be done except for the trial court to determine the costs that the defendant was entitled to recover and...