Ikenberry v. N.Y. Life Ins. Co.

• Decision Date: 17 November 1916
• Docket Number: No. 19980[126].,19980[126].
• Citation: 134 Minn. 432,159 N.W. 955
• Parties: IKENBERRY v. NEW YORK LIFE INS. CO.
• Court: Minnesota Supreme Court

134 Minn. 432

159 N.W. 955

IKENBERRY

v.NEW YORK LIFE INS. CO.

No. 19980[126].

Supreme Court of Minnesota.

Nov. 17, 1916.

Appeal from District Court, Hennepin County; Daniel Fish, Judge.

Action by Charles A. Ikenberry, as administrator, against the New York Life Insurance Company. From an order denying an alternative motion for judgment or a new trial, defendant appeals. Affirmed.

Syllabus by the Court

Former decision in this case upon the question of the sufficiency of the evidence to justify a verdict for plaintiff followed and applied as the law of the case. 127 Minn. 215, 149 N. W. 292.

The record presents no reversible error in the rulings of the court or in its instructions to the jury. James H. McIntosh, of New York City, and Brown & Guesmer, of Minneapolis, for appellant.

M. H. Boutelle and N. H. Chase, both of Minneapolis, for respondent.

BROWN, C. J.

This action was brought to recover on a life insurance policy alleged to have been issued by defendant upon the life of Mary E. Cook. Defendant denied the insurance contract, and all material allegations of the complaint were thus put in issue. Plaintiff had a verdict, and defendant appealed from an order denying its alternative motion for judgment or a new trial.

There was a former trial of the action as a result of which a prior appeal was presented to this court and is reported in 127 Minn. 215, 149 N. W. 292. That was an appeal from an order denying defendant's motion, after verdict for plaintiff, for judgment notwithstanding the verdict or a new trial. The order of the trial court denying the motion for judgment was affirmed, but a new trial was granted for error in the exclusion of material evidence. Defendant there urged, in support of the contention that the trial court erred in denying its motion for judgment notwithstanding the verdict, the same questions it now presents in support of the same contention on this appeal. The questions were all fully considered on the former appeal, and there decided adversely to defendant. It was then held that the evidence then before the court made each of the questions issues of fact for the consideration of the jury. Upon this holding the order of the trial court denying the motion for judgment was expressly affirmed.

[1] 1. The former decision constitutes the law of the case and must be applied to the present appeal, unless the evidence now presented is so substantially different as to require the opposite conclusion. This is settled law in this state. 1 Dunnell's Dig. 398; Sours v. Railway Co., 88 Minn. 504, 93 N. W. 517;Hibbs v. Marpe, 84 Minn. 178, 87 N. W. 363;Braucht v. Graves-May Co., 96 Minn. 387, 104 N. W. 1089,106 N. W. 112; Raasch v. Elite Laundry Co., 102 Minn. 507, 112 N. W. 1141;Palmer v. Insurance Co., 121 Minn. 395, 141 N. W. 518, Ann. Cas. 1914D, 160;Street v. Railway Co., 130 Minn. 246, 153 N. W. 518. A careful examination of the record disclosed no substantial change in the evidence. While new evidence was offered...