Monsma v. Central Mutual Insurance Company
| Decision Date | 14 March 1968 |
| Docket Number | No. 21685.,21685. |
| Citation | 392 F.2d 49 |
| Parties | Albert F. MONSMA, Appellant, v. CENTRAL MUTUAL INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James K. Tallman (argued), Anchorage, Alaska, for appellant.
James J. Delaney (argued) of Delaney, Wiles, Moore & Hayes, Anchorage, Alaska, for appellee.
Before BARNES and BROWNING, Circuit Judges, and JAMESON, District Judge.
This is an appeal from a judgment in favor of the defendant-appellee, Central Mutual Insurance Company, on a general jury verdict and a special verdict finding (1) that a fire insurance policy held by plaintiff-appellant, Albert F. Monsma, had been cancelled, and (2) that any defects in the method of cancellation had been waived. There was evidence from which the jury might properly find both cancellation and waiver. This appeal is concerned with a series of procedural irregularities at the trial.
Appellant was purchasing the insured property under a contract for deed. In 1963, he conveyed his interest to his wife, from whom he was later divorced. The wife purchased the fire insurance policy from appellee on August 24, 1964, and paid one-half the annual premium. She quitclaimed her interest in the property to appellant on September 24, 1964, appellant reimbursed her for the premium paid, and the policy was endorsed to show an assignment to appellant.
On December 23, 1964, appellee through its agent, mailed a notice of cancellation to appellant. Appellant claimed that the notice was never received. The property was destroyed by fire on January 16, 1965.
Prior to the fire, appellant was informed by one of the contract sellers that the policy had been cancelled and that the seller had purchased another policy and would look to appellant for payment of the premium. This policy was issued jointly by the Glens Falls Insurance Company and the Kansas City Fire and Marine Insurance Company, naming as insureds the contract sellers and appellant as purchaser.
Suit was instituted in the name of appellant and the two contract sellers against the three insurance companies. Prior to trial a settlement was effected with Glens Falls and Kansas City, and it was stipulated that any recovery from appellee would be reduced by the amount of the settlement. The settlement left appellant as the sole plaintiff and appellee as the sole defendant.
With this background, we turn to the procedural irregularities at the trial, in which to some extent the court and counsel for both parties participated. Appellant contends that the trial court erred:
(1) In submitting a supplementary instruction to the jury after the jury had retired, in that the instruction was offered late, was erroneous, and the manner in which it was given to the jury resulted in undue emphasis.
(2) In inadvertently submitting to the jury an interrogatory concerning novation, although the issue of novation was not submitted to the jury.
(3) In submitting any interrogatories to the jury in that they emphasized issues in favor of the appellee and against the appellant.
(4) In submitting an interrogatory on waiver of method of cancellation, which appellant contends was answered in a manner inconsistent with the jury's answer that the policy had been cancelled.
Although initially the court had ordered that proposed instructions be submitted not later than 4:00 P.M. on September 6, 1966, this requirement was later waived and both parties offered additional instructions, including appellant's proposed instruction No. 27, offered on the afternoon of September 7, 1966, and reading as follows:
"You are instructed that there is a presumption that letters mailed in the ordinary course of the mails reached the address to which they are addressed."
On the late morning of September 8, 1966, immediately prior to argument, the court informed counsel of its proposed action upon the requests for instructions and that after the court's charge they would have an opportunity to object to the instructions. Following the argument and charge, the court asked counsel whether they would rather come back at 3:15 or 3:30 to make their objections. Counsel for both parties agreed, and court was recessed until 3:30. The jury retired about 1:30, taking with them the instructions given by the court.
Beginning at 3:30 counsel for both parties made their objections to the court's instructions, including appellee's objection to the court's failure to give its offered instruction No. 27. The court stated that it had intended to give this instruction and prepared a supplemental instruction "predicated upon defendant's requested instruction No. 27". Counsel for appellant objected to the giving of the supplemental instruction for the reason that it "places undue emphasis upon this particular instruction" and it "was incumbent upon defendant to have brought this to the attention of the court at the time of the reading" of the other instructions.1 The supplemental instruction, including a cautionary instruction,2 was delivered to the jury by the court bailiff.
It is obvious that the court was confronted with a dilemma when over two hours after the jury had retired, his attention was called to the fact that appellee's proposed instruction No. 27 had not been given. It was the court's opinion that the instruction should have been given and that he had informed counsel it would be given.3 On the other hand, there was the danger that undue emphasis would be placed upon an instruction delivered to the jury some three hours after the other instructions.
The dilemma confronting the trial court and the alleged error urged by appellant would have been avoided by a compliance with Rule 51 of the Federal Rules of Civil Procedure, which reads:
This rule "is designed to bring possible errors to light while there is still time to correct them without entailing the cost, delay and expenditure of judicial resources occasioned by retrials." Bertrand v. Southern Pacific Company, 9 Cir. 1960, 282 F.2d 569, 572. We agree with appellant that counsel for appellee should have called the court's attention, prior to retirement of the jury, to the failure to give its proposed instruction No. 27. On the other hand, counsel was not precluded from objecting to the failure to give the instruction, and counsel for appellant had expressly acquiesced in the delay in making objections to the court's instructions.
While the procedure followed is not commended, under all of the circumstances it is our conclusion that the giving of the supplemental instruction does not constitute reversible error.
It is unnecessary to consider appellant's contention that the supplemental instruction is an erroneous statement of the law. This ground of objection was not raised in the trial court. Appellant accordingly is precluded from obtaining a review in this court. The "plain error" rule may not be utilized in civil appeals. Hargrave v. Wellman, 9 Cir. 1960, 276 F.2d 948, 950.4
Pursuant to Rule 49(b) of the Federal Rules of Civil Procedure,5 the court submitted to the jury two forms of general verdict (one finding for the plaintiff and the other for the defendant) and a form of special verdict containing five interrogatories. It is apparent from the court's charge that he intended to submit only four interrogatories. Through inadvertence there was included as interrogatory No. 3 the following:
"Did the plaintiff, prior to the fire, enter into a novation with the defendant insurance company as defined in the instructions?
Answer to Interrogatory No. 3. _______________ (Yes or No)" Interrogatories 4 and 5, which should have been 3 and 4, read as follows
There was no instruction defining or relating to "novation", the court having decided that this issue should not be submitted to the jury. The inclusion of interrogatory No. 3 was a secretarial oversight.
On September 9, 1966, the jury returned a general...
To continue reading
Request your trial
-
Brown v. AVEMCO Inv. Corp.
...has had several opportunities to extend the plain error doctrine to civil appeals, we have declined to do so. Monsa v. Central Insurance Co., 392 F.2d 49, 52-53 (CA9 1968); Hargrave v. Wellman, 276 F.2d 948, 950 (CA9 1960). In light of the facts that appellants failed to raise their objecti......
-
Cancellier v. Federated Dept. Stores
...of special interrogatories is a matter committed to the discretion of the district judge. Fed.R.Civ.P. 49(b); Monsma v. Central Mutual Insurance Co., 392 F.2d 49 (9th Cir. 1968); 5A J. Moore & J. Lucas, Moore's Federal Practice P 49.04 & n.3 (2d ed. 1981). A jury generally is not required t......
-
Beech Aircraft Corp. v. U.S.
...they thought was on the Plaintiffs, and leaves open the possibility of a lengthy and expensive retrial. Cf. Monsma v. Central Mutual Ins. Co., 392 F.2d 49, 52 (9th Cir.1968) (holding that rule that no party may assign as error the giving of an instruction unless he objects before the jury r......
- Hemphill v. United States