Penn. Mut. Life Ins. Co. v. Ashe

• Decision Date: 05 May 1906
• Docket Number: 1,445.
• Citation: 145 F. 593
• Parties: PENN. MUT. LIFE INS. CO. v. ASHE.
• Court: U.S. Court of Appeals — Sixth Circuit

145 F. 593

PENN. MUT. LIFE INS. CO. v. ASHE.

No. 1,445.

United States Court of Appeals, Sixth Circuit.

May 5, 1906

McFarland & Canada, for plaintiff in error.

Malone Dubose & Riddick, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit upon two policies for $5,000 each, issued May 2 1892, by the Penn Mutual Life Insurance Company on the life of S. A. Rogers. Rogers paid the first and second premiums due May 2, 1892, and May 2, 1893, borrowed on the policies the money to pay the third premium due May 2, 1894, and failed to pay any further premiums. According to the computation of the company, the reserve resulting from the payment of the first and second premiums, after deducting the loan which paid the third premium, was sufficient to carry each policy for 1 year and 121 days; that is to say, until August 30, 1896. Rogers died on January 6, 1898, after the policies, as construed by the company, had expired. On the 8th of June, 1898, suit was brought on the policies. The case was heard before Judge Hammond and a jury. After the jury had heard the testimony, the trial was terminated on December 18 1899, by the making of the following agreed entry, under which, as it will be observed, the court directed a verdict in favor of the plaintiff, but reserved the questions of law involved for determination on a motion for a new trial, when if such motion should be decided in favor of the defendant, the verdict was to be turned into one for the defendant by direction of the court:

'This day come again the said plaintiff accompanied by her attorney and the said defendant by its attorneys and come again also the jury heretofore impaneled and sworn, herein, when the trial of this case was again resumed and the jury having heard the testimony and listened to the arguments of counsel, the parties agree by this record entry that the court may take the verdict of the jury for the amount due the plaintiff as if upon a verdict directed by the court in favor of the plaintiff, but on motion for a new trial, if the court should find the law for the defendant, the verdict shall be turned into one for the defendant company by direction of the court, neither party to be prejudiced hereby in any right to a writ of error. Whereupon the said jury upon their oaths do say they find the issues herein joined to be in favor of the said plaintiff and against the said defendant to the sum of nine thousand, seven hundred and twenty dollars. It is therefore considered by the court that the said plaintiff, Maggie L. Ashe, as such executrix, do have and recover of and from the said defendant, the Penn Mutual Life Insurance Company, said sum of nine thousand, seven hundred and twenty dollars, and the costs of this suit, for the collection of which execution is hereby awarded. Whereupon the said defendant by its attorneys moves the court for a new trial of this case, which motion is hereby continued for consideration to a subsequent day of the present term.'

In accordance with this entry, Judge Hammond took the case under advisement upon the questions of law involved, but never decided them. The motion for a new trial was continued from term to term, until December 17, 1904, when Judge Hammond died. Upon his death, Judge McCall was appointed to fill the vacancy, and on March 1, 1905, the plaintiff moved for execution upon the judgment entered December 18, 1899, and the defendant for a new trial. In support of this motion, the defendant offered the affidavit of counsel showing this motion, the defendant offered the affidavit of counsel showing what had occurred between Judge Hammond and the attorneys for the parties at the time the entry of December 18, 1899, was agreed upon, and the depositions of the officers of the company used on the trial. Judge McCall, sitting as the court below, declined to consider the affidavit and depositions and on May 4, 1905, overruled the motion of the defendant, sustained that of the plaintiff, and ordered execution to issue upon the judgment. The view taken by the judge below of his authority and duty under the circumstances is sufficiently indicated in the following extracts from his opinion:

'This motion (that made before Judge Hammond) is now pending, and I am asked to grant a new trial of the case. A most perplexing and difficult question is presented. A presiding judge, the successor in office of the trial judge, now deceased, is asked to pass upon a motion for a new trial in a case about the facts of which, as they were permitted to go to the jury, he knows nothing, and just as little about the ruling of the court on objections to testimony offered before the jury. As remarkable as it may at first appear, this want of information as to these things on the part of the presiding judge is strongly urged, and not without some merit, as the reason why this motion should be granted and a new trial awarded. On the contrary, why should not the same thing be urged with equal force as the reason why the presiding judge should do nothing of the kind, but allow the verdict and judgment to stand as rendered?'

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