Rexford v. Royal Indemnity Company, 14814.

• Decision Date: 16 September 1954
• Docket Number: No. 14814.,14814.
• Citation: 215 F.2d 693
• Parties: Everett REXFORD, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

215 F.2d 693 (1954)

Everett REXFORD, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee.

No. 14814.

United States Court of Appeals Fifth Circuit.

September 16, 1954.

J. B. Spence, Wm. Clinton Green, Samuel Daniels, Nichols, Gaither, Green, Frates & Beckham, Miami, Fla., for appellant.

S. J. Powers, Jr., T. J. Blackwell, Blackwell, Walker & Gray, Miami, Fla., for appellee.

Before HOLMES and STRUM, Circuit Judges, and THOMAS, District Judge.

HOLMES, Circuit Judge.

This is the second appearance of the above case before this court. On the former appeal, 5 Cir., 197 F.2d 83, 85, the court of appeals reversed the decision of the district court, and remanded the cause for trial on the issue of non-cooperation only. This action originated in the state court of Florida as a garnishment proceeding by appellant against Royal Indemnity Company, the insurer of Florence Tarr, against whom the appellant had obtained a default judgment for personal injuries sustained in an automobile accident. The insurer removed the garnishment proceeding to the court below, where a trial was had which resulted in a verdict and judgment in favor of Everett Rexford. From that final judgment, the insurer appealed to this court, which held that, because of the error in permitting Rexford to re-try the damage suit, the case was not tried fairly on the issue of non-cooperation (the only issue available in the garnishment suit), and that the judgment should be reversed and the cause remanded for trial of that issue uncomplicated by extraneous matter.

Upon remand of the case, the court below, at a pretrial conference, announced that the following issues would be submitted to the jury: (1) "Whether the insurance company, the garnishee, exercised good faith and diligence under the contract in requesting the presence of the insured at the time of the trial," and (2) "whether such absence of the insured was accidental or incidental, if it be established on the first issue that the garnishee exercised all reasonable diligence and good faith in attempting to procure the presence of the insured at the trial."

The case proceeded to trial upon the same evidence as was offered at the first trial except for the excluded testimony relating to the circumstances of the automobile collision. At the conclusion of all the evidence, the court granted appellee's motion for a directed verdict.

Upon the former appeal, on the same evidence, this court said: "We agree with appellant, too, that the case of...