Simonds v. Norwich Union Indemnity Co.

• Decision Date: 23 October 1934
• Docket Number: No. 9796.,9796.
• Citation: 73 F.2d 412
• Parties: SIMONDS v. NORWICH UNION INDEMNITY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

73 F.2d 412 (1934)

SIMONDS v. NORWICH UNION INDEMNITY CO.

No. 9796.

Circuit Court of Appeals, Eighth Circuit.

October 23, 1934.

James E. Gardner, of Duluth, Minn. (Austin Lathers, of Duluth, Minn., on the brief), for appellant.

W. O. Bissonett, of Duluth, Minn. (A. C. Gillette, of Duluth, Minn., on the brief), for appellee.

Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

March 16, 1929, in Duluth, Minn., the minor son of appellant was struck by an automobile driven by one Edgar T. Jackson. For the injury thus sustained, appellant brought in the state court of St. Louis county, Minn., two suits against Jackson, one to recover damages to himself personally for medical and hospital expenses, and the other, as father and natural guardian of his minor son, to recover damages for injuries to the person of his said son. He recovered in both actions; $1,800 for himself personally, and $9,800 for the benefit of the minor. Thereafter appellant brought two actions against appellee herein, upon the ground that the automobile, owned and operated by Jackson, was insured against public liability by appellee, and that for this reason appellee was liable to appellant for the payment of said judgments against Jackson. Appellee denied liability in both cases. The suit for $1,800, brought by appellant as an individual plaintiff, was tried in the District Court of St. Louis county, Minn. Judgment for plaintiff resulted, from which judgment appellee herein appealed to the Supreme Court of Minnesota. This appeal was argued December 19, 1932, and the Minnesota Supreme Court affirmed the judgment of the district court of St. Louis county, aforesaid, January 20, 1933. Hartigan v. Norwich Union Indemnity Co., 188 Minn. 48, 246 N. W. 477. February 6, 1933, appellee paid and satisfied said judgment of $1,800.

The action for $9,800 was removed from the state court to the District Court of the United States for the District of Minnesota. Judgment for appellant in the sum of $5,000 was entered in that court August 11, 1932. An appeal therefrom was taken to this court and was argued and submitted March 20, 1933. April 11, 1933, this court filed its order affirming the judgment of the District Court. The policy of insurance sued on provides thus:

"Page 1 of Policy C. 7 Liability for Personal Injury As Defined on Page 3 — One person $ 5,000.00 One accident $10,000.00 *** Page 3 of Policy

"In Consideration of the premium specified in, and the statements contained in, the Schedule of Declarations and Warranties endorsed hereon, made part hereof, and warranted by the Insured to be true, the Norwich Union Indemnity Company (hereinafter called the `Company') hereby agrees with the Insured named in Paragraph B that if, during the term mentioned in Paragraph B any person or persons shall sustain bodily injuries by accident, whether resulting fatally or otherwise, by reason of the ownership, maintenance or use of any of the automobiles described in Paragraph D, Statement 3 of the said Schedule, at any location within the United States of America or the Dominion of Canada, for which bodily injuries the Insured and/or others as hereinafter provided, are liable for damages.

"* * * The company's liability under this policy for injuries sustained by any one person shall not exceed the amount set forth opposite `one person' in Paragraph C, Article 7, and the Company's liability under this policy in respect of any one accident resulting in injuries to more than one person, shall not exceed the amount set forth opposite `One Accident' in Paragraph C, Article 7."

The contention of appellee is that the policy, if in force at all, covered only the personal injury to the minor, and therefore the entire amount of recovery is limited to $5,000 in any event. Appellant contends that the terms of the policy were broad enough to cover, as well, incidental expenses incurred by the father as a result of the injury to the son. The District Court limited the recovery to $5,000, and its judgment was affirmed by this court. 65 F.(2d) 134.

After the affirmance of the judgment of the District Court by this court, the indemnity company sought to have appellant herein give it credit for the $1,800 payment theretofore made upon the state court judgment, and tendered the sum of $3,200 to be accepted in full settlement of the balance due under the terms and conditions of the insurance contract. This offer was refused, and levy of execution was threatened. Thereupon the indemnity company, appellee herein, filed this equitable action in the District Court for the District of Minnesota, praying: "That this court issue its permanent injunction restraining and enjoining the defendant, H. O. Simonds, as father of John Simonds, a minor, from levying execution against the plaintiff herein or in any way attempting by legal process or otherwise, to collect the sum of $5,000.00 upon the judgment entered in this court on August 11, 1932 or any part thereof in excess of $3,200.00 plus interests and costs."

Appellant herein, defendant below, filed a motion to dismiss the bill of complaint upon the following grounds:

"1. That the court has not jurisdiction of the subject of the action, in that no permission to file said bill has been granted by the Circuit Court of Appeals of the Eighth Circuit.

"2. That the facts stated in said bill do not constitute a cause of action, and are insufficient to justify the granting of equitable relief, as prayed in said Bill of Complaint.

"3. That said bill is wanting in equity, as res adjudicata."

This motion was denied, appellant declined to plead further, and, in due course, a decree pro confesso was entered against him, from which this appeal is prosecuted. The assignments of error urged are: (1) The court erred in holding that the facts stated in the bill of complaint were sufficient to justify the granting of equitable relief as prayed; (2) the court erred in holding that said bill was not wanting in equity as res adjudicata.

Under the first assignment appellant says: "This issue hinges on the proper construction of the so-called limitation clause of the insurance policy involved," and reiterates his contention that the terms of the policy are broad enough to cover the incidental expenses of the father as well as the personal injuries to his minor son.

It appears that the original action in the District Court of the United States was a suit in equity to reform the policy of insurance which was issued to one Sverre A. Olson, instead of to Edgar T. Jackson, the owner and driver of the automobile which inflicted the injury upon appellant's minor son, and to recover against appellee herein the sum of $9,800 as the insurer of Jackson, against whom appellant had previously recovered that amount in the Minnesota state court. The District Court reformed the policy as prayed, and entered judgment against appellee herein in the sum of $5,000, the amount specified in the policy for personal injuries to one person, with interest thereon. From this judgment the Norwich Union Indemnity Company appealed to this court. As heretofore stated, this court affirmed the judgment of the District Court April 11, 1933. From the opinion of this court, 65 F.(2d) 134, it appears that the only substantial issue presented by the assigned errors filed or relied upon in that appeal concerned the sufficiency of the evidence to sustain the reformation of the policy. No challenge was made to the amount of the judgment by either party. In the District Court, the indemnity company had filed an amended answer setting up the fact that the district court of St. Louis county, Minn., had already entered judgment against it in favor of H. O. Simonds individually in the sum of $1,800; but the significance of that fact was apparently not urged upon the district Court, and certainly not in the appeal to this court. This is admitted by appellee herein. Its counsel explain that the transcript on the former appeal to this court had been printed and the appeal perfected before the Supreme Court of Minnesota affirmed the $1,800 judgment in January, 1933, and the payment of that judgment in February, 1933. Counsel say in their brief: "There was no way in which we could have brought to the attention of this court the fact of the payment of said judgment of $1800.00, except by re-opening the case and introducing further testimony before the trial court. That would have required a motion to re-open the judgment for the purpose of amending or revising it after the expiration of the term in which the judgment was rendered, a thing which Federal Procedure does not permit."

They conceived that their only remedy was by an independent suit in equity. Under their first assignment of error, counsel for appellant, Simonds, seek to reverse the decree herein on the ground that the incidental expenses incurred by the father were injuries recoverable under the terms of the policy, in addition to the bodily injuries sustained by the minor son. While this contention does not appear to have been stressed in the former appeal, its rejection was necessarily involved in the judgment of the District Court, affirmed by this court. This judgment appellant herein has accepted, and the holding is so clearly correct that we find further discussion upon this point unnecessary.

The case here turns upon the question of whether the judgment of this court, affirming that of the District Court in the former appeal, has so finally disposed of the entire matter as to preclude the relief prayed for by appellee and granted by the decree from which this appeal is taken.

To impeach the decree of the District Court, which has now become the decree of this court, Obear-Nester Glass Co. v. Hartford-Empire Co. (C. C. A.) 61 F.(2d) 31, it would be necessary to file a bill of review or an original equitable action in the nature of a bill of review. Of course, a court has...