Suggs v. Mutual Ben. Health & Accident Ass'n
| Decision Date | 18 November 1940 |
| Docket Number | No. 2042.,2042. |
| Parties | SUGGS v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John Barry, of Oklahoma City, Okl., and John W. Tyree, of Lawton, Okl. (L. M. Gensman, of Lawton, Okl., on the brief), for appellant.
J. B. Dudley and Duke Duvall, both of Oklahoma City, Okl., for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
The Mutual Benefit Health and Accident Association, herein called the company, issued a health and accident policy of insurance to Sylvanious L. Suggs. The insuring clause insured him against losses resulting independently of all other causes from injuries sustained from purely accidental means. Suicide, sane or insane, was excepted from the policy.
The insured suffered a sunstroke July 14, 1938, while the policy was in full force and effect, from which he died within one hour. Claim was made under Part A for the benefits provided for loss of life resulting from accidental means. The company denied liability, whereupon suit was filed by the beneficiary seeking the recovery of the death benefits in the sum of $2,000 as well as other benefits.
The company filed a motion and also its answer asking for a dismissal of the complaint, upon the ground that it failed to state a claim upon which relief could be predicated. The court, after a hearing, sustained the motion to dismiss. Plaintiff elected to stand upon the petition, and judgment was thereupon entered in favor of the defendant and against the plaintiff, on May 5, 1939.
On May 15, 1939, a motion for a new trial was filed, praying that the court vacate and set aside the judgment and grant a new trial for errors of law occurring and for errors of the court in sustaining plaintiff's motion to dismiss. This motion was overruled by the court on October 2, 1939. The order overruling plaintiff's motion to vacate the judgment and grant a new trial recites that at the time judgment was entered dismissing the petition, plaintiff's counsel in open court inquired of the court as to the length of time allowed under the new rules for the filing of a motion for a new trial; that upon such inquiry defendant's counsel in open court stated that it was defendant's contention that a motion for a new trial was not proper. The court expressed its opinion that such a motion was proper and permissible under Rule 59, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to which statement counsel for the defendant took exception.
An appeal was taken December 1, 1939, from the judgment of the court dismissing plaintiff's petition and entering judgment for the company. The company filed a motion to dismiss the appeal on the ground that the appeal was not taken in time. It is contended that the motion to vacate the judgment and grant a new trial was not proper under the Rules of Civil Procedure and therefore did not stay the time within which the appeal must be taken.
It is not necessary to the determination of this question to decide whether in the instant case a motion for a new trial was permissible under the Rules of Civil Procedure. A court has inherent power over its judgments throughout the term, and this goes to the extent that the court may vacate, modify or change its decision on the merits. 34 C.J. p. 268, § 491; Aspen Mining & Smelting Co. v. Billings, 150 U.S. 31, 14 S.Ct. 4, 37 L.Ed. 986; Chicago, M. & St. P. Ry. Co. v. Leverentz, 8 Cir., 19 F.2d 915; United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129; Doss et al. v. Tyack et al., 14 How. 297, 55 U.S. 297, 14 L.Ed. 428. This power to open, vacate or set aside its judgment during the term applies to errors of law as well as to errors of fact. Doss v. Tyack, supra; Zimmern et al. v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118.
A judgment is not generally treated as final until a motion for a new trial or rehearing which has been entertained by the court has been disposed of. In such case the time for appeal runs from the date of such disposition. United States v. Ellicott, 223 U.S. 524, 32 S.Ct. 334, 56 L. Ed. 535. So if a motion or petition for rehearing is made or presented in season and entertained by the court, the time limit for a writ of error or appeal does not begin to run until the motion is disposed of. Aspen Mining & Smelting Co. v. Billings, supra; Zimmern et al. v. United States, supra; Washington, etc., Railroad Co. v. Bradley, 7 Wall. 575, 74 U.S. 575, 19 L.Ed. 274; Memphis v. Brown, 94 U.S. 715, 24 L.Ed. 244; Brockett et al. v. Brockett, 2 How. 238, 43 U.S. 238, 11 L.Ed. 251; United States v. Steinberg, 2 Cir., 100 F. 2d 124.
Where the court has power to further review its judgment, it cannot be said that the judgment is final as long as it is being considered by the court. It makes no difference whether the attention of the court is directed to a further consideration of its judgment by a pleading filed as a matter of right, or by a pleading which has no standing in the case as a matter of law, or springs from the court itself. The fact that the court expresses an intent to further consider the judgment prevents its finality. In Zimmern v. United States, supra, the District Judge announced that he was dissatisfied with the decree and that he contemplated making necessary changes, without announcing what those changes were. In passing upon the effect of this pronouncement upon the time within which an appeal must be taken, the Supreme Court said 298 U.S. 167, 56 S.Ct. 707, 80 L.Ed. 1118:
In Larkin Packer Co. v. Hinderliter Tool Co., 10 Cir., 60 F.2d 491, 492, 493, this court said:
In Re Boston, etc., Ry. Co., Fed.Cas.No. 1,678, 9 Blatchf. 409, 419, the court, in substance, stated that where the court retains a matter for further consideration, it will not be final, because decisions lying in the breast of the judge have no such effect.
That at the conclusion of its consideration the court adhered to its former judgment does not alter the situation. Until the final determination was made, it was not a final judgment from which an appeal could be taken. The motion to dismiss the appeal is overruled.
The main controversy centers around whether loss resulting from sunstroke results independently of all other causes from purely accidental means, or whether it is a disease, compensable as provided for in Part K of the policy.
The pertinent portions of the policy, necessary for consideration, are:
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