Western Fire Ins. Co. v. University City

• Decision Date: 02 February 1942
• Docket Number: No. 12095,12096.,12095
• Citation: 124 F.2d 698
• Parties: WESTERN FIRE INS. CO. v. UNIVERSITY CITY. HOME FIRE & MARINE INS. CO. v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

124 F.2d 698 (1942)

WESTERN FIRE INS. CO. v. UNIVERSITY CITY.

HOME FIRE & MARINE INS. CO. v. SAME.

Nos. 12095, 12096.

Circuit Court of Appeals, Eighth Circuit.

January 15, 1942.

Rehearing Denied February 2, 1942.

Vincent L. Boisaubin, of St. Louis, Mo. (Joseph H. Grand, Web A. Welker, and Jones, Hocker, Gladney & Grand, all of St. Louis, Mo., on the brief), for appellants.

Marvin E. Boisseau and John W. Calhoun, both of St. Louis, Mo., for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

There are here involved two cases, in each of which appellee as plaintiff recovered a judgment upon a fire insurance policy, one against the Home Fire and Marine Insurance Company, and the other against the Western Fire Insurance Company. The policies are identical in their terms, are dated the same date, issued through the same agency, describe the same property, and are for the same amount, each being for $7,500. It was stipulated in the trial court that the suit against the Home Fire and Marine Insurance Company should abide the result of the suit against the Western Fire Insurance Company. By stipulation of the parties both cases are presented here on the same record.

This is the second appeal to this court, the opinion on the first appeal being reported as University City, Missouri v. Home Fire & Marine Insurance Co., 8 Cir., 114 F.2d 288, 298. In that opinion the facts bearing upon the issues there determined are set out in considerable detail and need not here be restated. On the former appeal the contest was directed to the question whether the property damaged or destroyed by fire was covered by the insurance policy, it being contended by the insurance company that it was not. On the first trial, the trial court submitted this issue to the jury to be determined as a fact. On appeal, this court held that on all the evidence, the policy was reasonably capable of being construed as describing the property damaged by the fire as a matter of law, and hence, plaintiff's motion for an instructed verdict should have been sustained. In reversing the case, this court said: "* * * that the question of the construction of the policy was in the first instance a question of law for the court; and that in view of the undisputed facts the policy is reasonably capable of being construed as describing the property damaged by the fire as a matter of law. The motion for an instructed verdict for the plaintiff should have been sustained. The result is that the judgments must be reversed. There remains as a result also, for determination by the district court, the issue with reference to attorney fees and alleged damages for vexatious delay.

"The judgments appealed from are accordingly reversed, with instructions to grant a new trial in accordance with the law as announced herein."

The case was again tried, and it appears from the record that the plaintiff made no attempt to limit the issues to the question with reference to attorney fees and alleged damage for vexatious delay, but made proof of the issuance of the policy, the damage by fire, and offered testimony for the purpose of identifying the property damaged as that described in the insurance policy. There was testimony with reference to the value of the legal services rendered in prosecution of the suits against the insurance companies. The plaintiff having introduced testimony going to the identification of the property as that described in the policy, the defendants attempted to meet that evidence with testimony tending to show that the property damaged was not that described in the policy. At the close of all the testimony, the court, by its instructions, took from the jury all questions relating to the liability of the defendant on the policy, on the ground that the language of the policy was capable of being so construed as to cover the property of the plaintiff which was damaged by fire, and directed the jury to return a verdict in the sum of $7,500, together with interest from June 27, 1938. At the close of all the evidence, defendant asked the court to charge the jury that there was no evidence of vexatious refusal to pay on the part of the defendant and therefore no allowance should be made the plaintiff for alleged vexatious refusal to pay or for attorney fees. This request was denied and an exception saved.

The appellants seek reversal on the grounds that: (1) the court erred in directing the jury to return a verdict for the plaintiff for the amount named in the policy, and (2) the court erred in refusing to direct the jury to return a verdict for defendant on the question of vexatious delay.

At the very outset we are confronted with the question as to what remained open for decision by the trial court in view of the prior opinion of this court in this litigation. Ordinarily, what has been decided on one appeal can not be relitigated on a second trial of the same suit, unless the evidence introduced in the second trial is substantially different from that considered on the first appeal. Aetna Life Ins. Co. v. Wharton, 8 Cir., 63 F.2d 378; New York Life Ins. Co. v. Golightly, 8 Cir., 94 F.2d 316; Northern Pac. Ry. Co. v. Van Dusen Harrington Co., 8 Cir., 60 F.2d 394; Messinger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152. True, the doctrine of the law of the case is a rule of practice and not a limitation of power, yet it will not, except for very cogent reasons, be departed from. Chicago, St. P. M. & O. Ry. Co. v. Kulp, 8 Cir., 102 F.2d 352, 133 A.L.R. 1445; Pennsylvania Mining Co. v. United Mine Workers, 8 Cir., 28 F.2d 851, 853. In the last cited case, this court said:

"There should be and is an exception to this rule, viz.: If convinced that a former decision is clearly erroneous and unsound, and works manifest injustice to the parties, an appellate court should not deem itself bound as to such parties by the rule of `law of the case.'"

We have reexamined the issue there decided and are not convinced that our former decision was clearly erroneous or that it works manifest injustice to the parties. An examination of the record convinces that the evidence is substantially the same as that presented on the former appeal. Following the law of the case, the trial court instructed the jury that under the undisputed facts the policy was reasonably capable of being construed as describing the property damaged by fire as a matter of law, and that being true the jury was...