Hubert Wesley Driggers v. Business Men's Assurance Company of America

brings defendants’ us This C. DRIGGERS, Wesley Hubert error, court’s specification final requested give the instruction refusal to by statutory COM- defi BUSINESS MEN'S ASSURANCE quoting the defendants OF AMERICA. PANY marihuana, § U.S.C.A. nition No. 15160. instructing defend (b),12 that guilty unless found not ants should Appeals, United States Court of jury the Government found Fifth Circuit. analysis re due made chemist Jan. statutory of cer gard exclusion Rehearing Denied Feb. plant from parts of marihuana tain marihuana. definition marihuana The definition confusing. complicated and unqualified permit declined to The court arti testify the seized witnesses correctly marihuana, thus cles contained indicating determination such a jury needed in which

was one Unques opinion. expert assistance tionably, therefore, court should given jury mari definition of charge requested huana, even part, unclear. itself

was, as to its second he made both testified The chemist microscopic test and

a chemical present. The fact that

found resin plant particles

also found from excluded sativa that are

cannabis jury prevent definition, did not considering also there was whether from plant; for them from the resin they appropriate an needed

to do this court.

instruction points raised have discussed We length appeal because at some

on this go for a new trial back case must to have trial court guidance from our as is available

such specifically points raised.

views is reversed case for a new trial.

remanded * * plant, pro- “Definitions mature stalks such fiber 3238: tbe duced from § 12. 26 U.S.C.A. stalks, “(b) The- term such oil or Marihuana. ‘marihu- cake made parts plant plant, any all Canna- the seeds of such means ana’ not; compound, manufacture, salt, derivative, L., growing whether or bis sativa preparation thereof; the resin mixture or of such mature extracted seeds the from compound, plant; part every (except stalks resin extracted there- manufacture, from), fiber, oil, cake, salt, derivative, or the sterilized plant, plant incapable mixture, preparation of such of such seed germination.” resin; seeds, but shall not include Kimbrough, D. William Watts, John J.

Odessa, Tex., appellant. Henry Tex., Dallas, Malone, Ralph alleges W. In each & Malone, Lipscomb Tex., Russell, Pecos, policy there under the terms appellee. Dallas, Tex., Seay, large owing sum is to him a now due and action, $14,- ($5,000.00 and former in the Judge, HUTCHESON, Chief Before action) present 200.00 in the DAWKINS, Judge, RIVES, and Circuit pay such has to the defendant refused Judge. District complaint, In amount on demand. each also, an of the entire breach Judge. RIVES, Circuit alleged policy as follows: summary judg- appeal from a This Defendant, Men’s “The Business described in an action ment entered Company America, of Assurance repudiated retry attempt simply to appellee an as obligations the their to appel- against finally adjudged the case plaintiff unquestionably As- Driggers Men’s Business lant in justification, but returned America, 5 Company of surance 1952, plaintiff a.payment tendered to the present action The 199 F.2d 911. July 8, pay- on which to them February 12, 1954. filed on represented premium ment the about changes in the amounts fewaWith Policy due on Plaintiff’s become owing and and be due claimed to and said of insurance defend- demanded, com- the judgment is which plaintiff policy ant that his advised ver- present is almost action plaint in the canceled; of insurance was hence complaint in the as the the same batim alleges plaintiff the because of plain- complaint the In each case. former provisions poli- of the of said and accident health the same tiff sues cy unconditionally and without cause on the policy defendant the issued justification, is entitled January, In com- day each 11th of to declare the amount of ben- entire and continuous plaint total claimed payable policy efits under the said alleged disability loss of time payable lump due and in a sum.” described an accident from have resulted alleged to have manner in the same action, In the former puted com- day of the 7th or about occurred expectancy his life at the time of complaint March, In each receiving alleged injury approxi- as entitled the bene- to be claims mately years, and the entire amount partic- policy and payable under fits payable policy which would be under the following provision ularly under $50,400.00. present the sum of In the as thereof: plaintiff computes his life ex- pectancy receiving of Time—If such at the time Total Loss al- “1. continuously leged injury totally approximately injuries dis- as 22.88 years, and from date of acci- the entire amount which would insured able twenty any payable policy under the within be as the sum of dent or time Company complaint, hereafter, $53,920.00. plain- In days will each indemnity alleges pay herein tiff that defendant had been noti- writing period proof specified of such dis- that due fied long ability lives under the as insured had been terms of made policy.1 Each so disabled.” seeks to and remains recover 1. Some of the ness on which claim be days as follows: ing the commencement sickness. “4. Written notice of notice given after the date injury to the In event injury provisions or within ten Company disability the accident proof injury accidental be based must within days from such loss are twenty death caus- after sick- immediate furnished to the the termination fice claim days to the “7. Affirmative ^[******] Company is after the disability Company. notice thereof must case of claim for loss date within Company liable, proof of such loss.” loss, ninety days and in at its within loss must be said of- ease of of time ninety given after be pay- bringing the entire which would a bar amount penalty policy plus able under the action. 12% the Re- terms Article 4376 “2. together Civil vised of Texas Statutes “Defendant is not sum- attorney’s with reasonable fees. to- mary judgment on the tal amount for which was de- the action is limitation for barred $71,- manded in former action was the repudiated if reason that had not defendant 400.00, and in it is then contract $78,290.40. plaintiff had of un- no cause action complete The defendant filed a full and repudiated. til such contract was pleading answer urged all of defenses it had Plaintiff, present alleges suit, in his prior action, in addition proofs that further of loss been judicata of the defense res and the four submitted to defendant and that de- year statute of The defend- limitations. fendant has denied claim in that summary judg- ant filed a motion for also his cause of action matured within grounds judicata ment on the of years bring- less than four alleged that ticipatory action based on the an- ing of this action. Defendant states policy breach of is barred that did not breach the contract in by year the four limitations 1949, and this Court and the Court prescribed Article 5527 the Re- Appeals for the Circuit so Fifth vised Civil Statutes of Texas. held. Plaintiff further asserts that following plaintiff reply filed the The filing previous suit, summary judg- to defendant’s motion for subsequent appeal trial and served ment: to toll the limitation for this additional reason defend- “1. ant’s motion should be denied.” judg- “Defendant is not hearing, ment, law, After the district court enter- as a matter on the summary judgment ed previous judi- for the that the suit was res defendant appeal prosecuted. from which this cata. United States Court of Appeals for the Fifth Circuit held In the former a action full trial re- support entry in of the Trial Court’s jury special sulted a non obstante veredicto issues as follows: that defendant had never breached We, jury, “1. find for the plaintiff the contract between de- plaintiff, Driggers, Hubert W. that Further, proof fendant. that totally incapacitated he was either respect per- claim for total (a) permanently, (b), you if find disability manent was never made. incapacity temporary that said Therefore, plaintiff’s cause permanent, but not then state the proof had not matured until due months, any, number of you if had loss denied, thereby giving been made and the claim plaintiff totally believe the to be plain- rise to incapacitated, if he is tiff’s suit breach of contract. (a) Permanently “Answer: alleges Plaintiff that defendant has * * * (b) breached the contract its refusal We, jury, “2. find that the de- plaintiff’s to consider claim or to re- fendant, cause, reason or proofs Hence, ceive of loss. justification, expressly repudiated alleges plaintiff that since the United liability plaintiff its and de- Appeals Court of States for the liability injuries nied sus- Fifth Circuit and this Honorable by plaintiff tained as of March have both held 1948. Answer ‘Yes’ or ‘No’. previ- had no action in the suit, that such ous suit could not be “Answer: Yes 296 proof of pre- nor that no demand was made We, jury, find from “3. plaintiff, and loss there- furnished ponderance of the evidence suit. fore was no attorneys there basis reasonable fee will be Driggers Assurance Men’s v. Business

sum of $10000.00. America, Cir., F.2d Co. 199 pre- We, jury, find from “4. ponderance of the evidence The claim benefits exactly value of the the entire to receive is entitled ac same the terms the defendant under clearly tion, is barred that claim policy is said quoted $52106.67. with the rule Munsingwear, in United Slaughter, “(S.) J. A. 36, 38, 340 U.S. S.Ct. “Foreman.” 104, 105, 36, from Southern 95 L.Ed. States, U.S. R. v. United Pacific Co. verdict in the of that After the return 48-49, 42 L.Ed. S.Ct. made the defendant former judi rule of res of the classic statement judgment vere- non obstante motion for cata: grounds: (1) that there dicto three “ proof proper pleading nor of an general principle nowas announced ‘The breach; (2) un- anticipatory right, the that in question, that a numerous cases is disputed distinctly put showed that evidence in or fact proofs by he was dis- directly that issue, had furnished no a and determined periods, abled, except jurisdiction, for both competent two for a of as court pay- ground recovery, had made the defendant of which of cannot be dis- full; that, (3) the subsequent Texas puted inment in a suit between voucher, decisions, dated privies; June parties the or their $600.00 the same necessary requisites 13, 1949, had all the a and even if the second suit is for being action, right, for as- in full the claim of release of the a different cause question by plaintiff. so serted or fact once determined must, parties the as between same motion, the district to that Pursuant privies, be taken as conclusive- their ly established, judgment for the defendant entered court long judg- as so the notwithstanding verdict, without but ment in the first suit remains un- grounds ground indicating upon ” modified.’ judgment was so entered.2 That by Court, recovery judgment affirmed this In was addition holding specifically opinion there had been no that demand policy, together penalties attorney’s anticipatory breach of the and ed and part judgment granted, accordingly reads: it is ordered In material that appearing be, hereby granted, further Court said motion and “And it day September, judgment non 25th of A.D. and that on the obstante veredicto that defendant, defendant, Business Men’s Assur- for be entered Business America, duly Company Company America, in filed Men’s Assurance corporation. a ance proper for a motion this ordered, adjudged on the that “It is therefore veredicto and obstante non by plaintiff, no issue of and raised fact decreed Court evidence Wesley Driggers, nothing verdict the defendant Hubert take a directed proper, against defendant, and same should Business have been Mén’s would Company granted, America, reasonable notice a Assurance cor- been given required by poration, go but that said motion was defendant hence such attorney plain- day, Watts, and recover in costs this J. to John law hearing expended for which tiff, thereof both behalf execution issue, attorneys, to which parties their and the Court came open having then and there such Court heard considered excepted. argument motion, the evidence signed Paso, opinion Texas, being counsel, El “Dated and that day November, fact, this the 15th A.D. raised no issue evidence would have 1951.” for defendant directed proper should that such motion been m fees, proof, also on have been recovered actions sufficient in both precluded doc- prayed further re- the first action “for nearly justly adjudicata, all of plaintiff may trine of himself res lief as show institu- law in the claims accrued either at to receive suit, April 4, are equity.” tion of of such a the first the absence Even year limi- prayer, of barred four notice we have to take would 54(c), provision tations Fed.Rules contained Article of Rule Texas, that, “Except and the Revised recovery as to Civil Statutes Civ.Proc. 28 U.S.C.A. precluded party against such claims is is en- of all whom a proofs by default, every with- for failure to furnish tered final grant ninety days party in after the termination shall which the the relief to might periods Company entitled, which the whose favor it is rendered by paragraph required 7 of party be liable as even if has not demanded such policy’s quoted pleadings.” Provisions” relief in first action “Standard supra. April 4, in footnote was and even instituted specifically pay- it did demand As install benefit monthly indemnity ment of the then ac- accruing ments after the institution grant- crued, that relief could have been clearly judicata the first fur 54(c) proof ed under if Rule so au- nishes no defense. As said in Kontovich According opin- thorized. to this Court’s States, 661, 664,. v. United 99 F.2d ion, there no basis for the suit at all 665: no demand had been made nor because proof “If the claim on which he was ac- plaintiff. of loss furnished grew judgment corded of an in- out 911, 199 F.2d 913. contract, being divisible the whole payable due and at the time of the There are authorities to the original action, commencement his judgment effect that a for defendant not put questions or if the in issue in on the merits is conclusive to what applied equal that case force actually is decided. Am.Law Institute entirety, contract Restatement, Judgments, 49; Section cf. litigation divisible, the an is at end. Angel Bullington, 183, 190, v. 330 U.S. splitting up There can no be of a 657, following 67 S.Ct. 91 L.Ed. single cause of a insurance Am.Jur., Judgments, rule is stated in 30 policy. However, if the insurance is 206, p. “where, Sec. 943: after the rendi payable periodic installments or judgment, subsequent tion of a events subject changed condition, to some occur, creating legal a new situation or contract, constitutes an entire but altering legal rights or relations of obligation thereunder sever- judgment may thereby litigants, prior pre- able and a action does not precluded operating estop anas parties subsequent clude the as to pel.” also, See State Farms Mut. Auto. controversies. United States v. Duel, 162, 154, Ins. Co. 324 v. U.S. 65 Worley, 339, 281 U.S. 344, 50 S.Ct. 573, 812; City S.Ct. 89 L.Ed. of Shreve 291, 293, 887; 74 L.Ed. United port Ry. Co., Cir., Shreveport v. 5 38 F.2d Jackson, Cir., v. 10 34 F.2d 945; Commissioner, Blair v. 300 U.S. 241, 316; 73 A.L.R. United States 5, 9, 330, 465; 57 City 81 S.Ct. L.Ed. Mem Cir., Napoleon, v. 5 296 811.” F. phis Tennessee, Bank v. State of Key See cases collectedin 186, numbered 468, 664; 161 U.S. 16 S.Ct. 40 L.Ed. digests Judgments, under Section 603. Acetylene Light Auto Co. v. Prest-O-Lite Co., Cir., 810; Bowling Clearly 6 264 F. law, Bedford Texas monthly Oman, Cir., Green Stone Co. v. 6 134 F. benefit installments which accrued sub- necessary, however, sequent 441. It is not for us to institution of the first ac- recovery to separate decide whether the of the tion constitute causes of ac- could, benefit installments which As Supreme tion. said the Texas 298 195, 681; Place, in Universal Accident Life and Russell v. 94 U.S. 214; Shaw, Ins. Co. 139 Tex. 163 S.W. L.Ed. Ins. v. Travelers Co. Com- Revenue, 2d missioner of Internal 93, 95; Restatement, A.L.I., F.2d pay a cer- “The to insured was Judgments, 68; Judg- Am.Jur., Sec. weekly premium, and in case

tain ments, 179,180. Secs. agreed pay disability the insurer weekly judgment benefit. “If a certain the insured in the case object policy was think the have been We based on one of continuing give therein, several the insured issues involved but ambiguous security, the contract and uncertain as to words, In other when which of the several divisible. issues was the comply arriving with the failed to one insurer determined pay decision, party invoking ap- the contract terms of plication thereunder, judi- failure each amount due of res doctrine gave separate generally required of ac- cata is to a rise to show right tion, had a and the insured issue the was based; weekly benefit, in fact each and where this is action for each not other; done, being does distinct not consti- brought adjudication suit on each conclusive tute she could * * * any of the due. issues it became involved. A benefit as forti- ori, entry from the time that where Limitation ran due, involving weekly an action benefit several each issues finding fact recites a insurer undertook from the time the one issue * * * repudiate compels its contract. de- fendant, rest, and is silent as to the upon a writ- suit was based “This latter, in the absence of some contract, pre- and Article ten showing, open further will be held scribing shall be filed what suits inquiry litigation in future be- years, applicable. The four is within parties tween the same based on a not, when in this case could insured * * *" different cause of action. years of limitation the four Am.Jur., Judgments, 30 283, pp. Sec. invoked, for bene- was recover 997, 998. years accruing four more than fits prior suit was filed.” time such judgment non The motion in the first action con obstante veredicto action sets as the Insofar question in was ceded that: “The from those different up action causes admittedly effect, and applied in full force and action, be the rule in the first duly paid premiums judgment had been all estoppel rather is that beyond 7, March 1948.” While judicata. Fam Peckham v. than true 840, jury’s was set on 838, the verdict aside other Co., ily 5 196 F.2d Loan grounds, disapproved no court ever of action cause second the “Where findings plaintiff upon of fact the and different parties the between totally incapacitated judicata per he was judgment is res the claim may manently. possibly might It be that have been which issues as to not again prove plaintiff can those ‘only facts those matters as to but tendered upon controverted, reasonable satisfaction another the the points or issue finding monthly jury, as to some determination ” plaintiff prove upon periods can Mercoid Cor an rendered.’ was trial, alleges, Co., proofs as he that due 320 U.S. other v. Mid-Continent poration 274, 376; have been made under the 88 L.Ed. terms 64 S.Ct. monthly policy. As to in v. International benefit United also see Building accruing subsequent 502, 504, 505, Co., in 73 stallments 345 U.S. action, 1182; plaintiff of the first Cromwell v. stitution L.Ed. S.Ct. opportunity, 351, 353, Sac, and 24 L.Ed. have that County U.S. should he is summary precluded making proof by soning, may not such but reverse judgment entered, judicata. erroneously re- and doctrine of res pro- mand such further The case Universal Life Acci- ceedings may just the cir- under be Shaw, supra, quoted dent Ins. Co. v. cumstances. U.S.C.A. § establishing authority also insuffi- therefore, ciency judgment is, reversed The other pro- summary which the motion for and ceedings for further the cause remanded based, holding opin- was with this that benefits ac- not inconsistent cruing years prior within ion. four Feb- ruary 12, 1954, the date which the and remanded. Reversed filed, not are barred by the statute of limitations. HUTCHESON, Judge, Chief dissents. plaintiff’s While the demand for HUTCHESON, Judge (dissent- Chief complaint, 8(a), in his Rule ing). F.R.C.P., $78,290.40, is in the sum we myself agreement I find in substantial plaintiff do not think that the is limited to majority views hog none”, for, the “whole we here effect of the State Statutes of noted, Limita- tofore his concludes general tion and with the discussion prayer with a such “for fur principles judicata of res may as the ma- ther relief as show himself jority opinion my- states them. I justly find entitled to either at receive law agreement, too, self in with the further, view of equity”, Rule 54 majority that, as to actions for (c), F.R.C.P., final should accruing benefit grant installments aft- the relief to which er the institution of first prove entitled, himself even if he has not judgment in that action no furnishes de- pleadings. demanded relief fense, agree if I could that the ac- moving party for sum tion in this case was an action for such mary judgment has the burden es monthly benefits, agree I could with the tablishing that material facts are not majority judg- conclusion of the that the dispute, and it not incumbent on judi- ment in the first action was not res party summary adverse to show that cata. entered, though should “may premise provide With does the rule opposing serve on which the con- majority rests, clusion cannot, affidavits.” Rule of the I F.R.C.P. single agree. however, Appellant specification quite makes a For I think it plain error, entering complaint viz.: “The Court erred in that while the does re- against summary judgment appellant cite that policy under the terms of the genuine owing existed there is now where there issues as due and to him the $14,200, specification sue, facts.” That sum it material does not nor ask any judgment, error for contrary, covers committed this On court sum. entering summary judgment complaint, in genuine this when as the in the did, alleges former issues as to material re facts and sues for an anticipatory for We do breach mained decision. not intend of the and a appellant lump $53,920.00 something for to claim sum due for the whole life, Up did not claim for expect- he his himself. based his appellant’s ancy. argument, Moreover, opposition on oral urged counsel to the mo- summary he judgment, plaintiff that was entitled at tion for least re did urge claim, accrued cover the not installments he does not in his policy. Moreover, specifications urge while this error in his brief claim, will consider majority Court errors of even which or opinion what appellant complains, holds, is not re that was entitled to recover appellant’s process stricted to of rea- accrued installments. standing thus, I cannot The record majority

agree of the with the view as the suit or can treat court should

this recovery install- for accrued one along of, plaintiff has all ments instead be, it to in both suits declared one lump recovery of a sum due policy. exactly clear me It is part majority in the

opinion what played the fact that arrived at result plaintiff special got issues for, out in full verdict is set to, claim- it is not referred afterward be,1 ed, that the verdict could not as it any survived the itself evidence, estoppel,

purpose or other-

wise. respectfully

I dissent from reversal judgment. Williams, Wash., Steilacoom, A. James pro. per. respondent. appearances

No Judge DENMAN, Before Chief Judges. BONE, HEALY and Circuit PER CURIAM. Williams to this court has forwarded appeal from an order of the notice of WILLIAMS,Petitioner, A.

James States District Court United Alaska, denying motion to District America, UNITED STATES pursuant to 28 U.S.C. vacate sentence § Respondent. petition for a writ of and a cer- No. 417. Misc. seeking sending cause the tiorari Appeals, United ap- used on an documents certain Circuit. Ninth peal. 10, 1955. Feb. appears notice of It nowhere appeal filed in the District Court as required Rule 73 Federal Rules of Procedure, 28 U.S.C. The notice Civil petition are ordered dismissed. 938, “Judgments”, constituted, part, Am.Jur., p. Sec. whole or in have 1. 30 Smith, 412, 196; Minn. foundation V. Smith 1135; says: Smith Greenleaf ‘It A.L.R.2d rendered. N.W.2d point page McCool, has issue been deter- where 16 Wall. is a bar. If it is said: mined where L.Ed. discontinued, has been in a case suit “A nonsuit, validity, or for reason either as an es- becomes of no this like toppel give efficacy been no the court To there or as evidence. issue, proceedings special, verdict, general the matter it must to a judgment, not conclusive.’ matter must of- are and when followed judicata.” any fact, become must fact to establish fered

Case Details

Case Name: Hubert Wesley Driggers v. Business Men's Assurance Company of America

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 24, 1955

Citation: 219 F.2d 292

Docket Number: 15160_1

Court Abbreviation: 5th Cir.