149 Minn. 261 | Minn. | 1921
This case is brought here a second time by the guaranty company’s appeal from a denial of its alternative motion for judgment or a new trial after a jury had returned a verdict for plaintiff. The facts are fully stated in the opinion rendered on the former appeal. 142 Minn. 428, 172 N. W. 693. A reversal is sought on three grounds: (1) That the evidence is the same as at the first trial, and the law of the case, as stated in the opinion on the former appeal, entitled defendants to a directed verdict; (2) that there was no evidence that an oral contract of insurance of the fidelity of plaintiff’s employes was ever made; (3) errors in the court’s charge to the jury.
In submitting the case to the jury, the court said: “Practically the one question in the case fox you to determine is: Was this contract made?” Eeferring to the action against Eauch, the co-urt said that evidence relating to it had not been received to diminish the recovery against defendant. No- exception was taken to this. No request was made for the submission of the -special defense of falsity in plaintiff’s answers to questions in the application for insurance. For these reasons this defense -cannot be considered for the first, time on this appeal.
The attention of the jury was also called to the fact that before the letter was written appellant had been furnished with a list- of plaintiff’s employes, and had delivered blank applications to plaintiff which had been filled' out by it and its employes and returned to appellant. In giving this instruction, the court is said to have committed prejudicial error under the doctrine laid down in State v. Yates, 99 Minn. 461, 109 N. W. 1070; Kincaid v. Jungkunz, 109 Minn. 400, 123 N. W. 1082; Geddes v. Van Rhee, 126 Minn. 517, 148 N. W. 549. In those cases, the vice in the instructions consisted in singling out and particularly directing the jury’s. attention to a circumstance, or testimony, or a written instrument, which was favorable to the party who recovered the verdict. In the instant ease the letter was an important piece of evidence. Whether it was favorable or ’ unfavorable to appellant is not so clear. It is quite possible to build upon it a plausible argument in favor of either party’s contention respecting the main issue in the case. We doubt the application of the cases cited to the facts in the present case.
There is an additional reason why appellant has no just cause to complain of the instructions in question. What was said about the Murphy letter should be considered in connection with what preceded and followed in the court’s charge. The jury were told that ordinarily a written agreement is entered into where insurance is effected; that the evidence in support of plaintiff’s claim of an oral contract should be clear and convincing; that the real conflict was confined to a definite ■point, namely, as to what occurred at the first meeting in Wilson’s office on August 2 or 3, and that, if both parties understood there was an agreement and there was no reason to doubt that there was an understanding that plaintiff’s employes were covered by insurance, then and only then could a verdict be returned in plaintiff’s favor. The court clearly stated' to the jury the vital issue in the case. Its charge respecting the degree of proof required to establish plaintiff’s claim was fully as favorable to appellant as it had a right to anticipate. When taken in connection with the remainder of the charge, the reference
Our examination of the record has convinced us that appellant had a fair trial; that the only important question in the case was one of pure fact; and that' the jury’s determination of the question, approved by the learned trial judge, should be upheld as final.
Order affirmed.