112 F.2d 927 | 8th Cir. | 1940
From a final decree permanently enjoining Samuel R. Toucey from relitigating in his own name or in the name of any other person the issues determined by the court below in this cause and from attempting to prosecute or proceed further in a suit pending in the Circuit Court of Jackson County, Missouri, entitled, “James Shay, Plaintiff, v. New York Life Insurance Company, a Corporation, Defendant,” he has appealed.
Briefly stated, the facts are as follows: On January 2, 1924, the New York Life Insurance Company issued to Samuel R. Toucey a $50,000 policy of life insurance, which contained a provision that $500 a month would be paid him if prior to age sixty he became totally and permanently disabled. On September 26, 1934, the policy was surrendered by the insured and was reduced so that the death benefit was $25,000, with corresponding reductions of other indemnities and in future premiums. On October 26, 1935, the insured com
The final decree has the same basis in fact and law as the interlocutory decree which was considered on the former appeal. We are asked to overrule our previous decision. In his brief the appellant .says: “The matter is again brought before this court on appeal from the final decree because of a sincere belief an improper result has been reached and a grave injustice done.” His1 argument and brief present the same grounds for reversal that were urged on the former appeal.
A decision of an appellate court is, as to the legal issues considered and determined, the law of the case in any subsequent proceedings in either the trial or the appellate court, and is to be followed except where the evidence is substantially different, or where, between the date of the decision and the time of the reconsideration of the case, controlling authority has determined the legal issues adversely, or where it appears that the decision was clearly erroneous and that adherence to it will work a manifest injustice. Millers’ Mut. Fire Ins. Ass’n of Illinois v. Bell, Judge, 8 Cir., 99 F.2d 289, 292 and cases cited; Chicago, St. Paul, M. & O. Ry. Co. v. Kulp, 8 Cir., 102 F.2d 352, 353, 354 and cases cited.
There has been no change in the evidence in this case and no change in the controlling authorities since our previous decision. It is therefore apparent that the only possible basis for overruling that decision and for reversing the decree appealed from would be that the decision on the former appeal was clearly erroneous and that adherence to it would work a manifest injustice. We are convinced that the former decision of this Court in this case was right, for the reasons therein stated. Compare Hesselberg v. Ætna Life Ins. Co., 8 Cir., 102 F.2d 23, 27.
The decree appealed from is affirmed.