McDonald v. Mutual Life Insurance , 178 Iowa 863 ( 1916 )

Salinger, J.

11 grour^strúistñk?ng out material testimony. The motion for a new trial has 14 grounds. Among them is that the court erred in striking out certain testimony given by the parents,1 on an inquiry before a grand jury into whether the said Myrtle died because of a criminal operation, ' . on tlio ground that the parents were not the real parties' in 'interest.

2 insuranceavowSSeof01 ciary^eausing” death. effect. One defense was that the parents of the said Myrtle are'her sole heirs; that these heirs aided in procuring the performance of a criminal operation upon their daughter, and were therefore incompetent and incapacitated, under the law, to take or receive, by inheritance or otherwise, any portion of the es^a^e 0f the daughter. It may be safely stated, as a general proposition, that, if the court erred in striking out this testimony, it did not err in granting a new triaí because it had stricken it out. It seems clear that the exclusion of said testimony was an error. If, by the aid of her parents, the policy holder brought about her own death through a criminal operation, defendant is not liable. Wells v. New England Mut. Life Ins. Co., 191 Pa. 207; Hatch v. Mutual Life Ins. Co., 120 Mass. 550; Burt v. Union Central Life Ins. Co., 187 U. S. 362; Ritter v. Mutual Life Ins. Co., 169 U. S. 139; Lundholm v. Mystic Workers, 164 Ill. App. 472.

3. Evidence : a?caence^grarS" jury minutes. missions: of sole beneficiary not party to record. Testimony given before the grand jury, on investigating the cause of the daughter’s death, is admissible to bind the witnesses who gave it. See Steele Smith Groc. Co. v. Potthast, 109 Iowa 413, 417; Ford v. Dilley, 174 Iowa 243. The parents gav^ testimony before grail¿ jury, tending to prove that the daughter had come to her death by the means aforesaid. This testimony, as seen, is binding upon the parents. If it was also binding upon plaintiff’s administrator, it was error to strike same out, and error . . . , , , , .. which not only justifies, but would ordinarily . require, the granting of a new trial. The avails of the policy sued on are not subject to the claims of creditors. The parents are the sole heirs, the real parties in interest, the estate — wherefore, the administrator who sues is purely a nominal party. See In re Bagnola, 178 Iowa 757, and Christie v. Chicago, R. I. & P. R. Co., 104 Iowa 707. It follows that, unless there be some competent avoidance, the trial court was right in awarding a new trial because it had excluded the said testimony before the grand jury.

_ ,T..........„ order granting: appeal: rule of affirmance. As such avoidance it is urged upon us that the ground of the motion attacking said exclusion was overruled, wherefore, we may not sustain the order made because of the exclusion. This argument is based upon the fact that, on maldng the order granting a new trial, the court said:

“When I decided the case, I was under the impression that the evidence was of such nature that no pleading need be made by the plaintiff alleging a waiver of notice of proof of loss, but, upon having examined the ease thoroughly, I am satisfied that such pleading was necessary, and the objection made by the defendant to the evidence regarding the proof of loss should have been sustained.”

The real reliance of appellant seems to be upon the fact that, in continuing this statement, the trial judge said: ‘ ‘ For that reason the motion for a new trial is sustained,” — which is claimed to be a statement that sustaining tbe motion rests wholly np On this reason, which is assigned in terms, and that, therefore, all the other grounds of the motion are overruled. This is .followed out by the claim that, if we must find the assigned reason to,be an untenable reason, we must reverse the order granting a new trial, which is all logical, if the premise be sound.

The motion did present'the ground upon which the court ruled, in terms. It is, of course, true that this particular ground was sustained, and true that the court does say that the motion “is sustained for that reason.” It is, however, not said, in terms at least, that other grounds of the motion do not affect the court, nor that all others are overruled. It is true, also, that, if there was no error in taking testimony surrounding the proofs of loss, .the trial court gave a wrong reason for sustaining the motion. But ought we to interfere with an act which merely gives the second opportunity to be heard, in which appellant may be successful, merely because, from good reasons for a new trial, exhibited in the motion, the court, in speaking to its ruling, selected one that, for the sake of the argument, is not good? Suppose it appeared, on an application for a new trial, that the entire support for a judgment was confessedly hearsay testimony, and that it was made another ground that the prevailing party did not need the money awarded by the judgment. Surely we would not disturb an order granting a new trial, though, in so far as the court spoke, it declared its reason for granting a new trial to be the fact that such money was not needed. We are of opinion that Murray v. Chicago, R. I. & P. R. Co., 145 Iowa 212, 214; Holman v. Omaha & C. B. R. & B. Co., 110 Iowa 485, 486, correctly state the rule to govern here. That is, where a motion for new trial is sustained on one or more grounds thereof, and is not overruled as to the other grounds, there shall be no reversal, except upon a showing that none of the grounds of the motion were good.

» court^certamty onretriañsult record. There is but one other possible avoidance. The discretion to grant a new trial is a judicial one, and, if it appears as matter of law that a retrial cannot reach a different result than the first one did, it would abuse that diseretion to grant a new trial. It may well be anticipated that on a retrial plaintiff will-supply that plea of waiver, the absence of which was the reason given for granting the new trial. If,, assuming such plea to be made, we can now say plaintiff must fail on the new trial, then she should not have been given an opportunity which means only to indulge in a retrial that is foredoomed to failure. With the pleadings thus re-framed, it is indicated that, on one hand, it will be claimed that the proof was insufficient, and that there is no waiver that dispenses with a sufficient proof of loss; on the other, that the conduct of the insurer waived proof of loss, by some of the acts which have been held to operate as a waiver in cases like Correll v. National Accident Society, 139 Iowa 36; Griffith v. Anchor Fire Ins. Co., 143 Iowa 88; McClure v. Great Western Accident Assn., 141 Iowa 350; 2 Bacon’s Benefit Societies & Life Ins. (3d Edition), Sections 411 — 413; Niblack, Mutual Benefit Societies, Sections 378, 379; Lazensky v. Supreme Lodge, 31 Fed. 592; Boyd v. Cedar Rapids Ins. Co., 70 Iowa 325; Harris v. Phœnix Insurance Co., 85 Iowa 238, 240; Bloom v. State Ins. Co., 94 Iowa 359, 362, 363; Scott v. Security Fire Ins. Co., 98 Iowa 67, 70; Smith v. Continental Ins. Co., 108 Iowa 382, 390, and Soorholtz v. Marshall County F. M. F. Ins. Co., 109 Iowa 522.

It is fairly apparent that it cannot be said to be certain that plaintiff must succeed, and that, therefore, granting a new trial to defendant was an abuse of discretion. We think the order made was no abuse of the discretion lodged in the court, and said order is — Affirmed.

Evans, C. J., Ladd and Gaynor, JJ., concur.