JOHN R. BROWN, Circuit Judge, joined by TUTTLE, Chief Judge, and RIVES, CAMERON, WISDOM and GEWIN, Circuit Judges.
This is the second appearance of this case. On the first trial the District Court
On the retrial pursuant to our mandate, the jury returned a verdict for the beneficiaries of the Assured and against the Insurer. The District Judge made it plain that because of our decision he felt compelled to enter judgment on the verdict against the Insurer. It is equally plain that had it been left to him, he thought the evidence insufficient as a matter of law to sustain any such judgment.
The case then came back again to this Court with only two differences — neither of which are decisive — from the prior appeal. First, it was the Insurer, not the Assured, that was seeking to upset the Trial Court's action. Second, the record while substantially the same in its total teachings and effect, differed in its structure in that documents offered by the Insurer on the first trial to substantiate its charge of fraudulent misrepresentation of prior medical history were on this second trial offered by the Assured. But apart from the technical question of evidence which we discuss briefly later on, the record, in a very real, practical and legal sense, was and is identical.
In the routine assignment of cases to the calendar for argument, the second appeal was presented to a panel of this Court different from that deciding the first appeal. After oral argument before that panel, the serious question arose whether, on this identical record, the second panel was in agreement with the decision of the former panel that the evidence was legally sufficient to make a jury issue. In view of this, the Court on its own motion and prior to decision of the second panel ordered the case resubmitted to the full Court. 28 U.S.C.A. § 46(c). See also 5 Cir. R. 25a, 28 U.S.C.A.
The parties were invited to file such supplemental briefs as were thought necessary, but after informal consultation between them, counsel commendably concurred in the view that everything that could be said, pro and con, had already been set forth in able briefs filed on the two appeals. Consideration by the full Court on these briefs verified the initial impression that we are here dealing with a record which is as identical as can ever be achieved considering the unavoidable nuances in the testimony of living witnesses.
The reconsideration of this identical record by the second panel and now by the full Court revealed another thing of equal positiveness. There are no differences among the Judges of this Court on the questions of law as such. The differences, such as they exist, relate to the facts. It is true, of course, that whether the evidence is sufficient to make out a jury case is a question of law. Marsh v. Illinois Central R., 5 Cir., 1949, 175 F.2d 498. Kirby Lumber Corp. v. Laird, 5 Cir., 1956, 231 F.2d 812; Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914. But it is one only in relation to the particular facts of the particular case. There is no disagreement over the controlling standard, only on whether the evidence does, or does not, satisfy that standard.
It is that absence of any disagreement on controlling legal principles and the very substantial actual sameness of the two records which leads us to the conclusion that this is a case calling imperatively for the application of the doctrine of the law of the case.
This, we emphasize, is a deliberate choice and is in no sense the product of any erroneous notion that, as a matter of sheer power, application of that doctrine is mandatory. This would, of course, turn our backs on the principle so
But we think that when the issue resolves itself, as it does so clearly here, into a question of whether the same body of evidence is enough to permit a jury submission, neither a subsequent, second, or third, panel of this Court, nor the whole Court sitting en banc, should ordinarily undertake to review the correctness of the first decision or, doing so, arrive at a contrary conclusion. This approach has been many times expressed by some of our sister Courts of Appeals and no statement is better than that of the Eighth Circuit.
We are aware, of course, that any such approach seemingly gives secondary importance to the intrinsic merits of the particular case, and more serious, to the likelihood of an injustice being done one or more of the litigants. But this helps to bring into focus the basic notion that we are a part of a system of courts of law. It is the aim and hope, of course, of every tribunal that it can work justice in the cause. But it must function with an appropriate awareness that it is the law which it administers. That means, as is true of many procedural as well as substantive requirements, courts of law must recognize that regard should be given to some factors which are not intrinsically a part of the particular case at hand.
Of these other factors, a most important consideration is stability in the law — a sort of permanence and sureness in decision apart from the make-up or composition of the particular tribunal so far as the person of the Judges is concerned. That, of course, is a matter of growing
We think that in a multi-Judge Court it is most essential that it acquire an institutional stability by which the immediate litigants of any given case, and equally important, the bar who must advise clients or litigants in situations yet to come, will know that in the absence of most compelling circumstances, the decision on identical questions, once made, will not be re-examined and redecided merely because of a change in the composition of the Court or of the new panel hearing the case.
With that in mind, we are of the clear view that nothing about this case warrants our exercising the undoubted power to overrule the prior decision reached by the Court on the first appeal. On the contrary, any effort to re-examine the merits and now declare a result — either the same or a different one — independent of the former decision leads to consequences much more serious to the permanent, objective, administration of justice under law than any supposed individualized injustice to one or all of the litigants.
We need mention only briefly two new matters upon which the Insurer, independent of the sufficiency of the evidence, urges a reversal and remand for still a third trial. As to the first, we do not think that because the Assured offered the documentary evidence containing the asserted fraudulent misrepresentations, the oral testimony offered thereafter by the Assured was an impermissible impeachment such as is frequently discussed. See 32 C.J.S. Evidence § 1040d at 1113-1114; 17 Tex.Jur. Evidence § 419.
Thus, as it must to all things and all cases, this one now comes to an end.
JOSEPH C. HUTCHESON, Circuit Judge, with whom JONES and GRIFFIN B. BELL, Circuit Judges, join (dissenting).
When the case was first here, it had been tried to a jury in the district court, and the jury, having been unable to agree, had been discharged and judgment for the defendant entered by the court. On the first appeal, a panel of this court, by a divided vote, held that the evidence was sufficient to require submission to a jury. On a second trial, the jury returned a verdict in favor of the plaintiffs-beneficiaries, upon which judgment was entered. A second appeal was heard by a different panel of the court, a decision was reached, and an opinion reversing and rendering judgment for the insurer was prepared. Before the opinion was filed, however, a majority of the circuit judges ordered a hearing, or rehearing, before the court en banc, and a decision affirming the judgment followed. For the reasons which are stated below, I feel it my duty to dissent therefrom.
Although the majority declares that it respects and follows the doctrine, time-honored and well established in this circuit, at least, that the decision on a former appeal is the law of the case on questions of law then and there presented, unless the former decision is clearly erroneous and works manifest injustice, and that this doctrine does not constitute a limitation upon the power of the court to reconsider and if necessary overrule the earlier decision, in the light of the action taken, and declined, by the majority, and of the subsequent language in its opinion, it is as plain as anything can be that while the opinion gives lip service to that doctrine it does not adhere to it. Substituted in its stead by the majority is an entirely new rule for application in the particular class of case here under consideration. It is a rule which completely eliminates the narrow latitude, carefully limited and circumscribed, formerly available to the court in the application of the doctrine of the law of the case. It is a rule which apparently attaches to the earlier decision the conclusive effect of res judicata.
With deference to the views of my brothers, I am unable to perceive either the authority for or the wisdom of abandonment of the doctrine of the law of the case, or of the adoption of a new rule respecting it, in this or any other kind of case. On the contrary, I think that both reason and authority support the conclusion that it is the duty of the court in any case properly before it, as a
The principal case cited by the majority, Chicago, St. P., M. & O. Ry. Co. v. Kulp, 102 F.2d 352, 353, 354, 133 A.L.R. 1445 (8th Cir. 1939), as support for its approach, in fact supports only the traditional application of the doctrine of the law of the case, even in situations where the evidence is the same on successive appeals and the question relates to its sufficiency to justify jury submission,
In this circuit, the traditional doctrine of the law of the case has always been followed heretofore.
In my view, the most that can be said for the position taken by the majority is that in cases in which the question presented upon appeal is whether the evidence was sufficient to justify or require jury submission, when the evidence is the same as it was on the first appeal, this difference from most other cases, if it can be called a difference, is presented: that it is less likely that clear error in the decision of the prior division will be found, because of the difficulties attending this particular law question. I do not think that this is sufficient reason to refrain from examination of the first decision.
Nor do I think that the fact that the size of the court has increased in recent years is a factor which militates in favor of the majority position. While it is certainly true that the composition of a panel of this court by which a given case will be determined on appeal is governed by the law of chance — from the standpoint of the parties — it need not be so from the standpoint of the court, upon whose shoulders rests responsibility for the proper administration of the judicial process, for there is nothing which prohibits
While no disagreement will be found with the proposition that stability and predictability in the law, as well as the expeditious termination of litigation, are desirable goals in the administration of justice, I think it questionable that the rule announced by the majority materially advances those worthy ends. It might if we were a court of last resort. We must not, however, lose sight of the fact that we do not have the infallibility of finality, and that the litigants have access to yet another court for review of our decision on its merits. As the Court of Appeals for the First Circuit has said:
This statement accords fully with my own views.
By reason of its effectuation of a rule which prevents re-examination of the earlier decision, the majority gives no other basis or reason for affirmance of the judgment in this case. It is sufficient for me to say, therefore, that as for myself I have carefully examined the record and the previous decision in the case, as I believe it is our duty to do in each such case. I conclude that the first decision was clearly in error, for the reasons stated in the dissenting opinion in that case and in the unfiled reversing opinion prepared in the case at bar, and that the earlier opinion is therefore not the law of the case. Turning to the merits, I am of the opinion that the insurer was and is entitled to an instructed verdict as a matter of law, and would reverse the judgment of the trial court and render a verdict for the insurer accordingly. I, therefore, dissent from the opinion of the majority.
Rehearing denied; JOSEPH C. HUTCHESON, JONES and GRIFFIN B. BELL, Circuit Judges, dissenting.
If taken literally, the Sixth Circuit, in this situation apparently would hold that the "former decision is conclusive." Carpenter v. Durell, 6 Cir., 1937, 90 F.2d 57, 58.