Baxter v. Covenant Mutual Life Ass'n , 81 Minn. 1 ( 1900 )

LEWIS, J.

On tbe former appeal of this case (77 Minn. 80, 79 N. W. 596) a new trial was ordered upon tbe ground that tbe evidence was manifestly and palpably against tbe verdict of $2,500 returned in favor of plaintiff. Thereupon a new trial was bad, and at tbe close of tbe evidence defendant moved that tbe court instruct tbe jury to return a verdict for the defendant. This was denied, and plaintiff again secured a verdict for $2,500. Thereupon defendant moved for judgment notwithstanding the verdict, which motion the court granted, and plaintiff appeals.

The evidence upon the former trial was fully analyzed in the opinion on the former appeal, and we will not review it at this time. The court unquestionably was correct in granting a new trial on the evidence at that time, and the plaintiff’s evidence on the second trial was substantially the same. In addition to that, there was strong evidence on the second trial, which was lacking on the first, to the effect that John A. Baxter was alive and well. The substance of the cause of action was that the plaintiff’s husband was dead. The only proof she offered on both trials to sustain this issue was that her husband had left home, and she had not heard from him, and that the body found at Breckenridge was his. At the first trial everything found upon the body was scrutinized, and the body itself subjected to the most rigid examination. The clothing, shoes, hair, teeth, pipe, and comb, blank book, the height, weight, age, size, were weighed in the balance and found wanting. And now we have the same articles, the same testimony, and no new light whatever as to the body itself, or the clothing and articles taken therefrom; and it is upon these things alone plaintiff relies as to identity. But, after a second attempt with the same result, how can it be said that there is any probability of another trial producing any more complete proof of the identification of that body? The very substance of the proof presented by plaintiff has failed. Cruikshank v. St. Paul F. & M. Ins. Co., 75 Minn. 266, 77 N. W. 958.

Order affirmed.