proration of the loss. Such a result is possible here only if
the lease between Southwest and Kirchner be construed as
extending the coverage of plaintiff's policy. If that leasing
agreement could be so construed in any event, a question upon
which I express no opinion, Exclusion (a) of plaintiff's
policy expressly negatives that result in its provision that
the policy does not apply "to liability assumed by the insured
under any contract or agreement."
From what has been said, it follows that the court
erroneously concluded in its February 7 opinion that both the
policy of plaintiff and that of defendant provide primary
coverage of this risk and that no question of excess coverage
is presented. When the "other insurance" provisions of each
policy are considered in the light of the facts of this case,
the court must conclude that defendant was the primary insurer
of the risk involved in the Fulton County suits and plaintiff
the excess insurer only and that plaintiff is entitled to
judgment in accordance with that conclusion.
The only question remaining, and a question which arises by
reason of the above conclusion, is whether or not the court
has power, under F.R.Civ.P. 59(e), 28 U.S.C. to enter
judgment in accordance with its conclusions herein expressed.
To my knowledge there has not to date been a judicial
determination whether a motion by a party to alter or amend a
judgment merely presents to the court the issues therein
expressly raised or whether the effect of such a motion is to
open up the judgment for correction also of any other error
which may have intervened in entry of the judgment.
I think the latter is the effect of such a motion; that it
opens up the judgment and permits the court to correct any
error which comes to its attention because of such motion. If
this is not so the Rule would accomplish the incongruous
result of compelling a court to knowingly perpetuate error
simply because the particular error was not mentioned by the
moving party, or, in the alternative, to reinstate the cause
for further needless proceedings.
The language of Subsection (e) of Rule 59 is not
particularly helpful. Thus, that subsection provides only that
"A motion to alter or amend the judgment shall be served not
later than 10 days after entry of the judgment". The history
of that provision suggests, however, that the paragraph of
Rule 59 was intended as an express recognition of the inherent
power of a trial court to correct errors of law and of fact
which have intervened in the entry of any judgment, and as an
adoption of the rule established in Boaz v. Mutual Life Ins.
Co. of New York, 8 Cir., 146 F.2d 321.
The Boaz case was an action by the beneficiary upon a double
indemnity life insurance policy. The insurer defended upon the
ground that the claim was not payable because the insured had
taken his own life. As a counter contention the plaintiff
alleged that, at the time of his taking his own life, the
insured was insane and that, therefore, suicide was no defense
to the claim of the beneficiary. At the close of plaintiff's
evidence defendant moved for a directed verdict on the ground
that the plaintiff had failed in her proof of insanity. At the
same time plaintiff moved orally for dismissal of the cause
without prejudice, without making any showing that she would
have any further evidence to adduce upon reinstatement of the
cause. Plaintiff's motion was granted and a judgment entered
dismissing the cause without prejudice. Two days after entry
of the judgment the insurer moved to set aside the judgment
and to enter a new judgment dismissing the cause without
prejudice. The latter motion was granted and judgment entered
dismissing the cause with prejudice, the court holding that it
had inherent authority over its judgments during the term,
even to the extent that it might vacate, modify or change its
decision on the merits. Boaz v. Mutual Life Ins. Co. of New
York, D.C.E.D.Mo. 1944, 53 F. Supp. 97.
On appeal the court of appeals for the Eighth Circuit, one
affirmed the judgment. Boaz v. Mutual Ins. Co. of New York, 8
Cir., 146 F.2d 321, 323. In so holding the court stated in the
majority opinion as follows:
"It is evident that the parties and the court
understood that the court was then called on to
decide whether plaintiff should have leave to
dismiss without prejudice or whether the
defendant should have a final dismissal. That was
an issue which the court decided at the trial in
favor of plaintiff. On the reconsideration
required by defendant's motion the court was
convinced that such decision was erroneous. * *
There was neither error nor abuse of discretion
in terminating the law suit so far as the
district court was concerned by final dismissal".
146 F.2d at page 323.
Judge Johnsen, dissenting, took the view that a federal
trial court, after judgment, can not reach out and "recapture"
its hold upon the proceedings and readjudicate "the merits of
the litigation without further proceedings and enter a
dismissal with prejudice"; — that the court had power only to
approve the judgment or reinstate the cause for a new trial.
146 F.2d 324.