Brief in Opposition to Petition for Writ of Certiorari — Schreffler v. Prudential Insurance Co. of America

: SUPREME COURT.U.& | |

OCT 9) ies

SUPREME COURT oe

2 aoe UNITED STATES

October Term, 1967

CASE No. 687

: GENEVIEVE D. ‘SCHREFFLER,

Petitioner,

~ Vs,

THE PRUDENTIAL INSURANCE. COMPANY. OF

. AMERICA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS.

FOR THE or CIRCUIT

4a

JAMES A. DIXON

900 Dade Federal Building

Miami, Florida 33131 _—s

Attorney for Respondent

INDEX

Opinion Below ..

Jurisdiction

Questions Presented

Constitutional Provision Involved ..

Vv

| Statement of the Case

‘Reasons For Denying The Writ

- Conclusion

Certificate of Services

1 a

Page

10

10

a TABLE, OF CITATIONS |

| | “ ne |

= V. New + York Life Insurance Company (Fa,

- 1956), 88 So.2d 915, 917°. es 2

Cf. Dimick v. Schiedt, 293 US. 444. : -

_ “Dick v. New York Lifé Ins. Co., 359 US. 437 en : 8

‘Ohio Ex Rel. Seney v, Swift & Co, 260US.146..... 9

ee ae ya

, &

+]

SUPREME COURT OF THE

‘UNITED STATES

October Term, 1967

%:

CASE No. 687 |.

os

as

GENEVIEVE D. SCHREFFLER,

aie : _ Petitioner,

7)

THE PRUDENTIAL INSURANCE COMPANY OF -

_ AMERICA, |

| Respondent.

| RESPONDENT'S BRIEF IN OPPOSITION TO

,_. PETITION FOR A WRIT OF CERTIORARI TO

“> THE-UNITED STATES COURT OF APPEALS

o + FOR THE FIFTH CIRCUIT |

—

Petitioner prays that a writ of certiorari issue to

review the judgment below of the United States Court . ie

of Appeals for the Fifth Circuit.

o

_. NOTE: Unless otherwise indicated, all emphasis is supplied. - ~

ae

-

©

. : “

‘OPINION BELOW

‘The opinion of the United States Court of iounts

for the Fifth Circuit is meine at 376 F.2d 397.

J URISDICTION

- . Jurisdiction of this. Court i is invoked Shier 928 U. S.C. :

- Section 1254(4). The judgment of the Court of Appeals -

was entered -on April 25,\1967. Petitioner’s timely peti-

tion for rehearing as app lee below was Gentes on June |

8, 1967. .

QUESTIONS PRESENTED

According -to petitioner,

! the petition preserits the '

following questions: ' 2 oni 6

» Whether the judgment of the Court of Appeals

denied Petitioner her right to trial by jury, as

guaranteed by the Seventh Amendment to. the

United States Constitution, and further whether |

this deprived her of due process of law, as guar-

anteed -by the Fourteenth Amendment to the

United States Constitution.

TL.

Whether it is proper where federal jurisdiction

’. is based on diversity of citizenship for the Court

of Appeals to use the federal test of sufficiency.

_, of the evidence to review a jury verdict.

“

s

4)

.. CONSTITUTIONAL PROVISION INVOLVED |

The Seventh. Amendment provides: *

“In suits at common law, where the value in

controversy shall exceed twenty dollars, the right. ee

of trial by jury. shall be preserved, and no i

tried by a jury shall be otherwise re-examined ~- 2

_in any Court of. the United States, than ac- -

ones to the rules of the common law.”

STATEMENT OF THE CASE aren

Petitioner sued cienmndens in a Florida trial court.

Respondent removed the case to the United States Dis-

trict Court in and for the Southern District of Florida.

Petitioner sought to recover under the double indemnity ,

‘provisions of a group life insurance policy respondent had.

issued on the life of her seen

The facts as ‘stated by’ the Court of Appeals below .

include the Snowing:

“The insured, aoe Schreffler, had suffered

from asthma and pulmonary emphysema for the

ten years preceding his death. Pulmonary em-

_physema is a chronic and progressive disease

' which destroys normal lung tissue and prevents =~

transfer of oxygen to the bloodstream in usual

amounts. From 1954 until his death in 1962, .

Schreffler was treated by Dr. ered D. White,

* his family physician. -

On the morning of April’ 24, nn ne

~

s

ee

ae or

_ (taking the view of the evidence most favor-

“able to plaintiff) tripped and fell at home, break-’

ing his hip. He was admitted to the hospital

by. Dr. White and underwent surgery to set the

_ fracture.» The surgeon was Dr. George Rich-

_ards,. who testified at trial. ‘The surgery was

successful, but- following it Schreffler’s lung

- condition worsened and he died on May 3.” 376

F2d at 399.

‘

.

“PART IL Accidental Death and Dismember- :

. ment Benefits.

Tf the Insured, while this Policy is in f seen

sustains an accidental bodily’ injury which re-

sults, directly and independently of all other

causes, in the loss of life, sight or limb by such

person within ninety days after: ‘the date such

” injury is. sustained ieee

é Exceptiins ‘in Seiesinde suites to Part

sh For the purposes of this Part II, no loss |

shall be considered a loss due to,accidental bodily

injury if such loss is caused or contributed to

by (1) bodily or mental infi ity or disease; or .~

(2) any infection, other than a pyrogenic infec-.

tion occurring through and at the time of an

-

Cas”

accidental cut or wound.” % 876 - Pld | at 398,

- Emphasis and editing the Court’s.] -

Tie wie a on defined “accidental death” as

| follows: :

e SD

“ Petitioner obtained a favorable.j Jury verdict and final

e .

- ‘

“The. qasetion of what (mata justify the

setting ‘aside of a jury

reh. den. 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d_

1375 (1958); ABC-Paramount Records, Ince. v.

Topps Record’ Distributing Co., 5 Cir. 1967, 374

F.2d 455; Shirey v. Louisville & N ashville R.Co., >

5 Cir. 1964, 327 F.2d 549; Braud. v. Baker, 5 Cir:

: 1964, 324 F.2d 213; 5 Meore, FederakePractice

' 150.06 at Ps 2350 (2d Ed. 1966). ” 376 F.2d at 399.

“The Florida Supreme Court’ has, construed. mm

: stantially similar language it in the policy. thus:

2 VO Pei indemnity: policies imposing liability

P | when death results from hedily injury

effected solely by external, violent and _ac-

cidental means ‘generally contain an,exémp-

tion from such liability if ‘death results di-

erdict, like other ques-

tions concerning the judge-jury relationship in

the federal courts, is governed by federal law.

Byrd v. Blue Ridge Rural Electric Co-Operative,

~~-1958, 356 U.S. 525, 78 S.Ct. 898, 2 L.Ed.2d 953,

judgment in the trial court (R. 253-254). The Court of

Appeals reversed, holding that the proofs were insuf-

‘ficient to come within the policy. definition of “accidental

death”. In reaching this conclusion, the Court of Appeals

said nena :

_The ew below. then enenins the liberal federal

rules concerning the sufficiency of the evidence to create ©

a jury question and analyzes the evidence in detail. Hav- .

ing walked “the last mile to pay every heed to the jury’s

verdict”, thé Court of Appeals goes on a to hold: , ea

6

rectly from iia or bodily infirmity.

When such provisions are construed togeth-

er or if the accidental injury and the pre-

existing disease or infirmity cooperate in

causing the death of insured, doubled in-

demnity can not be recovered even though

the injury is an active, efficient and procur-

ing cause, provided the disease or infirmity .

_ .contribute& either directly or indirectly to -

causing insured’s death.’ ; a

Berg v.. New York Life Insurance Company,

Fla. Sup.Ct.1956, 88 So.2d 915, 917. The Mac- —

‘ cabees v. Terry, Fla.Sup.Ct.1953, 67 So.2d 193.

In Decker v. New York Life Insurance Co., 5

Cir. 1964, 328 F.2d 650, 652, a case quite similar----- -

"to the’ present 7 we said in interpreting Flor-

‘ida law: |

€* * * TIjt does not follow that death re-

sulted directly and independently of all

other causes from the accidental injury

merely because the treatment of the injury

impaired the treatment of the heart con-

- dition with the result that the heart condi-

- tion took a fatal turn. The decedent died of |

a preexisting heart condition and hence it “-

was a cause of death. This, we think, is so

even though the injury and the treatment

of it were active and contributing causes, -

With the preexisting heart condition,

whether called a disease or infirmity, .con-

tributing to the insured’s death, there can _

be no recovery on the double indemnity pro-

visions of the ‘Policy.’ 7 |

“es

as

Dr. White did not testify that the accident and

operation, as isolated contemporary occurrences,

brought about the insured’s death. Indeed, con-

'strued in the light of the standard. expressed in .

_these cases, Dr. White’s testimony admits of -

no other interpretation than that the insured’s _

-. death was brought about in part, or contributed —

to, by the chronic disease. The most tolerant’:

‘semanticist could not brook any other construc-

‘tion of the expression that ‘the method or mode

of dying’ was the illness. This is also the clear

meaning of Dr. White’s other explicatory state--

ment that ‘the reason he died after the opera- —

tion was, in my best judgment, the spssstahacanal |

of his pulmonary emphysema’. =~

We therefore conclude that the jury had no basis

‘in the evidence ‘to conclude that the insured’s -

death resulted from an. accident ‘directly and

~~ independently of all other causés’ within the

policy’s meaning. Pherefore we hold that the

trial court should have granted judgment for -

Prudential notwithstanding the verdict. ” 376

F.2d at 401-402.

REASONS FOR DENYING THE WRIT |

1. Florida substantive jaw clearly provides that

_, there can be no double indemnity under the present. policy

“if the accidental injury and the preexisting disease or

infirmity cooperate in causing the death of the insured °

- +. even though the injury is an active, efficient and

.procuring cause. .. . ” BERG v. NEW YORK LIFE. IN-

SURANCE COMPANY (Fla.1956), 88 So.2d 915, 917. Pe-

8

titioner cannot and does not question this Florida insur-

ance law definition of “accidental death” under the in-

stant policy. Accordingly, the opinion below correctly

Interprets local law in a diversity case. hen

2. The satasien basis for the conclusion below

that “the insured’s death was brought about in part, or

contributed to, by the chronic disease” is set out in foot- -

note 1 of. the opinion below. 376 F.2d at 399-400. Dr..

White’s testimony was the most: favorable testimony for

the petitioner. The most that can be said for his testi-

mony is that the accidental fall was the “producing cause”. .

. or “triggering mechanism” which resulted in ‘a death in

which chronic asthma and pulmonary emphysema were

also contributing causes. While the insured could have

obtained insurance with-a different definition of “acci-

dental death”, the Sant remains that he did not so do.

3. Petitioner’s’claim that she has been denied rights

under the Seventh ‘and Fourteenth Amendments are

. wholly lacking in substance. /The Fourteenth Amendment

is inapplicable since no “state” action is involved. The

Seventh Amendment expressly permits appellate reversals

for insufficient evidence “according to the rules at com-

mon law.” Cf. Dx v. erent = U.S: 474.

4, There i is admittedly a conflict among the circuit

courts as to whether the sufficiency of the evidence to

- gustain a verdict in a diversity case is tested by state or

federal law. DICK v. NEW YORK LIFE INS. CO., 359

U.S. 487. While petitioner now claims that “The question

of the sufficiency of the evidence to sustain.a jury verdict .

in diversity cases should be governed by state law” (Pe-.

tition, p. 13), petitioner claimed the exact contrary below:

9.

“The question of the initia of the evidence

- to sustain the jury verdict is controlled by fed-

eral law. Braud v. Baker (5th Cir.1963), 324 F.2d

213, .216; Shirey v. Louisville & Nashville Rail- .

, Toad Compaiay (5tif Cir. 1964), 327 F.2d 549, 552;

Royal Indemnity Co. v. Curtis, (5th Cir. 1958),

256 F.2d 329, 331. In resolving this issue the evi-

_ dence should be viewed in a light most favorable

to the Appellee and she is entitled to the benefit

of. every legal rational inference. Continental

Ore Co. v. United Carbide and Carbon Corp., —

(1962) 370 U.S. 690, 696; Atlantic Greyhound

Corp. y. Crowder, (5th Cir.1949), 177 F.2d 633.”

ere Brief as Appellee below, page 5.)

The doctrine of invited error clearly precludes peti-

tlesiee from now claiming that state law is controlling.

“Generally, at least, suitors may not maintain a position

here which conflicts with that taken below; ...” OHIO

EX REL. SENEY.v. SWIFT & co., erin 146,

ida test of ‘the sufficiency of the evidence differs from

the federal test. Likewise, petitioner has not shown and

does not claim that the: Florida. rule is more favorable to

her position than the federal law. Petitioner’s second

question poses a purely academic point and.is a classic

example of harmless error. ..

3 6. The decision below is correct, in ‘probable accord

with this Court’s prior decisions, and does substantial

justice between the parties. Under the Seventh Amend-'.

ment, federal courts are under just as much of a duty to °

a : >

TF

10.

*

&

set aside verdicts in “no evidence” cases as they are to

uphold verdicts which are supported by “some” evidence.

CONCLUSION

It is respectfully submitted that the petition for a

writ of.certiorari to the United States Court of apres

for the Fifth Circuit should be denied. —

Respectfully submitted, —

| JAMES A. DIXON ps

- 900 Dade Federal Building. . @

Miami, Florida 33131 ed

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a frue copy of the fore-

going, Respondent’s Brief in Opposition to Petition for a

Writ of Certiorari to the United States Court of Appeals

'.for the Fifth Circuit, was mailed to the attorneys for ©

‘the Petitioner, THOMAS H. ANDERSON, ESQ., and |

. RICHARD M. LESLIE, ESQ., 1000 First National.Bank |

Building, Miami, Florida 33131, this_4 day of October, °

1967. ‘ | ‘

eee _ JAMES. A. DIXON