Brief in Opposition to Petition for Writ of Certiorari — Russell v. Mutual of Omaha Insurance

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OCTOBER TERM, 1968

No. 1037

ELMER D. RUSSELL,

Petitioner,

Vs.

‘MUTUAL OF OMAHA INSURANCE COMPANY,

a Corporation,

Respondent. —

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

‘CERTIORARI TO THE UNITED STATES COURT OF

INDEX

ADDITIONAL PROCEEDINGS IN THE DISTRICT

COURT 1

SUPPLEMENTAL STATEMENT OF FACTS ............ 3

ARGUMENT—

The Decision Of The Court Of Appeals Is Not Con-

trary To Local Law, Was Rendered In The Usual!

Course Of Judicia! Proceedings, And Concerns

A Narrow And Unusual Aspect Of Insurance

Law ee

CONCLUSION .......... be a 14

Table of Cases

Algeo v. Employers’ Indemnity Corp., (1925), 119 Kan.

186, 237 Pac. 879 8-9, 12

Bailey v. Talbert, (1956), 179 Kan. 169, 294 P.2d 220... 10

Bodwell v. Heaton & Co., 40 Kan. 36, 18 Pac. 901 ........ 8

Burgess v. Montgomery Ward and Co., Inc., 10 Cir. 1959,

BE6 FBG IDG ..2cnsscinrismeim es 12

Campana Corp. v. Harrison, 7 Cir. 1940, 114 F.2d 400... 12

Carter v. Atlanta & S.A.B.R. Co., 338 US 430, 94 L. ed.

236, 70 S. Ct. 226 13

Columbian National Life Insurance Co. v. Black, 10

me BS OE | 8, 11

Conaway v. Gore, (1879), 21 Kan. 728 ...... 11

Conway v. Conway, (1931), 133 Kan. 148, 298 Pac. 744 11

Cox v. Pabst Brewing Co., 10 Cir. 1942, 128 F.2d 4668 ...... 12

Crumady v. Joachim Hendrik Fisser, 358 US 423, 3 L. ed.

2d 413, 79 S. Ct. 445 (1959) . 1

C. S. Foreman Co. v. Great Lakes hei Line Co., 8 Cir.

SO, BPO Fe Oe Oe noice 11

BON es BO Sa sag Oa. Sais ail

PLE OOS ET ET.

eee SET Lee

a Te Pe eS

basi cieeblintatka neti SH Rw ree a a A

Ir INDEX

Federal Land Bank of Wichita v. Bailey, (1943), 156

Kan, 464, 134 P.2d 409

General Talking Pictures Corp. v. Western Electric Co.,

304 US 175, 82 L. ed. 1273, 58 S. Ct. 849 (1938) -........ 13

Goforth v. Franklin Life Insurance Co., (1969), 202 Kan.

413, 449 P.2d 477 12

Great Western Manufacturing Co. v. Adams, 8 Cir. 1910,

BI Oo TE -pvinlaiotiite cthiaatseatictsieshedescenelipahseeiteelaaahdianisaiilbtaniedinies 12

Himmel Bros. Co. v. Serrick Corp., 7 Cir. 1941, 122 F.2d

UD scl ansiicsimtinglinasnatiahailabih cc seasianscsccibaaailiilaiatas cialeta eae ai 12

Jone v. Crowell, (1948), 164 Kan. 261, 35 F.2d 573 .....9, 10

Kansas Amusement Co. v. Maryland Casualty Co.,

(1928), 126 Kan. 354, 267 Pac. 968 8,9

Kratz v. Padfield, (1922), 111 Kan. 396, 207 Pac. 776... 8

McMillin v. Farmers & Bankers Life Insurance Co.,

(1949), 167 Kan. 502, 206 P.2d 1061 7 11

National Labor Relations Board v. Pittsburgh S. S. Co.,

340 US 498, 95 L. ed. 479, 71 S. Ct. 453 (1951) WWW... 13

Rice v. Sioux City Memorial Park Cemetery, 349 US

70, 99 L. ed. 897, 75 S. Ct. 614 (1955) 13

Russell v. Shell Petroleum Corp., 10 Cir. 1933, 66 F.2d

IEE scniciesoincateeiinaaas anand nabiaaeiotatisaineLnuesLpiaaads muds 10

Schaefer v. Mills, (1904), 69 Kan. 25, 76 Pac. 436........ 8

Shell Petroleum Corp. v. Corn, 10 Cir. 1932, 54 F.2d

766 8,11

Skelton v. Federal Surety Co., 8 Cir. 1926, 15 F.2d

J 8

Tucker v, Atchison, Topeka & Santa Fe Ry. Co., (1926),

i20 Kan. 244, 243 Pac. 269 11

Waddle v. Bird, 122 Kan. 716, 253 Pac. 576 ................ 9

Rules and Texts

GD: siisitientiscencseninivcinsinanisenmnieaaientntvniiawiiinimaiiins 12

5 Moore’s Federal Practice, Sec. 53.03[2], pp. 2630-1 ...... 12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

No. 10387

ELMER D. RUSSELL,

Petitioner,

VS.

MUTUAL OF OMAHA INSURANCE COMPANY,

a Corporation,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

ADDITIONAL PROCEEDINGS IN THE

DISTRICT COURT

In addition to the opinion which is appended to the

Petition (A14-A27), back on November 24, 1964 (App. 30)

at the immediate conclusion of the trial the District Court

also made these findings, inter alia:

PRO? MN

2

“The Court: ..... From what I have heard here

there is actually very little dispute as to the facts. The

facts seem to be fairly well agreed on and I have, I

went through my notes last night, and watched this

morning to see whether there was anything received

in evidence that would in any way affect the findings

that I propose to make, and I think I’m prepared at this

time to make the findings of fact.

I’m not prepared to make the conclusions of law

or arrive at my judgment because I haven’t read your

briefs and I don’t know just what law—what the re-

sult should be when the law is applied to the facts as

I find them. I see no reason why I should not now

announce my findings of fact and I will read your briefs

and will, of course, give you an opportunity to point

out wherein you feel, if either of you do, that I have

found facts not supported by the evidence. ....

I find that there is no evidence that the—that the

plaintiff or his wife asked for any particular type or

plan of insurance.

Now, there was testimony, Rev. Russell stated,

initially that he had asked for flight insurance, but on

further examination stated, as I recali it, that he did

not recall just what he had asked for and could not say

that he had asked for flight insurance, and my finding

in this respect is supported by the one I made earlier,

that I do not believe that Rev. Russell had any real

understanding of different types of insurance sold to air

travelers. ....

I find that Miss Fletcher did state to the plaintiff

and the plaintiff’s wife, that the terms of the policy

purchased by the — was four days from the time

of issue.....

Now, as I say, gentlemen, I don’t know what the

judgment should be. I don’t know what the conclusions

of law should be based on these findings. I make them

now because now the matter is fresher in my mind

3

and now I have in mind the appearance of the wit-

nesses as they testified and believe that I can make

better findings at this time than I could if I waited

for a transcript and read what you had to offer. As I

say, by this I don’t preclude either of you from point-

ing out what either of you feel—wherein either of you

feel that I have made findings not supported by the

evidence. To the extent that any of this is based on

contradictory evidence, I think that I have considered

and probably the matter is fresher in my mind now

than it will be later, when you might attempt to per-

suade me to the contrary.... |

Mr, Shamberg: Did Your Honor make a finding

or would it be appropriate to request a finding on

whether or not the agent ever told the plaintiff or his

wife when the policy terminated?

The Court: Yes, I made a finding.

Mr. Eager: Four days.

The Court: Yes, four days.” (App. pp. 166-170).

SUPPLEMENTAL STATEMENT OF FACTS

Unfortunately we find it necessary to supplement the

petitioner’s “Statement of Facts” (Pet. pp. 5-12). Both

the T-18 and T-20 policy forms are approved by the In-

surance Departments of Kansas, Missouri and elsewhere.

Missouri’s Insurance Department regulations were exclu-

sively applicable at the Municipal Airport (App. 137). The

two airport booths sold 1,291 of the T-18 forms and 1,171

T-20’s from January 16, 1963 to January 31, 1963 (App. 136)

These figures do not include any of the T-20 vending ma-

chine sales. There is no evidence that the commission

rate was any higher on the T-18 than on the T-20 (App.

139).

On direct examination Rev. Russell testified that his

family walked up to the north counter and, upon being asked

TEE see tN

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4

by sales clerk Miss Fletcher if she could help them, he re-

plied, “Yes, we want flight insurance, insurance coverage

on my wife who is going to Lubbock and return” (App. 64).

However, later during cross-examination he admitted that

he was “really not sure” that he had ever used the word

“flight” but instead probably only said, “I want insurance

covering a round trip to Lubbock for my wife” (App. 90).

Mrs. Russell had no other accident insurance of any kind

(App. 92).

Miss Fletcher next brought out an application pad and

asked either how long Mrs. Russell would be gone, or when

she would return to Kansas City, at which point the insured

wife, turning toward her husband, remarked in a normal

speaking voice, “Three days. Do you think we can make it

back in three days?” (App. 66). Petitioner promptly cau-

tioned her, “No, you better allow yourself more thi. that”,

and suggested that she should instead plan on being gone

for four days (App. 66, 83, 98); he “assumed” that the sales

clerk understood this remark was made in answer to her

previous question (App. 84). Russell is uncertain whether

Miss Fletcher thereupon audibly counted off: “Friday,

Saturday, Sunday and Monday” (App. 92).

Petitioner additionally conceded (App. 84):

“Q. Of course, you can’t remember everything

that happened there, really, can you?

A. No, we were emotionally disturbed.

Q. And actually there may have been something

else said that you don’t recall, couldn’t there?

A. Could be possible.”

Although Miss Fletcher does not specifically recall this

incident (App. 141), she described her usual selling pro-

cedure as (App. 154):

B)

“First we ask them how many days they are going

to be gone and after their answer we either count it out

or mark it on the calendar and then we say we have

the two policies, the flight, and this is our newer policy

that gives you double coverage in the air and continued

coverage on your trip, and then we have our rate card

that we show them the rates and—have to recount the

days and if it is—well, on this one, like four days. . .”

ta eal al ao ae is

She says she always extends T-18 policy coverage on into

the calendar day following the day upon which the cus-

tomer plans to complete his trip, viz., since on Friday Mrs.

Russell planned to return in four days or on Monday, a

four day T-18 policy would insure her throughout all of

Monday and on into Tuesday (App. 156). Miss Fletcher 3

did not “make a mistake on this occasion” (App. 159).

Mrs. Edwards, respondent’s airport manager, explained

that Miss Fletcher was instructed to tell customers (App.

45-6):

ee a Ly

“A. We first ask them how many days was he

going to be gone, and then he would tell us maybe

three days, he was leaving today, which is Thursday,

we would say Thursday, Friday, ‘Will you be returning 2

Saturday,’ and he would say, ‘Yes,’ and we will tell

the customer we have two policies, the flight and then j

this policy gives you double coverage to your flight and :

continuous coverage during your trip.

Q. You then tell the customer you have two pol- :

icies? :

A. We tell them we have two policies first.

Q. What policies, do you then tell him what the

policies are?

A. We tell him we have two policies, the flight

and this policy which gives you double flight coverage.”

The customer is always given “a choice of the policy

he wants” (App. 46, 48, 51). At his pre-trial deposition,

6

Rev. Russell could recall no difference between his earlier

air trip policies and this one (App. 95-6) except for the

amount.

Mrs. Russell always planned on returning to Kansas

City as quickly as possible after the Lubbock, Texas, fu-

neral (App. 123, 125). When she was first telephoned on

Thursday, January 24, 1963, George Rainwater’s funeral

had not been scheduled because his son Bert, who was in

the military service in Lngland, had not yet been reached

(App. 115, 122-3). Richard Russell finally telephoned

Bert’s commanding officer in. England and learned that bad

weather had unexpectedly grounded Bert’s flight until

Sunday (App. 108-9). On Monday the funeral was finally

set up for 10:00 A.M. on Tuesday (App. 111, 112, 120-1).

Bert didn’t arrive in Texas until Tuesday morning, barely

in time for the funeral (App. 121). Again on deposition, Rev.

Russell admitted that the funeral had been “postponed”

(App. 89). Except for this delay the funeral, according

to undisputed custom, would have been held on Saturday

or Monday (App. 84-5, 125).

Mr. McNabb received the amount of coverage for which

he asked, “nothing was forced on me”, and he doesn’t know

which type of policy he actually received (App. 132-3).

There is no evidence that McNabb was at the sales counter

with the Russells (cf. Pet. pg. 19). In fact he said (R.

384):

“Q. Do you remember anybody else?

A. There were people all around, but nobody talk-

ing to her that I recall.

Q. Do you remember anyone else buying a policy

at the same time or while you were there?

A. Not .vhile I was there, no.”

ARGUMENT

The Decision Of The Court Of Appeals Is Not Contrary

To Local Law, Was Rendered In The Usual Course Of Ju-

dicial Proceedings, And Concerns A Narrow And Unusual

Aspect Of Insurance Law. °

No federal question or state statute is involved. Peti-

tioner tacitly concedes that this is an open question of local

law.! The question decided is more fairly described by the

Court of Appeals as (Pet. pg. A2):

“In more austere terms the main issue presented

for decision is whether the Assured is entitled to ref-

ormation of a general accident flight insurance policy

purchased at Insurer’s sales booth in the lobby of an

airport. The District Court reformed the contract and

awarded plaintiff $20,000. We hold that under the

unusual fact situation of this case the insurance policy

should not have been reformed and the decision of the

District Court mist be reversed.” (Our emphasis).

And, contrary to the Petition at page 5, it is plain to

us that the Circuit Court of Appeals did not reverse “. . .

on the ground that the insurer had no duty to explain to

the assured the significant differences in the types of cover-

age it offered for sale regardless of the circumstances of the

transaction.” Indeed, we suggest that the Court of Ap-

peals imposes a duty upon respondent but thereafter rules

that said duty was not violated in this unique factual situ-

ation. The District Court kept this case under advisement

from November 24, 1964 when the trial was concluded (App.

30) until April 6, 1966 (App. 27) when its mermorandum or-

der, findings of fact and conclusions of law were filed.

This 16 1/2 month delay can hardly justify the statement

1. Thus Circuit Judge Brown footnoted (Pet. pg. A9): “15.

And neither party disagrees that this is a case of first impression.”

Similarly, District Judge Stanley commented (Pet. pg. A2i): “No

cases have been found, or cited, which are directly in point.”

ee. 7

LATE MORRO RIES Ser PRI ROT EERO IIE MIELE IIIS TET OT FI RS RR RC ETS STE ROSSER PLANITIA

RRS Re

that the case gave “. . . no difficulty whatsoever” to the

District Court as petitioner now suggests (Pet. pg. 15).

All concerned agree that the policy expired by its clear

and unambiguous terms some 12 hours before Mrs. Rus-

sell’s death and, therefore, the only meritorious issue ‘s

whether the T-18 policy should be reformed into a T-20

policy so as to extend coverage throughout the Lubbock to

Kansas City return flight. Abundant Kansas case au-

thorities hold that reformation may be granted only upon a

clear, satisfactory and convincing standard of proof which

far outweighs the usual preponderance, see Skelton v. Fed-

eral Surety Co., 8 Cir. 1926, 15 F.2d 756, 757, Columbian

National Life Insurance Co. v. Black, 10 Cir. 1929, 35 F.2d

571, 573, and Shell Petrolewm Corp. v. Corn, 10 Cir. 1932,

54 F.2d 766, 769.

The Kansas Supreme Court has held, Bodwell v. Heaton

& Co., 40 Kan. 36, 39-40, 18 Pac. 901, 902-3:

“We understand the rule to be in actions to reform

written instruments on the ground of mutual mistake,

that the evidence must be clear and convincing when,

as in this case, it is parol. It is not enough that it

shows a probability of mistake, but there must be a

moral certainty of it; in other words, it must be estab-

lished beyond a reasonable doubt. Of course this rule

applies when the correction is sought to be made on

the strength of parol testimony aione . . .” (Emphasis

ours)

This rule of proof beyond a reasonable doubt is con-

sisiently followed in Kansas, Kratz v. Padfield, (1922), 111

Kan. 396, 397, 207 Pac. 776, 777; Schaefer v. Mills, (1904),

69 Kan. 25, 27, 76 Pac. 436; Kansas Amusement Co. v.

Maryland Casualty Co., (1928), 126 Kan. 354, 359, 267 Pac.

968, 970. “A high order of proof” is required to “convince

or satisfy the mind of the trial court . . .”, Algeo v. Em-

ployers’ Indemnity Corp., (1925), 119 Kan. 186, 189, 237

9

Pac. 879, 880. And the same exacting standard applies to

cases of reformation for a unilateral mistake accompanied

by inequitable conduct or fraud as well as to the more fre-

quent mutual mistake situations, Federal Land Bank of

Wichita v. Bailey, (1943), 156 Kan. 464, 469, 134 P.2d 409,

413; Jones v. Crowell, (1948), 164 Kan. 261, 264, 35 F.2d

573.

The real “mistake” here is not in the policy term but

in the unexpected delay in holding George Rainwater’s

funeral. He died at 6:00 A.M. on Thursday (App. i113)

and, under the admitted custom, his last rites should have

been on Saturday or even Monday morning (App. 84-5, 125).

Mrs. Russell was undoubtedly thinking of this when she

first answered Miss Fletcher with, “Three days” (App. 66),

and similarly the lack of any information from nephew

Bert, or possibly the intervening Sunday (App. 85), there-

upon prompted petitioner himself to warn her to edd a

fourth day. In all events, the issued T-18 policy effec-

tively, correctly and candidly insured Mrs. Russell for 12

hours (i.e., from an assumed Kansas “ity Continental Air-

lines arrival at 10:45 P.M. on Monday, January 28 on up

to policy expiry at 11:00 A.M. on Tuesday, January 29)

past her latest expected return.

Miss Fletcher did not make any mistake (App. 159).

She always understood that the T-18 policy supplied the

requested Tuesday coverage in full accerd with the intent of

all concerned. Under such circumstances reformation to

extend the insured term does not lie, Kansas Amusement

Co. case, supra, 126 Kan. 358, 267 Pac. 970. The guide lines

on reformation in Kansas are set out in Waddle v. Bird, 122

Kan. 716, 719, 253 Pac. 576, 577, as:

“The remedy of reformation may be invoked to

ascertain and enforce a contract actually made, but it

10

can never be employed to make a new contract nor to

supply terms upon which the minds of the parties

never met.”

Also consider Bailey v. Talbert, (1956), 179 Kan. 169, 176,

294 P.2d 220, 225-26.

This T-18 policy which insured Mrs. Russel! for four

days as she requested is indistinguishable from leasing

agent Kirkbride’s mistaken-but-intended lease in Russell

v. Shell Petroleum Corp., 10 Cir. 1933, 66 F.2d 864, where

at l.c. 865-67:

... As far as Kirkbride was concerned, the lease

contract evidenced exactly what he intended.... In

other words, a mistake as to facts extrinsic to the oral

negotiations and the contract led Kirkbride to make a

contract which he would not have entered into had he

understood the true facts, but the contract as written

was exactly as he intended it to be; it expressed the

very terms he intended.

* * * *

“To justify reformation on the ground of mistake,

the mistake must have been made in the drawing of

the instrument and not in the making of the contract

which it evidences. .... A mistake as to the existing

situation, which leads either one or both of the parties

to enter into a contract which they would not have

entered into had they been apprised of the actual facts,

will not justify reformation. It is not what the parties

would have intended if they had known better, but

what did they intend at the time, informed as they

were.”

This is the Kansas law! In the Jones case, supra, 164

Kan. 266, 188 P.2d 912, reformation was refused because

the sellers were already aware that a clause about income

taxes was omitted from the purchase contract when they

executed it. On this the Kansas Supreme Court said:

11

“... In that situation, since it contains everything

the parties intended its provisions should include on

the date of its execution, there is nothing about the

contract to reform.”

In order to reform, the inaccurately recorded “ante-

cedent agreement” must first be established by the fore-

going high standard of proof. Shell Petroleum Corp. case,

supra, 54 F.2d 769, and Columbian National Life Insurance

Co. case, supra, 35 F.2d 573. C. S. Foreman Co. v. Great

Lakes Pipe Line Co., 8 Cir. 1960, 274 F.2d 61, 65 reminds

us:

“The rule that must be applied in these cases

is that the mistake to k= corrected must have been

made in drawing the instrument, and not in making the

contract out of which it grew... .’”

Furthermore, we can appraise this situation only as it

appeared to the parties at 11:00 A.M. on Friday, January

25, 1963. When we do so the Russells’ erroneous belief

that Mrs. Russell would return home no later than on

Monday becomes a “mere mistake in prophecy, opinion or

in belief relative to an uncertain event .. .” for which

equity does not reform, McMillin v. Farmers & Bankers Life

Insurance Co., (1949), 167 Kan. 502, 507, 206 P.2d 1061,

1065; Tucker v. Atchison, Topeka & Santa Fe Ry. Co.,

(1926), 120 Kan. 244, 247, 243 Pac. 269, 271; Conway v.

Conway, (1931), 133 Kan. 148, 151, 298 Pac. 744, 746.

To obtain equity, petitioner “must stand upon some

equity superior” to that of respondent, Conaway v. Gore,

(1879), 21 Kan. 725. In this regard, the readily visible

“Term of Coverage—4 Days” on the application must have:

(1) actually disclosed Tuesday’s expiry which was there-

upon assented to by Mrs. Russell; or (2) raised an obvious

red flag; or (3) been unimportant because the Russells had

already been told about the termination on Tuesday by

Ded a atl vec inoue Ol

e OD era BORN Me Do ee ab 1 at Bh ene NA EGR AN tn oo Tb Be -

Miss Fletcher; or (4) been ignored. In any one of these

events no equitable relief should be granted in Kansas!

Reformation of an accident insurance policy was sim-

ilarly refused in the Algeo case, supra, 119 Kan. 187, 237

Pac. 879, even though the policyholder, like the Russells,

had not read his contract, instead relying on the agent’s

oral assurance that it was identical to an earlier policy.

The Kansas Supreme Court thereupon ohserved, “There

were marked differences in the policies, and some of these

were plain, important and easily discerned.” The failure

to read an accessible contract can bar equity relief in Kan-

sas, see Cox v. Pabst Brewing Co., 10 Cir. 1942, 128 F.2d

468, 471. Still under Kansas law, in Great Western Manu-

facturing Co. v. Adams, 8 Cir. 1910, 176 F. 325, 327, we

find:

“Courts of equity will not relieve parties from the

consequences of their own folly or assist them when

their condition is attributable to a failure to exercise

ordinary care for their own protection.”

The Court of Appeals must ascertain the substantive

law for itself, Burgess v. Montgomery Ward and Co.,

Inc., 10 Cir. 1959, 264 F.2d 495, 497. FRCP 52(a) does not

require it “.. . to give any specific weight to the trial court’s

conclusions of law, as it yet remains the duty of the ap-

pellate court to decide whether the correct rule of law has

been applied to the facts found”, Campana Corp. v. Harri-

son, 7 Cir. 1940, 114 F.2d 400, 406; Himmel Bros. Co. v.

Serrick Corp., 7 Cir. 1941, 122 F.2d 740, 742; 5 Moore’s Fed-

eral Practice, Sec. 52.03[2], pp. 2630-1. That this result is

not incompatible with Kansas law, consider Goforth v.

Franklin Life Insurance Co., (1969), 202 Kan. 413, 449 P.2d

477, in which recent case policy reformation was also re-

fused after the risk was held to be excluded from insurance

coverage. |

BEBisiasite ersten

13

As seen, this petitioner seeks certiorari “. . . merely

to review the evidence or inferences drawn from it.” Gen-

eral Talking Pictures Corp. v. Western Electric Co., 304

US 175, 178, 82 L. ed. 1273, 1275, 58 S. Ct. 849 (1938). This

consideration becomes even more persuasive against cer-

tiorari in a non-jury case. Crumady v. Joachim Hendrik

Fisser, 358 US 423, 429, 3 L. ed. 2d 413, 418, 79 S. Ct. 445

(1959). We have a private dispute which breeds no “real

and embarrassing conflict cf opinion and authority between

the circuit courts of appeal,” National Labor Relations

Board v. Pittsburgh S. S. Co., 340 US 498, 502, 95 L. ed.

479, 482, 71 S. Ct. 453 (1951). The latter case further re-

minds us, 340 US 503, 95 L. ed. 482-3:

“This is not the place to review a conflict of evi-

dence nor to reverse a Court of Appeals because were

we in its place we would find the record tilting one

way rather than the other, though fair-minded judges

could find it tilting either way.”

The ancient remedy of equity reformation is mainly

of academic, intellectual or episodic interest, Rice v. Sioux

City Memorial Park Cemetery, 349 US 70, 74, 99 L. ed.

897, 901, 75 S. Ct. 614 (1955), particularly under these non-

recurring circumstances, viz., Mrs. Russell’s initial and cor-

rected replies to Miss Fletcher’s question, Mrs. Russell

slowly signing her name on the application in plain juxta-

position to “Term of Coverage-4 Days”, and the unex-

pected delay of the Rainwater funeral because of bad fly-

ing weather in England, all as framed in an equity suit for

reformation of a plainly worded policy. Carter v. Atlanta

& S.A.B.R. Co., 338 US 430, 438-9, 94 L. ed. 236, 243, 70

S. Ct. 226 (1949).

14

CONCLUSION

The Court of Appeals having painstakingly construed,

determined and logically applied local law to unique facts

in a manner which does not conflict with any decisions

in Kansas or elsewhere, and none of the other policy con-

siderations described in Supreme Court Rule 19 here exist-

ing, the petition for writ of certiorari should be denied.

Respectfully submitted,

Roy P. SwANSON

Henry G. EAGER

SWANSON, MIDGLEY, JONES, EAGER & GANGWERE

1500 Commerce Trust Building

Kansas City, Missouri 64106

Attorneys for Respondent