Brief for the Respondent in Opposition — Fortenberry v. New York Life Insurance

“MCAFEE LEE,

JOHN A. McREYNOLDS, Jr.,

1401 Bank of Knoxville

Knoxville, Tennessee 37902,

“a8 Attorneys for Respondent

RE & LAYMAN

ee:

Re a

PRINTERS, P. ©. Box 971, Kusnvilia, Teaneeess, Phone Sienna

INDEX TO BRIEF

STATEMENT OF THE QUESTION PRE-

SENTED FOR REVIEW ....................

CITATIONS

Cases:

Aetna Casualty & Surety Co. v. Yeatts,

Sd A 646586 desdnneenodsovawcessa,.

Cooper v. United States,

(1965) 340 F.2d 845 (E.D. Tenn., 6th Cie .)..

Cronbach v. Aetna Life Ins. Co.,

(1925), 153 Tenn. 362, 284S.W.72.........

Cross v. Thompson,

298 F.2d 186 (6th Cir., 1962) ..............

Cutter v. Cinn. Union Terminal Co..,

361 F.2d 637 (6th Cir. ME tend butadddewss

Davis v. Davis,

(1916) 136 Tenn. 520, 190S.W. 459.........

Duncan v. Duncan,

377 F.2d 49 Be re see eee

Felton v. Spiro,

78 Fed. Rep. 576 (6th Cir. 1897) ...........

Holmes v. Gooch, Met. Life Ins. Co.,

ee Oe MO. GD cee cencéccescsceas

Holmes v. Interstate Life & Accident Ins. Co. :

(1946), 29 Tenn. App. 482, 197S.W.2d 551..

Hopkins v. Coen,

431 F.2d 1055 (6th Cir., 1970) .............

Mooney v. Henderson Portion Pack Co. :

339 F .2d 64 (6th Cir., ME 0860 SetKscedtue

Mutual Savings Life Ins. Co. v. Cowan,

(1960), 188 F. Supp. 148 (E.D. Tenn.) ....

‘O'Neil v. W. R. Grace & Ce.,

410 F.2d 909 DE ehbnieekedeite dace. l.

Rep. Natl. Life Ins. Co. v. Sackman ,

(1963), 324 F.2d 756 (E.D. Tenn., 6th Cir.)

United States of America v. 1160.96 Acres of

Land, Holmes Co. Miss.,

WIE Cubeseuseebcdesecveuoucivk.

United States v. Bucon Const. Co. x

WOME “Na dddia dab Wo bbs Gaui cccececs

ii

10

ve OL ONO 6S Pakte.

-_

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

NO. 72-277

HENRY C. FORTENBERRY, Father of

GARY C. FORTENBERRY, Deceased,

Petitioner,

V<«

NEW YORK LIFE INSURANCE COMPANY,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

To the Honorable Chief Justice and Associate

Justices of the Supreme Court of the

United States of America

Your respondent, the New York Life Insurance Com-

pany, respectfully represents to this Honorable Court the

following:

STATEMENT OF THE QUESTION PRESENTED

FOR REVIEW

The respondent does not agree with the Statement of

Issue as presented by the petitioner and therefore submits

the following question as the issue presented for review:

1

2

DID THE DISTRICT JUDGE ABUSE HIS DISCRETION

IN GRANTING THE RESPONDENT A NEW TRIAL?

THE RESPONDENT CONTENDS THE ANSWER SHOULD

BE "NO."

- STATEMENT OF THE CASE

This is an action based on a contract entered into be-

tween respondent, New York Life Insurance Company, and

the deceased son of the petitioner, Henry C. Fortenberry.

The policy of insurance provided for $32,679.00 in life in-

surance and further provided that if the insured's death

resulted directly, and independently from all other causes,

from accidental bodily injury, the respondent would pay

an additional sum of $32,679.00. The wife of the insured

was the designated and named first beneficiary of said

policy. The petitioner, Henry C. Fortenberry, father of

the insured, was the designated and named second bene -

ficiary of said policy. Following the untimely death of

the insured in an automobile accident in June, 1969, the

respondent paid the face amount of the policy with acci-

dental death benefits to the named first beneficiary, the

insured's wife, Lois Elaine Simpson Fortenberry, who

filed the only claim for the policy benefits with the re-

spondent.

Petitioner filed a suit alleging a change in beneficiary,

and the case was tried before a District Judge and a jury.

At the close of petitioner's proof respondent moved the

Court for a directed verdict, which motion was overruled.

The respondent renewed its motion for a directed verdict

at the close of all the proof, which motion was again over-

ruled. The case was submitted to the jury, whereupon

the jury returned a verdict in favor of the petitioner. Re-

spondent timely filed its motion for judgment notwithstanding

_—

3

the verdict or in the alternative for a new trial, as amended.

The District Judge overruled the motion for a judgment not -

withstanding the verdict, but granted respondent's motion

for a new trial, whereupon a second trial was held and a

verdict was rendered by the jury for the respondent. Pe-

titioner only appealed the decision of the District Judge in

granting respondent a new trial. The Sixth Circuit Court

of Appeals affirmed the action of the District Judge in grant-

ing a new trial.

ARGUMENT

The respondent respectfully submits that the petition

for writ of certiorari should be denied for the following

reasons:

I

The District Judge did not abuse his discretion in grant -

ing respondent a new trial, and the Sixth Circuit Court of

Appeals was correct in affirming the decision of the Dis-

trict Judge.

Petitioner relies heavily on the case of Duncan v.

Duncan, Appendix B, in his petition for writ of certiorari,

377 F.2d 49 (1967), in support of his argument that a Dis-

trict Judge in Tennessee is Strictly limited in his authority

to grant a new trial, whereas the respondent takes the

position that the District Judge has a wider latitude in this

area, and that the basic test is whether or not there‘has

been an abuse of discretion on the part of the District Judge.

In support of its position respondent relies on the following

cases:

Felton v. Spiro, 78 Fed. Rep. 576 (6th Cir. , 1897).

Cross v. Thompson, 298 F.2d 186 (6th Cir., 1962).

a

4

Mooney v. Henderson Portion Pack Co., 339 F.2d 64 (6th

Cir., 1964). Cutter v. Cinn. Union Terminal Co., 361

F.2d 637, (6th Cir., 1966). Hopkins v. Coen, 431 F.2d

1055 (6th Cir., 1970).

Although the Spiro case, supra, contained the word

"overwhelming" weight of the evidence, the other cases

cited above, and many others from the various circuits,

seem to hold that it does not require “overwhelming”

weight. As an example, in the case of United States v.

Bucon Const. Co: , 430 F.2d 420, at page 423, the Sth

Circuit used this language:

"In passing on a motion for a new trial the Court may

and should exercise a sound discretion, and its ruling

thereon will not be reviewed in an Appellate Court in

the absence of a clear abuse of discretion."

"A Trial Judge, on a motion for a new trial may set

aside a verdict and grant a new trial, if in his opinion

the verdict is against the clear weight of the evidence

* * * or will result in a miscarriage of justice even

though there may have been substantial evidence which

would prevent the direction of a verdict."

In 1941 the Fourth Circuit, speaking through Judge

Parker, in the case of Aetna Casualty & Surety Co. v.

Yeatts, 122 F.2d 350, laid down the following rules with

respect to the question here involved in this language:

"Under Federal rule, it is the duty of the District Judge

on motion therefor to set aside verdict and grant a new

trial, if Judge is of opinion that verdict is against the

clear weight of the evidence, or is based upon evidence

which is false, or will result in a miscarriage of justice,

even though there may be substantial evidence which

would prevent the direction of a verdict."

EAN ARLE ENIAC LE SEIS PEAY STREP ESA YEARS —

—

At Page 354, the Court stated as follows:

5

"To the Federal Trial Judge, the law gave ample power

to see that justice is done in causes pending before him;

and the responsibility attendant upon such power is his

in full measure. While according due respect to the

findings of the jury, he should not hesitate to set aside

their verdict and grant a new trial in any case where

the ends of justice so required."

Also on Page 354, the following language appears:

"It is equally well settled, however, that the granting

or refusing of a new trial is a matter resting in the

sound discretion of the Trial Judge, and that his action

thereon is not reviewable upon appeal, save in the most

exceptional circumstances."

In the Fifth Circuit, United States of America v. 1160.96

Acres of Land, Holmes Co. Miss., reported in 432 F.2d

910, at page 915, the following language is used:

"A motion for new trial is addressed to the Trial Judge's

discretion. He may grant a new trial if he thinks he

has committed error; and he may grant one (and he

alone can) because he thinks the verdict is wrong,

though supported by some evidence. The exercise of

his discretion is not ordinarily reviewable on appeal,

though a failure to exercise discretion, or an abuse of

it, may be corrected,"

In the case under consideration, it was obvious that at

least five of the jurors did not think the plaintiff had proved

his case. We cannot conceive of a circumstance more

compelling upon a District Judge to grant a new trial in

the interest of justice than that which occurred in this case.

It would appear most appropriate to compare the lan-

guage of the District Judge in the case under consideration

with that of the District Judge in Duncan v. Duncan, supra.

In the present case the District Judge in granting the

motion for a new trial used the following language:

“The Court is not satisfied with the verdict; that is to

say, it is not satisfied that the evidence supports the

verdict.”

whereas, in Duncan v. Duncan, supra, the District Judge

stated in granting a new trial as follows:

“But | am not too happy with the verdict in view of the

evidence in the case. it impressed me during this

trial that there was almost overwhelming evidence of

negligence on the part of the driver. In fact, I was

quite surprised when the verdict came in as it did be-

cause I thought there was evidence of negligence.

“| am dissatisfied with the verdict. | think it is

against the weight of the evidence, and I set the ver-

dict aside and order a new trial in these cases on that

ground.”

Respondent respectfully submits that there is obviously

a vast difference in the language used by the District Judges

in the respective cases. In Duncan v. Duncan the District

Judge expressed the opinion that there was evidence of

negligence contrary to the jury's finding and stated further

that he was of the opinion that the verdict was against the

weight of the evidence, and, as respondent understands

the law, a District Judge is not free to re-weigh the evi-

dence and set aside the jury verdict merely because the

jury could have drawn inferences or conclusions or be-

cause Judges feel that other results are more reasonable.

Duncan v. Duncan, supra.

In the present case the District Judge found that the

verdict was not supported by the evidence, and surely

this finding cannot constitute an abuse of his discretion,

7

and upon reaching such a conclusion, he is bound to grant

anew trial. Or, to state it differently, it is fundamental

that any verdict if it is valid must be supported by the evi-

dence.

It is interesting to note that Judge Peck was the author

of the opinion in Duncan v. Duncan, supra, and that Judge

Peck was on the panel which decided the case under con-

sideration and participated in the majority opinion therein.

The respondent respectfully submits that the District

Judge did not abuse his discretion in granting respondent

a new trial because the evidence introduced at the trial

did not approach the legal requirement to effect a change

of beneficiary on a life insurance policy where surrender

of the policy to the insurance company is not required.

Under the authorities in Tennessee the beneficiary of

an insurance policy may be effectively changed if the in-

sured substantially complies with the provisions of a

policy providing for such a change in beneficiary. Mere

unexecuted intention of the insured to change beneficiary

is not substantial compliance with po'icy provisions for

changing a beneficiary. Where consent of the insurance

company is not required to change the name of the bene-

ficiary in the policy, the announced intention of the in-

sured to change the beneficiary is not alone sufficient to

effect the change. in order to effect a change of bene-

ficiary, the insured must not only declare his intention

to change the beneficiary, but he must do everything he

can to effect the change. This language and its meaning

is clearly established by the following Tennessee cases:

Davis v. Davis, (1916) 136 Tenn. 520; 190 S.W. 459;

Cronbach v. Aetna Life Ins. Co., (1925) 153 Tenn. 362,

284 S.W. 72; Holmes v. Gooch, Met. Life Ins. Co.,

(1926) 3 Tenn. App. 80; Holmes v. Interstate Life

Ins. Co., (1946) 29 Tenn. App. 482, 197 S.W.2d 551;

Mutual Savings Life Ins. Co. v. Cowan, (1960) 188 F.

Supp. 148 (E.D. Tenn.); Rep. Natl. Life Ins. Co. v.

Sackmann, (1963) 324 F.2d 756 (E.D. Tenn. 6th Cir.);

Cooper v. United States, (1965) 340 F .2d 845 (E.D. Tenn.

6th Cir.)

The evidence introduced in this case at the trial simply

did not approach this legal requiremem. The proof, if

given its most favorable construction in favor of the peti-

tioner, merely shows that the insured did nothing more

than express an intent to change the beneficiary. Upon

the trial of the case there were many objections on the

admissibility of testimony made by the respondent, and

the District Judge permitted the introduction of a con-

siderable amount of such testimony over the objection of

the respondent with the explanation to the jury that it was

being admitted for the sole purpose of showing the intent

to change the beneficiary. Leaving aside the question of

whether or not such testimony should have been allowed,

the evidence introduced by the petitioner at the trial at-

tempted to show the insured desperately trying to effect

a change of beneficiary on his insurance policy before he

was suddenly killed in an untimely automobile accident

in Georgia while on a bowling trip.

The failure of this picture to materialize is clearly

exhibited through the testimony of various witnesses

covering a period of a week to ten days, when allegedly

the insured would hang up the telephone and announce he

was going that moment to the insurance company to sign

a change of beneficiary form. If the insured had done

this the first time he made the announcement, there would

certainly have been no reason to make such further an-

ert ee eo

nouncements. It is obvious according to the evidence in-

troduced by the petitioner at the trial that the insured was

making this threat virtually every day, and as the evidence

clearly shows, the insured at no time carried through with

any such declarations. The only possible one which he

could have carried through would have been the last one

which was in no stronger language or under any different

circumstances than the first one.

It is obvious from a reading of this record that the in-

sured knew that he had to take some action other than to

only express an intention to change his beneficiary, and

the record is entirely silem with respect to any such act

or acts having ever been taken by the insured. in the

absence of some evidence showing an overt act by the

insured to effectuate his intent to change the beneficiary,

the District Judge was clearly justified in granting the

respondent a new trial.

Respondent respectfully submits that it has serious

doubt as to whether this is a proper case for considera -

tion by this Honorable Court under the guidelines of Rule

19, Supreme Court Rules. There do not appear to be any

special and important reasons for granting the writ of

certiorari in this case. No Federal question of substance

not heretofore covered by this Court is involved in this

case. There is not any conflict between the Circuit Courts

of Appeal on the applicable rule of law to be applied in de-

termining if 2 District Judge has abused his discretion in

granting a newtrial. Furthermore, there appears to be

no conflict between the Circuit Courts regarding the ap-

plicable rule of law to be applied when a change of bene -

ficiary on an insurance policy is perfected, where the

surrender of the policy is not required.

— — '

10

Petitioner states in his petition that the opinion herein

sought to be reviewed is in direct conflict with the opinion

rendered in United States Court of Appeals, Sth Circuit,

in the case of O'Neil v. W.R. Grace & Co., 410 F.2d

909 (1969). The respondent submits that the opinion herein

sought to be reviewed is not in conflict with O'Neil v. W. R.

Grace & Co. Respondent says simply that the case of

O'Neil v. W. R. Grace & Co., was concerned with the

standard to be followed in ruling upon a motion for a judg-

ment notwithstanding the verdict. Such standard is not

applicable in the case under consideration.

CONCLUSION

The respondent therefore respectfully submits that the

writ of certiorari should be denied.

Respectfully submitted,

McAFEE LEE,

JOHN A. McREYNOLDS, JR.,

1401 Bank of Knoxville Building,

Knoxville, Tennessee 37902,

Attorneys for Respondent.

KEY, LEE & LAYMAN

Of Counsel

Tet oO OR Sr ? ° >a