Reply Brief — New York Life Ins. Co. v. Gamer

?

IN THE

Supreme Court of the United States

| OCTOBER TERM, 1937

No. 323

NEW YORK LIFE INSURANCE COMPANY,

a Corporation, :

! Petitioner, ;

vs.

STELLA JANE GAMER, as Executrix of the Will of.

E. Walter Gamer, Also Known as Edward W. Gamer,

Deceased,

Respondent.:

PETITIONER’S REPLY BRIEF..

2

ili. ?

SUBJECT INDEX —

Subdivision I:

Doctrine of “Law of the —. ” Not Agena

Subdivision IT:

Respondent’s Cases Analyzed Ledesnisdesnnbaipdiinadlisaniinnadigll

Subdivision ITI:

7 Pages |

1- 3

Response to. Respondent’s Contention That In- .

structions May Not Be Considered..................

TABLE OF CASES

Alice ‘State Bank’ v. Houston Pasture Co., 247

U. S. 240, 38 Sup. Ct. 496, 62 L. Ed. 1096........

Burnet v. Commonwealth Imp) _ 287 U..S. 415,

eo le, Bl Ronee

Burnrite Coal Briquette Co. v. yon 274 U. S.

208, 47 Sup. Ct. 578, 71 L. Ed. 1002..................

Charles Warner Co. v. Independent Pier Co., 278

U. S. 85, 49 Sup. Ct. 45, 73 L. | ae: ener

Dalton v. Moore, 141 F. 311 (Pet. Cert. Denied

200 VU. S.. 619) sus nitivellgliaasicapaobenediuecisiaaiinmstaineeeicsie

Del Vecchio v. Bowers, 296 U. >. 280, 56 = Ge

ee ee ee

Diaz v. Patterson, 263 U. S. 399, 44 Sup. Ct. 151,

AR SOR Siete a crete

ney Elijah Phelps v. Jacob asi 15 How, 160, 14

. Ed. wie iebiisedpes nus led ascanecis eecloiaeacinmeusie eouaarpaiaaeioninls

OR ates snitch oat ualateeraiadibis

Gamer v. New York Life Ins. Co., 76 F. (24) § 543

7-17

7

ae

14.

Gunning v. Cooley, 281 U. S. 90, 50 Sup. Ct. Za1,.”

cE ae MRR arene eerone es Ronenn panty ener ort

Helvering v. Taylor, 293 VU. S. 37, 35 Sup. Ct.

BIE FF Bn TM MR sssconcnnnsenaniuinitipipinuosasciheiannlnnaticinans

_ Hickory v. ‘United States, 151 U. S. 303, 14 Sup.

Ct.. 334, 339, 38 Li. Bed. $70... .n..ne-nsssoeeneneneeniia

iv.

- TABLE OF CASES—Continued

3 Pages

| -Higgins v. California Prune, Etc. Inc., 3 F. (2d)

806 . 7 |

Home Benefit Assn. v. Sargent, 142 U. S. 691,

Be ce SR, IU, Me Ba I CU cca ansenntanncrererens par

Hubbard v. Todd, 171 U. S. 474, 19 Sup. Ct. 14, ‘

Ae Dike, By ainsi coccnentindasentnilintidadssantatenctiaesiitninns 17

Illinois Cent. Ry. Co. v. Crail, 31°F. (2d) 111........ oo

Jefferson Standard Life Ins. Co. -v. Clemmer,

EE rene 3— 6

Manuel Zeno Gandi v. Pettinghill, 222 U. S. 452,

ee Ae eS AY » NO 13.

Merchants Exch. Bank v. McGraw, 76 F. 930....... ‘11

Merchants Universal Joint. Co. v. Culhane, 5Z Sep. .

ky = § | See eerie ~ 7

Messinger v. Anderson, 225 U.S. 436, 32 — Ct.

739, 56 L. Ed. oS RMAC a

2

_ New York Life Ins. Co. v. Gamer, 90 F. (2d) 817 1

New York Life Ins. Co. v. Miller, 81 F. (2d) 263 6

New York Life Ins. Co. v. Ross, 30 F. (2d) 80.... 4

Owens v. United States, 130 Fed. 279.....-so-- 12

Panama R. Co. v. Napier Shipping Co., 166 U. S. Z

280, 24 Sup. €t. 572, 41-L. Ed. 1004......... onesies a

Phelps (Ehjah) v. ‘Jacob Meyer, 15 How. 160, 14

Soa, A a eiccesinecilainapeseieiiperisttrlsdagenante setsndisintcehsicneliiiinia 10

Price v. Pankhurst, 53 Fed. eee 12

Supreme Lodge K. of P. v. Beck, 181 U. S. 49,21 -

Seep. Ch Sak, 45 Li Ba 7AM nnn csieseie ene...

United States v. Bollman, 81 F. (2d) a csisntitinn

' United States v. Gotlieb Breitling, 20 U.. S.

RE Oe

Wells Fargo v. Mutual Life Ins. Co., 66 F. (2d)

IN THE -

Supreme Court of the United States /

NEW YORK LIF E INSURANCE COMPANY,

| a Corporation, ;

‘ _ ‘Petitioner,

| vs. *

STELLA JANE GAMER, as: Executrix of the Will of |

E. Walter Gamer, Also ‘Known as Edward W. Gamer,

Deceased,

‘Cites

PETITIONER’S REPLY BRIEF.

It is contended by counsel for respondent that the de-

cision of the Circuit Court of Appeals of the Ninth

Circuit (Gamer v. New York Life Insurance Company,

Pa a sadaenecsneiinn , 543) reversing the judgment of Judge

Bourquin granting defendants’ motion for a_ directed

verdict, and the decision of the same Court (New York

Life Insurance Co. v. Gamer, Oi Ws. iscses ishninsinasoned 817)

sustaining the judgment entered upon the’ second trial of

the case, “preclude any further right upon the part of -

petitioner herein to have reviewed the decision of. the

trial: court holding that under the facts presented the

question of suicide or accidental death was for the jury,

or to have reviewed the decisions of the Circuit ‘Court

' of Appeals so holding.” (Respondent’s ‘Brief, page 6.)

90

In other words, it is now contended by respondent ‘that

-the two decisions of the Circuit Court of Appeals of

the Ninth Circuit, whether right, or rene, become the

_ law of the case. :

This proposition is untenable, for the reason that a ~

prior decision of a Federal Circuit Court of Appeals

is not the law of the case for the Supreme Court when

reviewing a later decision of the former court in. the

same case. | (

_ + Messinger v. Anderson, 225 U. S. 436, 32 Sup. |

Ct. 739, 56 L. Ed. 1152;

Panama R. Co. v. ‘Napier Shipping Co., 166 U: S.

280, 24 Sup. Ct. 572, 41 Li Ea. 1004; .

-- Diaz v. Patterson, 263 U. S. 399, 44. Sup. Ct.,

151,68 L. Ed. 356;

j Bursirite Coal Briquette- Co. .v. Riggs, 274 U. S.

-. 208, 47 Sup.- Ct. 578, 71 L. Ed. 1002. °°. -

And in Messinger v. Anderson, 225 U- S.. 436,” 56

L, Ed. 1152, 32 Sup. Ct. 739, this Court, speaking aeongh

Mr. Justice Holmes, said:

“In the absence of statute the. phrase ‘law of the

case,’.as applied to the.effect of previous orders on

the later action of the court rendering them in the

same case, merely expresses the practice of. courts

generally to refuse to a what has been decided,

“not to limit their — | 7

Further, the ruling on a prior appeal in a particular

"case will not be adhered to as the “law of the case”

. where the Court is convinced that it ought not to stand.

United one v. Bollman = 8th) 81 F. (2d)

3

In the case of Higgins v. California Prune, etc., Inc.

(CCA 2nd), 3 F. (2d) 896, the Court said:

“Whatever may- be said of earlier decisions, it is

now well settled that the ‘law of .the case’ does not

. rigidly bind a court to its former decision, but is

only addressed to its good sense.”

: Illinois Cent. Ry. Co. v. Crail (CCA 8th), 31 ‘F.

(2d) 111.

Q

il.

¢ ases Relied Upon By Respondent.

_ Benefit Association v. Sargent, 142 U. S. 691, 12

Sup. Ct. 332, 25 L. Ed. 1160. :

This case is not in point and has no application here,

for the reason that it was based upon a polity of life

- insurance, containing an exception of liability in case

of suicide. In such a case, it. is settled that the burden

is upon the defendant to plead and prove the exception.

3 Jefferson’ Standard Life Ins. Co. v. Clemmer

(CCA 4th), 79 F. (2d) 724;

‘Federal Life Ins. Co. v. Zebeck (CCA ith) 82

F. (2d) 961, 963.

In the case at bar, the insurance over which this ‘con-

troversy arises was against’ accident, and the burden was

of course on the plaintiff to prove an accidental death,,

_ which proof in itself. would negative suicide. |

Aa

New York Life Insurance Co. v. Ross, 30 F. (2d) 8o:

In the Ross case, it is stated: “The plaintiff intro-

duced evidence tending to prove purely accidental cause.

of the injury, and evidence was introduced on behalf of

the defendant below, tending to prove motive for sui-

cide,” (Page 8}.)

In the case at bar, there is no evidence of accident,

and the only possible theory upon which the case was

submitted to the jury was that, as the court told the jury

the presumption of law is that the insured did not com-

mit suicide, and this presumption has the force and ef-. .

fect of evidence, and is binding on the jury and they

must find according to sueh presumption, unti] it is over-

come by evidence satisfying them that the presumption

is not aceording to the fact. (263 R.) This déclara-

tion is contrary to the decisions of this Court: (Del

~ Veschia v. Bewers, 296 U. S. 280, 56 S. Ct. 190, 80

L. Ed 229, and other cases cited in the Petition and ~

Brief in Support Thereof.) ' =

It is further stated in the Ross case:

“The only questions here are whether the court

erred in charging that the burden of proof shifted

‘to the defendant and the presumption remained

throughoyt in aid of the plajntiff’s case or until

overcome by a preponderance of evidence.

“As regards established principles of general ap-

plication, this charge is open to objection for want _

of accuracy. A presumption is not evidentiary in.

its nature, and the burden of. proof, in its usual

. and primary | ing as the risk of nonpersuasion

of the jury, never shifts, but remains with the af-

firmative throughout the case. A presumption is a

rule of law, attaching to a given state of evidentiary

facts certain procedural consequences as to the duty

of the production of other evidence by the*opponent. ©

The: ‘effect of a prestimption of law (that is, the

real presumption) is merely to invoke a rule of law

corfipelling the jury to reach the. conclusion in the

absence of evideticé to the ¢oritraty ftom the dp-

ponent.’ The ‘fallacy’ of the Supreme Court in|.

considering a presumption as a matter of evidence, :

in the case of Coffiri v. U. S., 156 U. S. 432, is tiow

generally rejected, even by the Supreme Court. (Cit

ing authorities. ) ee |

“The prestimption is founded upori thie then sfate

_ of the proof: It is aways procedtral. Tht, where

the circumstances: i evidence clearly ahd igresistibly

lead to the conclusion. of suicide, no presumption that

the death was accidental arises. The plaintiff’s case

caw receive fio support theteftom. . ( Citing’ casts.)

“But as the court here charged thé jury, where

_the facts and-circumstances leave in doubt the ques-

fion whether flie death was by accident or suicide,

then a presumption that it was actideétital, fotttided

upon observations of human nature and life’as a.

whale, does arise. The effect of this presumption

is merely that the plaintiff-must_recover, in the ab- . |

seneé of evidence to the contrary fton¥ the opponent.

- “This presumption, as such, would not survive the

introduction of eviderice tending to prove suicide or

even motive for suicide’ Therérfter it woul have

no place in the reasoning as a presumption; but;.as a- -

legitimate inference from humaw life; the effect

would contimue.”

Compare these’ decfarations itt the’ Rost cae, if the

Court please, with the instructions in the case at ber.

Supreme Lodge, Knights of Pythias, v. Beck, 181

yy. 49, 21 Sup. Ct. 532, 45 L. Ed, 741. \

- In this case, the question as to whether or not Beck

committed suicide was open to conjecture, and the Court

held that it was a question for the jury. ‘There was.no

a =

6 re

evidence’ in that case that’ Beck placed the gun in his

mouth. The evidence there was such that he might have

stumbled and fell against the gun..

: °° Weils Fargo Co. v. Mutual Life Ins. Co., 66 F. (2d)

Counsel in their brief say that in the-above case “the

Court in its decision cited with approval the decision

of Travelers’ ‘Insurance v: “McConkey, 127 U. S. 661,

and affirmed’ a judgment _ for the plaintiff.” (Page 14.)

Counsel are in error, for the McConkey case is not

even referred to in the above case, and it involved only.

the distinction between’ accidental death and* death by

accidental “means.

New York Life Pus. Co. v. Miller, 81 F. (2d) 263.

‘Counsel quote, from this case on page 15 of their batted.

But this case involved a policy of life insurance, which ;

contained an exception in the event ‘of self-destruction.

- “Tf death from* any cause: except suicide is in-

Ae a fu) sured against, the burden “is on the company to

pgove the exception; but if death from one specific

ise, such as accident, i is insured against, the burden

is on the policyholder to show that the condition

’ precedent to liability has taken place.” panenee?

, Standard Life Ins. Co. v, Clemmer, 79 F, ...........2d

9

TILL. ;

On page 18 of Respondent’s brief,. we find the follow-

ing: poet

“We now desire to urge upon the\Court that pe-

titioner is not entitled to urge error in the giving of

the instructions for the reason that exceptions there-

to were not taken within the presence of the jury

as provided by the,rules of this Court and those of

the Circuit afid District Courts.”

There is no merit.to this contention, for the following

reasons: corte

At the inception of the trial, the following inquiry was

"made by the court: *

“THE COURT: Is there any dispute as to where

the burden of proof in this case is?

“MR. POORE: We have our view,—it is on

the plaintiff throughout the trial.’

“MR..MEYER: We have our view,— it -is on

the defendant as soon as the plaintiff has proven the

death of Mr. Gamer resulted from violent and ex-

ternal means. The law presumes it was accidental.

“MR: POORE: We dispute that as a matter of

law and would be giad to furnish your Honor au-

thority to support our position. tpt \

_ “THE COURT: Very well.” - (38 RY A

The Court requested counsel for plaintiff and defend-

ant to submit to the Court proposed instructions, arid in

accordance with such request counsel for the plaintiff

‘submitted their proposed instructions. numbered Se

4, 5 and 6 (249-251 R.), and the defendant tendered its

proposed instructions numbered . by the Court 7, 8, 9,

10 and 11. (251-253 R.) | oe ieee

8g 6

a _*

At the close of the evidence, and after the motion for

directed verdict had been made and overruled, the

said: i

‘THE COURT: So that the atto¥neys in the

case now On trial may know what the law as given

by the Court may be on the-main issues involved in®

_ this case, it is ordered” that certain specified instruc-

tions so propased will be given, and certain instruc-

tians. so proposed: are by the Court amended and

given as amended, and certain instructions so pro-

— are refused. (See Record 243 to 253.)

| As soon as the Court had ‘ton the instructions

which were to be given and thase. refused, the follow-

ing occurred:

“MR. POORE: What time rm we make a record

_ on the imstructions ? -

“THE COURT: If you wish to. take any ex-

cepti now’ is the: time to take them.

MBS POORE: We desire to } a. them, your |.

Hoes.” - (244-245 R.) :

Counsel for defendant then. dictated into the record

defendant's exceptions to the instructioms which the

Court said it woukdt give, amd excepted to the’ refusal

of the Court to give: its proposed’ imstructious. “(245-

248 R.) es

The: case. was. angued. to the jury by counsel for the

‘respective parties, and the. Court. then instructed. the

jy, as it had- previously stated it. would, and. the

charge sa given. will be found at pages 253-268 of. the

record.

| Upon: conchiding’ its charge, the Court stated:

“The jury will retire im charge of. the bailiff.”

(268 R.) | ;

OH

“Immediately, after the Court had directed the jury

to retire in charge of_the bailiff, and as‘ the jury

was leaving the box, J. A. Poore, one of counsel for

defendant, arose, and the Court inquired’if the de-

fendant had any exception to the charge. of the

Court. Mr. Poore answered: ‘Yes, Your Honor,’

and immediately and’ while the jury was retiring

proceeded to and did commence to dictate into the

record but did not conclude the following exceptions

to the charge of the Court: ~ |

“MR. POORE: Comes now the defendant in this

cause and reiterates and re-asserts the same objec-

tions.to the instructions given which it heretofore

asserted in the initial partial settlement of the in-

structions as shown by the record. And the de-

fendant now, in addition, makes the following ob-

jections and takes the following exceptions to the

instructions of the .Court as given to the jury:”

(8° R}> : :

>

Then follows in the record the exceptions so taken.

(See record 269-274.) . . ed

The: Court then inquired: ‘Has’ the plaintiff any

exceptions to the charge?” And Mr. Meyer, one of

counsel for plaintiff, replied: “No, Your Honor.”

(274 R.)- | 2 ee,

The record then shows: “That thereafter, the jury

retired to consider of their verdict, and subsequently—

at.8:10 p. m. on November 14, 1935,—returned into.

court with their verdict.” (274 R.)

_ The record, therefore, clearly shows that the rule of

Cort was fully complied with by defendant in the

taking of its.exceptions. Defendant did all that it could

do to preserve its record. The Court stated what in-

structions it would give and those it-would refuse be-

fere arguments were made to the jury, and exceptions

10 im

‘were duly rioted thereto. The jury was then instructed,

in the manner in which the Court had indicated, and as

soon as the Court had concluded its instructions counsel

for defendant reiterated the same objections theretofore

made to the instructions, and again in detail excepted

thereto. —

In the case of United States v. Gotlieb Breitling, 20

be (How.) at page 252 decided by Chief Justice

_ Taney, it was objected that an exception was not taken _

-in time. The Court said:

“It is always within the power of the court to

suspgnd its own rules, or to except a particular

case from its operation, whenever the purposes of

justice require it. The attention of this Court has,

upon several occasions, been called to this subject,

and ‘the rule - established by its decisions will be

found to be this: the exception must show that it

was taken and reserved by the party at the trial, but ~

it may be drawn out in form and sealed. by the

judge afterwards. And the time within which it:

may be drawn out and presented to the court, must

depend -upon its rules and practice, and on its own

* judicial discretion.”

* And in Elijah Phelps v:. Sai Meyer, 15 — 160;

14 L. Ed. 643, the Court said:

“It has been repeatedly decided by this court, that

_ it must appear by the transcript, not only that. the

instructions were given or refused at the trial, ~but

also that the party who complains of them excepted

to them while the jury were at the bar. The statute

of. Westminister 2nd, which provides for the pro-

ceeding by exception, requires, in explicit terms, that

this should be done; and if it is not done, the charge

of the court, ‘or .its refusal to charge as requested,

- form no part of the record and cannot be carried -

before the appellate court by writ of error. It need

bi Om

11

not be drawn out in form and signed before the

jury retire; but it must be taken in open. court, and

must appear, by the certificate of the judge who

authenticates it, to have been so taken. Nor-is this

a mere formal or technical provision. It was intro-

duced and is adhered to for the purposes of justice.

For if it is brought to the attention of the court that

one of the parties excepts to his opinion, he has an

‘opportunity of reconsidering. or explaining it more

fully to the jury.” |

In-the case of -Hickory v. United States, 151 U. S.

303; 14 Sup. Ct. Rep. 334,:339; 38 L. Ed. 170 (decided

1894), Mr. Chief Justice Fuller speaking for the Court

said: «— | .

“The rule in relation to exceptions to instructions

is that the matter excepted to shall be so brought

-to the attention of the court before the retirement

of the jury as to enable the judge to correct error,

if there be any, in his instructions to them;. and

this is also requisite in order*that the appellate

tribunal may pass upon the precise. question raised

without being compelled to search the record to

ascertain it... . . The trial judge cquld not have

- been in doubt as ‘to the particular part of the charge

- objected to, and, as his attention «was called to the

matter before the jury retired, could have modified

‘or withdrawn it if he had.thought it necessary to

do so;.and the portion is excepted to with sufficient

precision, sd far as this court is concerned.”

In Merchants’ Exch. Bank v. -McGraw, 76 F. 930

(9th Circuit), decided Oct. 19, 1896, the Court said:

“The proper practice is to inform counsel that, if

they desire to take any exceptions to the charge,

_ tt must be done before the jury retires. It will al-

' ways be sufficient if the exceptions be taken and

noted at the time with sufficient, pane

a

a ae a

In the case of Price v. Pankhurst, 53 Fed. at page

312 (8th Cir.), it is said:

“It is the duty of ‘the party excepting to call the ©

,attention of the court distinctly to the parts of the

charge excepted to, and this must be done before the

cause is finally submitted to the jury, to the end

that the court may have an opportunity to correct

or explain the parts of the charge excepted to, if

it seems proper to do so... . It is, of course, the

- duty of the court to allow the parties reasonable

time and facilities for specifying exceptions. There

is no occasion for haste in charging the jury. No

part of the triaf should be conducted more de-

liberately and carefully, and no court will refuse a

party time and opportunity: to point out distinctly

his exceptions to the charge before the case is finally

given to the jury. He must be afforded opportunity

to do this then, because he is precluded from doing -

_ it afterwards.”

" In the case of Owens v. United States, 130 Fed. 279.

(9th Cir.), Judge Ross said: .

-“The record shows that the imstructions to the

_ jury were in the form of a written charge, covering

18 pages of the printed transcript. .We do not at

all question the general rule that, in the absence of

a statutory provision or a valid rule of the court to

the contrary, exceptions must be taken and entered

prior to the return of a verdict, in order to entitle

them to consideration by an“appellate court.

“The record shows that the trial..commenced on

Aug. 13; 1902, and. terminated Saturday, August 16, °

1902. After the attorneys for the respective. parties

had closed their’ arguments to the jury, the court

instructed the jury in‘ writing; and, as the members

of the jury were filing out of the court-house, the

attorney for the defendant stepped forward to the

judge of-the court, arid said to him that he wished —

to except to portions of the charge; but that’ if was

13

impossible for him to intelligently do so until he

could take the instructions and examine them, and

thereupon inquired of said jydge whether he had

any rule of @durt as to the.manner of taking excep-

tions to instructions,—to which the judge responded

that he’had no rule on the subject, and for counsel

to adopt such practice as he might be advised was

proper. The next day (Aug. 17th) was Sunday,

and defendant’s attorneys prepared a motion in ar-

rest of judgment, a motion for a new trial, and

written exceptions to the charge of the jury, and

on that day handed to the judge a copy of the ex-

ceptions, and to the clerk of the court originals of. |

the exceptions to the charge and the -motions in

arrest and for a new trial, with instructions to the

clerk to file the three papers on Monday, the 18th

of August, which was done accordingly.”

The record further shows that the trial court enter-

tained the exceptions, and overruled thern.

“The trial judge therefore remained satisfied with

the charge, notwithstanding the exceptions, and, of

course, would not have changed it, had they been

actually filed at the time the charge was delivered. (

“Relying, as he did, on the response of the court,

and handing to the court, as he did the next day,

his exceptions in writing, which the latter entertained

and considered on the motions for a new trial, we

do not think they ought to be disregarded on the.

ground that they were not filed in time to allow

the trial judge to consider his charge and ‘give new

and different instructions.’ In the somewhat similar

case of Ah Lep v. Gong Choy, 13 Or. 211, 9 Pac.

483, the Supreme. Court of Oregon applied the

maxim that ‘an act of the court shall prejudice no

man.’ ” - :

In the case of Manuel Zeno Gandia v. Pettingill, 222

U. S. 452; 56 L. Ed. 2675 32 Sup. Ct. 127, decided

_-January 9, 1912, opinion by Mr. . Justice Holmes, the

- Supreme Court of the United States said:

Ste

"414

“An exception was taken to ‘the judge’ s sending

the jury out before the counsel for the defendant

_ had stated all of his exceptions to the charge. The

judge had told the counsel. that he would not in-

struct the jury otherwise: than as -he had, and he

allowed all the exceptions ‘to be taken in open court

after the: jury had retired.

“No doubt it is the stricter practice to note. the oe:

exceptions before the jury retires (the judge, of

course, having power to prevent counsel from mak-

ing it an opportunity for a lost word to them.) .

Phelps v. Mayer, 15 How. 160, 14 L. Ed. 643. But

in this case they were noted at -the trial, in open

court (United States v. ‘Breitling, 20 How. Zoe, 15 -

L. Ed. 900) and in the circumstances stated the de-

fendant suffered no wrong,-so that we should not :

sustain an exception upon this ground. 3 ae

And in the case of Dalton v. Pheens 141 Fed. 311,

the Court, speaking through Judge Morrow, stated as

_ follows:

|

|

“It is further objected@by i Pare vee in error

that this court cannot c@sider the exceptions taken

by the plaintiffs in error to the instructions given

to the jury by the lower court, for the reason that

the exceptions were not taken: until after the jury

had retired to consider their verdict; citing the cases

of. Western Union Tel. V. Baker, 85 Fed. 690,

29 Cc. C. A. 392; Yates v: \ United States, 90 Fed.

57, 32. C. C. A. 507, and Thiede v. Utah, 159 U.'S.

522, 16 Sup:Ct. 62, 40 L. Ed: 237.

“The verdict of the jury was mniied and entered

of record November 28, 1903. The objections and

exceptions were allowed om December 10; 1903, and

filed December 18, 1903. A motion for a new,trial

-was made immediately upon the entry of the verdict, ,

and was denied on July 22, 1904. The instructions

oa

15

to the jury were given near the close of the term,

and it appears to have been the opinion of the court

that the case should be concluded before the end

of the term’ at midnight, in order that the regu-

larity of the proceedings should be preserved. To

accomplish this purpose, the court, before the case

was closed, permitted counsel to take his- exceptions

afterwards that the jury might take the case with-

out delay. The questions involved in the instruc-

tions were well understood by the court and coun-

sel, and there was no misunderstanding as to the

instructions that were given and refused, or the

_exceptions that counsél desired to take thereto. We

think the plaintiffs in error cannot be deprived of

' their exceptions to the charge to the /jury by the

action of the court. Ah Lep v. Gong Choy, 13 Or.

211; 9 Pac. 483.”

Petition for Certiorari denied by Supreme Court of

the- United States, Feb. 19, 1906, 200 U. S. 619, 50

_ L. Ed. 623, 26 Sup. Ct. Rep.- 757. | .

_ As stated by the Supreme Court of the United States

(Hickory’ v.’ United. States, 151 U. S. 303, 14 Sup. Ct.

Rep. 334, 339, 38 L. Ed. -170), the purpose of the rule

relating to exceptions to instructions is first that the

matter excepted to shall be brought to the attention of

the Court before the retirement of the jury so as to

eriable the Judge to correct error, if he deems there is

any, in his instructions to them, and second that the

appellate court may pass upon-the precise question raised

without being compelled to search the record to ascer-

tain it. ay

Both ‘of these conditions are met by the record here.

The Court called upon counsel for the respective parties

to submit proposed instructions, and’ this was done, and

the Court stated which instructions so proposed it would

ee Se

| is

‘give and which it~ would refuse. (243-253 R.). Prior

thereto, and at the very inception of: the trial, the Court |

had inquired if there was any dispute: as to where the .

burden of proof rested, and was advised by ‘counsel for

the defendant that. it was upon the plaintiff throughout

the trial, which assertion was denied by counsel for the _

plaintiff. (38 R.) Authorities were submitted to the

Court by counsel for respective parties.

While the Court was. indicating which: of ie pro-

posed instructions it would give and which it would re-

fuse, the following inquiry was made. by one of counsel

_for defendant:

“MR. POORE: What time do we make a record

on the instructions?’”*

“THE COURT: If you wish to take any ex-

ceptions, now is the time to take them.”

' “MR. POORE: We desire to take them, your

Honor.”

And counsel for the defendant then did dictate into

the record the specific exceptions and objections it had .

to the instructions which the Court stated it would give,

and its exception to the refusal of the Court to give

certain requested instructions. (244-253 R.) This was

all one orgie caSe-was argued to the jury. (253 R.)

After the Case was argued to the jury, the Court |

stated: “The jury will retire in-charge of the bailiff,”

and immediately thereafter J. A. Poore, one of counsel .

for defendant, arose, and the Court inquired if the de-

fendant had any exception to the charge of the Court.

Mr.. Poore answered: “Yes, Your Honor,” and pro-

-ceeded to immediately dictate into the record such ex-

ceptions while the jury was in the act of retiring, and

°o

17

the first statement made by counsel was that he “re-

iterates and re-asserts the same objections to the in-

structions given which it (defendant) had heretofore

“asserted in the initial partial settlement of the instruc-.

tions as. shown by the record,” and then stated the

balance of his objections and exceptions. All of the —

- exceptions were by: the court overruled, and- exceptions

noted. . (269-274 R.)

It is, therefore, apparent that ‘the trial court had

senatedee of the exceptions taken by defendant, and

overruled them, and this even before the jury had re-

tired. The record also clearly indicates the instructions

given and refused, and the exceptions taken thereto,

so that this Court. will not be required to search the ©

record therefor. |

Further, it is ‘nscaueile held by this Court that on

‘ certiorari to review a decision of- the Circuit Court of

* Appeals, matters not relied on as‘ a basis for the pe-

tition will not be considered.

Alice State Bank: v. Houston Pastisre Co., 247

U. S. 240, 38 Sup. Ct. 496, 62 L. Ed. 1096;

Burnet v. Commonwealth Imp.. Co., 287. U. S.

415, 53 Sup. Ct. 198, 77 L. Ed. 399;

‘Habbard v. Tod, 171 U. S: 474, 19 Sup. Ct. 14,

> 43 L. Ed. 246;

Gunning v. Cooley, 281 U. S. 90, 50 Sup. Ct.

231, 74 L. Ed 72;

Helvering v. Taylor, 293 U.S. 507, 35 Sup. Ct. .

287, 79 L: Ed. 623;

Charles Warner Co. v. Indepefdent Pier Co., 278

| U. S. 85, 49 Sup. Ct. 45, 73.L: Ed. 195; ‘

“Merchants Universal Joint Co. v. Culhane, 57

Sup. Ct. 81, 81 L. Ed. 25. |

18

Respectfully . submitted, ; ‘

° M. S. GUNN, 6

(Helena, Montana) -

Attorney for Petitioner.

CHARLES R. LEONARD,

W. D. KYLE,

J. A. POORE,

(Butte, Montana)

Of Counsel.

ae

,

*

ae

. - «+ IN THE | S

Supreme Court of the United States

OCTOBER TERM}.1937

- NEW YORK LIFE INSURANCE COMPANY,

ga Corporation,

Petitioner,

vs.

STELLA JANE GAMER, as Executrix of the Will of

.E. Walter Gamer, Also Known as Edward W. Gamer,

Deceased, \

Respondent.

_ BRIEF IN OPPOSITION TO PETITION FOR WRIT

-OF CERTIORARI

oe | o

Francis P. Kgtty,

Car J. CHRISTIAN,

WILLIAM ‘MEYER, : -

S. O. MEYER, 7

Butte, Montana,

Attorneys for or iaeaces .

.

a

ii. | |

SUBJECT INDEX _ DT tac

- Pages

Argument Against Granting Certiorari... iaesinaneniaaiie «3,5.

Argument; Exceptions of Defendant (Petitioner

for Certiorari) to Instructions to Jury, Were

Not Taken in Presence of Jury.......................... 18

Decisions of United States Supreme Court.......... i

Objections to Granting of Certiorari.................... l

Reasons Why Certiorar? Should Not Be Granted 1, 3

TABLE OF CASES

-Agnew vs. United States, 165 U. S. 36................ - 10

Allison vs. Standard Airline Inc., 65 Fed. (2nd)

GF cennsineestisensseseveieacsnnnehannecigsnensenssaiuiscscponntdanneanass 23

Arizona & New Mexico Ry. Co. vs. Clark, 207

RE ee eee a aE Ln 23

Cudahy Packing Co: vs. Lusjhen, 9 Fed. 32........ ea

Eldred vs. United States, 44 Fed. (2nd) 1702....... 21

Fairmont Glass Works vs. Cub Fork Coal Co.,

ah EE Ay SE I Dicctiadienlliveiedlecesidaaibetibecpiiionclngsindhceonssiation 21

Fasulo vs. United States, 7 Fed. (2nd) 961........ 21

Gamer vs. Mew York Life Insurance Co., 76

Fed. (2nd) 543, (First Case)... 5.

Gamer; New York Life Insurance ‘Co., vs. 90

Fed. {2nd)............. (Second Case).......... reneigesein 6, 9

Gilman vs. Philadelphia, % . |B , Sie 25

Greene vs. United States, 154 Fed. 401.000.000.000... 22

Heiner vs. Donnen, 285 U. S. 312...20.00020200000..-.-. 9,12

Holt. vs.- United States, 218 U. S. 245.0000. 10

Home Benefit Assn. vs. Sargent, 142 U. S. 691

3,7, 15, 17,25 °°

Howland vs. Beck, 56 Fed. (2nd) SS

Jefferson Standard, Life Ins. Co. vs. Clemmer, 8

79 Fed. (2nd) TA rapenvnne eens ceniiaicaniaatnanineenn »10:

iii. , - °

_ INDEX P

TABLE OF CASES—Continued /

Pages

Kellogg & Sons vs. Hicks, 285 U. S. $02........... | 6

. Madrid, Thé, 40 Fed. 677 .0.......ccccccccccieececceo--. 12

Merchants, Exchange Bank vs, McGrew, 76 Fed. my * |-

wy ea iy Te 23 :"

Miller & Lux vs. Petrocelli, 236 Fed. 846............ 21

New Afnsterdam Casualty Co: As. Breschini, e

a et | hee CE RL 14

New York Life Ins. Co., Gamer vs., 76 Fed. ;

(2nd) 543 (First Case) ieseateigilidibaiadincinntonllapeoipiadaaie 5 4 e

New York Life Ins. Co. ‘vs. Gamer, 90- Fed. . 6 my

| | ea (Second Case)............ rita cacanconsoere 6, 9

New. York” Life Ins. Co. vs. Miller, 81 Fed. | :

I Mee iieiatiatiatiiiialassigsiaps intedicheaihinhicannicestcoscdeecic 15 F

New York Life Ins. Co. vs. Ross, 30 Fed :r

I Sr ceitarceiseeninsrsscitestncagpisSiccsctocinigeneiinibiinssicsonictimaie 2, 4,12 ;

New York Life Ins. Co. vs. | Ross, 279 U.S. 852 obi

° 3, 4, 17, 25 BS

People vs. Milner, 122 Cal. 171, 54 Pac. 833...... ° 16 | t

Pythian Knight#€ouncil ys. Beck, 181 U.S.49 7, 17.— R

‘Reclamation District v Sherman, 11 Cal. App, 3

a 8 eal 17 iT

Rumley vs. United States, 29 Pictu”. 2

St. Clair vs. United States, 154 Eel. 134...:........ " $f

Seabolt vs. United States, 44 Fed. (2nd) 169.. 21

* Sinclair vs. United States, 279 U.S. 749.0... 8

Standard Life & Accident €o. vs? Thornton, 100 - ;

Rs i eliiccnldethighdijicalasietuinditidicibintetaceccta ss i 4

State vs. District Court, 72 Mont. 213, 232 Pac. :

SUPER coelioseaaiAicaiestatesietibbdtsuieetantegRabictetbccdocestoc tes 15

. Sterling vs. Constantin, 287 | RS Seen

Swift & ee, vs. Pan. 44 Fed. Gad) 40.....

—. nner _