Petition for Writ of Certiorari — King v. Order of United Commercial Travelers of America

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_ SUPREME COURT OF THE

ARLES Lore

3 WERK

SONS T7E

MARY BELL KING, Petitioner, 9

.. THE ORDER OF UNITED COMMERCIAL

“TRAVELERS OF AMERICA.

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Jou rs, Joumson, & Fosrer, |

Spartanburg, South Carolina, - = = =. ye,

- Of Counsel. i

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INDEX .

Sussect INDEX age

Ba PE Bir ccitia Pegs: Page *:

"Petition for’ writ of certiorari ‘3 SE ,

_. _ Summary statement of matter involved... REALE. Coane Oe

of jurisdiction of Supreme Court .. Pee ees

Questions involved... ad see 3.

Reasons relied upon for allowance of a writ . 5

Supporting EEE a

'- The opinion of the District Rc Ms

~The opinion of the Court of Appeals. 2) Re. ee eS

’ Grounds on which Supreme Court jurisdiction

oO SE oo eae Pea et Bae Poth es

Statement of case... ..... Sef al A Reece Sais

_ Specification . of assigned errors: RES AES

Ph. SSCS SOOT Sei nts lll 8

Specification ep: Eanes ee ea Mee Bere Fa 8, 9 E

- Specification No. 2... ee ea el —:.:

: ey Tastx 0 OF y Casts CITED |

Bolt v. Life’ and Casualty Ins. Co,, 156 S. C. 117, el

ts | I Cc ca ee gr sek mo?

Erie Railroad Co. v. Tompkins, 304 U. Bowe...c. 3

Fidelity Uniow Trust Co. v. Field, 311 U.S. 169........+.12-14

Mary Bell King'v. Commonwealth-Life Ins. Co., of —

Louisville, Ky., Judgment Roll No. 33454, Office

of Clerk of Court of Common Pleas, Spartan- Sats

ya burg County, 8. C........ ATES LCE NG NI Ne Dy 14 ©

ah Ww est v. American Teleph. and shat a ae

SUL Us Be 2B nt eee

, - Constitution cs :

‘art 5, Sec. 1, S. C. Constitution of 1895............. caiatatain "10 :

Art.'5, See. 15, S. C. Constitution of 1806::........... SELIG. |

vf 7 Srarures : Ea ate

/ Judicial’ Code, Sec. 240-a ik cielo aie iso ane ae 2, 3, 8 oS

28 USCA, See. 347-a.. hdl alesis Oe ae 2, 5, a: | :

Se es Pe. ae iitalaes* jampady 8 TA

S. C. Code of Laws, 1942, ea: 257 OSS oat Oley i sae

S. C. Code. of, Laws, 1942, See. 794... SE Sees 10

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, I 1946

MARY. BELL a I, Petitioner,

vs, .

ORDER: OF UNITED COMMERCIAL

TERY RES OF —,

See rree

oe

~ To the Honorable the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Your Petitioner, Mary Bell King, respectfully rep-

‘~ resents that she is ~aggrieved . by. the final judgment and

decision of the United States Circuit Court of \Appeals for’

the Fourth Circuit, in an action at law entitled No. 5559, -

The Order of- United Commercial Travelers of .America;

- Appellant, vs. Mary Bell King, Appellee, decided April 9, -

1947, and by reason thereof, your Petitioner prays for the

allowance of a writ of certiorari to be- directed to the

United States Circuit Court of Appeals for. the Fourth —

: Circuit, in order. that the said judgment and decision may

be reviewed by your: Honorable Court.

A

a

iS pe Teceery Seanent of itn tae.

Common’ Pleas, County: of Spartanburg, State of.

18 i ariee : tee staat

P ——— aS ie *

‘ « .

eee |

This is an action at law, commenced in ¢

: Carolina, in which petitioner, as plaintiff, sought to Fee ae

- cover ‘the sum.of. Five Thousand Dollars ($5,000.00) from <-

- incorporated under. the laws of the State of Ohio, upon, a

_ policy of insurance issued by it on the life of her husband.

*

respondent, as defendant, a ‘Fraternal Benefit Association,

By reason of diversity of citizenship and jurisdictional *,

‘amount, the action was~ removed by the . defendant to.

the Distrivt. Court. , The case was tried upon an agreed

‘ statement of facts by the District Judge, who rendered a

decision in favor of ‘the Petitioner for the sum of Five .

Upon. appeal ‘by the Defendant, The .Ordér of United

\

:

PoreEAN

Thousand Dollars ($5,000. 00) and interest. (R. 5-20.) . 7

a Couiisentia Travelers of America, to the Circuit Court off

" stated in its opinion, (R. 24-29), rendéred April 9, 1947,- «

Appeals for the Fourth Circuit, that Court, for the reasons .

reversed the judgment of the: lof#er court. The opinion of

. ithe Circuit Court stated that. although “South Carolina

ie until Gn 10, 1947 (R. 32).

law would he controlling, the highest court in that state has ..

= never considered the precise question here involved. (R. 25.)

The Court of Appeals by order of May: 10, 1947, stayed

ts ‘mandate : for thirty days (R.’ 30-31); and thereafter by

id as

Basis of Juristiction of Supreme Court. sd

. Tariedidtion rests upon Section 240-4’ of the J udicial -

Code, as amended by Aet of Congress of February: 13, 1925,

_, 43 Stat. 936, (28 USCA, See. 347a), conferring jurisdiction —

to review any judgment of the Circuit Court of Appeals,

and Section 5-b of Rule 38 of the Supreme Court; together

7 with diversity of citizenship and the juriediptiongt amount.

| ie. the Cire Court of ‘Appeals decided an iniportant ve

question of logal law in a way probably in conflict with |

: applicable fal decisions in that the Court did not follow .._.

the Sout Carolina laws as declared by’ the Courts eae

South Se arolina within the requirement .of See o, 34 of the ~_

dary Act of 1789, 28 USCA Sec: 725 and of 'the de-”

| » ent se Co. v. Tompkins, 304 U. S. 64, and subse- -

ent cases decided by. the ‘United States’ Supreme Court. Oe

Py extending and | broadenirig the. principle Jaid down by the...

We Erie Gaze. pious ae en .

Reston Rated Upon for Allowance ofthe Wit a

“The insurance policy upon which - ‘petitioner: bronghit ves

' guit isa South Carolina contract, and the case is governed —

ig the laws of the State of South Carolina. The judgment

‘of the Court of Appeals 3 was arrived at contrary to ‘state

.- law and rules .of decision of state. courts, including a de-

oo cision (from_ “which no appeal was. taken to the. State

_ | Suppeme™ Court) ‘of the Court of Common Pleas for the -

"County. of Spartanburg, South Carolina, which allowed —

this very same petitioner to recover on a similar policy with”

ariother insurance company on the same statement of. fact

as was before the Circuit Court, of Appeals. A copy of this -

| decision appears in the Appendix. ‘Thus, unless reversed,

_s - the decision of the Circuit Court of Appeals furgishes in-

-. - gulation and escape tothe respondent, who was able to move.

the ‘original case. against it from the State to the Federal’

Courts due solely to the circumstance of diversity of citizen-—

. ship and jurisdictional amount: while another insurér, in a

: case 80 ‘similar as to be on all fours, which could not move

3

rie co

“its an beams of insufficiont into oon is re- ae

‘guired by a state court to pay.- nee : ecg eats

Pawan ees a ns Spartanbur , South Carolina

eee ee aecaige Be PaO a ao Counsel for Petitioner.

= Jounsor, Somieies &. a,

Bs tsancs South stack

a) Counsel.

: : 2

\ 2 ‘

_ SUPPORTING BRI. Se

po \% IL Sg Rone Eien

Index ns briet i is included in’ index toy ition, supra,

. IL gee

"The Opinions ofthe Diet Court and Court of Appeal.

- The opinion of the District Court was filed .May 2,

1946, and reported in 65 Fed. Sup. 740:

= 9, as and | reported i in 161 F. 2d 108.

"Groin Wi Seprube Gort indion te twcobea 3

. This application is made upon authority of Section © -

' °240-a of the Judicial Code as amended by the Act of Con--.

gress of February 13, 1925, 43 Stat. 936-(28 USCA, Sec. ~

347a),-and Séction 5-b of Rule 38 of this Court, together |

- with Sreraity of citizenship 's and 1 jurisdictional amount.

Statement of Case. 4 é : |

| This i is avi action by petitioner, as béneliciary, t to re-

_, cover dn an insurance contract agreeing to pay beneficiary

_...~ Five. Thousand Dollars . ($5,000. 00)-in the event of the

se d, effected solely through

; wd accidental means. An exclusion. clause

in, the insurance . policy provided that “‘this Order shall)

‘not. be liable to any person for any benefit for. death re-

‘sulting for participation; as a soean ad or r otherwise, in

“aviation or aeronautics.”? ~— <i

_ On February 9, 1943, Drew L.: King, the sivenianik a.

"Second. Lieutenant in the Civil Air Patrol with Cosstal =

Patrol No. 8, was stationed at James Island near Charles- .

* ton, South Carolina. On the morning - f February 9, 1943,

The opinion of the Circuit -Court of Appeals was filed. Bae

3 5 ye jured. from the landing. Taylor and Bates circled. them :

i

3

—

Oe

Beet GS Seek a ee Peet:

gat ened 8 ADM. he teft. his basé field ‘as ‘an ‘dita Mi

. a land based plane piloted by a First Lieutenant, Clarence

. Rawls, on a routine coastal patrol flight. Included in the a

_ -patrol-was a second plane piloted cby Lieutenant James.A.

Taylor with Lieutenant K. C. Bates'as Observer. All of

: the above. parties. were members of the Civil Air-Patrol.

‘About 9:30 A.M. the plane ‘Gecupied by Rawls and

He oa developed motor trouble and was. forced down on...

the’ Atlantic Ocean at about thirty, miles out ‘from Cape. at

Fear, North. Carolina. ieee :

At around 9 33 A.M. Taylor ‘and Bates « ébesrved the = -

plane | on the «water, where: ‘it had apparently landed ina |

_mormal landing attitude. Both Rawls and King were out

_. | of ‘the. plane and in the water wearing inflated life’ jackets:

i and-neither seemed to Taylor or: Bates to have been in-

- at an altitude of about fifty feet and could see both men .

ves signalling with with their arms. They dropped thenfmergency

~ kits containing whiskey and concentrates and radioed their

. . situation and position to the base. The plane sank within

about four minutes after being first: observed on the water.

ie Taylor and Bates went, tp to an altitude: of about 500 to’

. 600 feet so that they could keep King’ and Rawls in. sight.

* and. continued to circle them for a’ period of two to two -

' .. anid one-half hours when a short@&e of gasoline forced them ©

to head for their base. . During this period King was alive.

The two men were picked up by a. Navy boat about

2 P.M. -both being dead at the time. The bodies - -Werep, |

-. @6xamined Lientenant Com. ‘Landis. C. Brown (a duly .- .

ee os practicing physician in civil life) of the-United

' " Statés Navy at the Section Base Hospital of Fort Caswell |

‘ at. Scuthport, -North Carolina. ‘He found one’ or -two

slight seratéles ‘on Lieutenant King’ s body but found no 2. :

marks severé-enough, to be called an injury or considered ae

nd

\ the’ proof of death furnished .by (plaintiff to: defendant,

‘was ** Drowning as.a result of. exposure.in the water-after

2

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: : : Si Mos a lat ; 3

_. | contributory-cause. of death. His diagnosis as shown in

' “eyewitness to events leading to the death of King.

'. ‘Under.agreed facts (R.*1-4) and’ applicable law, the -

. I: ’ District Court resolved the single issue ‘presented by the :

drowning ¥

_ case against the respondent. by concluding that the proxi-

“mate: causp, of the death of the insured was -secidental

ithin thé terms of the ‘policy ; and that his death

“-, did not result: from participation, asa passenger or other-

. wise, in aviation or a ronautics, within. the meaning of the ~~

exclusion provisions of the pdlicy. (R. 20.) ~

The Circuit Court of Appeals was: unable to see how, :

‘under the agreed facts, death résulted in any way ‘other’; - =

than’ from’ participation in. aviation, _ and’ réversed thé — ae

“ *: judgment. of the lower court. (R. 26.) 0

Ags tig ses

*. :

_In reversing. the judgment of. the District Court it i:

copelteRy wed ee 3

\

"4. ‘The Cireuit Court of Appeals erred in that it failed

and refused to follow state law and rules of decisions of

- - courts of: the State of South Carolina; it being undisputed

8

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°

that: the insurance ‘certificate involved in. this controversy

is a-South Carolina contract governed and: solvable by:the ~

laws.of Sonth Carolina. © 2 fe

.. 2, The Cireuit Court of Appeals erred in refittsing’to _

follow a decision. of te South Carolina Court of (Common

; 13 - ,

| Pleas avhich Allowed this very, same petitioner,.ds. laintiff, e ae

| | to recover on a similar policy with another insurance com- —

.

| pany on the same statement of facts as here involved ; this...

’ decision being.the only one in which any South Carolina. -

| Coust has passed upon the precise question here involyeds |

yl =e hee: sat ae aie

2 ~ : oe . “6 $ = Fe

es EY A EN ane Epo IO tee

Mel ye ae : oe alr in|

failure of airplane | motor.’” Lt. Com. Brown‘was not an

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ec ARGUMENT) ee ee

Under. the doctrine of the eke Bostood | Sait VS.

%

*%

Tompkins, 304 U. S. 64, 78, the law.to’ be applied in this _

case is the law of the State of South Carolina and it is

not a matter of Federal concern whether the law of the.

State shall be declared by its Aegislature i in a statute or —

-. by ‘its highest: court ina decision. The rules of ‘decision nae

- established by judicial--decisions of. State Courts, as well ..

as those prescribed by statute, are ‘‘laws’’ which, by Sec. |

34 of the Judiciary Act of 1789, 1 Stat. at L. 92, Chap. 20,

'28 US.C.A., Bee 25, are made “the rules a decision in

trials at common’ law.’’:

“In Bolt v. Life avd Casualty ius Co., 156. S. C. 117, 152,

- §. E..766, the defendant claimed that the deeeased havinig

‘been killed while riding a motorcycle, was not coyered by ‘

-a. policy. which insured against collision of or by any ac- -

’ cident. to a-motor-driven car; the contention of the de '

fendant being that a mototcycle i is not a motor-driven’ car.

Mr, J ustice Cothran i in a dissenting opinion, 152 S. E:°770,

stated that in every’ ‘case he had been: able ‘to find, ‘the pre-

cise question at issue was decidéd in favor of the conten-

: tion of the insuriince company ‘that the descriptive term

“<motor-drivett. ear’’ did not cover a motorcycle7—Fo this

effect he found and cited cases from Massachusetts, Louisi-

ana, New Jersey, New York and N orth ‘Carolina. The

‘precise question. involved’ was entirel new in South Caro- —

lina and the majority of the court {all the other four mem-

bers). found against the contention of the insurance coni-_ .

pany, contrary to. the diptepnes 3 ‘weight, of authority

_elsewhere.

; Commenting on the question as. a novel one, Mr. J ustice’

a Blease (152 S: B. 767) stated that in considering it, there ©

a

e¢

“9 fi ° ‘

° oe

-are some prinéiples of law, well recognized by: our court,

which must be kept in mind. Jn this connectiap he said:

. “An examination of many of - decisions, foo numer-

made. it the almost universal rule to construe any clause

an insurance. policy, against the insurer,. when, there

- existed the least doubt: as to the meariing of the. language

‘ employed.””” = 7 a ‘v

In this. statement, reférred'to by the Cireuit Court (R.

". 28) as a ‘generalized dictum,”’ we think thgSupreme Court |

_. of Sotth Carolina was annorficitty a rulé of decision estab-

ous to ever refer to here, wil diselose that our court has ra

dished by Ats judicial ecisions, which, should. have been -

~ cates that its adoption st pe rule of decision Would liave

8

~ led it to an opposite res

* (R.. 28.)

to the. quoted statement the Circuit Court said:. ane

so In“any event, we believe that the highest. court in

; South Carolina would not make specific application of such

‘.a° generalized dictum, which, if applied to the: facts here, .

would fly in the face: of reason and the very considerable

authority that has expressed the view. we now follow.”’

Siu re ea

~ We cannot @iscover that any of the “‘very considerable

Carolina. : et

On July 29, 1946,’a Court of Common Pleas of South

followed by the Circuit Court, The Circuit Court indi- —

to the on¥ reached. ‘Referring’

— authority’’ referred to comes from the courts of South —

. ‘ - i ¢

_ Carolina rendered a decision in the case-of Mary-Bell-King .

vs. Commonwealth Life Insurance Company of Louisville,

Kentucky, as evidenced by Judgment Roll Number 33454,

Office of the Clerk of Court of Common Pleas of Spartan-.

burg- County, South Carolina. This was a case by this

petitioner, ds plaintiff, involving the death of the same in-" 4

sired as here and was upon a certificate of insurance .°

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. “promising to pay the plaintiff $2,500.00 upon receipt of

' proofs of the death of the insured. ‘The exclusion clause

of the policy in the Commonwealth case excluded benefits

if “the death of the insured resulted from dperating or

riding in any kind of aircraft * * 4°» The issues were tried

- without a jury before Circuit Judge. T. S. Sease upon

i) .

agreed facts, of necessity materially the same as here, and -

resulted in a decree awarding judgment: to the plaintiff.

from which no appeal to the Supreme Court of South Caro-"

- Jina was taken by the defendant. Copies of this decision

fe,

appendix hereto. — - 7 PP mie :

Article 5, Section 15, of the Sonth Carolina ‘Constitu-

were furnished the Circuit Court and it appears in the

tion of 1895 provides : “The Courts of Common Pleas shall

have * * * jurisdiction in all civil cases. They shall haye—

appellate jurisdiction in all. cases. within the jurisdiction

_of inferior Courts, except from such inferior Courts from

which the General Assembly shall provide an appeal di-

'. rectly to’ the Supreme Court.’’. If the amount involved in

the King vs. Commonwealth Life case, supra, had been

less than One Hundred Dollars ($100.00), it could have

“been tried in a South Carolina Magistrate Court under —

_ the provisions of Section 257, South Carolina. Code of

ote _ Laws, 1942, which reads. as follows: ‘Magistrates shall.

: have civil jurisdiction:in the following actions: (1) In ac- ~

tiorts arising on contracts for.the recovery of money only,

_ if the sum claimed does not exceed. one hundred dollars.”’

If so tried, the Court of Common Pleas. would ORD

0

. appellate jurisdiction under Section 794,. South C .

Code of Laws, 1942, which is as follows t ‘‘When a judg-

meptis rendered by a magistrate’s court, °° © thi appeal

shall be to the circuit court of the county wherein the judg-

ment was rendered * *.*”? The Court of Common Pleas 7 —

is a circuit court as provided by Article 5, Section 1 of the

/

;

/

ll

South Carolina Constitution of 1895, which reads as fol- :

slows: ‘*The ‘udicial power of this State shall-be vested _

ina Supreme Court, in two Circuit Courts, to wit: A Court

of Common Pleas having civil jurisdiction and a Court:.of ~ 4

General Sessions with criminal jurisdiction only * * *’’”

‘The Circuit Court of Appeals, referring to the opinion |

of the Court of Common Pleas in King v. Commonwealth,

supra, stated, ‘‘That opinion, not binding on other South

-. Carolina courts, is not binding on us and we cannot treat

it as a final expression of South Carolina law,” citing Erie

Railroad vs. Tompkins, 304 U. 8. 64. (R. 29.)

This leads us to a brief reference to, decisions broaden-

| ing the doetrine announced. in Erie Railroad, supra.- In |

West v. American Teléph. and Teleg, Co., 311°U: S. 223,

231, the Court ‘said:

“The Circuit Court of Appeals in this case, in which

- jurisdiction rests exclusively on diversity of citizenship, a

declined to follow the ruling in West ‘v. American Teleph.

and Teleg. Co., 54 Ohio App. 369, 7'N. E. (2d) 805, 7 Ohio

Ops. 363, of the Cuyahoga County Court of Appeals, an

‘ intermediate appellate court of Ohio. ‘The question for de-

cision is-whether, in refusing to follow the rule of law an-

nounced by the state court, the court below failed to apply,

state law within the requirement of Section 34 of the Judici-

ary Act of (September 24) 1789, 1 Stat. at L. 92, Chap. 20, —

28 USCA Section 725 and of our decision in the Erie R. Co.

v. Tompkins, 304 U. 8. 64, 82-1 ed 1188, 58 8. Ct.'817, ui” -

A. R. L. 1487.”’

The Court then broadens the doctrine of the Erie Rail-

road Case, supra, by stating, (311 U. 8. 236)

‘‘True, as was intimated in the Erie R. Co. Case, the.’

highest court of the state is the final arbiter of what is state

law: When it has spoken, its “pronouncement is tu be ac-, .

- cepted by federal ecourts.as defining state law unless it has .

»' ae st

later given cleat and persuasive indication that its pro-

notncement will be modified, limited or restricted. See

Wichita Royalty Co. v. City Nate Bank, 306 U. S. 103, 107,

3 83, L ed 515, 517, 59 S. Ct. 420; But the obvious" purpose

of Section’ 34. of the Jadiciary Act is to avoid the main-~

tenance within a state of two divergent or conflicting

systems of law, one to be applied in the state courts, the a ;

other to be availed of in the-federal courts, only” in case

" of diversity of citizenship. That object would be thwarted

if the federal courts.were free to choose their own rules:

: of decision whenever the highest court ‘of the state has not

‘spoken. 3

L.A state is ‘not ‘without’ law save as its highest court

has declared it.. There are many rules of decision com-

-menly _ accepted and acted upon by the bar and inferior

-. courts which are-nevertheless laws of the state although »

thé highest court of the state has never: passed upon thém. x

_ In those circumstances a federal court is not free to reject

the state rule merely because it has not received the sanc- -

tion of the highest state court, even though it thinks the.

rule.is unsound in principle or that another is preferably. ions

We cannot better stress our opinion that. the Circuit

Court of Appeals should have followed the,King vs, Com-.

. wonwealth Life case, supra, as decided by the Court of

Common Pleas, than by quoting — the following from

Fidelity Union Trust Co. vs: Field, 311 U. S- 169, 177, 178,

' where there was under review: a decision of the United,

“States Circuit Court -of : - Appeals for the Third Cireuit

‘which had declined to follow: decisions of the Chancery

Court of New Jersey: 3

©The Cireuit Court of Appeals found it impossible to

distinguish the facts in the two Chancery: cates from those

shown here. ‘The court recognized its duty: to*follow the |

law of the State aid said that where ‘that law had been

A

13

determined by the state ‘court of last resort, its decisi

must be followed irrespective of the federal court’s opimrion

of what the law ought to be. But the majority pf the.

Cireuit Court of Appeals took ihe view that it was hot so

bound ‘by .the pronouncements’ of other state courts) but

might conclude that ‘the decision does not. uly

_the atate law.The court held that the statute of 1932 was

‘clearly constitutional and unambiguouis’ and that ‘con-

trary decisions’ of the Chancery Court of New Jersey |

were not binding. Accordingly, the judgment of the Dis-

- trict Court was reversed. .

“We think that this ruling was-erroneous. The highest

state:court is the final-authority on state law (Beals v. Hale,

4 How. (U.S.) 37, 54, 11 L ed 865, 872; Erie R. Co. v. Tomp-

kins, 304 U. S: 64, 78, 82 L ed 1188, 1194, 58 S. Ct. 817, 114

: A. L. R. 1487), but itis still the duty ‘of the federal courts,

where the state law supplies the rule of decision, to ascer-

- tain and-apply that law even though it has not been ex-

> Vn the highest court of the State. See Ruhlin v.

_- \New York E. tus. Co. 304 U. 8. 202, 209, 82 Led 1290, 58 L’

ed 860. An intermediate: state court in declaring and ap- —

plying the state law’ is acting as an organ of the state and

_ its determination, in the absence of more convincing eVi- ©

dence of what‘ the state law is,. should be followed by a

_ federal court in deciding a state question. We have de-

- clared. that principle in West vy. American Teleph.. and

Teleg. Co. Nos. 44 and 45, decided this day. (311 U. S. 228, ;

post, 139, 61 S. Ct. 179, 132 A. L, R. 956). It is true that, ~

in that case in intermediate appellate court ‘of the State —

had determined the immediate question as between thé same

parties in a prior suit, and the highest state court, had re- .

. fused to review the lower court’s decision, but we set forth

the broader principle as applicable to the decision of an

intermediate_court, in the absence of a decision by the “

Ta 3 ages

highest court, whether the question i is one of statute or

* _eemmon law.”’? Inthe Field case, the Court also said: (311

U._S.178, 78, “179) “At the present time, the Thatcher and

__ Travers eases stand as the only exposition ‘of the law: of

~ the State with respect to the construction and effect of thie

statutes of 1932, and the Circuit Court of Appeals was not *.

~ at liberty to reject these decisions merely because it did

_ not agree with their reasoning.’”’ .

. At the present time, the case of King vs. Commonwealth

Insurance Company, supra, stands as the only exposition

of, the law-of’the State of South Carolina upon the precise

‘question here involved ; that is, with respect to the con-

os ~ struction and effect of an exclusion clause such as is pres-

' / ently involved as applied to the presently involved facts.

The Court of Common Pleas was in complete accord with

_the able and exhaustive opinion of the District Court in

the case ‘hére under consideration. The opinion of the

. Court of Common Pleas (p. 23, post), says: ‘‘The District ©

Court. held that the death ofthe insured did not result

.° from. participation, as a passenger or otherwise, i in’ aviation

or aeronautics, within the meaning of thé exclusion pro-

_ vision of the policy and that plaintiff was entitled to re-

_. covér. I-am in agreement with. this opinion.’”’ Using the

exact wording of the District Court opinion, Court of Com-

- mon Please (p.-24, post) further said: ‘‘To bar recovery

_ by'the plaintiff in this case, it would be necessary to write —

‘some other wording into the exclusion clause . involved,

which was not written there by the defendant when its

policy was issued to Drew L. King. - 7

This very pertinent statement fippears in Fidelity Union ne ;

Trket Company: vs. Field, 311 U. 8. 169, 180, ‘‘It is inadmis-

sible that ther. should be ‘one rule of state law for litigants .

in the state courts and another rule for litigants who bring -

the same —- before the federal courts owing to the

ee 7

circumstance of diversity of citizenship.” Unless the judg-

ment ofthe United States Circuit Court of Appeals for

-. the Fourth District is reversed, that which. was above said

to be inadmissible will obtain, = ie |

"Respectfully submitted, herd os

. “ Jesse W. Boyp, |

- Spartanburg, S. C-

Mutter C. Foster,. 8

Se : Spartanburg, S. C.

ees pee ets Counsel for Petitioner.

‘Jounsox, Jounson & Foster, * ~ |

‘Spartanburg, South Carolina,

Of Counsel. — es

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we APPENDIX.

Copy of Decree of Court of Common Pless Recorded in Office of —

Clerk: of Court for Spartanburg County, South ‘Carolina. a,

Judgment Roll No. 33454. oe

The defendant i in this action is a éorpofation organized at

_. under the laws of one of the States of the Union, and

authorized to engage ‘in, and being* engaged in ‘the life in-

-.. surance’ business in the State of South. Carolina... The .

. plaintiff is the-beneficiary of: an insurance contract entered _

_ into by the defendant with the plaintiff’ 8 late husband,

_ Drew. L. King. Application for the issuance of the insur--

ance policy involved was made’ at ‘Spartanburg, South

‘arolina, ‘by the insured and the. policy was issued to him

there on ‘December 3rd, 1940, and ‘the first semi-annual.

premium. was paid by him at the same time and place. By

__ the terms of its contract as evidenced by its policy of in-

-—-suranee No.-247015, the defendant promised to pay ‘to this

plaintiff immediately upo receipt of proofs. of the death. .

-. of the-insured ‘fhe sum of Two Thousand Five Hundred

($2,500.00) Dollars. eee ee

‘Upor agreement by counsel representing the. parties,

this case ‘was tried before me at the May, 1946, ‘term of.

- the Court of Common Pleas for the County of Spartan-\

burg. The facts weré stipulated by the —— and are

as follows: :

. 1. That policy of “Defendant, No. 247015, is attached .

and made ‘Plaintiff ’s Exhibit No. 1.’”’. The issuance and \

delivery of same are admitted. The policy was in full \

. force. and effect. and all premiums ‘paid on the date of. the —

death of the name ‘insured, Drew Lagrone King, The.face

amount of the policy i is Two Thousand Five Hundred and — -—

no/100 ($2,500. 00) Dollars, with no: double indemnity bene- -

fits, and the beneficiary named in said policy is ‘the Plaintiff |

in this action, and a resident of Spartanburg County, South

eae, 18 ;

___Carolina-—That ‘the Defendant lias paid. to , Plaintif the

- . reserve value of the policy, which defendant alleges i is.the’

: only amount. due thereunder, without’ prejudice, however, |

to sige s claim for the face: amount of the policy.

| . That the policy contained, inter alia, the rege:

srahesihnia : :

oo AT ie Policy is Gas under the express’ condition.

that should the death of the Insured result from oper-- ..

. ating or riding in any ‘kind of aircraft, except asafare-,

_ paying passenger in a licensed passenger aircraft oper-

ated by a licensed pilot on a regular passenger route

- . between’ ‘definitely established airports, the Company’s:

~' - * |fability hereunder shall be limited, during the first two

-« Policy years, to the return of the premiums which have

‘ been received hereunder, without interest, to the Bene-

ficiary, and in the event of such death after. the ‘second

Policy year, the Company’s liability hereunder shall be _

limited to the reserve value of the policy.’ -

8. The insured died on the 9th day of February, 1943, ‘

4. That at the time of his death andor some time prior

3 thereto, insured-was a member of the Civil Air Patrol. The

Civil Air Patrol was a branch of and. operated under the

Office of Civilian Defense. Members of the Civil Air Patrol

were paid from funds | allocated to the Office of Civilian :

- . Defense and could voluitarily resign from such service..

_. Members of the: Civil. Air Patrol were. ndt eligible for -

| National Service Life Insurance or for, fits/provided .

under the. G. L ‘Bill of Rights: On the ornin of Febru- :

a7 wetver on a plane piloted by. one Rawls, for a\routine C.

tl P. mission. He Was noi a fare- -paying passtnger and

the plane was not licensed as & passenge aircraft\and was

not being operated ‘on a regular passenger route

é

oe oe established airports. The aircraft was.a ‘shi inson Sis:

) ete

19 |

ernment, and was neither designed nor built to take-off or®

» land on water. Included in the patrol was a second plane

piloted by Lieutenant J. A. Taylor with Lieutenant K..C. :

Bates as an observer, both of sa were members_of the 7

: Ote R s eid ee a ee

5. The facts and ‘circumstances ‘surrounding the death

of the insured are as follows: . See ain

-On February-9;1943, the deceased, a Second Lieutenant

. in the Civil Air Patrol with Coastal Patrol No. 8 was sta- 9,

- . tioned. at James Island near’ Charleston, South Carolina.

; On the morning of February 9, 1943, at around 8 A. M. he

_.. feft his base field as. an ‘observer in a-plane piloted by a

. First Lieutenant, Clarence Rawls, on-a routine coastal

-* + patrol flight. Included in the patrol was a second plane.

“ *+ piloted by’ Lieutgnant James A. Taylor, with Lieutenant _

' K. C. Bates as observer. PRO ee ee

__.. About 9:30 A. M., the plane occupied. by Rawls and King ' Y

-- developed motor trouble and was forced down on the At-

-lantic Ocean at about thirty miles out' from Cape Fear,

~ / North Carolina. ee ial: Boece We

_ At around, 9:33 A. M.,. Taylor and Bates observed the .~

plane, which had landed in a normal landing attitude, on .

the water. The water, was very. cold at the time and.so \ .

was the air above it-- Both Rawls and King. were out of

the plane and in the water wearing inflated life ‘jackets and’

” neither ’seém to Taylor or Bates to have been injured from

. the landing. “Taylor and Bates circled them at ‘an altitude:

"of about fifty. feet and‘ could see both men ‘signalling with

their arms. They dropped them emergency kits contain-

ing whiskey and-concentrates and life saving equipment

‘ ineluding inflated rubber tubes and radioed their situation —

and position to the base. The plane ‘sank within about” ©

four minutes after being first observed on the water. Taylor

and Bates went up to an altitude of about 500 to 600 feet

2

« : ° ® ° -

: 2 , ‘ bd . , wae! T 6 ° ; zx

. . ’ 3

oN oe

sO that they could Sian King and Rawls ' in 4 sight, and con-

_ tinued to circle them for a period of two to two and one-

half hours when a shortage of gasoline forced them to head ee

for their base. During this period King was alive.” Im- ~

_ mediately after King’ s plane was forced down on the water © --

a ‘radio alarm was sent out and seventeen Army, Navy and ;

hes planes,. one blimp,.two flying boats, and fourteen

surface. boats were sent out in search for him. Before

Taylor and Bates left. the scene, Naval search’ shine few .

over the place where King: “and Rawls were -on the water,

io | but: apparently failed to see them.

The two men were picked up. by a Navy’. boat abéut. ;

2 P. M., both being dead at the time: The bodies were ex- ~

“amined by Lieutenant Com. Landis C. Brown (a. duly li- -

. censed and. practicing physician in civil. life) of the United’ -

States. Navy at the Section Base Hospital of Fort Caswell —

>. at Southport, North Carolina. He found: one oy two slight. ~

scratches on Lieutenant King’s body, but found no marks

severe enough to be called an injury or ‘considered a con-

tributory eause of death. ‘His diagnosis was ‘‘Drowning

asa result of exposure in the water.”’ Lt..Com. Brown was

. not an eyewitness to events leading to the death of King.

. 6, Final proofs of. death were duly submitted to the veo

y=

-dendant en the 31st day of March, 1943.

7. If relevant and. competent, it is agréed it during, 3

prior service as-a member of the C. A:-P., Lieutenant King \

had, been forced down on the water and remained in the :

water for a gis of five nares prior to his. rescue.

RC

Under the ‘igvoed tacts wad applicable law, did the death

_ of the insured” result from engaging as a passenger or —

- otherwise in submarine or aeronautic operation?

"it has been decided in South Carolina, that cause of

; death, within the meaning of | insurance ipa death re--

£ ’

: 2

A y 2

sulting from walneal: eialees and sccidental 2 means, is the

imofediate cause, and not the remote cause Goethe v. New

- York Life. Ins. Co., 183 8. C* 199,190 S, E. 451. ‘In, that

case, Goethe died of a heatstroke, following vigorous efforts ci

to put out’a-fire.. On. the issue. of whether. death was the © ae

* culmination of. angina - ectoris, a disease, or heatstroke, ”

an accident, the Supreme Court of South Carolina said: ;

‘In our opinion, the haatatroke suffered by. the insured in -.

the case: at. bar. was in. and of | ‘itself. an. _ accidental

‘m eans, ee or Peawmtet : ‘

‘In Moiufasturers’ ‘Accident Tedemaitg Co. . diergies ae

“(. C. A. 6) 58. Fed. 945, the deceased, (husband of the

plaintiff in that case) was last seen alive fishing ina brook.

. Twenty: minutes later, he was discovered lying i in the brook, .

with his. face downward, and ‘submerged | in six inches of

‘water, dead. The « defendant insurance’company contended,

and. evidence was introduced by it,: tending to ‘show that- .

the, ‘deceased had ‘suffered from. defective action of ‘the | |

heart in its aortic valve. The jury found adversely to de- *

_ fendant’s contention, and rendered: a. verdict for the “plain-.

tiff, In affirming the judgment of the district court, Judge

Taft said: ‘The policy ‘provided, as: we have already.

seen, -that the ‘benefits under it extended to the death of

the. insured through external, violent, and accidental means,

“ and that it should not cover accidental injuries. or death -

resulting from or caused, directly or indirectly, wholly or.

in part; by or in consequence ‘of fits, vertigo, somnambulism, chases

-6r any disease existing prior or subsequent: to the date of Nas

the certificate, or to any cause excepting where ‘the injury |

awas the \sole cause of tlie disability or death. In the ap-

. “plieation , the deceased stated that he was aware that the |

insurance would not extend to apy bodily injury happen- —

. ing, directly or indireetly, i in consequence of disease, or. to

—* or, ‘pa ens caused — or in ‘part, by: eral in-

&

eet tin ished between ‘sequence’? and ‘‘in consequence.’ The

22

- firmitiés or disease, @r to any case where the accidental)

injury was- not the proximate and sole | cause 2 of disability *

.: OF death. i } : a,

” «Tt is well settled that an ‘ibeilantoa death. by drown-

ing is a death by external, violent, and accident

Trew v. Assurafice Company, 6 Hurl & Ww 838 ; fA

v. Ixisurance Co.,7 Q. B. Div. 42; Reynolds v. Instance Co, :

22 Law. (N.) 6a pas cae :

‘‘We are of the opirion that in ‘the legal sense, and

within.the meaning of the last clause, if the deceased suf-

fered death. by drowning, no matter what was the cause of |

his falling into the water, whether disease of a slipping,

the drowning, in such case, would be the proximate and sole

cause of the disability or death,unless it appeared that

death would have been the result, even had there been no

water at hand to. fall into. . The disease would be but the

condition ; the drowning would be the moving, sole, and ;

"proximate cause. we he

+ In the, euse of hose v. Occidental Life Iu. Co., 89

Cc ‘al. App. 779, 265. P. 400, there was for construction by the

court an exclusion clause reading: ‘' This policy does’ not,

cover any injury * * * sustained * * * while participating or

= consequenee of ‘having participated in aeronautics. ” In

struing the words: ‘in consequence,’ . the /eourt dis-

court held that recovery upon an insurance contract might

“bel had by the beneficiary of an-insured who was killed by

stepping into a whirling airplane propeller. after, having 7

_been a passenger on an airplane, he had climbed from the

> aplane- tethe ground. I quote excerpts from the opinion in .

which that court asked and answered some very pertinent

questions.. Tlie court’ said: ‘‘Was the death. caused ‘in

consequenee of the insured’s having participated in aero-

‘pauties?’ He had so participated and he met his death. Was

° % 3 re . bd

ae 23 pe

the death caused in-consequence thereof? The death was a

sequence of the participation, that is, it followed closely

and was connected therewith, but was it in consequence

_ thereoft Did the participation ‘cause the death? . . Did

. the accident happen as the’ result of or because of that

which is now past, ‘having participated in aeronautics?

. “Did. the participation cause.the death?’’? The court not

-. only asked. all of the above questions but in construimg the

meaning of the exclusion clause answered all of these qués-

tions.in favor of the insured and against the insurer, and -

in the course of the opinion said: ‘‘At first blush, the flight

and the accident being so close together, oné is apt to con-

. fuse. the meaning of ‘sequence’ and ‘in consequence’.’”.

“The case of Mary Bell King v. The Order.of United Com-

wisn descr of America,_——Federal Supplement——, '

was a’case by this same plaintiff involving the death 7

the same insured as here, and was upon a certificate of

insurance promising to pay the beneficiary the sum-of' Five .

which had brought him there. He left the plane uninjured

and wearing an inflated life-jaecket.— The plane had not

crashed, but had, landed on the, water in a normal landing ~

s,

0

24

attitude and sank within a few diaes hae its landing.

' ‘At the tirfe the plane sank, King was alive and uninjured

_ and had the protection of an inflated life jacket, which he

was wearing. He was known to have been alive for a period:

| gf two and one-half: hours thereafter when’ shortage of:

. gasoline in another plane pilote iy a Lieutenant Taylor,

who had kept King in sight, forced Taylor to return to.

his base.

To bar recovery ‘by e plaintift in this ¢ case, it would

" be necessary to write some other wording into the exclusion

_clause involved, which was not written there by the de-

fendant when its policy was issued to Drew L. King. I con-

clude that disengagement froni participation in aviation or

aeronautics had taken place, and that King’s service, travel

and flight in the aircraft had definitely ended more than }

two hours after ‘his death. ‘The only connection King had °

_ with the plane at the time he met his death by drowning-

‘was that he had arrived by plane at a place near where

he was drowned. His’ Geath was. the result of accidental

drowning. + °

' Ir Is Tumnzrone Oucepas, Ansucew AND Decazs> that

thie plaintiff hive judgment against the defendant in the

sum of Two Thousand Five Hundred . ($2,500. 00). Dollars

with interest at six per cent (6%) from the thirty-first day

-of March, 1943, which judgment shall be credited with the

_ amount already: paid to plaintiff as the reserve value of

‘the policy, with _— from date of payment.

TT. S. Szase,

<ul Judge of Seventh Judicial Circuit.

July 29, 1946. eke eo -* —