# Petition for Writ of Certiorari — King v. Order of United Commercial Travelers of America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0294%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1948 - **Citation:** 333 U.S. 153 ## Text — 4 we 2 ' sa a S- veme Geurk, | é. its COPY = 7x _ SUPREME COURT OF THE ARLES Lore 3 WERK SONS T7E MARY BELL KING, Petitioner, 9 .. THE ORDER OF UNITED COMMERCIAL “TRAVELERS OF AMERICA. e abe 4 " FEB Jou rs, Joumson, & Fosrer, | Spartanburg, South Carolina, - = = =. ye, - Of Counsel. i MUL 8 aged onopiry | 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 > ot Laue Ree See Ra ena techs Coes Coane F Ss — “— 8. C... “ seated na & : A’ S = 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 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 ~~ « e or. * ee \ \ . ed 1 . . ., us . . : ~ oe ee a we ’ . . . Ye . “ . hte ge s ‘ . ° : . 4 . * Ons ERS t o- aes ' * . . 5 - A ‘ . ae ee : \ . e . 2 . ~. / ‘ e ‘ ater heer | 4 - — a ‘ . 7 . ‘ ” , os : Sot . » = - ; £ ¥ . bd 4 . ? { a : e . ‘ « : - . . 5 . . oJ . ° : be « A ' ‘ ry « ! 3 * \ 4 . \ . . a Pam ° ° Fy . . : ° . ; i : J i . . . : ° bal . iu \ . NS « : z a » “ e ey . 4 ¢g e ‘ . ey a . ~ : - . . . ae . ate. . * . 2 *, Cone. : . . 7 . > . . 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,