Petition for Writ of Certiorari — Dick v. New York Life Insurance

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INDEX

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Jurisdiction of this court .’. CA Py or ee Pee sve OT

‘ Questions presented for review :...... .s erie She

_ Constitutional provisions ......... Piet eee be rs “Z

A concise statement of the case ....,...0...2.0052. 27

‘Argument:......:... <i eeA Re, Meee pay 4.

Appendix ; ae 2

CL EPL TESS See Ere ee Te ere ek 9

AREER, ESOL AiR ar Catena rei tree nr ioee totae OLE arg ot Pe 17

Clerk's certificate .. re ces cuaeccedsccesecees 18.

| TABLE OF AUTHORITIES

Cases: |

Clemens v. . Royal Sisidlibons of America N. D. 1903),

Cg ee a A: ae aes eee 6.

Erie v. Tompkins, 304 U.S. 64, 82 Law Ed. 1188 . =.

Svihovec v. Woodmen Ace. Co. €N. D. 1939), 69 N. D.

259, tian hie) aoe ae ei ee sivaeen a o--

Statute: She

28 U.S.C.A., ‘Seétion 2101 . PAE OLDS SS este eee a

Miscellaneous: © - : . aie Se |

United States Constitution, Amendment VII .:.:1, 2, 4

Jn the

=e Supreme Court of the United States

.BLANCHE Dick .

Petitioner

vs.

one York Lire eninanicn Company, A CORPORATION

. reeasiecacaes

PETITION FOR WRIT OF CERTIORARI TO THE

EIGHTH CIRCUIT COURT OF APPEALS Dp

| To the. Honorable, the Chief Justicé and the Asspciate |

Justices of the Supreme Court of the United States:

The petitioner, "Blanche Dick, prays that a writ of cer-

tiorari issue to review the* judgment of the Eighth Gércuit —

- .;Court of Appeals entered and rendered against the peti-

~ tioner on the 7th day of February, 1958. Thé.opinion upon -

which this judgment is based is dated February 7, 1958.

It is reported as case No. 15,760 in 252 F. 2d 43. Copies

of the judgment and opinion are attached.

| JURISDICTION OF THIS COURT

The judgment sought to be reviewed is dated February —

7, 1958 and it was entered on that day. |

The petitioner relies upon the provisions of Amend-

ment VII to the United States Constitution which preserves.

: for her the right of trial by jury and-28 U.S: C, A., Sec-

tion 2101 to have writ of certiorari granted, and to sustain

the jurisdictién of this court.

i

| QUESTIONS PRESENTED FOR REVIEW

| Denial of trial by jury chiens

Can the Chea Court of Appeals | deny Mrs. Wa. Bick, ‘the

- petitioner, a trial by jury where there is evidence in the ,,

record -consistent. with. accidental death, and. where a jury

has, found that the death was not ja suicide, and where the

trial judge has refused to set aside the verdict of the jury? -

Refusal to follow state law

—

Did the Circuit Court of Appeals have the right to refuse

to follow the North Dakota law which. for more than: 50

years has held that the question of. whether a death is

suicidal is for the jury where there is evidence in the record

consistent’ with accidental death? In this case the opinion

of the Circuit Court of er eran that there

was such evidence. :

CON STITUTIONAL PROVISIONS

The constitutional provision involved is ‘Amendment VII

found in U. S. Cc. A., Constitution,..page 379. It reads

as follows:

: ‘3

“In suits at common lew ‘where the otuad in contro-*

hela shall exceed twenty dollars, the right of ‘trial by

va shall te preserved, ard no fact tried by a jury,

be otherwise re-examined in any court -of the

-carote States.. than according to the rules of the com-

mon law.” ,

" A CONCISE STATEMENT OF THE CASE

William Dick was a 47 year old farmer living. on his

” farm near -Englevale, North Dakota. On January 20, 1955

he died as a result of two shots from an old double:barreled

Qe ae Te ee ee

od | .

_—Mr.-Dick was a happy, well adjusted man in

- He was a man of ‘modest means with no financi

—— NN I EEE ee

-shot gun. Death occurred in a silo shed at abou 10 | a.m.

while he was in the process of doing his:chores:~ ~

health.

| prob-—

lems. The night before he died he took ‘the ime\to help

his 14 year old daughter with her General Sc studies

(R. p. 18). He slept soundly, ate a hearty breakfast, milked

- his cows, and had planned to help his neighbor. make -

sausage (R. p. 8). He had-said or done nothing to indicate

“that he contemplated suicide — Goust Opinion, page

2).

Mr. Dick had commenced to ree his cattle at the out-

side feed. troughs. It was his practice ‘to. put silage in the

v

troughs, get a tub full of ground corn-and then spread it -

over the silage (R. p.. 13): A tub filled with ground corn

_ was found a couple of steps from the feed: troughs on the

barn side of the fence (R. p. 16). The feed: troughs were —

located just north of tHe silo, and Mr. Dick’s body was

fgund just inside the south door of the silo room (R. p. l t).

‘Mrs. Dick discovered the body after she had returned =

from taking their daughter to school. ‘There was a sprinkle

of silage on the floor and on the steps of the silo shed. It

was wet and more or less frozen (R. p. 13). Mr. Dick. was

-wearing a jacket that was - zippered up. He wore heavy

fleecy gloves that could only with difficulty be inserted in.

the gun trigger guard (R. p. 22). There was no blood on

these gloves. There was no blood on the gun...

_. There were two wounds. The wound along -the chest.

_Was a grazing wound (R. p. 22). It was not pointed at -

the heart or any other vital organ. The second was a head

wound and it caused instant death (R. p.. 26).

Several months prior.to his death Mr. Dick had trouble

with vicious dogs. A few sheep were lost atid quite a few.

°

2

4 £ i | : = e

oe were mangled. A fox: and badger had been seen afound the -

'. farm. yard. The gun was kept in the ‘barn (R. p. 9).

‘ was at least 28 years old (R. p. 10). On at least one me

cent occasion the gun had discharged sccidentally (R. Pp. \

B4-36).

A screwdriver was kept in the shed for the purpose os

opening the south door because the: knob was off (R. p.

10): Mr. Dick would have used this pcrewdriver. if he.in-

7 tended to go out’ the south door of the shed. The sheriff"

who investigated\. did not know the length ‘of this screw- ©

driver (R. p. 21), nor did the sheriff eyer have the screw-

driver in his possession so as to — that the gun

* could be fired by using the screwdriver. -

Mrs. Dick did ‘not start this lawsuit i in the federal court. a

' She commenced the | action in the -North Dakota State’

Court. It was removed to the federal court becduse $7,-"

500. was - involved and there was diversity of citizenship.

_ The removal. was brought about by the insurance company.

The jury found that the death was not a suicide, “Fhe trial ©

court refused ‘to ovérturn -the verdict: The circuit court

| granted judgment for the i insurance company.

ae ARGUMENT

}

ere ‘were obvious questions of fact involved in’ this

lawsuit and the circuit court’s decision has denied. to the .

petitioner her right to trial by jury under Amendment VIL

of the: United States Constitution. The circuit court’s de-

cision is in conflict with all relevant decisions of the North |

Dakota Supreme Court..Its decision is on an important °

question of North Dakota law. The North Dakt7 Supreme

Court .has held for 50 years that: suicide cases are to be

submitted to the jury where there is evidence ‘consistent .

with accidental death. There was abundant evidence of ac-

8

\

$:

cidental death in this-c case. ‘The circuit court in ‘its decision ,

, acknowledges that for it weighs the evidence and: ‘states:

“The. improbability of his being” able to pull - the:

triggers with bulky gloves on is offset by the strong

probability that the screwdriver was used to push the ©

triggers, and that he could not otherwise have reached

‘the triggers So: as to inflict.the wounds he received. et

We > think’ that the. court’ s weighing of the evidence i is faulty = .

* that the improbability: ‘that a man wishing to take his’

own life would draw 6n heavy, bulky gloves that could

hardly be forced into the trigger guard, and the fact that

_ there would be*no blood on these gloves is of far greater —

& sditones than the -presence of a screwdriver. The latter -

was not important to the jury. The circuit court-has drawn

a. speculative inference fromi the screwdriver which the

jury did not and was not compelled te draw. ES

At no time, either :in the district court or in the circuit . -

- court did the insurance company cite a single North Dakota

. holding that this. casé should not have been submitted to

the jury. It was.the position of the insurance company that

the North Dakota rule was fot applicabl Ig and that the

- court should apply what they described-as “the modern —

‘rule and the best rule.” The decision of the 8th circuit is.

a clearly in conflict with the North Dakota law. Under Erie _D

~¥. Tompkins; 304 Ue S...64, 82 Law Ed. 1188 it was re- ‘«

quired to follow that law and this it did not do.

In addition to all of the affirmative evidence outlined

_ above and in the: statement of the case in ‘North Dakota

‘ there is a presumption against suicide and this presump-

- ‘tion has the weight of .affirmative evidence. It.stays with~ _

the plaintiff all. through the ‘lawsuit. The: most recent, hold-

ing is Svihovec. v. Woodmen Acc. va. «N. D. ee 69 .

_N.D. 259, 285 N. W. 447. : : } eis

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as

“The rule announcéd by this court, in Steve ns Vv."

Continental Casualty Co., 12.N. D.. 463, 9? N. W.

862, gave to the|presumption in favor\ of accidental

_ death the. weight ¥f affirmative evidence\ It was there

~ held that proof of ‘death.by gunshot wound, aided by:

this presumption, was sufficient to establish .a phi

facie case of accidental-death, and that a verdict found- -

--ed- upon such proof. and. presumption would not be

>» ‘set aside unless the facts and circumstances surround- -

-ing the death could not be reconciled with any’ rea-

sonable theory of «accidental. or non intentional in-

jury. Defendant contends for a modification of this

sections 1934 and 7936 Soule Laws of

Dakota. 1913.” :

Svihovec v. Woodmen i Co. (N. D. 1939),

» 285 N. W. 447.

In the case of Clemens v. Royal Neighbors of Aan ica

(N. D. 1908); 14 N. D, 116, 103 N. W. 402 the insuted © |

‘ talked to his religious advisor. wrote a note saying, “Bury

‘me at Leonard. Kiss the children for me. Don’t take this

too hard.” The lower court directed a verdict for the in-

surance company and the North Dakota Supreme Court

held that this .was proper, and laid down the Tile that has °—

been followed in. North Dakota for more than SO years.

“The plaintiffs insist that these undisputed- facts |

* -should“have been submitted to the jury, to determine

whether Clemens’ death was caused by his own. vol-

untary act ‘or. by. other means. The presumption is

that’ a death caused by unexplained means was not

s Suicidal. In the absence of: proof, such death will. be

Jf -3

<<

presumed to have been caused by accidental. means.

Stevens v. Continental Casualty Co., 12 N..W. 469,

97 N..W. 862, and cases cited. And the burden of

proof is upon the insurer to show that death was caus-

. ed in a manner or by means that exeimpt him from

? liability. Has the presumption of law that death was

not caused by suicide been overcome by the defend-

ant; as a matter of law? If so, the direction of a

verdict was proper. If reasonable men, viewing these

undisputed facts, might differ in their conclustons as

to whether the deceased committed. suicide, then the

. .facts should have been subniitfed to. the jury. /f there | Te

is no evidence in the. record. that can be said to be:

inconsistent with the conclusion of death by Suicide, .

then the question was- properly one for the court to

direct the jury to find verdict for the defendant. We

think the facts all point to death by suicide, and are |

inconsistent with apy other reasonable theory. If it —

be said that it -might have been an accidental death, .

or one criminal by another, the note conclusively re-

* buts such possibflity. The circumstances.of meeting ~-

-- his employer, his shortage,. and the impending :€X-

posure that must follow, the note, the position of the

wound, the blood on the revolver and. on the mirror,

and that he was alone in the room are sufficient facts,

aS a matter of law, to overcomé the presumption

against a death by suicidal means. A verdict. for the

_ plaintiff under such’ circumstances could not be sus-

tained, and would be without any evidence to sup-—

port it.” (Italics supplied.) — eh

Clemens v.° Royal Neighbors’ (N. D. 1905), 14

' N.D.116, ROS TW. 902. ,

That case, represents the law in “North Dakota. It may

\ be and probably is different from the law. in most jurisdic-

‘tions, but it is the law that the federal court was bound to

follow. In the. trial of this lawsuit i in the district court and | 7

| in“the appellate proceedings in the circuit court the insur-

\ ance company cited no North tier cases to the con-

9 >

trary. It contented itself with taking the position that this

North Dakota: rule was not ap “able-and that the- court

should adopt what it called “the modern rule and the best

rule.” Ne . Fig,

We recognize that writs are sparingly granted, but the ©

failure to follow the North Dakota law and the denial to

- Mrs. Dick of her right to trial by jury, is of sufficient im- =

'_, portance, not only to the petitioner, but to other citizens

of North Dakota, that wé submit the writ should-be allowed. *

Wherefore, it is respectf lly submitted that petitioner's.

prayer for a writ of certiorari to review the judgment of the —

Eighth Circuit Court of Appeal should be. dirsusacctale

Dated April 21, 1958.

PERSHING BoE

; '. Fargo, North Dakota

Be hos (Counsel of Record)

8 ‘ DonaLtD.C. HOLAND . ,; :

Lisbon, North Dakota,

PuiLtiep B. VOGEL © ~*~ |

Fargo, Nogh Dakota

i ae ‘Attorneys for Petitionet ~

_

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pou From The United States District Court Foc The ~.

> APPENDIX

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United States Court of Appeals |

For he Eighth. (Cirouit. tae

No 15,760, i vox “Wi

3 New York: Life. Insurance ‘Company, a Wbiniikc:

cia ue

; Re ae ts fi VS. - 9

one ee Blemene Dicks, oe

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god heied (February 7; 1958.]

: ie ede : oe

District Of North Dakota

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_ Norman G.: Tenneson for appellant; Donald Cc. Holand

. and Philip B. Vogel for appellee.

Before Sanborn, Woodrough and ‘Tohnsen, Circuit:

Judges. ees ‘

~ Sariborn, Circuit Judge.

This is an appeal from a judgment for the plaintiff (ap-, |

pelle) in an action against the New York Life Insurance

.. Company for double indemnity benefits under policies of

~ jife insurance. Jurisdiction was based on diversity of citizen-—

—

: ship and amount in controversy. »

NS)

‘Company, payable to his wife, Blanche Dick,

William Dick : a North Dakota sederias forty-seven years

of -age, while alone with’ a double- barrel shotgun in the

silage shed. of his farm on the morning of January 20,

1955, was twice shot by the gun. The first shot severely

wounded him on. the left. side of ‘his chest. The second’

shot.was in the head and killed him_instantly.

At the time of his death, William Dick had two policies.

of. life. insurance issued by the New York Life Insurance

as beneficiary.

The policies were in force. Each co ined a double in- °

demnity clause. ‘The clause: provi that double indemnity’

should be payable upon receipt of due proof that the death

of the insured * ‘resulted ‘directly, and ‘independently of all

other causes, from: bodily ‘injury - ‘effected’ solely through

-35 external, violent. and-acCidental means, ” but that such in--

5 demnity should not be payable if: the- insyred’s death bis

salted: from. “self-destrucion, whether sane’ or insane.’

| Blanche Dick, claiming that'the shooting was accidental,

, demanded double ‘indemnity. She brought this action upon

that. claim. The company in its answer dénied ‘that the in-

“sured’s death was the result. of an accident. As an affir-

mative defense it ames ‘that his death. resulted from self-

de struction.

‘The company paid to Blanche Dick the ful face of the.

policies. The issue whether or not the insured met Ahis -

' death as the result of an. accident was tried tp a jury. Sin€e -

_ the insured’s. ‘déath obviously resulted from means which

~ were ‘both external and violent, the sole issue at the trial

was, .as a. ‘practical matter, whether the death was Of was

not accidental. At the close of the evidence, the company

moved for a directéd verdict ‘on the grounds that the evi-

dence was insufficient to make the issue one of fact for the

jury and that it conclusively showed. that the déath was

a

oe

a « a

At

suicidal. The motion. was denied. The jury returned a ver-,

- dict for the plainiiff. The company moved that ‘the verdict

he’ set aside and that judgment be entered in its favor in

accordance with its motion for a directed: verdict, or, in.

. the altergative, that it be granted a new trial because of

alleged errors of the court during the. trial. The motion

‘was denied, aifd this appeal followed. == =>

.The main question for decision is whether there was an

adequate evidentiary, basis to make the issue whether the

insured’s death was accidental one: of fact. for. the jury.

The policies in suit are ‘Nofth Dakota contracts, and the

applicable substantive law is the law of. that’ State. Erie

Railroad Co. v. Tompkins, 304 U. S. 642°

In determining whether the cqagnpany was: ‘entitled t to a

directed verdict, we must give to the plaintiff the benefit.

of all. reasonable inferences which can be drawn from the -

evidence, viewed in the aspect most favorable to h@f. She

is not, aes entitled to the benefit of inferences which

are unreasonable (Russell v. Turner, 8 Cir., 148 F. 2d 562, .

565),. or which are opposed. to the undisputed physical ©

’ facts. Elzig v. Suncare, 8 Cir., 91 F. 2d 434, 440 and :

“cases cited.

We find it unhecessary to outline the evidence in 1 com-

plete detail. We have studied it, and the parties are: en- ©

tirely familiar with it. ‘The plaintiff’s evidence tended to

said: .

gic The "nub, of the policy that underlies Erie R. Co. v. Fompkins.

" « 4g that for the same transaction the accident of a suit by a non-resident

litigant in a federal court instead in a.State court a block away

should ‘not lead to a substantially different -result. And so, putting to |

one side .abstractions regarding ‘substance’ and ‘procedure,’ we have

held that in diversity cases the federal courts must follow the law of,

the State as to burden of proof, cm ities ‘Service Co. v. sated 308°U. Ss.

208, oy

a)

1 In sahara Trust Co: v. Yur: 326 U. S. 99, 109, the Supreme Court .

a

a2 eer he ere

show that’ the —? had no motive to. commijt suicide;

~ that he was a cheerful man, on excellent terms with his

wife, family and friends; that he had no fimancial worries;

_ that he was 5 feet 7 inches tall, weighed about 165 pounds, —

and was in good physicat-condition, except for some pro- _

* state trouble which “bothered hima little but it wasn’t bad”;

that he might have kept his shotgun. in ‘the barn, loaded

and cocked, because of some Past trouble, with vicious dogs

_ bothering and. killing his sheep; that in the small Silage

shed between the barn and the silo, where his body was.

found with the shotgun beside it, there was some silage on

the floor which might: have caused him to slip-and fall; that |

in ‘the evening of the day” preceding his death his attitude

and actions were normal, and were the same. the folldwing

‘morning when he had breakfast with his wiféand fourteen-

° year-old daughter; that after breakfast he got out ‘the auto-

mobile-so that his wife could take the daughter to school,

“and then, with his. work clothes on, werit-about his usual

farm chores and fed his cattle in‘ the feed tet adjoining the -

silage shed; that it wasafter his wife’s return from the

~ school and after she ‘had done’ her housework and ‘was wait-

ing for him to go: with her to a. cousin’ s house to help make

~ bologna, that, about 10:30.a.m.,.she went to the barn to

look for him, and found his bo@y lying on its back on the

floor of the silage shed; that she ran to the houge and noti- |

fred his brother and a nephew to come at once; that her.

husband was a hunter, experiencell in thé use of. firearms,

and had had the double-barrel shotgun which caused his

death ‘for many years; and that at. the time of his death he

was wearing rubbers and gloves. are 2

There was evidence that the insured was : séhiom moody;

> and then for only brief periods; that he was an able- bodied,

= ‘strong man, and that nothing he had done or Said gave any

indication that ke contemplated suicide,

13

** The -defendant’s evidence related largely to the physical.

facts indicating where and how the death occurred and —

what caused, it. The evidence showed that the Sheriff of —

the County.and the Coroner, Dr. Veitch, who was also the

. insured’s physician and a medical examiner for the insur-

_ance company, arrived at the farm about 11:00 a.m. on. -

. January 20. The: Sheriff testified that the body was lying

on its back, with’ the head in the direction of the silo and

.

the feet toward: the door leading from the shed to the out-

* side; that the eyes and frontal part of the head were torn

off; that he observed a powder burn above the left ear;

that: the gun was lyin2\alongside the body, about 18.inches

. away, with the stock toward the feet and the muzzle about

atthe chest; that the Sheriff took possession of the gun, a

~ twelve-gauge Stevens double-barrel shotgun with two trig-

gers, one ahead of the other; that the front trigger fires

the right barrel, sand the rear trigger fires the left; that

there is a safety device on top of the stock, just behind the

‘device which “breaks” the gun; that the safety device has

to be pushed forward before the gun can- be fired; that.he

made various tests with the gun “off safe” ta see whether

it could. be fired by dropping or jarring it, and f found that

the. triggers would not release; that it required about a4 .

* seven- pound pull to touch off the triggers; that during his

inyéstigation in the shed he picked up the gun, “broke” it,

' and found two discharged shells in the chambers; that. he

found two 12-gauge loaded shells in the deceased’s jacket;

that hé topk possession of the clothing worn by William

. Dick whew he died; that in the silage shed he also saw a -

screwdriver eight to ten, inches long, located about eight or. -

ten inches from -the. gun and to the left of it; that the gun

. °was dry and clean; that tissue blown’ from the: head was in

the. southeast corner of the shed and partly on the outside

° )

14

door and the east wall, covering an area of five or six feet,

_ most of it four or five feet from the ground; that there

were also shot particles on the wall in several different

places, probably six or eight feet from. the door leading i

from the barn, on the east side of. the shed; that he saw n :

shof on the north wall; that there was a cap lying on the _

- “floor near the’ wall to the right of the head -of William. -

“Dick; that after the body had been taken to the funeral

parlor, he saw the wound in the left. side of the chest; that _

in his opinion the-shot that made this wound ‘was from. the

ground ‘upward; that there were holes in the outside jacket

and the shirt. corresponding to the location of the chest

~ wound. | sot as

= that of the Sheriff

s to the location of the body in the

The testimony ne Veitch, the Coroner, corroborated

shed and the:nature ‘and extent:of the wounds. ‘He testified .

_ that the head wound caused the death, that the chest wound ~

was mortal but not immediately fatal, ‘and that it-.would

ly have ‘caused Dick’s death; that it, was terribly pain-

| al’ but Would not have caused him to lose <onsciousness;

that.the pain must have been unbearable; that the doctor’s —

. opinion was that after the chest wound the: insured could

' still have fired ‘the shotgun; that the gun was. eight to.

' twelve inches : away from the body, ‘and the screwdriver |

further away; that he observed definite powder marks on

. the skin of the left forehead in front of the left ear; that

“they extended a half inch to an inch, quite a high con- ~

centration of a powder. burn.” 3 |

Dr. Veitch also testified that from September 43 to De-:

_cember 30, 1954, he had been treating the insured for “a

form of mild to moderate non-specific prostatitis”; that

the insured called upon the doctor for treatment twice in

. September, three times in October, twice in November, and

1S. ROARS,

the last time on December 30, when Dick “was in a ving ¥

fine state of mind and wished me a happy New Year”;

that the symptoms of his trouble, were ache and pain; that”

his illness would not prevent him from, doing his work;

‘that “He would do his work every - in spite of the _

misery he was having.” |

The doctor testified that in connection with the claim of .

Blanche Dick against the defendant he signed some proofs

of death, which, under “Cause of death,” stated “Death

from self inflicted shotgun wounds, 1. Left chest, 2. Fron-.

‘tal area of head.” :

There was testimony that | an examination of the jacket

worn by the insured showed powder marks on the front |

near the hole where the shot entered.

There was other testimony tending to support the de-

fendant’s theory that the death of co insured was not an,

— accident. : |

_There are certain. facts which we think: were definitely

established by. the evidence: 1. That the. insured .was ‘a

man of good character and reputation, who had’ no ade-

| quate reason for taking his own life. 2. That the wounds

‘inflicted upon him came from shots from his own shotgun,

which he.must himself have loaded and cocked. 3. That

the shots came from in front of and in close proximity: to

his body. 4. That the shotgun was in good working order,

_ was off safety and was ready to be fired when it was fired.

—Fhat. neither barrel could have beeh fited unless some-

oné or something either pulled or pushed one of the trig-

gers. 6, That’no’ person other. than the insured could have _

pulled or pushed a trigger; and that there was nothing to

account for one barrel of the gun being first fired acci-

dentally into his chest and the second barrel being then

fired accidentally into his head. The improbability of his

3

being able. to pull the triggers with bulky.-gloves.on is

offset by the strong probability that the screwdriver was

‘used to push the triggers, and that he could not otherwise *

have reached the. triggers so as to inflict the wounds he’..

» ~~ Feeeived= —--- ; At,

a

“One can believe that even an experienced hunter might |

accidentally shoot himself once, but the asserted theory”

that he could accidentally shoot himself first with one bar- »

_ rel and. then with the other stretches a er the

breaking point.

‘The Supreme Court. of dhcieh Ds Dakota has held that. proof

of death by gunshot wound plus the presumption of acci-'

dental death makes a prima facie*case that death was acci-

“dental, and “that a.verdict founded upon such proof and

presumption would not be set aside unless the facts and -

circumstances surrounding the death could not be recon-

_ ciled with. any reasonable theory of accidental or non-in-

tentional injury.”, Svihovec v. Woodmen Accident Co., 69 |

N. D. 259, 285 N. W..447, 449. hs,

If the facts and circumstances 5 surroesding the death of:

' the insured can be reconciled with’ any reasonable theory

of accidental injury the judgment appéaled from should

‘be affirmed, but if they cannot the judgment should be re-

versed.

Our conclusion iS that the ‘infliction of two wounds in:

. succession, One in the left side in close proximity to the

heart, and the other in the head.-cannot be reconciled with

any reasonable theory of. accident, ‘and that,. under the evi-

‘dence, the question whether the death was accidental was

not a. question of fact for the jury. Compare, ‘Burkett v.

New-York Life Ins. Co., 5 Cir., 56 F. 2d 105, and Sv ihovec

v. Woodmen Accident Co., supra. |

The judgment is reversed with directions to enter a -

: judgment dismissing the complaint.

AT

United States Court of Appeals

For The Eighth Circuit

: No. 15760: ; :

September Term, 1957. oes

‘Friday, February 7,1958. 00 se

_ New York Life Insurance Company, a corporation, Vics:

a Appellant

: vs. so

Blanche. Dick, Wot ae

ak Abrplee.-

ee From The United States District Court For The —

District Of North Dakota . ~ .

¢ | 4

ORDER oa en ee

This cause came on to be heard on the record from the

United States District Court for. the District ‘of North Da-

kota, and was argued by counsel.

On Consideration whereof, it is now here ‘ordered and

‘ adjudged by this Court, that the judgment of the said Dis-

trict Court, in this cause, be, and the same is hereby, re-,

versed with costs; and that the New*York Life Insurance

Company, a corporation, have and recover against Blanche

Dick the sum of: Two: Hundred Seventy-eight and 50/100

- Dollars for its costs in this behalf aes and have exe-

cution | therefor: .

— And itis “‘hithes ire by this- Couet that this cause

be, and the same is hereby, remanded to the said District

Court with directions to enter a ‘judgment dismissing the

complaint. : :

_ Dated February 7, 1958, oe

C LERK’ S CERTIFIC ATE

ie * Eugene C. Fisher, Acting Clerk of the United States |

Court of Appeals for the Eighth Circuit, do | hereby cer-

tify that the foregoing contains printed record on which —

-- the appeal from the United States District Court for the ©

District. of North Dakota was heard and decided in said,

Court of Appeals in the case of New York Life Insur- .

ance Company, a corporation, appellant, v. Blanche Dick,

appellee, No. 15760, together with full, true and. complete |

copies of opinion and judgment of said Court of Appeals.

And I do further certify that -on-the 28th day of-Febru- |

ary, A. D. 1958, mandate was issued’ out of said Court of ©

Appeals in said cause, directed to the Judges’ of the United

“States District Court for the District of North Dakota.

In testimony whereof, I hereunto subscribe my name and

. affix the seal of the United States Court of Appeals for the -

Eighth Circuit, at-office inthe City, of St. Louis, Missouri, ;

on the 20th day.< of March, A. D. 1958. af

/s/ EUGENE C. FISHER, se

Acting Clerk of the United States

Court of Appeals for the Eighth

Circuit. pe

? (Seal of the Court)