# Petition for Writ of Certiorari — Dick v. New York Life Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0157%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 359 U.S. 437 ## Text ee Peon cae = ~ . ee St ee a e a INDEX a es Page. 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:......:... 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 ee 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 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 ~ _ ° e v ° J : is i , os pou From The United States District Court Foc The ~. > APPENDIX ¢ > > 4> ag i od poral ek te Rai 8 ell a ’ ¢ 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 ee Bee 7 ; 4 F . ‘heii god heied (February 7; 1958.] : ie ede : oe District Of North Dakota ue ce Ye _ 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