Petition for Writ of Certiorari — Pistolesi v. Massachusetts Mutual Life Insurance

FILE Copy JIE

In the Supreme C

OF THE

Rnited States

OcTOBER TERM, 1946

MorieEL C. PIsTo.gst,

Petitioner,

Vs.

MassacHusetts Mutua Lire INSURANCE

ComPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the United States Circuit Court of Appeals

for the Ninth Circuit

and

BRIEF IN SUPPORT THEREOF.

\ Hersert W. ERSKINE,

625 Market Street, San Francisco 5, California,

Attorney for Petitioner.

M. MiTcHELL BovurQguin,

Crocker Building, San Francisco 4, California,

JOHN J. HEAty,

68 Post Street, San Francisco 4, California,

S. J. H. ALLEN,

Law Library, San Francisco 2, California,

of Counsel.

0 nepeere gre weoreege,.. Woes ETEIRT OT err

Subject Index

Page

Potition for writ of cortiover’. .........ccccccsccvsessecencs 1

BRE ee ne Tey ee Cpe rae Pe EAT ee ey ee 2

SUE. Ga CEN ce Wie ck Sek ON TR TO ecw ces avs 2

Summary statement of the matter involved................ 3

The verdict, judgment and opinion of the Circuit Court of

SAS Rye eeee yet ey 8 rer ey eee 6

ey SID os cn cck kee Cope sn ae AChR 4 eeee RAN nes 8

Reasons relied on for allowance of the writ................. 9

Brief in support of petition for writ of certiorari.......... 13

I EN bis 00s 444356054505 800s wea eth aee cess bkees 13

EE, (<5. 5A Kenna und banncescensdbasseebeshbe eueeeks 14

Ger EE ND aS cascade channeuhabascéasebuasane 14

EE oa sr cda a ehwack heme once aes Khe 14

et ED ceAacncak shen seh kes tanavs beaeneskewundan Ze 15

1. An issue, as yet undetermined, must be decided to

support either affirmance or reversal................ 15

2. The Circuit Court of Appeals invaded the jury’s his-

torical function to weigh the conflicting evidence and

judge the credibility of witnesses to reach a conclu-

sion contrary to that of the jury on the sole issue

EE WE. I IE Ni kiac'a knk'n.s 60 ck nkcaaneanan ct 22

3. The Cireuit Court has adopted restrictive dictionary

definitions of the words ‘‘contusion’’ or ‘‘wound”’

without regard for the rules of construction of the

language of insurance policies applied by the Cali-

fornia courts and most other jurisdictions.......... 26

4. The dictionary definitions of ‘‘contusion’’ or ‘‘wound’’

adopted by the Circuit Court are contrary to estab-

lished legal definitions of the words.................. 29

5. The decision is contrary to the better considered cases,

state and federal, on the ‘‘eontusion’’ or ‘‘wound”’

e.,

Page

6. The Circuit Court’s decision is contrary to existing

indications of what the holding of the California

courts would be on the ‘‘contusion or wound”’ issue.. 31

ul Sussect InpEx

7. The Circuit Court cites only one case concerned with

the ‘‘contusion or wound’’ issue in its entire opinion

and it is not determinative of the issues in the in-

Table of Authorities Cited

Cases Pages

Amaral v. United Benefit Life, 74 Adv. Cal. App. 217, 168

i I io Ss dnd Ebeas 10 eee ech aaek epee eae 26

American Nat’! Ins. Co. v. Fox, 184 S. W. (2d) 937...... 30

Aschenbrenner v. U. S. F. & G., 292 U. S. 80, 78 L. Ed.

Se es. Ge Ek 0k 05 40dba ss kW ake hh peed cee ie 28

Carl Ingalls Ine. v. Hartford Fire Insurance Co., 137 Cal.

Age. TEl, Si Poe. (08): 406 occ. ccna lista. 27

Cavallero v. Travelers Ins. Co., 197 Minn. 417, 267 N. W.

PN 5 bg SeRBRT Rae sng bc ahux ded week ether battens 30

Chapman v. Dewey Lumber Co., 106 F. (2d) 482.......... 26

Coniglio v. Connecticut Fire Insurance Co., 180 Cal. 596,

SE EE. Sochscuce Chae chaewbaacassaxtucensageene 27

Ellis v. Order of United Commercial Travelers of Amer.,

ee me oe Oe: 8 ee: OR ee Tere 16

Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82

SS Ore ery Se Te ere et roe ery ere 33

Fageol Truck & Coach Co. v. Pacifie Indemnity Co., 18

Cal. (2d) 748, 117 Pac. (2d) 669

Fidelity Mutual Life Ins. Co. v. Powell, 74 F. (2d) 525....

Fitzpatrick v. Metropolitan Life Insurance Co., 15 Cal.

App. (2d) 155, 59 Pace. (2d) 199

Frenzer v. Mutual Benefit Health and Accident Ass’n, 27

Cal. App. (2d) 406, 81 Pac. (2d) 197

Gasperino vy. Prudential Insurance Co., 107 S. W. (2d)

(Mo.) 819

Glickman v. New York Life Insuranee Co., 16 Cal. (2d)

626, 107 Pac. (2d) 252

Granger v. New Jersey Insurance Co., 108 Cal. App. 290,

291 Pac. 698

Hill v. Great Northern Life Insurance Co., 186 Wash. 167,

57 P. (2d) 405 18, 31, 32

Horsfall v. Pacifie Mutual Life Ins. Co., 32 Wash. 132, 72

18, 31, 32, 38

Huss v. Prudential Insurance Co., 37 Fed. Supp. 364. .29, 30, 33

iv TaBLe oF AuTHORITIES CrTrED

Pages

Lavender v. Kurn, 327 U. S. 645, 90 L. Ed. 692, 66 S. Ct.

DE CENT KS UA Nid CEST Fu SLA MRAAU WOR RCENC HED KEKE ERON ES 25

Lewis v. Brotherhood Accident Co., 194 Mass. 1, 79 N. E.

SE ee ree Seer ee Vee rere hee 18, 31

Mar See v. North American Accident Insurance Co., 190

Re BS Fe eRe Se eee 27

Masonic Mutual Ace. ete. v. Campbell, 156 Ark. 109, 245

a ee cae ek keeheden 31

Meyerstein v. Great American Insurance Company, 82 Cal.

ce US UE Se rit ee 28

Mutual Life Insurance Co. v. Schenkat, 62 Fed. (2d) 236. .29, 30

Mutual Life Insurance Co. of N. Y. v. Hurni Packing Co.,

263 U. S. 167, 44S. Ct. 90, 68 L. Ed. 235.............. 28

Narver v. California State Life, 211 Cal. 176, 294 Pac. 393 28

Nelson v. Washington Fidelity National Insurance Co., 135

ie. Manes: TR, <P. es CR Fi no oo ew ain ees oven 27

Ocean Accident and Guar. Corp. v. Sehachner, 70 F. (2d)

ke ea Ls hue nk pated Onkhanahs @pEae She 16

Old Mutual Benefit v. Francis, 148 F. (2d) 590.......... 26

Order of United Commercial Travelers of America v. Groves,

ME MEE Sin 5 vac ceaab We husat) Sas khbe oubeee 33

Paul Revere Life v. Stanfield (C.C.A. 10), 151 F. (2d) 776

so is A eh oles Wie FAS hW'e Ue RASS NERS Am SAS NRTA Ske 06 kun See

People v. Durand, 307 Ill. 611, 189 N. BE. 78.............. 29

Robinson v. Masonic Protective Ass'n, 87 Vt. 138, 88 Atl.

ERR GE a per aD ae ee REE eet 29, 31

Sartor v. Arkansas Gas Corp., 321 U. S. 620, 64 S. Ct. 724,

te ohn ab 0e bib ieomlean Oe 24

Stipeich v. Metropolitan Life Insurance Co., 277 U. S.

ie ae Re ee | er ee 28

The Conqueror, 166 U. S. 110, 17 S. Ct. 510, 41 . Ed. 937 925

Thompson v. Loyal Protective Ass’n., 167 Mich, 31, 132

ho ee eek Chea wedwage hae abe ne 29, 30

Thompson v. Phoenix Insurance Co., 136 U. S. 287, 10

S. Ct. 1029, 34 L. Bed. 406 2... ccc eee ee een enees 28

Travelers Ins. Co. v. Welch, 82 F. (2d) 799 .............. 16

_—

TaBLe oF AUTHORITIES CrrED wv

Pages

Trueblood v. Maryland Casualty Assn. Co., 129 Cal. App.

BOR, 16 P. (BG) BD 2. wcrc ccccscccccccccvvvccessens 16, 18, 31

U. S. v. Holland, 111 F. (2d) 949 ............ ccc eeeeeeee 26

U. S. v. Spaulding, 293 U. S. 498, 55 S. Ct. 273, 79 L. Ed.

| SE eee are Pree re war erm ee SC rere Te ert fT 23

Warbende v. Prudential Ins. Co. of America, 97 F. (2d)

DD. carries: kbnus¥sesd KktenS Chhkeabaneeenanen 19, 20, 29, 30

Wiecking v. Phoenix, 116 F. (2d) 90 .................45. 30

Statutes

Judicial Code, Section 240(a), as amended by the Act of

February 13, 1925, U. S. C., Section 347(a) (8 F.C.A.

Tithe 28, Seotiom DAT (a)) .......cccrsccccccccccccencs 3

Texts

Pe SS eee re ee rere rere 18

BD Am. Far., Pawd TAD... wccsiavccsccscecsccccceseessesss 29

1 Appleman Insurance Law and Practice:

Pages 462, 463 ... wc c ccc cess ccccccncccvessncens 28

Pages 482 and 487 et seq........-.-.e cece eee eeeenees 18

6 Cooley, Briefs on Insurance, 2nd Ed., pages 5316 et seq. 18

3 Cye. of Fed. Proe., 2nd Ed.:

Section 600, page 63 et seq. ... 0.22... cece eee eee e eee 33

Section G08, page 91 ...........ccceeeccecccececcees 33

12 Cye. Fed. Proc., 2nd Ed., 254-256 .............0eeee eee 26

GD Ta, WN. BH. BORD na ccc i cc ceec sciences vcciaccusessaacens 18

—————————

Iu the Supreme Court

OF THE

Anited States

OcTOBER TERM, 1946

No.

i

Mvriet C. Pisto.est, |

Petitioner, |

i

V8.

Massacuusetts Mutvart Lire INSURANCE |

CoMPANY, |

Respondent. |

PETITION FOR WRIT OF CERTIORARI

to the United States Circuit Court of Appeals

for the Ninth Circuit.

To the Honorable Fred M. Vinson, Chief Justice of

the United States, and to the Honorable Associate

Justices of the Supreme Court of the United

States:

Your petitioner, Muriel C. Pistolesi, respectfully

prays that a writ of certiorari be issued by this Court

to review the decision of the United States Circuit

Court of Appeals for the Ninth Circuit, and its sub-

sequent order for modification thereof, reversing the

a

2 .

judgment of the United States District Court for the

Northern District of Califor-.ia in the sum of $8,674.16

entered upon the verdict of a jury for the petitioner.

OPINIONS BELOW.

The opinion of the District Court is reported in 64

Federal Supplement 427 and is also printed in the

Record at pages 33 to 44.

The modified opinion of the Cireuit Court of Ap-

peals has not been reported but appears in the Record

at page 296.

The original opinion of the Circuit Court of Appeals

has not been incorporated in the Record but is set

forth herein as Appendix **A”’.

A petition for rehearing by your petitioner was de-

nied by the Circuit Court of Appeals. It simultane-

ously ordered a modification of the language of the

opinion and added a paragraph precluding a new trial.

Such modification order has not been included as part

of the Record but is set forth herein as Appen-

dix *B”’.

JURISDICTION.

The original opinion of the Circuit Court of Appeals

for the Ninth Circuit was filed March 7, 1947. The

Modification Order and Denial of Petition for Rehear-

ing was filed May 2, 1947. The mandate was stayed

until June 14, 1947 pending the filing of this petition

for certiorari.

Jurisdiction to review this case upon writ of cer-

tiorari is conferred upon this Court by Section 240(a)

of the Judicial Code as amended by the Act of Febru-

ary 13, 1925, U.S.C. Section 347(a) ; 8 F.C.A. Title 28,

Section 347(a).

SUMMARY STATEMENT OF THE MATTER INVOLVED.

Muriel C. Pistolesi, the petitioner herein, is the

widowed beneficiary of Norbert H. Pistolesi, the de-

ceased insured under two life insurance policies is-

sued by the respondent, Massachusetts Mutual Life

Insurance Company. Identical double indemnity

riders were attached to and incorporated in the policies

in consideration of the payment of additional premi-

ums for coverage against death from accidental means.

On September 14, 1941, the Pistolesi family, peti-

tioner, insured and their small son, went sailing with

friends on a large yacht, the ‘‘Eloise’’. During the

cruise Mr. Pistolesi, perched high on one of the two

masts of the vessel, started hand over hand to cross a

cable stretched between the masts, 35 to 50 feet above

the moving 86 foot hull. After advancing a short

distance on the cable he ‘“‘slipped and fell’’ (R. 108) ;

‘“‘shumped down and twisted around’’ (R. 132);

“‘twist(ed) and jerk(ed) around’’ (R. 131), but man-

aged to retain a one handed grip, avoid crashing to

the deck below, and recover sufficiently to make his

way back to his starting place on the mast. At this

point a friend on the deck, who had followed the entire

episode in the finder of his camera, snapped a picture.

4

(R. 131, 133.) After resting on the mast for a time

Mr. Pistolesi slid down a cable to the deck and al-

most immediately complained he ‘‘slipped and fell’’,

‘thought he was a goner’’ and was in ‘‘terrific pain”’,

whereupon he sat down and rested, being ‘‘ghastly

white’’, ‘‘lips blue’’, ‘‘covered with heavy beads of

perspiration’? and ‘‘breathing exceptionally hard’’.

(R. 72, 106, 107, 108, 136.) Later in the day he tired

easily and was unable to perform his usual gymnastics

on paddle boards while in the water with his little

boy. (R. 72, 73, 75, 142, 143.) At the conclusion of

the trip the petitioner drove him home, he immediately

went to bed, and thereafter suffered general weakness

and debility, had a drawn countenance, and his feet

shuffled as he walked. (R. 72, 107, 108, 136; Trial

Court’s Opinion, R. 34.) All of the manifestations of

a severe heart injury apparent immediately after the

accident, blue lips (cyanosis), extreme pallor, labored

breathing and profuse perspiration, subsequently re-

appeared upon any physical exertion, including lifting

a dog house (R. 77), getting wood (R. 78), trimming

a hedge (R. 78) and at various other times. (R. 159,

182.)

Less than three weeks after the accident Mr. Pisto-

lesi was dead at the age of 39. During the early morn-

ing hours of October 5, 1941, he awakened in excruci-

ating pain, Dr. Wagner was called, an ambulance was

sent for, but he died before he could be removed to a

hospital. His body was cremated two days later in

accordance with his previously expressed desires (R.

183); no autopsy was performed; Mrs. Pistolesi did

not know of the existence of the insurance policies

_—

until the day after the funeral when a friend, Mr.

Ireland, took the policies to her. (R. 183, 116, 129.)

Mr. Pistolesi was considered by every witness who

knew him, including respondent’s sole lay witness, to

have been in exceptionally fine health prior to the

trip on the ‘‘Eloise’’. He was a clean living family

man of moderate habits, well proportioned, athletic

of stature and demeanor, a fine swimmer, boxer,

squash and badminton player, skier and yachtsnan—

unus ally vigorous, strong and of great vitality. (R.

67, 139, 155, 157, 158, 224. Respondent’s witness R.

218.)

The double indemnity provision in both policies in

pertinent part reads as follows:

“Upon receipt of due proof that the death of

the insured occurred * * * as the result of bodily

injury effected solely through external, violent,

and accidental means, as evidence of which injury

(except in case of drowning or of internal in-

juries revealed by an autopsy) there is a visible

contusion or wound on the exterior of the body,

and that such death occurred within ninety days

after sustaining such injury and as a direct result

thereof, independently and exclusively of all other

causes = @ #7)

5

‘«* * * The Company shall have the right and

opportunity to examine the body and make an

autopsy unless prohibited by law.’’ (R. 83, 87.)

THE VERDICT, JUDGMENT AND OPINION OF THE

CIRCUIT COURT OF APPEALS.

The jury found the death of Mr. Pistolesi occurred

as the result of bodily injury effected solely through

external violent and accidental means.

The District Court in its opinion decisively con-

curred in this finding of the jury thus:

“The evidence in this case,—in the Court’s

opinion,—was clear and convincing that the in-

sured met his death solely through accidental

means.’ (R. 34.)

The jury found under proper instructions of the

trial Court that the accidental means injury was evi-

denced by a visible contusion or wound on the exterior

of the body within the meaning and intendments of the

policies as a whole.

On a subsequent motion for judgment notwith-

standing the verdict or a new trial, the trial Court

rendered an informed and comprehensive opinion in

which it reviewed the facts, applicable principles of law

and pertinent authorities, and sustained the verdict of

the jury that the accidental means injury was evi-

denced by a contusion or wound on the exterior of the

body within the meaning and intendments of the

policy.

Upon appeal the Circuit Court reversed the peti-

tioner’s judgment in an opinion containing such an

incomplete and inconsistent statement of facts, and

conclusion of law encompassing them, that it ordered

a modification of its opinion designed to reconcile the

inconsistency and contradiction. In doing so it de-

z= 7

clined to grant your petitioner’s petition for rehearing

which had demonstrated such fallacies as one of the

grounds requiring reconsideration of the decision. The

modification order went further, and, pursuant to

Respondent's request by petition for modification, pre-

eluded a retrial which the original opinion had not

foreclosed.

In denying that rehearing, the Circuit Court de-

clined to decide, as it did in its original decision, the

issue which immediately arose and became predomi-

nant upon its determination, contrary to that of the

jury, that the fatal heart injury was not evidenced

| by a ‘“‘contusion’”’ or ‘“‘wound”’ within the meaning of

the policies. That issue, strenuously urged by the

petitioner in response to the Respondent’s appeal and

again as a primary basis for rehearing, and now for

a writ of certiorari by this Court, is:

Whether the accidental means death from

wholly internal injury is encompassed by the

double indemnity provisions of the policies where

the accident is such that a ‘‘contusion’’ or

‘“‘wound’’, as restricted by the Cireuit Court’s

opinion, cannot occur because no external impact,

blow or penetration was involved in the fatal acci-

dental violence, and failure to have an autopsy

was ercused.

The double indemnity provisions contain internal

injury exceptions from the contusion or wound re-

quirement, reading:

“* * * (except in cases of drowning or of in-

ternal injuries revealed by autopsy) * * *”’

QUESTIONS PRESENTED.

The questions presented by petitioner’s petition

herein for writ of certiorari are:

1. Where a verdict of a jury, based upon appro-

priate instructions unassailed by the appellate tri-

bunal, has determined liability exists under a general

double indemnity provision encompassing all acci-

dental means injuries evidenced by contusions or

wounds, can the appellate tribunal decree or order a

reversal without deciding the issue of law which takes

form upon its arrival at a conclusion opposite to that

of the jury; that issue being:

Whether the fatal accidental means internal |

injury falls within the policies’ exceptive words

eliminating the contusion or wound requirement

where the injuries are internal— ‘‘* * * (except

in cases of drowning or of internal injuries re-

vealed by autopsy) * * *’’, and performance of

an autopsy is excused ?

2. May an Appellate Court arrive at a conclusion

opposite to that of the jury simply and exclusively by

reliance upon expert opinion testimony as to the mean-

ing of wording in the policies which is the ultimate

issue to be decided by the jury in obedience to proper

instructions of the trial Court, when a timely objec-

tion to its admission is made during the trial?

3. Assuming such opinion testimony was admissible

over objection, was it not merely evidence to be

weighed subject to the jury’s determination as to

credibility of the witness and does not an Appellate

Court’s reversal based primarily on such opinion testi-

mony invade the jury’s exclusive historical function

9

to weigh the evidence and judge the credibility of wit-

nesses ?

4. Is not the Circuit Court’s decision on the contu-

sion or wound issue contrary to the California rules

for construction of insurance policies, contrary to all

indications of what the California rule would be, and

contrary to the better reasoned Federal and State

decisions constituting the weight of authority?

REASONS RELIED ON FOR ALLOWANCE OF THE WRIT.

I.

If it be assumed, arguendo, the errors committed

by the Circuit Court in reversing the judgment on the

‘‘eontusion’’ or ‘‘wound”’ issue do not require review

by this Court, the clause specifically excepting wholly

internal injuries from the operation of the ‘‘contu-

sion’’ or ‘‘wound’’ requirement of the double in-

demnity provision must now be construed, and the

intent of its drafters in the light of the entire insur-

ance contract must be passed upon and decided, before

affirmance or reversal of the judgment may properly

be decreed or ordered. As the matter now stands the

petitioner’s judgment has been dissipated and she is

faced with costs in excess of $1,060.00, on the basis

of Respondent’s cost bill, exclusive of her own costs,

as a result of a determination by the Cireuit Court

of what, by its decision, has become simply the pre-

liminary issue.

Il.

Petitioner’s intensive search has disclosed no de-

termination, by this or any Federal Court, of the now

10

predominant issue which the Circuit Court for the

Ninth Circuit has failed to decide, which issue is a

most important question of law and one determinative

of the rights of innumerable policy holders.

ITI.

The decision of the Circuit Court on the contusion

or wound issue is predicated upon the inadmissible

opinion of an expert medical witness, over proper and

timely objection of counsel, on the ultimate issue for

determination by the jury under appropriate instruc-

tions from the trial Court, namely, whether the

manifestations of internal injury constituted ‘‘contu-

sions’’ or ‘‘wounds’’ within the intendments of the

policies. Part of such testimony is quoted by the

Circuit Court in its opinion and is designated by it as

‘‘uncontradicted medical testimony’’.

IV.

If the opinion of the medical expert on the ultimate

issue was admissible, it was merely evidence to be

weighed by the jury, subject to its prerogative of

testing the credibility of the witness, and an invasion

of those functions by an appellate tribunal to arrive

at a conclusion opposite to that of the jury may not

be countenanced.

V.

If the testimony of the expert witness on the ulti-

mate issue should be held to have been properly con-

trolling to the extent that it was incumbent upon the

Appellate Court to reverse the verdict, a new trial

should be permitted in order to afford the petitioner

11

an opportunity to refute such opinion evidence, as it

is respectfully submitted such has not heretofore been

the state of the law.

VI.

The Circuit Court’s expressed concept of the Cali-

fornia rule for construction of the language of insur-

ance policies recognizes but an isolated segment there-

of, and is inconsistent with the rule as a whole as

expressed by the great weight of those decisions.

VII.

The Circuit Court’s decision is contrary to existing

indications of what the holding of the California

Courts would be on the contusion or wound issue.

VIil.

There is a severe conflict in the decisions of the

various Circuit and District Courts on the contusion

or wound issue, and the single case from the 10th

Circuit relied upon and followed by the Circuit Court

specifically states that it made such decision in the

absence of any guidance by the Oklahoma State Court,

a situation not paralleled here. There has been no

decision of the United States Supreme Court which

construes a contusion or wound double indemnity acci-

dental means provision of an insurance policy.

12

PRAYER.

Wherefore, petitioner prays that a writ of certiorari

be issued by this Court directed to the United States

Circuit Court of Appeals for the Ninth Circuit, to the

end that the said opinion and judgment of the said

Court in the above entitled cause be reviewed by this

Court, and that upon such review, said judgment of

the Circuit Court of Appeals be reversed and that

petitioner be allowed such other relief as this Court

may deem meet and proper in the premises.

Dated, San Francisco, California,

June 9, 1947.

Hersert W. ERskINeE,

Attorney for Petitioner.

M. MitcHELL BourQuin,

JoHN J. HEALY,

S. J. H. ALLEN,

of Counsel.

oe

Iu the Supreme Court

OF THE

Rnited States

OCTOBER TERM, 1946

- |

Murict C, Pisro.esi, |

Petitioner,

Vs.

MassacHusetts MurvaL Lire INSURANCE |

|

CoMPANY, |

Respondent. |

ut.

= |

BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI.

OPINIONS BELOW.

The opinion of the Circuit Court of Appeals, as

modified (R. 296), has not yet been reported. The

opinion of the District Court (R. 33) is reported at

64 Fed. Supp. 427.

The original opinion of the Circuit Court is set

forth as Appendix ‘‘A’’ hereto, and the order of

modification as Appendix **B”’,

aashimneiiatitiniimeamneemmmnmmnameateaneiaminnan I

14

JURISDICTION.

The grounds upon which jurisdiction of this Court

is invoked are stated in the petition at page 2.

STATEMENT OF THE CASE.

The essential facts of the case ere fully stated in

the petition at pages 3 to 5 and in the inierests of

brevity are not repeated here.

SPECIFICATION OF ERRORS.

The Circuit Court of Appeals for the Ninth Circuit

erred in its disposition of the appeal:

(1) In deciding only what became the prelimi-

nary issue in view of the decision reached ;

(2) In failing to decide the ultimately pre-

dominant issue which immediately arose upon its

decision of what became merely the preliminary

issue in view of the decision reached ;

(3) In invading the jury’s historical function

to weigh the conflicting evidence and judge the

credibility of witnesses to reach a conclusion con-

trary to that of the jury (and trial Court) ;

(4) In relying upon inadmissible expert opin-

ion evidence, over timely objection, on the ulti-

mate issue to be decided by the jury;

(5) In precluding a new trial;

(6) In deciding the issue passed upon contrary

to the existing indications of what the ruling of

15

the State Courts would be, and contrary to the

better considered Federal and State decisions;

(7) In construing the language of the policies

contra to the State rule of construction.

THE ARGUMENT.

1. AN ISSUE, AS YET UNDETERMINED, MUST BE DECIDED

TO SUPPORT EITHER AFFIRMANCE OR REVERSAL

The opinion of the Circuit Court of Appeals deter-

mines only what becomes the preliminary issue once it

decides the manifestations of blue lips, extreme pailor,

labored breathing, profuse perspiration, loss of vigor,

drawn countenance and shuffling gait do not satisfy

the ‘‘contusion’’ or ‘‘wound’’ requirement within the

intendments of the double indemnity provisions of the

policies.

The opinion does not consider, and hence does not

determine, what thereupon becomes the predominant

and controlling issue—whether the accidental death

from wholly internal injuries is encompassed by the

double indemnity provisions of the policies where the

accident is such that a ‘‘contusion’’ or ‘‘wound’’, as

restricted in meaning by the Circuit Court’s opinion,

cannot occur because no external impact, blow or pene-

tration was involved in the fatal accidental violence.

The double indemnity provisions of these policies

contain internal injury exceptions from the contusion

or wound requirements, reading :

“* * * (except in cases of drowning or of internal

injuries revealed by an autopsy) * * *”’

7

This specific exception of wholly internal injuries

from the operation of the ‘‘contusion’’ or “‘wound”’

requirement of the double indemnity clause must now

be construed, and the intent of the drafters in the

light of the entire insurance contract must be passed

upon and decided, before affirmance or reversal may

be decreed or ordered,

16

Performance of an autopsy was excused under the

circumstances of this case. Mrs. Pistolesi did not

know of the existence of the insurance policies, and

consequently of their provisions, until after cremation

in accordance with the frequently expressed wishes of

her deceased husband, and until the day after the

funeral when her friend, Mr. Ireland, delivered them

to her. (R. 183, 116,129.) Both the Federal and Cali-

fornia Courts hold such circumstances excuse com-

pliance with autopsy provisions:

Ocean Accident and Guar. Corp. v. Schachner,

70 F. (2d) 28 at 29;

Ellis v. Order of United Commercial Travelers

of Amer., 20 Cal. (2d) 290, 295 et seq., 125 P.

(2d) 457;

Travelers Ins. Co. v. Welch, 82 F. (2d) 799.

See also

Trueblood v. Maryland Casualty Assn. Co., 129

Cal. App. 102, 18 P. (2d) 90.

The autopsy requirement in the exception being but

a ‘‘method of proof’’ of internal injuries (properly

so designated by the now Respondent in its argument

to the Circuit Court—Appellant’s Brief page 10) and

that method of proof being excused under the circum-

17

stances of this case, other evidence of fatal accidental

internal injuries establishes double indemnity liability

under the exception to the contusion or wound re-

quirement.

The last sentence of the double indemnity provision

hereinbefore quoted illustrates beyond question that

the autopsy requirement is conditioned upon the non-

existence of a legal prohibition against autopsy, as it

expressly provides:

‘“* * * The Company shall have the right and

opportunity to examine the body and make an

autopsy unless prohibited by law. * * *”’

If autopsy is probibited by law the exception in effect

reads:

“* * * (except in case of drowning or of internal

injuries revealed by an—aatepss satisfactory

proof) * @ 8)

and by the same token, if autopsy is excused by the

law under the circumstances of the case, as it is here,

the exception in effect also reads:

“* * * (except in case of drowning or of internal

injuries revealed by an—autepss satisfactory

= & 8)?

proof) ;

Visible marks, signs and manifestations such as blue

lips, extreme palor, labored breathing, profuse perspi-

ration, loss of vigor, shuffling gait, and the like, re-

peatedly have been held sufficient evidence of internal

injuries to support double indemnity verdicts where

the ‘‘contusion”’ or ‘‘wound’’ issue is not involved.

(And by the weight of authority where that issue was

=

involved, cases infra.) Such proof is held to afford

ample and adequate protection to the insurance com-

panies against fraudulent claims, which is the objec-

tive of the clause. Many such authorities are collected

in 39 A.L.R. 1011 and 49 L.N.S. 1022; 1 Appleman,

Insurance Law and Practice, pp. 482 and 487 et seq.;

6 Cooley’s Briefs on Insurance, 2nd Ed., pp. 5318,

5316 et seq. A typical case is that of Horsfall v.

Pacific Mutual Life, 32 Wash. 132, 72 P. 1028, which

was followed by the California District Court of Ap-

peal, hearing denied by the Supreme Court, in T'rve-

blood v. Maryland Assurance Co. of Baltimore, 129

Cal. App. 102, 108, 18 P. (2d) 90, 92, and reaffirmed

by the ‘contusion or wound or visible mark at the

place of injury”’ case of Hill v. Great Northern Life

Insurance Co., 186 Wash. 167, 57 P. (2d) 405 (brain

hemorrhage). |

18

under the exception to the contusion or wound require-

ment, as a substitute for the excused autopsy.

An apt illustration of the principle that double in-

demnity liability is incurred where the fatal accidental

means injury is such that no ‘‘contusion”’ or ‘‘wound”’,

in the restricted sense adopted by the Circuit Court,

could occur because no external impact, blow or pene-

tration was involved, is found in the ease of Lewis v.

Brotherhood Accident Co., 194 Mass. 1, 7, 79 N.E. 802,

804, from which the following excerpt is quoted:

‘*Suppose two persons, each having a policy like

this, are accidentally swept overboard from a ship

by the same wave. One goes clear and’ receives no

Such evidence clearly Constitutes satisfactory proof,

|

20

dental means internal injury sufficient to negative a

false or fraudulent claim, double indemnity liability

is established under the exception. The forceful dis-

senting opinion of Circuit Judge Soper in the Powell

case concludes that where manifestations satisfactorily

disclose fatal accidental internal injuries which cannot

involve ‘‘contusions’’ or ‘‘wounds’”’ in the restricted

sense, liability is established without contusion, wound

or autopsy, and such dissent is an expression which,

without question, lends strong support to a conclusion

of liability where there is the additional element in the

case that the autopsy requirement is excused.

The Warbende case, diametrically opposed to the

conclusion reached by the Ninth Circuit Court and the

Stanfield case, infra, cited and relied on by it, held

the contusion or wound requirement satisfied in a

sunstroke case almost identical in fact with the Stan-

field case, and went on to observe in its closing para-

graph at page 754:

“* * * That is if the internal injuries, which

cause death, are revealed by an autopsy it is im-

material whether there be a visible contusion or

wound on the exterior of the body. But if there

is a visible contusion or wound on the exterior

of the body which evidences ‘the means’, it is im-

material whether internal injuries be revealed by

an autopsy or by other satisfactory evidence. The

provision ‘except in case of drowning or of in-

ternal injuries revealed by an autopsy’ does not

impose a burden upon the claimant, but when

there are internal injuries revealed by an autopsy

the provision relieves the claimant of any dis-

advantage in making proof of the claim in case

21

the ‘means’ have not caused a contusion or wound

on the exterior of the body. Of course, in either

case, the plaintiff must establish that the ‘bodily

injuries’ which cause death, are effected solely

through external violent and accidental means.’’

(Italics theirs.)

It is respectfully submitted the exception clearly ex-

cludes wholly internal injuries, which cannot involve

an external impact, blow or penetration, from the con-

tusion or wound requirement. That is the only reason-

able and tenable construction of the intention of the

insurance company and the language employed by it

in drawing up the insurance contract as a whole and

the clause specifically exempting internal injuries

from the ‘‘contusion”’’ or ‘‘wound’’ requirement. The

autopsy limitation being excused, other satisfactory

proof of accidental internal injury is an adequate

substitute creating liability under the internal injury

exception. This Honorable Court is respectfully urged

to grant the writ of certiorari prayed for to consider

and resolve this issue and important question of law,

heretofore undecided by this Court or any other

United States Court. Upon this issue, which the

Cireuit Court did not resolve, the evidence is more

than sufficient, and there would be no justification for

disturbing the jury’s verdict. (The insurance doctor

himself, in the testimony erroneously relied on by the

Cireuit Court for reversal, as next hereinafter dis-

cussed, testified that pallor and blue lips were evidences

of a failing or damaged heart. [R. 239, 240, 241.]) It

is also most respectfully submitted it would be ex-

tremely unjust for the petitioner to be held to the

23

The Court. He may answer.

A. May I explain my answer after I make it?

Mr. Healy. The jury is not to be guided by

what this man thinks it is, but by what Your

Honor instructs them.’’ (R. 169.)

“The Court. The jury has said that it would

follow my instructions. He may answer the ques-

tion.

A. No.” (R. 239.)

* * * * * * *

“*Q. State whether blue lips are wounds or

contusions.

A. Blue lips are not a wound or contusion,

not a bruise.

Mr. Healy. I move to strike the answer as not

responsive, it can be answered yes or no.

A. The answer is no.”’ (R. 240, Court’s Opin-

ion, R. 300.)

* * * * * e *

“Q. State whether profuse perspiration is a

wound or contusion.

A. It is a result of over-heating the body or

the result of weakness, or a reversible thing not

the result of any damage, nor damaging in itself.

Q. Is it a wound or contusion?

A. It is not.’’ (R. 242.)

Under familiar and firmly established principles the

opinions of experts on such matters are inadmissible

in evidence and should not have been relied upon by

the Circuit Court in reversing the judgment. The

following expression of this Court in U. 8S. v. Spauld-

ing, 293 U. S. 498, 506, 55 S. Ct. 273, 79 L. Ed. 617, is

indicative of the rule:

24

‘“‘The medical opinions that respondent became

totally and permanently disabled before his

policy lapsed are without weight. Clearly the ex-

perts failed to give proper weight to his fitness

for naval air service or to the work he performed,

and misinterpreted ‘total permanent disability’

as used in the policy and statute authorizing the

insurance. Moreover, that question is not to be

resolved by opinion evidence. It was the ulti-

mate issue to be decided by the jury upon all the

evidence in obedience to the judge’s instructions

as to the meaning of the crucial phrase, and other

questions of law. The experts ought not to have

been asked or allowed to state their conclusions

on the whole case. Milwaukee & St. Paul Ry. Co.

v. Kellogg, 94 U.S. 469, 472. Schmieder v.

Barney, 113 U. S. 645, 648. Fireman’s Ins. Co.

v. J. H. Mohlman Co., 91 Fed. 85, 88. Mullins

Lumber Co. v. Williamson & Brown Co., 255 Fed.

645, 646. Germantown Trust Co. v. Lederer, 263

Fed. 672, 676.”’

If such opinions were admissible, they were not

conclusive ‘‘uncontradicted medical testimony’’ de-

manding and requiring a reversal of the jury’s find-

ings. This principle was fully explored by this Court

in the recent case of Sartor v. Arkansas Gas Corp.,

321 U. S. 620, 627, 64 S. Ct. 724, 88 L. Ed. 967, and

was the predominant factor in the granting of the

writ of certiorari and reversal of the judgment

therein. The opinion in the Sartor case reviews

many of the authorities demonstrating the error of

the Cireuit Court in relying upon such testimony

for reversal of the finding of the jury in the instant

case. In one of those cited cases, The Conqueror, 166

—

25

U. S. 110, 133, 17 S. Ct. 510, 41 L. Ed. 937, the

following conclusive language is found:

‘In short, as stated by a recent writer upon

expert testimony, the ultimate weight to be given

to the testimony of experts is a question to be

| determined by the jury; and there is no rule of

| law which requires them to surrender their judg-

ment, or to give controlling influence to the

opinions of scientific witnesses. (Citing cases.) ”’

It is respectfully submitted that it is indisputable

that the Circuit Court of Appeals has erroneously

substituted its conclusion for that of the jury by a

usurpation of the jury’s exclusive function to weigh

the evidence and judge the credibility of this witness

whose testimony the jury declined to consider credit-

able. In doing so, it has also overlooked the firm

principle that an Appellate Court must assume as

established all the facts that the evidence supporting

the plaintiff’s claim reasonably tends to prove, and

there should be drawn in her favor all the inferences

fairly deducible from such facts. Two excerpts from

the opinion in Lavender v. Kurn, 327 U. S. 645, 652,

90 L. Ed. 692, 696, 66 S. Ct. 740, 743-744, indicate that

the Circuit Court has exceeded its own function:

‘‘* * * Under these circumstances it would

be an undue invasion of the jury’s historical

function for an Appellate Court to weigh the con-

flicting evidence, judge the credibility of wit-

nesses and arrive at a conclusion opposite from

the one reached by the jury. (Citing cases).’’

ce & &

But, where, as here, there is an evi-

dentiary basis for the jury’s verdict, the jury

is free to discard or disbelieve whatever facts

26

are inconsistent with its conclusion. And the

Appellate Court’s function is exhausted when

that evidentiary basis becomes apparent, it being

immaterial that the Court might draw a con-

trary inference or feel that another conclusion

is more reasonable.”’

To similar effect:

Amaral v. United Benefit Life, 74 Adv. Cal.

App. 217, 221, 168 P. (2d) 482, 485;

U. S. v. Holland, 111 F. (2d) 949, 953;

Old Mutual Benefit v. Francis, 148 F. (2d) 590,

591;

Chapman v. Dewey Lumber Co., 106 F. (2d)

482, 485;

12 Cyc. Fed. Proc., 2d Kd, 254-256.

3. THE CIRCUIT COURT HAS ADOPTED RESTRICTIVE DIC-

TIONARY DEFINITIONS OF THE WORDS ‘‘CONTUSION”’

OR ‘“‘WOUND’’ WITHOUT REGARD FOR THE RULES OF

CONSTRUCTION OF THE LANGUAGE OF INSURANCE

POLICIES APPLIED BY THE CALIFORNIA COURTS AND

MOST OTHER JURISDICTIONS.

Even the more conservative of the adverse opinions

on the subject have studiously avoided any such ex-

pression as that indulged by the Circuit Court in

effect limiting double indemnity liability to fatal in-

cidents of violent bodily contact involving external

impacts, blows or penetrations. Such a restrictive

interpretation violates the fundamental doctrines,

almost universally employed by the California Courts

and Courts of most other jurisdictions, State and

Federal, that where the language of a policy is sus-

ceptible of two constructions, that which is most

favorable to the insured should be adopted; that any

27

uncertainties or. ambiguities should be resolved

liberally in favor of the insured and strictly against

the insurer; that a risk fairly within contemplation

is not to be avoided by any nice distinction or arti-

ficial refinement in the use of words; that every

rational indulgence must be shown the assured; that

interpretations which will give life, force and effect

to the policy should be adopted; that the language

must be flexible:

Mar See v. North American Accident Insur-

ance Co., 190 Cal. 421, 424, 213 Pac. 42, 43;

Granger v. New Jersey Insurance Co., 108

C. A. 290, 293, 291 Pac. 698, 700 (hearing

denied by Supreme Court) ;

Nelson v. Washington Fidelity National In-

surance Co., 135 C. A. 731, 735, 27 Pae. (2d)

779, 731;

Carl Ingalls Inc. v. Hartford Fire Insurance

Co., 137 C. A. 741, 745, 31 Pace. (2d) 414, 416;

Coniglio v. Connecticut Fire Insurance Co.,

180 Cal. 596, 599, 182 Pac. 275, 276;

Fageol Truck & Coach Co. v. Pacific Indemnity

Co., 18 Cal. (2d) 748, 751, 117 Pae. (2d)

669, 671;

Glickman v. New York Life Insurance Co.,

16 Cal. (2d) 626, 635, 107 Pac. (2d) 252,

256 ;

Frenzer v. Mutual Benefit Health and Accident

Ass’n., 27 Cal. App. (2d) 406, 416, 81 Pac.

(2d) 197, 202;

Fitzpatrick v. Metropolitan Life Insurance Co.,

15 Cal. App. (2d) 155, 158, 59 Pac. (2d)

199, 200;

28

Narver v. California State Life, 211 Cal. 176,

294 Pac. 393;

Meyerstein v. Great American Insurance Com-

pany, 82 Cal. App. 131, 255 Pac. 220.

This Honorable Court, after considering the effect

of dictionary definitions, has said:

«* * * The phraseology of contracts of insur-

ance is that chosen by the insurer and the con-

tract in fixed form is tendered to the prospective

policy holder who is often without technical

training and who rarely accepts it with a lawyer

at his elbow. So if its language is reasonably

open to two constructions, that most favorable to

the insured will be adopted. (Cases cited.)”’

Aschenbrenner v. U. S. F. & G., 292 U. S. 80,

84, 78 L. Ed. 1137, 1140, 54 8. Ct. 590, 592;

and Appleman observes in his work on Insurance

Law and Practice, Vol. 1, pp. 462, 463:

“It is the lavman, not the insurance attorney,

who is insured; the latter would probably refuse

a policy with the wordings now standard in them,

knowing the effect which many courts have given

thereto.”’

Other decisions of this Court to similar effect are:

Stipeich v. Metropolitan Life Insurance Co.,

277 U.S. 311, 322, 48 S. Ct. 512, 72 L. Ed.

895;

Mutual Life Insurance Co. of N. Y. v. Hurni

Packing Co., 263 U.S. 167, 174, 44 S. Ct.

90, 68 L. Ed. 235;

Thompson v. Phoenix Insurance Co., 136 U.S.

287, 10 S. Ct. 1019, 34 L. Ed. 408,

4. THE DICTIONARY DEFINITIONS OF ‘‘CONTUSION’’ OR

‘WOUND’ ADOPTED BY THE CIRCUIT COURT ARE OON-

TRARY TO ESTABLISHED LEGAL DEFINITIONS OF THE

WORDS.

Other Courts have established legal definitions of

the words ‘‘contusion”* and ‘‘wound"’, as used in these

policies, which are strikingly at variance with the

dictionary definitions adopted in the Circuit Court’s

opinion, and those definitions lend full support to

the considered and advised opinion of the trial judge

reported in 64 Fed. Supp. 427, R. 33. Such authori-

ties are:

Mutual Life Insurance Co. v. Schenkat, 62 Fed.

(2d) 236;

Warbende v. Prudential Insurance Co., 97

Fed. (2d) 749;

Huss v. Prudential Insurance Co., 37 Fed.

Supp. 364;

Robinson v. Masonic Protective Ass’n., 87 Vt.

138, 88 Atl. 531;

Thompson v. Loyal Protective Ass’n., 167 Mich.

31, 1382 N. W. 554;

Gasperino v. Prudential Insurance Co., 107

S.W. (2d) (Mo.) 819;

People v. Durand, 307 Til. 611, 139 N. E. 78.

All of this respectable authority and more is summed

up in the following restatement of the editors in 29

Am. Jur., p. 713:

‘The words ‘contusion’ and ‘wound’ as thus

used have been variously defined. The term

‘visible contusion’ as used in a provision of a

life insurance policy for double indemnity where

death occurs as a result of bodily injuries effected

—

by external, violent, and accidental means, of

which there is a visible contusion on the exterior

of the body, includes any morbid change in or

injury to either the subcutaneous tissue or the

skin, which produces markings or discolorations

that are visible upon the exterior of the body;

and it is immaterial whether the ‘visible con-

tusion’ results directly from the operation of the

external, violent and accidental means upon the

exterior of the body or indirectly from internal

injuries which are effected by such means. A

‘wound’ has been defined in law as a lesion of the

body, and a lesion is a hurt, loss, or injury, or

any morbid change in the structure of organs or

—_***.”

30

5. THE DECISION IS CONTRARY TO THE BETTER CONSID-

ERED CASES, STATE AND FEDERAL, ON THE ‘‘CONTU-

SION’ OR ‘‘WOUND"’ ISSUE.

The decision of the Cireuit Court is in direct con-

flict with the following opinions of the Federal and

State Courts on the contusion or wound issue:

Warbende v. Prudential Ins. Co., 97 F. (2d)

236 ;

Mutual Life v. Schenkat, 62 F. (2d) 236;

Wiecking v. Phoentr, 116 F. (2d) 90;

Huss v. Prudential Ins. Co., 37 Fed. Supp.

364;

American Nat’l, Ins. Co. v. Fox, 184 S.W.

(2d) 937;

Thompson v. Loyal Protective Ass’n., 167

Mich. 31, 182 N. W. 554;

Cavallero v. Travelers Ins. Co., 197 Minn. 417,

267 N. W. 370;

31

Lewis v. Brotherhood Accident Co., 194 Mass.

1, 79 N. E. 802;

Hill v. Great Northern Life, 186 Wash. 167,

51 P. (2d) 405;

Robinson v. Masonic Protective Ass’n., 87 Vt.

138, 88 Atl. 531;

Masonic Mutual Acc. etc. v. Campbell, 156 Ark.

109, 245 S. W. 307.

6. THE CIRCUIT COURT’S DECISION IS CONTRARY TO EX-

ISTING INDICATIONS OF WHAT THE HOLDING OF THE

CALIFORNIA COURTS WOULD BE ON THE ‘‘CONTUSION

OR WOUND’ ISSUE.

in volvra

In an opinion not # the ‘‘con-

tusion or wound”’ limitation wae one of the policy’s

terms, the California District Court of Appeal (hear-

ing denied by the Supreme Court) held, in True-

blood v. Maryland Insurance Co. (129 Cal. App. 102,

108, 18 P. (2d) 90, 92), supra:

“* * * Tt is not necessary that the accidental

eause shall leave visible external contusions or

abrasions of the body. A bodily injury may be

either external or internal. If it becomes the

direct exclusive cause of death it creates

liability * * *.”’

In deciding the Trueblood case, the California

Court cited with approval the Washington case of

Horsfall v. Pacific Mutual Life Ins. Co., 32 Wash.

132, 72 P. 1028, which was one where the insured

died of violent dilation of the heart, the policy pro-

viding against coverage if there were ‘‘no visible

a

32

external marks upon the body (the body itself not

being considered such mark) produced at the time

of and by the accident.”’

The Washington Court said:

“Tt is also urged that the injuries causing

death left no visible external mark, produced at

the time of and by the accident, upon the body of

the deceased, and therefore the injury was one

excepted from the policy. The evidence as stated

above shows that immediately after the accident

the deceased became deathly pale and sick, his

hands and feet became cold, the perspiration

stood out on his face and hands. The next day

after the accident his skin, which previously had

been ruddy, became a bluish gray color, and re-

mained so until his death. These, we think, were

visible external marks, and sufficient to bring

the case within the terms of the policy. The rule

is stated in 1 Cye. 252 as follows: ‘The external

and visible sign or mark required by the proviso

that the policy will not cover ‘“‘any injury, fatal

or otherwise, of which there is no visible mark

upon the body”’ need not necessarily be a bruise,

contusion, laceration, or broken limb; it may be

any visible evidence of an internal strain. Nor

is it necessary that such evidence be present im-

mediately after the happening of the accident.’

(Citing many cases.)”’

The Washington Supreme Court later cited the

Horsfall case in the ‘‘contusion, wound or other

marks or evidence of injury on the exterior of the

body at the place of injury”’ case of Hill v. Great

Northern Life Ins. Co., 186 Wash. 167, 57 P. (2d)

405, in affirming liability for an internal injury

(brain hemorrhage). (Cited with approval by the

Ninth Circuit Court of Appeals in the coronary

thrombosis case of Order of United Commercial

Travelers of America v. Groves, 130 F. (2d) 863, 865,

note).

Since the California Court cited the Horsfall case

from Washington with approval, there would appear

to be justification for anticipation it would follow the

later Hill case from that state which also cited the

Horsfall case in arriving at its conclusion that lia-

bility existed.

Therefore, when coupled with the well settled doc-

trine in California that where the language of a policy

is susceptible of two constructions that which is most

beneficial to the insured should be adopted, and the

numerous contusion or wound cases cited herein, it

is reasonable to conclude that every indication leads

to the probability that the California Courts would

have arrived at a conclusion opposed to that of the

Cireuit Court on the contusion or wound issue. Con-

sequently the Circuit Court erred in not determining,

and following, the indications of what the California

decision would be:

Huss v. Prudential Ins. Co., 37 Fed. Supp.

364, 366;

Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.

Ct., 817, 82 L. Ed. 1188;

3 Cyc. of Fed. Proc. 2a Ed. Sec. 608, p. 91,

Sec. 600, pp. 63 et seq.

34

7. THE CIRCUIT COURT CITES ONLY ONE CASE CONCERNED

WITH THE ‘‘CONTUSION OR WOUND’’ ISSUE IN ITS EN-

TIRE OPINION AND IT IS NOT DETERMINATIVE OF THE

ISSUES IN THE INSTANT CASE.

“The Circuit Court, in relying exclusively on the

case of Paul Revere Life v. Stanfield (C.C.A. 10) 151

Fed. (2d) 776, and in asserting its facts are ‘‘iden-

tical’’, proceeded under a misapprehension of the

legal effect of that decision.

The majority opinion in the Stanfield case says in

part:

«* * * Tn the absence of any guidance from

the Supreme Court of Oklahoma we choose to

follow those decisions which hold manifestations

such as outlined above insufficient to constitute

a wound or contusion upon the exterior of the

body.”’

The dissenting opinion declares:

“* * * The trial court’s prophecy of what

course the Supreme Court of Oklahoma would

follow is as good as mine, and I cannot agree to

a reversal of its judgment simply because the

authorities on the other side of the question ap-

peal to me as most logical and just * * *.”’

As last above pointed out there are numerous in-

dications by the California Courts for the guidance

of the Ninth Cireuit Court of Appeals leading to a

conclusion on the ‘‘contusion or wound’’ issue con-

trary to the decision reached. It has also been pre-

viously herein demonstrated that the Circuit Court’s

expressed concept of the California rule for construc-

tion of insurance contracts is erroneous.

35

It has been previously pointed out herein that if

the Cireuit Court followed the majority’s conclusion

in the Stanfield case on the ‘‘contusion or wound’’

issue (as it did) and if it did nor err in so doing, it

was thereupon the Court’s obligation and its function

to decide the then predominant issue whether the

accidental means death from wholly internal injury

is encompassed by the double indemnity provisions

of the policies where the accident is such that a

‘*contusion”’ or ‘‘wound’’, as restricted by the Court’s

opinion, cannot occur because no external impact,

blow or penetration was involved in the fatal acci-

dental violence, and failure to have an autopsy was

excused.

The facts of the instant case, therefore, are not

‘‘identical’’ with the Stanfield case—the issues are not

ultimately the same—and the governing legal prin-

ciples on the further issue are neither decided nor

mentioned therein.

For these reasons it is most respectfully submitted

the Circuit Court’s reliance on that case is unjusti-

fied. For the same reasons the now Respondent’s con-

tention that the majority opinion therein was

controlling was il] founded. For like reasons the con-

tention the now Respondent will in all probability

urge upon this Court—that since this Court denied a

petition for writ of certiorari in the Stanfield case it

should also deny such a writ in the instant ecase—will

be unsupportable.

36

PRAYER.

Wherefore, it is most respectfully submitted a writ

of certiorari should issue out of this Honorable Court

to the Circuit Court of Appeals for the Ninth Cir-

euit to review its decision herein, as modified, and

that upon review the judgment of the Circuit Court

be reversed and such other and further relief be

afforded the petitioner as this Court shall deem

proper.

Dated, San Francisco, California,

June 9, 1947.

HERBERT W. ERSKINE,

Attorney for Petitioner.

M. MitcHELL BourQuin,

JoHN J. HEALY,

S. J. H. ALLEN,

of Counsel.

(Appendices ‘‘A’’ and ‘‘B’’ Follow.)

Appendix “A”

In the

United States Circuit Court of Appeals

for the Ninth Circuit

.

Massachusetts Mutual Life Insurance

Company, a corporation,

Appellant, Bo 11,349

VS. March 7, 1947

Muriel ©. Pistolesi,

Appellee.

Upon Appeal from the District Court of the United

States for the Northern District of California,

Southern Division

Before: Denman, Healy and Orr, Cireuit Judges.

Denman, Circuit Judge.

The Massachusetts Mutual Life Insurance Com-

pany appeals from a judgment on a jury’s verdict

holding it liable under a double indemnity clause of

the insurer’s policy, payable to the appellee.

On November 2, 1938, the insurer issued to Norbert

H. Pistolesi two life insurance policies—one for

$5,000 and the other for $2,000. Mr. Pistolesi died on

October 5, 1941, and the ordinary benefits payable

under the policy have been satisfied. The claim in

suit is based on the double-indemnity feature of the

policies.

ii

The question here is whether the appellee, the plain-

tiff below, has maintained her burden of proof that

the accident, which we assume caused the death, pro-

duced ‘‘a visible contusion or wound on the exterior

of the body”’ of the deceased within the policies’ pro-

visions that

“Upon receipt of due proof that the death of

the insured occurred * * * as the result of bodily

injury effected solely through external, violent,

and accidental means, as evidence of which injury

(except in case of drowning or of internal in-

juries revealed by an autopsy) there is a visible

contusion or wound on the exterior of the body,

and that such death occurred * * * as a direct

result thereof, independently and exclusively of

all other causes * * *”’

On September 14, 1941, three weeks prior to his

death, Mr. Pistolesi, aged 39 years, was on board a

pleasure yacht, the Eloise. He was traveling hand-

over-hand suspended from a wire which was strung

between two masts of the boat. He reached for the

wire with one hand, missed the wire (so that his body

swung around), and he held on to the wire with the

other hand. Then he went back to the mast and re-

mained there for a few minutes while his photograph

was taken by another guest on the boat. Pistolesi then

climbed down the mast to the deck.

From that occasion until his death, Pistolesi inter-

mittently complained of pain in his chest, and on

physical effort he perspired freely, his face became

pale, and his lips were sometimes blue. He lost his

customary vigor, he walked in a shuffling manner, at

times his breathing was labored, and his countenance

was drawn,

EE

iii

Early in the morning of October 5, 1941, he awak-

ened and complained of severe pain. A Dr. Wagner

was called, but before Pistolesi could be removed to

a hospital he died.

There was no autopsy. The coroner was not noti-

fied. The body was cremated on October 7, 1941. The

official death certificate signed by Dr. Wagner stated

that the immediate cause of death was ‘‘acute myo-

cardial failure due to coronary thrombosis—duration

one week.”’

We assume as correct the appellee’s contention that

the happenings to Pistolesi on the yacht’s rigging

accidentally caused coronary thrombosis and, as a re-

sult, his death. We do not agree with appellee’s con-

tention that either mere sweating or paleness of skin

or recurring blueing of the lips of Pistolesi after such

exertion constitutes a ‘‘visible contusion or wound on

the exterior of the body.’’ Appellee gave no evidence

of any wound and we think none of a ‘‘contusion.”’

The California Civil Code, Section 1644, provides

that ‘‘The words of a contract are to be understood

in their ordinary and popular sense.’’ In California,

insurance policies are so construed. Cf. Greenberg v.

Continental Casualty Co., 24 Cal. App. 2d 506, rely-

ing on the dictionary definition of the poliev’s words.

The Supreme Court states of dictionary definitions of

the word “‘passenger’’ that ‘‘While for the purpose

of judicial decision dictionary definitions often are

not controlling, they are at least persuasive that mean-

ings which they do not embrace are not common.”’

Aschenbrenner v. United States Fidelity & Guaranty

Co., 292 U. 8. 80, 85.

—

. a

Webster’s New International Dictionary, 2d Ed.,

defines a ‘“‘contusion”’ as ‘‘a bruise; and injury at-

tended with more or less disorganization of the sub-

cutaneous tissue and effusion of blood beneath the

skin but without breaking the skin.’ Funk & Wag-

nall’s New Standard Dictionary as

‘1. The act of bruising by striking or pound-

ing, or the state of being so bruised; also a

pulverizing by beating or pounding.

2. Surg. A bruise; an injury, as from a blow

with a blunt instrument, that does not make an

open wound.”’

The court recognizes that an injured heart may

drive less blood to the lips and that they will appear

blue, as they did with the deceased just after his

strain on the vacht’s rigging. This, however, is no

evidence that the lips were contused any more than

if they turned blue from a sudden gust of fog laden

air.

It is possible that such a heart affliction as here

claimed may gradually deposit in the veins and ar-

teries material which will slow the circulation and in

time cause a blueing of the lips by such deposit there.

Tt is not necessary to decide whether this would be a

contusion. Here the testimony is that the blue lips

were seen only immediately after the deceased had

descended from the rigging. It is not claimed that he

sustained a blow on the lips or that they were swollen.

The uncontradicted medical testimony corresponds

with the dictionary definitions. It is

*Q. State whether blue lips are wounds or

contusions ?

ee

v

A. Blue lips are not a wound or contusion,

not a bruise.

Mr. Healy. I move to strike the answer as not

responsive, it can be answered yes or no.

A. The answer is no.

A. Blueness of the skin is a result of the

oxygen content of the blood,—veinous blood is

blue and the oxygenized blood is red. When the

heart action is insufficient and the blood is not

pumped properly and sufficient oxygen does not

enter the blood, that imparts a blue color or char-

acter to the skin, the blood becomes blue, and that

imparts the color to the skin. There is no damage

and there is no wound or contusion.

Q. Is there any damage to the subcutaneous

tissue ?

A. There is not.

Q. In the case of pallor is there any damage

to the subcutaneous tissue ?

A. There is not.

Q. In case of pallor is there any effusion of

blood beneath the skin?

A. No.

Q. In case of blue lips is there any effusion of

blood beneath the skin?

A. No.”

Our conclusion that appellee’s burden of proof of

contusion has not been sustained by the evidence of

pallor and blue lips is in accord with the decision on

the identical facts in the case of Paul Revere Life v.

Stanfield (CCA 10), 151 F. 2d 776, 777, where the

court construed the same policy provision.

The judgment is reversed.

(Endorsed:) Opinion. Filed March 7, 1947. Paul

P. O’Brien, Clerk.

Appendix “BR”

United States Circuit Court of Appeals

for the Ninth Circut

‘\

Massachusetts Mutual Life Insurance

Company (a corporation),

Appellant, q No. 11,349

bees Order

Muriel ©. Pistolesi,

Appellee.

Upon Appellant’s Petition for Modification of

Opinion and Decree and Appellee’s Petition

for Rehearing and Stay of Mandate

Before: Denman, Healy and Orr, Circuit Judges.

It is ordered that the paragraph beginning third on

page 3 of the printed copy of our opinion filed herein

on March 7, 1947, be modified to read as follows:

‘“‘Tt is possible that such a heart affliction as

here claimed may gradually deposit in the veins

and arteries material which will slow the circu-

lation and in time cause a permanent blueing of

the lips by such deposit therein. It is not neces-

sary to decide whether this would be a contusion.

Here the testimony is that the blue lips appeared

only when the deceased physically exerted him-

self. It is not claimed that he sustained a blow on

the lips or that they were swollen.”’

vii

It is ordered that the last sentence of that opinion

be stricken and the following substituted therefor:

“It appears that appellant was entitled to have

given to the jury its requested instruction for a

verdict in its favor and to have granted its mo-

tion for a judgment notwithstanding the verdict.

It is now entitled to have vacated the judgment

appealed from and to have one entered that plain-

tiff take nothing by her complaint and for its

costs. Central Vermont Railway v. Sullivan, 86

F, 2d 171, 174 (CCA 1); Brennan v. Baltimore &

Ohio Railroad Co., 115 F. 2d 555 (CCA 2);

Leader v. Apex Hosiery Co., 108 F. 2d 71, 81

(CCA 3); Southern Railway Co. v. Bell, 114 F.

2d 341, 3438 (CCA 4); Connecticut Mutual Life

Insurance Co, v. Lanahan, 113 F. 2d 935 (CCA

6); Burnet v. Kresge Co., 115 F. 2d 713, 716

(CCA 7); Paul Revere Life v. Stanfield, 151 F.

2d 776 (CCA 10); Baltimore v. Redman, 295 U.

S. 654, 661; National City Bank v. Oelbermann,

298 U.S. 638.

‘‘The judgment appealed from is reversed and

the cause remanded to the District Court for the

action above indicated. ’’

The petition for rehearing is denied.

William Denman,

United States Circuit Judge,

William Healy,

United States Circuit Judge,

Wm. E. Orr,

United States Circuit Judge.

(Endorsed) Filed: May 2, 1947. Paul P. O’Brien,

Clerk.