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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1947
- **Citation:** 332 U.S. 759

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1221%3A1. Public record. Not legal advice.