Opposition Brief — Morairty v. Mutual Life Insurance

san i . FILED

MAR 2 3 1950

CHARLES FL MORE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1949

No. 631

RUTH M. MORAIRTY, os

Petitioner,

against

MUTUAL LIFE INSURANCE COMPANY OF NEW YORK,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

EVANS, HULL, KITCHEL & JENCKES,

Y DENISON KITCHEL,

NORMAN S. HULL,

RICHARD P. MEASON,

807 Title & Trust Building,

Phoenix, Arizona,

Attorneys for Respondent.

INDEX

SS SS SS PERS VES OSS SOS AEE OO SOS

1. The Court of Appeals decided the case in ac-

cordance with the decisions of the Supreme

Court of Arizona resting upon adequate and

independent State grounds ................

2. All other points and arguments of Petitioner

EP TENE Sik cdots s haere cee

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TABLE OF CASES

Erie R. Co. v. Tompkins, 304 U. 8. 64, 58 S. Ct. 817,

Oe: Oi MR NE aot eee hae ee

General Talking Pictures Corp. v. Western El. Co.,

304 U. S. 175, 546, 58 S. Ct. 849, 82 L. Ed. 1273 ...

Greber v. Equitable Life Assur. Soc., 43 Ariz. 1,

DF BM is bh abakcKk Sebo ace

Illinois Bankers’ Life Ass’n. v. Theodore, 44 Ariz.

160, 34 P. 2d 423; 47 Ariz. 314, 55 P. 2d 806; 52

Mime, SA, TO, TD vn vis hin vk o's nnceesacccacie.

New York Life Insurance Co. v. McCurdy, (CCA 10),

106 F. 2d 181, Cert. den., 309 U. S. 656, 60 S. Ct. 470,

We MiG WEE os k dar aunetadatew babes tsa.

Supreme Court of the United States

OCTOBER TERM, 1949

No. 631

Ruts M. Morarrry,

Petitioner,

vs.

Morvau Lire Insurance

Company or New York,

Respondent,

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Statement of the Case

Petitioner’s statement is inaccurate and misleading. An

accurate statement is contained in the opinion of the Court

of Appeals, (R. 301-307), 178 F. 2d. 470 (471-473).

Summary of the Argument

1. The Court of Appeals decided the case in accordance

with the decisions of the Supreme Court of Arizona resting

upon adequate and independent State grounds.

2. All other points and arguments of petitioner are

frivolous.

Argument

1. The opinion of the Court of Appeals is based squarely

upon its resolution of the question stated in its opinion

(R. 307), 178 F. 2d. 473, as follows:

2

‘«* * * Whether or not, under the applicable Arizona

law, appellant (petitioner) had established the de-

fense* * * as a matter of law, and. was, therefore,

entitled to a directed verdict or to judgment notwith-

standing the verdict.’’

Petitioner here requests a writ of certiorari only because

she differs with the Court of Appeals in interpreting the

decisions of the Supreme Court of Arizona. In so doing,

petitioner suggests that the Supreme Court of Arizona held

in the case of Illinois Bankers’ Infe Ass’n v. Theodore, 44

Ariz. 160, 34 P. 2d 423; 47 Ariz. 314, 55 P. 2d 806 ; 52 Ariz.

351, 80 P. 2d 963, that whether or not matters misrepresented

or concealed by an applicant for life insurance are material

is a jury question, and that the Court of Appeals erroneously

construed the decisions in that case as holding that the

only jury question is whether or not such matters are false

(petition for certiorari, p. 8).

The case referred to came before the Arizona courts on

three occasions, and the only issues of fact presented related

to the falsity of the insurance applicant’s representations.

The Supreme Court of Arizona expressly held the repre-

sentations to be material as a matter of law, in that the

reported opinions point out that:

(1) The representations concerned matters of

fact within, or presumptively within the applicant’s

knowledge.

(2) The same were obviously material in the

highest degree.

(3) Whether or not the applicant was afflicted

with a specific disease, or whether or not he so be-

lieved, had no bearing on the case, because the insur-

ing company could determine the conditions upon

which it was willing to contract, and it was entitled

to disclosure of symptoms of bodily disorder which

would influence it in such respect.

3

On the first trial in the Theodore case, the defense was

that the applicant had changed his residence because of

his health, and that he had spat blood. There was some con-

flict in the evidence, and a judgment for the plaintiff was

reversed for error in the instruction as to legal fraud (44

Ariz. 160, 34 P. 2d. 423).

On the second trial, the evidence was again in conflict as

to whether or not the applicant had, in fact, so changed his

residence for reasons of health and had spat blood, but there

was presented as a further ground of defense that he had

been afflicted with an habitual cough, and this latter claim

was established by uncontradicted evidence. A judgment

for the plaintiff was reversed as being contrary to the evi-

dence. (The Court said (47 Ariz. 314, 329, 55 P. 2d. 806,

812)):

‘«* * * The evidence does not sustain the vitally

necessary finding that the deceased did not answer

falsely the question in his application in regard to

habitual coughing.’’

On the third trial, the jury was instructed to return its

verdict for the defendant. The Supreme Court of Arizona

refused to review the case in the absence of a transcript of

testimony (52 Ariz. 351, 80 P. 2d 963).

In Greber v. Equitable Life Assur. Soc., 43 Ariz. 1, 28

P. 2d 817, the Supreme Court affirmed a judgment on a

directed verdict for the insurance company. Here again, the

Court recognized that where—as in the case at bar—there

is no conflict in the evidence as to a manifestly material mis-

statement in an application for life insurance, there is no

issue of fact for a jury to pass upon. It specifically de-

scribed such a misstatement as material ‘‘as a matter of

law’’.

2. All other points and arguments of petitioner are

frivolous.

a. The subject matter of the Arizona statute govern-

ing mandatory provisions in certain life policies (See.

=?

4

61-705 (3), Arizona Code Annotated, 1939) was con-

sidered in the Greber case (43 Ariz. 1, 28 P. 2d 817) and

in the first opinion in the Theodore case (44 Ariz. 160,

34 P. 2d 423). Petitioner’s action in invoking it here

does not furnish ground for certiorari.

New York Life Insurance Co. v. McCurdy,

(C. C. A. 10) 106 F. 2d 181, Cert. Den., 309 U.S.

656, 60 S. Ct. 470, 84 L. Ed. 1005.

b. No federal question is involved, and so whether or

not there be conflict in decisions of several courts of

appeals is not a ground for certiorari.

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

817, 82 L. Ed. 1188.

ce. Petitioner is unable to point to anything in the

record which would support its contentions (1) that

there was any conflict in the evidence for the jury to

resolve, or, (2) that respondent had knowledge of the

matters concealed and misrepresented. Moreover,

certiorari is not available to review evidence or the

inferences drawn therefrom.

General Talk. Pictures Corp. v. Western El. Co.,

304 U.S. 175, 546, 58 S. Ct. 849, 82 L. Ed. 1273.

Conclusion

Petitioner seeks a writ of ceriorari for the sole purpose

or rearguing her case. The evidence and the applicable

law have been thoroughly reviewed and considered by the

Court of Appeals.

It is respectfully submitted that this case is not a proper

one for review in this Honorable Court, and that the peti-

tion for a writ of certiorari should be denied.

Dated this 21st day of March, 1950.

Evans, Hutz, Kitcne, & JENCKES,

Denison KitcHEL,

Norman S. Hutt,

Ricuarp P. Mzason,

807 Title & Trust Building,

Phoenix, Arizona,

Attorneys for Respondent.

———eEooO rss