Respondents Brief — Trivette v. New York Life Insurance (No. 103)

INDEX

Counter-Statement of the Case

Summary of Argument .................. 00. eeu

pO BD SES AICO MOET EET SET TET TEC Te

FIRST POINT: The evidence showed, without

;any conflict whatever, that Mr. Trivette intentionally

| shot himself through the head, and died by self-de-

struction and suicide.

Therefore, the District Court properly directed a

verdict for New York Life. ......................

I. Mr. Trivette intentionally commited suicide,

by firing a pistol into his head, in the presence of

his wife, who tried to reach him to “knock the gun

away’ but failing exclaimed “I couldn’t save him”. .

Mrs. Trivette’s ‘‘judicial admission’’ was ‘‘con-

Ce Te BN ee CGS eee ead Caos ee ee

Erie Railroad Co. v. Tompkins, 304 U.S. 64

Guaranty Trust Co. v. York, 326 U.S. 99

Sulherwane ¥. DAV, FOO Ay. F445 ok eek cca ees

Gel v. Harmon, 264 8. W. 2d (KRY,) BIS 66.5 case

se 6 #86 6.6

Mr. Trivette was under ‘‘terrifie strain’? from his

‘terrific responsibilities’* in his businesses, with ‘‘too

many hours of working’’—and had ‘‘stood up’’ under

Seog fg gf See yer rer ee re ree

Mr. Trivette’s ‘‘fusses’’ and ‘‘arguments’’ with

Mrs. Trivette and his violent treatment of her. .....

There was ‘‘not even an imaginary idea’’ but that

Mr. Trivette’s pistol shot in his head was ‘‘a delib-

3-16

. 4-10

or ar ar a

Oe 7 5 66 as bo cee ee aaeeees 9-10

ii

PAGE

II. The applicable Kentucky substantive law re-

quired the directed verdict against Mrs. Trivette. ..10--13

Erie Railroad Co. v. Tompkins, 304 U. S. 64 ...... 10

New York Life Ins. Co. v. Dean, 226 Ky. 597 ...... 10

Prudential Ins. Co. v. Tuggle’s Adm’r., 254 Ky. 814. 11

Thelen v. Mutual Life Ins, Co., 261 S. W. 2d (Ky.)

OU had 50 Rea 5558s A ea Sea ennies ie

Prudential Ins. Co. v. Redwine, 332 S. W. 2d (Ky.)

OEE deAb awh dd ocnpergiave canes oases bawKee 12

The Kentucky cases which Mrs. Trivette cites are

CUO FET TI. ob a ook bas ok be eae UbeS 13-16

Ay. Home Mutual Life Ins. Co. vy. Watts, 298 Ky.

DER: 5555555404 ba k8 ed SURES Er eee ees 13

Aetna Life Ins. Co. v. Kaiser, 115 Ky. 539 ...... 13

Actna Life Ins. Co. v. Milward, 118 Ky. 716 ...... fa

Metropolitan Life Ins. Co. v. Maddox, 127 S. W.

ES PE ee eR Ere ace aN mar ran er oee 14

United Benefit Life Ins, Co. v. Schott, 296 Ky. 789... 14

Inter-Southern Life Ins. Co. v. Boyd, 124 S. W.

Se Rs CEREAL TS SANS ERAS EU 14

Mutual Benefit Life Ins. Co. vy. Daviess’ Ex'r., 87

ee. Bere eT reer ee per ee eye Pere e 14

Manhattan Life Ins, Co. v. Beard, 112 Ky. 455 2... 14

Vicars v. Aetna Life Ins. Co., 158 Ky. 1.......... 15

Columbian Natl. Life Ins. Co. v. W 10d, 193 Ky. 395. 15

Nat'l. Life Ins. Co. v. Watson, 194 Ky. 355 2.2.2... 15

Kentucky has rejected ‘irresistible’? impulse

suicide as a ground for recovery of “accidental

mug SRE, go sn oa so ee eee 15

Columbian Natl. Life Ins. Co. v. Wood, 193 Ky. 395,

Be Spi S ens 5 4aGe oe eee es 15

Natl. Life Ins. Co. v. Watson, 194 Ky. 355, 357 .... 15

Anderson v. Standard Acc, Ins. Co., 205 Ky. 587,

Oe UF ick by kOe ds toes en ee Cae es 15

iii

PAGE

SECOND POINT: There is no basis whatever for

Mrs. Trivette’s attempt to bring her Petition under

tis Gomes Rate 19-106). ........................ 17-24

I. The Court of Appeals’ decision is not in con-

flict with the decision of any other court of appeals,

and is not any departure from the accepted and usual

course of judicial proceedings so as to call for exercise

of this Court’s power of supervision, on the question

of intentional suicide being a defense to a ‘‘double in-

i cee ere eka ea een esa one. e so 17

II. The undisputed evidence was that Mr. Triv-

ette intentionally shot himself; therefore, the ques-

tion (a) whether submitting or not submitting an is-

sue of fact to a jury is a matter of ‘‘substantive law’’

or of ‘‘procedure’’, and (b) if the latter, whether it

is controlled by the ‘‘local*’’ law or by the ‘‘federal’’

law, is, so far as this case is concerned, entirely

academic, irrelevant, and not necessary for its de-

ee ces pccleweecceeersccaees 18-23

Mrs. Trivette’s cases distinguished ............ 18

Byrd y. Blue Ridge Rural Elec. Coop., 356 U. S. 5

IEP AN re ee ee eee eee eT ee eee 18

Magenau v. Aetna Freight Lines, 360 U.S. 273 .... = 18

Dick v. New York Life Ins. Co., 359 U. 8. 437 ...... 18-23

(1) The facts in the Dick case were entirely dif-

ferent from those in this case ..............-es08: 19-20

(2) The law [North Dakota] which was applied in

the Diick case is the exact opposite of the Kentucky

ee See Spa inh reew ie ob aw ose ses 20-23

eS rn 20-21

Mass. Mutual Life Ins. Co. v. Bush, 236 Ky. 400,

eee eS S LONE Lida bea bdh a wane rd dees 21

Mutual Benefit Life Ins. Co. y. Daviess’ Ex’r., 87

ERS CR Ee a rn se

iv

Ky. Home Mut. Vife Ins. Co. v. Watts, 298 Ky. 471,

PAGE

EL Le eee nga eR ar rye cei emmy A 22

New York Life Ins. Co. v. Gamer, 303 U.S, 161... 22

III. This case does not involve any question of

‘*trial by jury’’ under the Seventh Amendment to the

SS eG sec eb Ek dae we ka peas aoe 23-24

Galloway v. United States, 319 U. S. 372 ........ 23

Cocksedge v. Fanshaw, 1 Doug. 118 ............. 23

Patrick v. Hallett, 1 Johns. (N. Y.) 241 .......... 25

THIRD POINT: Neither the coroner’s jury ver-

dict nor Mr. Trivette’s death certificate was admis-

sible in evidence for any purpose; and the District

Court correctly excluded them. ................... 24-25

(1) Under Kentucky law, the coroner’s jury ver-

ee RC UETLUT IPT TET ET eT 25

Aetna Life Ins. Co. vy. Milward, 118 Ky. 716, 725-27 — 25

Aetna Life Ins. Co. v. Kaiser, 115 Ky. 539, 546 .. 25

Pacific Mut. Life Ins. Co. v. McCabe, 157 Ky. 270,

SE acadnd cis whe dK Aa eh OAS VER SS NK BEE 25

(2) Under Kentucky law, Mr. Trivette’s statutory

death certificate ‘‘is not admissible as evidence in re-

spect to the issue of accidental death or suicide.’”’ .. 25

Ky. Home Mutual Life Ins. Co. v. Watts, 298 Ky.

PU ME sie oe 4K 4a See Rea NER ae eed 25

NS oa hack as te kk Nae ba een e eae he ee 25

ee ren

TABLE OF CASES.

PAGE

Actna Life Ins. Co. v. Kaiser, 115 Ky. 539 ........ 13, 3

Aetna Life Ins. Co. v. Milward, 118 Ky. 716 ...... 13, 25

Anderson vy. Standard Ace. Ins. Co., 205 Ky. 587,

Ne aie ete ae is UREA wR a 15, 16

Bell v. Harmon, 284 S. W. 2d (Ky.) 812 .......... 4

Byrd v. Blue Ridge Rural Elec. Cooperative, Inc.,

5 See ea eee re er ee ee ere 18

Cocksedge v. Fanshaw, 1 Doug. 118 ............ 23

Columbian Natl. Life Ins. Co. v. Wood, 198 Ky. 395 15

Dick v. N. Y. Life Ins. Co., 359 U.S. 437. .18, 19, 20, 21, 22

Erie Railroad Co. v. Tompkins, 304 U.S. 64....... 4,10

Galloway v. United States, 319 U.S, 3872 ......... ae

(iuaranty Trust Co. v. York, 326 0.58. 99 ........ 4

Inter-Southern Life Ins. Co. v. Boyd, 124 8S. W.

ee i oe ee es eee 14

Ky. Home Mutual Life Ins. Co. v. Watts, 298 Ky.

te Serer eee re Macs Meer OT tes fre 13, 22, 25

Magenan vy. Actna Freight Lines, 360 U.S, 273... 18

Manhattan Life Ins. Co. v. Beard, 112 Ky. 455 .... 0 i4

Mass. Mut. Life Ins. Co. v. Bush, 236 Ky. 400, 404... 21

Metropolitan Life Ins. Co. v. Maddox, 127 S. W. -

fee eee ey Tere rere rere ee ee 14

Mutual Benefit Life Ins. Co. v. Daviess’ Ex’r., 87

Ae Se error rer eer rer Ts eee ee eee 14, 22

Natl. Life Ins. Co. v. Watson, 194 Ky. 350 ........ 15

New York Life Ins, Co. v. Dean, 226 Ky. 097 ...... 10

Now York Life Ins. Co. v. Gamer, 303 U. S.161.. 22

vi

Pacific Mutual Life Ins. Co. v. MeCabe, 157 Ky. 270,

SP sake Colenn ts dae ae kee VOU ee ees

Patrick v. Hallett, 1 Johns. (N. Y.) 241 ..........

Prudential Ins. Co. v. Redwine, 332 S. W. 2d (Ky.)

TD che isd nea pee eek eee

Prudential Ins. Co. v. Tuggle’s Adm’r., 254 Ky. 814

Sutherland v. Davis, 286 Ky. 743 ................

Thelen v. Mutual Life Ins. Co., 261 S. W. 2d (Ky.)

OE cks a Susana haere eee ad aware eee

i MERE E TTC CCT TE TT Te eT EET eT er eT ere e rey

Vicars v. Aetna Life Ins. Co., 158 Ky. 1 ........

12

1]

4

ND Rev. Code, 1943, § 31-1101 ...............00. 20, 21

Supreme Court of the United States

October Term, 1960

No. 983

Mivprep C. TrRIvETTE, - - - - ~~ Petitioner,

VU.

New York Lire [NsurancE Company, - Respondent,

RESPONDENT'S BRIEF

In Opposition To Petition For Writ of Certiorari.

To the Honorable, the Chief Justice, and the Associate

Justices of the Supreme Court of the United States:

The Petition for Certiorari filed by Mildred (.

Trivette [herein called Mrs. Trivette] should be denied

because : |

(1) There was not sufficient (or any) evidence

that the pistol-shot-in-head death of Maurice

Trivette [herein called Mr. Trivette] occurred

through accidental means, to make a jury issue on

Mrs. Trivette’s claim for ‘*double indemnity"’

under his policies; and

(2) Mrs. Trivette’s own eye-witness evidence

and that of her other own witnesses conclusively

showed without the slightest contradiction that

Mr. Trivette deliberately shot and killed himself,

which is a cause of death excluded from ‘*double

indemnity’? coverage (A. lla-12a).

2

Both the District Court, in directing a verdict for

New York Life Insurance Company [herein called

New York Life], and the United States Court of Ap-

peals for the Sixth Circuit in affirming, correctly ap-

plied the law of the State cf Kentucky. That decision

is not in conflict with any applicable law of that State.

Clearly, there is not involved, to any extent, any

federal question whatever, or even the question (which

Mrs. Trivette elaborately argues) whether ‘‘submitting

or not submitting an issue of fact to a jury”’ is, as she

describes it, ‘ta matter of substantive law, or a matter

of procedure” (Petition, p. 2) because, regardless of

whichever it might be, in this case the evidence did not

raise any jury issue whatever.

Counter-Statement of the Case.

New York Life cannot accept the statement of facts

in Mrs. Trivette’s Petition for the writ, either in its

Statement Of The Case at its pp. 3-7 (consisting prin-

cipally of a quotation from the dissenting opinion of

Circuit Judge Pope) or in its Appendix III Statement

Of The Facts at its pp. 28a-34a, as being a sufficiently

complete or accurate statement of the facts which are

material to the consideration of the questions pre-

sented.

However, since this brief necessarily supplies her

omissions and corrects her inaccuracies, in the Argu-

ment at pp. 3-10, infra, with reference to the insuf-

ficiency of the evidence to require a submission of the

case to the jury, they need not be here stated.

2a

SUMMARY OF ARGUMENT.

I. The evidence showed, without conflict or basis

for dispute, that the insured, Mr. Trivette, intentton-

ally shot himself through the head, and died by self-

destruction and suicide; and, the District Court prop-

erly directed a verdict for New York Life (pp. 3-10

infra).

II. The District Court, in directing a verdict for

New York Life, correctly applied the applicable Ken-

tucky substantive law (pp. 10-16 infra).

III. There is not any conflict whatever between

the Court of Appeals’ decision and the decision of any

other court of appeals, on the question of intentional

suicide being a defense to a **double indemnity” claim ;

and no federal question is involved (p. 17 infra).

IV. As the undisputed evidence was that Mr.

Trivette intentionally shot himself, it is entirely aca-

demic and irrelevant to consider whether the submit-

ting o not submitting of an issue of fact to a jury isa

matter of ‘‘substantive law’’ or of ‘‘procedure’’ (pp.

18-23 infra).

V. This case does not involve any question of

‘trial by jury’’ under the Seventh Amendment to the

: Constitution (pp. 23-24 infra).

VI. Neither the coroner’s jury verdict nor Mr.

Trivette’s death certificate was admissible in evi-

dence for any purpose; and the District Court cor-

rectly excluded them (p. 25 infra).

ARGUMENT.

If Mrs. Trivette’s Questions 1 and 3 (Petition, p. 2)

are resolved against her—that is, if there was no jury

issue on the question of Mr. Trivette’s intentional

suicide, which is the only matter those two questions

raise—then her Question 2 (p. 2) as to whether the

submitting or not submitting of .n issue offact to a

jury is a matter of ‘‘substantive law’’ or of ‘*pro-

cedure’’ (p. 2) is not in any manner involved, is en-

tirely acadomic and irrelevant to this case, and need not

be considered. |

Therefore, this brief will deal first with the subject

of whether there was any jury issue on the question

of intentional suicide.

FIRST POINT.

[Mrs. Trivette’s Questions 1 and 3; Petition, p. 2]

The evidence showed, without any conflict whatever,

that Mr. Trivette intentionally shot himself through the

head, and died by self-destruction and suicide.

Therefore, the District Court properly directed a ver-

dict for New York Life.

All of the testimony in the case came (a) from Mrs.

Trivette herself, who was an eye-witness, and (b) from

her own other witnesses. All] agreed upon all the basic

facts. They lead immutably to the conclusion, and

established beyond cavil, that Mr. Trivette inten-

tionally destroyed himself.

+

Mrs. Trivette, as an eye-witness to Mr. Trivette’s

suicide, saw the whole of his actions; and testified in

open court out of her own knowledge as to what she

saw.’

I. Mr. Trivette’s Intentional Suicide.

[1] Mr. Trivette’s pistol-shot death occurred Octo-

ber 19, 1957, about 10 o’clock on a Saturday night

(A. 48a), in his bedroom and in Mrs. Trivette’s pres-

ence, after he had been in a 21% hours ‘“‘liquored-up”’

(but not drunk, A. 80a) abusive tantrum—'‘He was

very angry’’ (A. 66a) and in one of what Mrs. Trivette

variously described as his ‘‘ugly’’ or ‘‘dark’’ or

‘*sullen’’ moods (A. 76a-78a ; 89a-90a).

During that time, he and Mrs. Trivette ‘‘ate in

silence’’, except ‘‘my husband didn’t eat any more’’

(A. 56a), and ‘‘he didn’t talk any more’’, and acted

‘‘dark and sullen’’ (A. 90a); ‘‘we just sat there”’

(A. 91a) until he went into the living room where the

children were watching television, but a few minutes

later one of the children reported to Mrs. Trivette that

Mr. Trivette was not watching—‘‘he’s just staring”’

(A. 57a).

1The Kentucky law, which applies in this diverse citizenship

removed case (Krie Railroad Co. v. Tompkins, 304 U. S. 64; Guar-

anty Trust Co. v. York, 326 U. 8S. 99), is that when a party to a

suit, as was Mrs. Trivette, testifies to facts within her own knowl-

edge which shows she does not bave a case, her testimony constitutes

a ‘‘judicial admission’’ which is ‘‘conclusive’’ and ‘‘removes the

proposition in question from the field of disputed issues’’ and ~

‘*precludes’’ her from ‘‘relying on other evidence’’ to contradict

her own testimony. See, Sutherland v. Davis, 286 Ky. 743; Bell v.

Harmon, 284 8S. W. 2d (Ky.) 812.

bo)

After a 20-minute trip to his nearby garage (A. 57a)

he entered his bedroom, in a few minutes signalled Mrs.

Trivette to come in there— ‘he was still angry’’, and

tore up and threw across the room a new shirt and

slacks she had previously bought for him (A. 58a-60a).

Mr. Trivette suddenly ‘‘ jerked the gun up”’ (A. 95a)

from under his belt, and ‘‘all in a flash’’ (A. 187a) shot

himself in uis head—which he had ‘‘tilted slightly to

the right’’, or ‘‘over toward the right shoulder”’

(A. 64a)?—with a .44 caliber hammer type pistol which

was 1214 inches long and weighed nearly 21% pounds

(A. 99a-100a).

[2] Mrs. Trivette had been sitting on a stool across

the room (A. 60a) in front of a dresser.2 When she

saw his actions, she stood up, screamed, threw up her

hands, and started toward him to ‘‘knock the gun

away’’ (A. 95a-96a) ; but before she could reach him

he had fired the pistol—‘‘all in a flash’’ without halt

or interruption.

Mrs. Trivette testified that she remembered that a

few minutes later she exclaimed to a neighbor

‘‘T couldn’t save him’’ (A. 96a).

and that what she meant by that exclaimation, and

‘‘what I had in mind’’, was to ‘‘get over there maybe

and knock the gun away’’ (A. 96a). She did that—

screamed, threw up her hands, wanted to ‘‘get over

there’’, she said, so she could *‘knock the gun away’’—

2Mr. Trivetie wos right-handed (A. 115a).

3See Trivette E:nibit ‘‘B’’ [chart] and Plaintiff's Exhibit 8

[photograph].

6

all because with her own eyes she saw, and as an eye-

witness actually knew, he intended to shoot himself

with that gun.

Her purpose to ‘‘knock the gun away”’ repels her

speculative ‘‘thought’’, which she later had (A. 66a),

and which she now strongly urges—but correctly de-

scribes in her petition as a ‘‘surmise’’ (p. 37a)—that

his elbow hit the wall causing the gun to deflect. Any

such sort of interruption in his movement is repugnant

to the admited fact that the entire movement was ‘‘all

in a flash’’.

Yet, in her petition she argues to this Court that

what she had in mind in starting toward him was only

‘‘to calm him’’ (p. 3la)—an erroneous expression

which even Judge Pope was induced to pick up from

her brief in the Court of Appeals (Petition, p. 23a),

and repeat in his dissenting opinion (Petition, p. 6,

33a).

[3] The bullet from the 114-inch long cartridge

(A. 99a-100a) entered the right side of Mr. Trivette's

head. 14 inch above and 34 inch to the front of his right

ear (Plaintiff’s Exhibit 14; A. 120a-123a). It ranged

upward at en angle—his head being ‘“‘tilted slightly to

the right” or ‘‘over toward the right shoulder’’—and

came out 114 inches left of the top of his head’s center

line (A. 121a-122a).

The bullet hole point of entry was 1% inch in

diameter. The powder burn extended only 14 of an

inch beyond the hole (A. 120a-121a), thus indicating

that Mr. Trivette had pressed the muzzle of the pistol

(

close to or even against his skull, because, as both par-

ties agree, the closer a gun muzzle, at the time of dis-

charge, is to the flesh the narrower is the powder burn

arvund the hole—in this case only 4g of one inch.

In that connection Mrs. Trivette’s Petition refers

to the characteristic “back suction’’ drawing blood into

the muzzle of a pistol when the muzzle is pressed

against the side of the head at the time of discharge.

She then incorrectly states that there was not any evi-

dence of any blood ‘ton or in the gun’? with which

Mr. Trivette killed himself (Petition, p. 36a). She

thus fails to reveal to this Court the uncontradicted

evidence that ‘there was blood on the bed underneath

the gyrstol’’ (A. 159a) onto which the pistol was laid

after he shot himself. That blood obviously was the

characteristic ‘back suction’’ blood that was drawn

into the barrel of this pistol when it was fired with the

muzzle pressed to his skull.

[4] As is the ease with many suicides—especially

‘‘impulsive’’ suicides (see pp. 15-16, infra) it is useless

to inquire why Mr. Trivette decided to kill himself.

He appraised his own life and his own circumstances,

which he knew better than anyone else.

Some of those circumstances were:

(a) Mr. Trivette was ‘‘over-tired’’ and under

‘terrific strain’’. Mrs. Trivette emphasized that. She

testified that, with his mining and garage business, he

was ‘“‘under terrific strain’’, ‘‘had a lot of things on

his mind’’ (A. 59a), was ‘‘over-tired’’ (A. 97a), ‘‘too

many irons in the fire’’, ‘‘too many hours of working’’

8

(A. 77a)—sometimes as much as 18 or 20 hours a

day, with an average 12 to 14 hours (A. 45a)—and

was “‘irritable’’ from his “‘terrifie responsibilities”’

(A. 86a).

His employee, Little, testified he was a ‘thard

worker’’, and |

“T don’t see how the man [Trivette] stood up

as long as he did, working the way he did’'(A.

183a-184a).

But that is not all.

(b) The Petition for this writ emphasizes asser-

tions that Mr. Trivette was ‘‘happily married’”’ (p. 22)

and ‘devoted to his wife’’’ (p. 29a). Those are in-

correct assertions, without supporting facts, which led

Judge Pope in his dissenting opinion to refer to him

as ‘‘attentive to and affectionate with his wife’’ (Peti-

tion 4, 2la).

The facts in evidence about that are:

Repeatedly, for years, he had been violent and

abusive with her.

Ten years before, in anger he ‘‘got the gun out”’,

‘*stomped out of the house’’, and ‘‘almost scared me to

death’’ (A. 77a, 83a-84a).

Seven years before, in anger he *‘broke up ull the

things in the living room”’, ‘‘there was glass all over

the living room and dining room’’; and he ‘‘got the

gun out’’ and ordered Mrs. Trivette, ‘‘Now, you clean

it up’’ (A. 77a-78a, 85a-87a).

A few months before, in anger he shot out the

bedroom light (A. 7la, 76a, 87a-89a).

9

Mrs. Trivette testified that she was ‘‘terrified”’ of

the gun, ‘tit was so big’’—and that he knew she was

‘frightened of the gun” (A. 78a).

Is that the behavior of a man who is ‘thappily

marricd”” or is “attentive to and affectionate with his

wife"?

Mr. Trivette’s brother, Warren Trivette, who was

Mrs. Trivette’s own witness and lived only 300 yards

away, When asked whether Mr. and Mrs. Trivette’s

relations were “*pleasant’’, equivocally answered:

YT don't believe I said they were pleasant’’

(CA. 1l16a).

Mrs. Stewart, whe was Mrs. Trivette’s closest neighbor

and her own witness, testified to trouble between Mr.

and Mrs. Trivette **now and then”? (A. 135a) and that

‘*they would fuss on weekends or have arguments’’

(A. 140a). Mrs. Trivette, when reealled, did not dis-

pute those matters (A. 185a-187a).

Mr. Trivette made his own appraisal of his own

life and circumstances; and to paraphrase the language

of his employee, Little (p. 8, supra), he considered

that he had **stood up as long as he’’ cowd.

[5] The District Court [Swinrorp, J.], a former

active Kentucky lawyer—with more than twenty vears’

trial experience on the federal bench in Kentucky and

a vast knowledge of Kentucky substantive law—saw

the witnesses and heard them testify orally, and reeog-

nized that there was not the slightest conflict in the

testimony on any material matter and absolutely no

reasonable basis for any reasonable inference—‘‘not

10

even an tmaginary idea’’ (A. 25a)—that Mr. Trivette

died otherwise than through intentional self-destruc-

tion, saying that

“by no stretch of the imagination, could the jury

conclude that there was an accident. * * *

There could not possibly be drawn an inference or

deduction that that gun exploded by any accidental

means. It was a deliberate act of the decedent,

Maurice Trivette’’ (A. 26a, 27a).

II. The applicable Kentucky substantive law required

the directed verdict against Mrs. Trivette.

The substantive law of Kentucky (which Erie Rail-

road Co. Vv. Tompkins, 304 U. S. 64, requires to be

applied) consistently for many years has been, and is,

that there cannot be recovery of accidenta] death or

‘*double indemnity”’ insurance, and a verdict must be

directed against the beneficiary, where the uncontra-

dicted or undisputed evidenee and reasonable infer-

ences from it are inconsistent with a hypothesis of an

accident and point immutably to self-destruction, even

though there was no eye-witness to the self-destruction.

[1] In New York Life Ins. Co. v. Dean, 226 Ky.

597 [1928], which Mrs. Trivette does not cite, Dean

died from a pistol-shot head wound, inflicted outside

the presence of any eye-witness. The court held there

must be a directed verdict for the defendant despite

evidence that Dean’s personal problems might have im-

paired his mind (but not sufficiently to cause him to

fail to know ‘‘the consequences of his act’’).

11

The court said that where

‘‘there is no reason for honest difference of opin-

ion among intelligent men upon the issue [of in-

tentional suicide], it is then the duty of the court

to so instruct the jury. We think the testimony

in this case leaves no room for the conclusion

essential to a recovery, * * *.’’

[2] In Prudential Ins. Conv. Tuggle’s Adm’ r., 254

Ky. 814 [1934], which Mrs. Trivette’s Petition elab-

orately seeks to distinguish (pp. 35a-37a). 9 Mr.

Tuggle died from a gunshot head wound which ae-

curred ina ‘dark and uninviting”” basement area of

his house, outside the presence of any eye-witness.

The conrt held there must be a directed verdict for the

defendant because one may not **guess”” or “suppose”

that an accident happened. It said that ‘ta supposition

has no legal support or habitation in judicial adminis-

tration’, and that ‘‘no presumption [against suicide ]

ean stand in the face of facts’’.

The court reaffirmed the rule that

Where the reasonable probabilities from the evi-

dence all point to suicide as the cause of death, so

us to establish it, in the ight of reason and com-

mon sense, With such certainty as to leave no room

fora reesonable controversy on the subject, a jury

should not be permitted to find to the contrary

and have such finding stand as a verity In the case,

but the question should be decided by the trial

court as one of law.”

12

[3] In Thelen v. Mutual Life Ins. Co., 261 8S. W. 2d

(Ky.) 427 [1953], which Mrs. Trivette does not cite,

Miss Thelen’s body was found in the paved courtyard

of a hospital where she was a patient, some ten feet

from the outer edge of a roof which projected at the

third floor level from one wing of the hospital to

another. Although there were no eye-witnesses to her

death, the court affirmed a directed verdict judgment

despite vigorous argument for an inference that she

might have accidentally fallen from a window or was

secking some way of escape and ‘‘accidentally fell

from the roof’’—which the court said was only a

‘mere conjecture or suspicion that the death oecurred

by accident’’—and that

‘Tt must be remembered that the plaintiff had

the burden on the whole case of proving death

by aceident, Massachusetts Mut. Life Ins. Co. v.

Bush, 236 Ky. 400, 33 S. W. 2d 351, and in view

of the evidence introduced by the defendant, the

plaintiff’s presumption ditsappeared.”’

[4] In Prudential Ins. Co. v. Redwine, 332 S. W.

2d (Ky.) 6483 [1959], where the insured, Ewen, died

froma pistol-shot chest wound, without an eye-witness,

the court held that there must be a directed verdict

for the defendant despite evidence that Ewen’'s health

in the past five months had continued to improve and

he was in uniformly good spirits and frequently

cleaned his pistol (leaving room for a ‘‘guess’’ of an

accidental discharge of it). The court reaffirmed its

decision in the Tuggle ease supra, saying that the con-

elusion of intential suicide

13

‘ds inescapable and there is ne room for any

speculation ov surmise to the contrary. Clearly,

wen intentionally ended his own life.”

The District Court's directed verdict ino this case

applied that Kentucky law.

III. Mrs. Trivette’s Kentucky cases distinguished.

[1] Mes. Trivette’s Petition relies upon a mass of

Nentucky cases where death occurred outside the pres-

ence of witnesses and under unexplained or mysterious

cireumstances with other known eireumstaneces furnish-

ing a reasonable basis for reasonable inferences of an

accident. ‘They ave clearly distinguishable from: this

eve-witness ” suicide,

Some of them are:

(a) Ky. Home Mut, Life Ins. Co. \. Watts,

POX Ky. 471 [Petition p. IS}-—-ne eve-witness:

shotgun load entered Watts’ body on same hore

contal plane as was the gun rack on which it

had rested ;

(hb) Aetna Life lus. Conv. Raiser, V5 Ky. 539

[1903; Petition, p. Pe jJ--ne eve-witness: double

indemnity not involved but defense based only on

poliey’s conventional suicide clause;

(¢) Aetna Life Ins. Co. ve Milward, 11s Wy.

716 (1904; Petition, p. 17]—ne known eve-withess :

mysterious gunshot death; two pistols by right

side, with ownership not known of the one which

contained the discharged cartridge—reasonable in-

ference insured killed “*by some other person”:

14

(d) Metropolitan Life Ins. Co. v. Maddors, 127

S. W. (Ky.) 503 (1910; Petition, p. 18]—earbolic

acid death; much evidence acid taken by mistake

as a result of neighbor (after borrowing bottle)

replacing it upon shelf different from where it

was usually kept and on which ‘*pepsin and oil”

which insured regularly took was normally kept;

(e) United Benefit Life Ins. Co. v. Schott, 296

Ky. 789 [ Petition, p. 18]—pistol-shot wound while

riding along highway in automobile with two com-

panions; flourishing of pistol, which discharged,

was described by court as *‘mere blustering and

swaggering of a swashbuckler’’.

[2] The remaining Kentucky cases upon which she

relies are those in which there was substantial evi-

dence that the insured was so ‘devoid of reason” as

to be a lunatie incapable of understanding that his

fatal act might cause death, as follows:

(a) Inter-Southern Life Ins. Co. v. Boyd, 124

S.W. (Ry.) 333 (1910; Petition, p. 1 ]—so devoid

of reason “he did not know what he was doing”;

(b) Mutual Benefit Life Ins. Co. v. Daviess,

87 Ky. S41 (1888; Petition, p. 17]—pistol-shot

death; substantial evidence “the mind of insured

Was so far gone’? as to render him “wneonseious

that he was taking his life’’;

(c) Manhattan Life Ins. Co. v. Beard, 112 Ky.

455 [1902; Petition, p. 17]—conflict in evidence

as to Whether insured, who died from overdose of

15

morphine, was too devoid of mind to know what

he was doing;

(d) Viears v. Aetna Life Ins. Co, 158 Ky. 1

[1914; Petition, p. I8J—no eve-witness; court

reversed beeause trial court erroneously rejected

evidence that Vicars was ‘so insane as not. to

know what he was doing";

(e) Columbia Natl. Life Ins. Co. ve Wood,

193 Ky. 395 (1922; Petition, p. I8J—-mind of in-

sured (after deliberately killing his nine-months-

old baby) ‘tso far gone’ he did not know his act.

“would probably result in Ins death";

(f) Natl. Life Ins. Conv. Watson, 194 Ky.

399 (1925; Petition, p. J—evidence that evanide

of potassium death resulted) from = mental ab-

normality or Jack of capacity to know what he

vas doing.

[3] In Mrs. Trivette’s brief (p. 28) in the Court

of Appeals she correctly “conceded that Kentucky has

rejected” self-destruction caused by ‘tsudden or

“urresistible’’ impulse as a ground for recovery of

‘accidental means’” insuranee; and that such im pul-

sive suicide does not permit its recovery. See,

Coiumbia Natl. Life Ins. Co. v. Wood, 193 Ky. 395,

399; Natl, Life Ins. Co. ve Watson's Ear’, WA Ky.

355, 357; Anderson ve Standard Accident Tns. Co.,

205 Ky. 587, 592, the court saving in the case last

—=#ited, with respect to “sudden” or ‘irresistible’ im-

pulsive suicide:

16

"This would absolve him from moral culpabil-

itv; but would not authorize a recovery upon the

policy * * *°—unless his mind was so far gone

he did not know what he was doing (205 Ky.

at 592).

[

Certainly there was no evidence that Mr. Trivette

did not know what he doing. His brother testified

that at 5:30 that evening he was in *‘a very good mood’’

(A. 58a, 98a). His employee saw him at 7:30 that

evening and testified he was ‘* just like he always was”’

(A. 179a). Twenty minutes before he shot himself

he went to his nearby garage, thoughtfully put over

$900 of the day's receipts in his pocket (A. 58a, 107a)

to take it home as usual—and got his pistol. Killing

himself may have been ‘timpusive’’; but it was inten-

tional.

17

SECOND POINT.

[Mrs. Trivette’s Question 2; Petition, p. 2]

There is no basis whatever for Mrs. Trivette’s attempt

to bring her Petition under this Court’s Rule 19-1(b), as

is shown by I (p. 17, infra), II (pp. 18-23, infra), and

III (pp. 23-24, infra) next discussed.‘

I. The Court of Appeals’ decision is not in conflict

with the decision of any other court of appeals, and is not

any departure from the accepted and usual course of

judicial proceedings so as to call for exercise of this Court’s

power of supervision, on the question of intentional suicide

being a defense to a “double indemnity” claim.

Intentional suicide is a defense to a double indem-

nity claim not only under the ‘‘loeal’? Kentucky law

(pp. 10-13, supra), but also under the decisions of all

of the Courts of Appeals as well as under this Court’s

own decisions. There is no conflict about that matter,

in the decisions of any of the Courts of Appeals; and

where, under the evidence there is not any disputed

question of fact a directed verdict for the insurance

company is proper.

Those matters are too well settled to merit citation

of authority.

4Mrs. Trivette’s intermingling in her Petition of the several

separate matters which she assigns in the ‘* Basis’ upon which she

seeks the writ (p. &) and her ‘‘Argument’’ of them (pp. 9-23)

causes some difficulty in analyzing her contentions. A separation

of discussion of them in this brief, under three separate topies,

designated as I, II and III, may ciarify them.

18

II. The undisputed evidence was that Mr. Trivette

intentionally shot himseif; therefore, the question (a)

whether submitting or not submitting an issue of fact to

a jury is a matter of “substantive law” or of “procedure”,

and (b) if the latter, whether it is controlled by the “local”

law or by the “federal” law, is, so far as this case is con-

cerned, entirely academic, irrelevant, and not necessary for

its decision or to be considered.

It cannot make any difference in this case whether .

the sufficiency of the evidence, to require a submission

to the jury of the question of Mr. Trivette’s intentional

suicide, is regarded as a matter of ‘‘substantive’’ law

and controlled by the ‘‘loeal’’ law, or is regarded as :

matter of ‘‘procedure’’ to be controlled by the ‘‘fed-

eral’’ law.

That is because in this case the evidence did not

raise any disputed issue of fact (see, pp. 3-10, supra).

regardless of whether it is measured by the ‘‘local’’

law or by the ‘‘federal’’ law.

The only case which Mrs. Trivette cites (Petition,

p. 13) which merits any notice’® is Dick v. N.Y. Life

5Mrs. Trivette's citation of Byrd v. Blue Ridge Rural Electric

Co., 356 U.S. 525 (Petition, p. 14) is irrelevant to this case. It

involved simply a ‘‘@isputed fact question’’ whether the defendant

was a ‘‘statutory employer’’ under the local Workmen’s Compen-

sation Act, which the local South Carolina courts had ‘‘ become

accustomed to deeiding’’ without the aid of juries merely as ‘‘a

form and mode” of enforcing the Act’s immunity and as a mode

not ‘*bound up with rights and obligations’’ created by the state.

Likewise her citation of Magcnau v. Actna Freight Lines, 360

U.S. 273, is irrelevant for the same reason, as it simply applied

the Byrd case to a similar question involving Pennsylvania’s Work-

men’s Compensation Act where the local rule, the Court said, was

not an ‘“‘integral part of the special relationship created by the

statute’.

19

Ins. Co., 359 U. S. 437; but that ease is clearly distin-

guishable both as to the facts which it involved and as

to the law [North Dakota] which it applied, es follows:

(1)The facts in the Dick case were entirely differ-

ent from those in this case.

In the cause of Mr. Trivette’s death, there was not

anything vague or mysterious about bis firing the

pistol. He was given to tantrums and ‘ugly’’, ‘*dark”’

and ‘‘sullen’’ moods. Mrs. Trivette was an eye-witness

—actually saw him ‘‘all in one motion’’ (Petition,

p. 3la), ‘*in one quick motion” (p. 35a), ‘tin a flash,

in one movement” (A. 64a)—without halt or interrup-

tion— jerk the gun up’’ (A. 95a) and fire it into his

head before she could ‘‘get over there’ to**knock the

gun away’’—

‘‘T couldn’t save him’’ (A. 96a).

On the other hand, the facts about Dick’s death

Were vague, mysterious and unexplained. He was

‘‘emotionally stable’’-——not given to the ugly or dark

or sullen moods which characterized Mr. Trivette.

There was no eye-witness. His shooting occurred ap-

parently while he was alone on his farm. He was shot

in zcro weather in a silage shed on the floor of which

there was ‘‘a sprinkle of frozen silage’’ (icy and slip-

pery), With a 26-year-old shotgun which he usually

kept im the shed and which ‘the didn't trust’? when he

went hunting because ‘‘once in a while”’ it had ‘*fired

accidentally ”’.

Mrs. Trivette’s counsel ‘‘conceded”’ in his argu-

ment in the Court of Appeals that Mr. Trivette shot

20

himself (Petition, p. 15a)—intentionally pulled the

trigger with his own finger. Not so in the case of Dick,

who was alone, and may have slipped on the frozen

silage so as to throw or drop the gun, or actually may

and there was not any

blood on his ‘tbulky gloves’? which he still wore and

Which (this Court pointed out) would have *‘made it

difficult to turn the gun on himself”’.

(2) The Jaw [North Dakota] which this Court ap-

plied in the Dick case is the exact opposite of the Ken-

have been killed by another

tucky law.

This Court made it clear that the impropriety of

the directed verdict in the Dick case was because of

the North Dakota law that the presumption of acci-

dert which that law raised ‘thas the weight of affirma-

tive evidence, and that

‘Under North Dakota law, this presumption [of

accident] does not disappear once the insurer pre-

sents any evidence of snicide’’ (p. 443).

This Court recognized that ‘‘under the Erie rule’’

[304 U.S. 64], ‘‘presumptions (and their effects)” are

‘substantive’? (p. 446) and that the North Dakota

law's ‘tpresumed fact’”’ of accident

“continues and the plaintiff is entitled to affirma-

tive instructions to the jury coneerning its exis-

tence and weight” (p. 443).°

‘That North Dakota rule apparently arises from that state’s

statute [ND Rev. Code, 1943, § 31-1101] to which this Court re-

ferred, which requires that unless a “*presumption’’ is actually

‘controverted’” by ‘‘other direct or indirect evidence’’ ‘*the jurors

are bound to find according to the presumption’’ (p. 443).

ot

The Kentucky law is the diametrically opposite of

every one of those features of the North Dakota law—

despite Mrs. Trivette’s statement that the law of the

two states “tis substantially identical’? (p. 21)—as next

shown, viz. :

In a suit to recover ‘tdouble indemnity’’, where

death occurred through violence,

(a) Whereas, the North Dakota statute [ND

Rev. Code, 1948, § 31-1101] requires that unless

?

the “*presumption’’ of accident which that state's

law raises actually is controverted *‘the jurors are

bound to find according to the presumption’’, there

is vo such Kentucky statute;

(b) Whereas, the North Dakota law does raise

a presumption of accident where a gun-shot wound

death is shown, the Kentucky law is that ‘tThere

Was no preumption that he shot himself aeciden-

tally’ (Mass. Mut. Life Ins. Co. vy. Bush, 236 Ky.

400, 404—not cited in Mrs. Trivette’s Petition) :

(c) Whereas, on account of that presumption,

the North Dakota law ‘*places on the insurer the

burden of proving that death resulted from

suicide’? (Dick case, 359 U. S. at 446), the Ken-

tucky law is that nevertheless ‘‘The burden was

upon the plaintiff to make out her case’ by prov-

ing an accident—and no such burden is placed

upon the company( Id.) ;

(d) Whereas, on account of that presumption.

the North Dakota law is that ‘‘a plaintiff is en-

titled to affirmative instructions to the jury con-

22

eerning’’ the presumption of accident, the Ken-

tucky law is that it is an error ‘‘ prejudicial to the

substantial rights of the defense”’ for the court to

instruct the jury that it is ‘‘presumed that he did

not intentionally kill himself’’ or ‘‘did not die

by his own hands’’ (Mutual Benefit Life Ins. Co.

v. Daviess’ Ex’r, 87 Ky. 541, 553-554) ; and

(e) Whereas, the North Dakota law’s ‘“‘pre-

sumed fact of aecidental death’’, as this Court

pointed out, ‘does not disappear once the insurer

presents any evidence of suicide’’, but ‘continues

throughout the trial and has the weight of affirma-

tive evidence’ (359 U. S. at 443-444), the Ken-

tucky law is that where the evidence leaves no

room for reasonable conclusion but that suicide

occurred,

‘not only does the presumption disappear en-

tirely, but it is the duty of the court to deter-

mine that death was caused by suicide and in-

struct the jury accordingly’? (Ay. Home Mut.

Life Ins. Co. v. Watts, 298 Ky. 471, 475).

Indeed, in New York Life Ins. Co. v. Gamer, 303

U. S. 161—which applied what this Court deseribed

in the Dick case at the ‘‘modern’’ rule [359 U. S. at

444]—this Court held that the presumption of acci-

dental death ‘‘is not evidence and may not be given

weight as evidence’’ whenever the facts in evidence are

sufficient ‘‘to sustain a finding that the death was not

due to aecident’’ (p. 171).

pene | of

23

Therefore, the Dick case does not have any bearing

upon this case. It involved facts which were decisively

different. It applied ‘tsubstantive’” North Dakota

law which is diametrically opposite the Kentucky sub-

stantive law.

III. This case does not involve any question of “trial

by jury” under the Seventh Amendment to the Constitution.

The District Court directed the verdict against

Mrs. Trivette because she had failed to introduce any

substantial evidence from which reasonable men might

find in her favor the material issue, which was aeci-

dent or suicide.

If it is Mrs. Trivette’s argument that the Seventh

Amendment deprives federal courts of power to direct

a verdict for insufficiency of evidence, then the answer

is given in Galloway vy. United States, 319 U.S. 372,

in this Court’s extensive disquisition regarding the

scope and meaning of the Seventh Amendment in its

relation to jury trials, that—

“Tf the intention is to claim generally that the

Amendment deprives the federal courts of power

to direct a verdict for insufficiency of evidence,

the short answer is the contention has been fore-

closed by repeated decisions made here econsist-

ently for nearly a century” (p. 389).

In that Galloway case this Court, in referring to

insufficiency of evidence in respect of the jury trial

required by the Seventh Amendment, pointed out that

as far back as 17797 “‘inferences’’ which a jury is per-

TSee, Cockscdge v. Fanshaw, 1 Doug. 118; Patrick v. Hallett,

1 Johns. (N. Y.) 241.

24

mittee to draw must not be ‘forced and violent. in-

and that ‘‘the essential requirement is that

mere speculation be not allowed to do duty for proba-

bd

ferences’

tive facts’ (p. 395), and nothing in the Seventh

Amendment allows it ‘‘to join forces with the jury

system”’ to supply essential proof (p. 396).

That construction of the Seventh Amendment has

been carried into Rule 56 of the Federal Rules of Civil

Procedure, in respect of summary judgments where

the standard is that ‘there is no genuine issue as to

any material fact”.

There was no genuine issue raised by the evidence

in this case concerning Mr. Trivette’s intentional

suicide. Mrs. Trivette herself foreclosed the matter

with her testimony, out of her own eye-witness Knowl-

edge, that she tried to ‘‘get over there” to him to

‘knock the gun away’’, and her pitifu! ery of her

conviction that

“*T couldn’t save him’’ (A. 96a).

THIRD POINT.

Neither the coroner’s jury verdict nor Mr. Trivette’s

death certificate was admissible in evidence for any pur-

pose; and the District Court correctly excluded them.

Mrs. Trivette’s Petition mentions that the Dis-

trict Court would not permit her to introduce in evi-

dence the coroner's jury verdict or Mr. Trivette’s death

certificate (p. 7, 33a)—although she does not now

claim that either was admissible. Indeed, both were

properly excluded.

oF be

w?)

(1) As to the coroner's jury verdict, for more than

fifty vears the settled Kentucky law has been that a

coroner's jury verdict is not admissible in’ evidence

in an Insurance case involving the question of the in-

sured’s suicide. See, Aetna Life Ins. Co. ve. Milward,

118 Ky. 716, 725-727; Aetna Life Ins. Co. v. Kaiser, W5

Ky. 539, 546; Pacific Mutual Life Ins. Co. vo MeCabe,

157 Ky. 270, 274.

(2) As to the death certificate, it is the settled Ken-

tucky law that ina **double indemnity” suit, where the

issue is accident or suicide, the statutory death certifi-

eate “is not admissible as evidence in respect to the is-

sue of accidental death or suicide’’ (See Ay. Home Mu-

tual Life Ins. Co, v. Watts, 298 Ky. 471, 498).° a

The District Court correctly excluded both the cor-

oner’s jury verdict and the death certificate.

- CONCLUSION.

The Petition for Writ of Certiorari should be

denied,

R. LEE Biackwenr,

THoowas W. Bonnirr,

1700 Ky. Tlome Life Building,

Louisville, Ny.

Counsel for Respondent.

7 June 1961

“As pointed out in that Watts ease. a statutory death certifi-

eate may be admissible for the purpose of establishing the ‘tidentity

of the deceased"* and the *tcause’’ of his death, sueh as whether it

resulted from drowning, electrocution, gunshot wound, ete.; but it

is not admissible as to the ‘Smanner”? in which death ovcurred, such

as whether it was accidental or self-inflicted or by suicide. In this

case, it Was Stipulated that the cause of Mr. Trivette’s death was

by ‘‘a gunshot or pistol wound’’ (A. 40a). Therefore there was

not any issue as to cause, but only as to manner.

Certificate of Service.

1, R. Lee Blackwell, counsel for the New York Life

Insurance Company, Respondent herein, and a member of

the Bar of the Supreme Court of the United States, hereby

certify that on June 15, 1961, 1 served the foregoing

Brief on the Petitioner, Mildred C. Trivette, by that day

depositing a copy thereof.in a United States mail box, ina

duly addressed envelope with First Class postage thereon

prepaid, addressed to her counsel of record: OQ. T. Hinton,

P.O. Box 641, Pikeville, Kyv.; Herman G. Dotson, P.O.

Box 274, Pikeville, Ky.. and L. D. May, P.O. Box 655,

Pikeville, Ky.

R, Lee Buackwenn,

Counsel for New York Life

Insurance Comany,