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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1961

## Text

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,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1142%3A4. Public record. Not legal advice.