Petition for A Writ of Certiorari — Order of United Commercial Travelers of America v. Wigginton

SUPREME COURT OF THE UNITED STATES

CHARLES EL woxe cay) py {

OCTOBER TERM, Erp Se

No. ME 91

THE ORDER OF UNITED COMMERCIAL

TRAVELERS OF AMERICA,

Petitioner,

vs. i

NELLIE B. WIGGINTON.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT AND BRIEF IN SUP-

PORT THEREOF. ) ie ‘

Rionany T. Recror,

E. W. Dutox,

Cuartes M. LaFouterrs,

Herman L. MoCray,

F. Bayarp Cuniay, Jz,

Counsel for Petitioner. —

INDEX.

Suspsecr Inpex.

s Page

Petition for writ of certiorari......................... 1

Summary and short statement of the matter involved. 1

Statement disclosing the basis upon which it is con-

tended this Court has jurisdiction to review this

DN eta eet Aaa eee 6

The questions presented. .....................2.. 9

Reasons relied on for the allowance of the writ...... 17

Exhibit A—Affidavit of A. W. Franklin............ 27

Exhibit B—Affidavit of Currie C. Chase........... 28

Exhibit C—Affidavit of Farrar Newberry.......... 29

Brief in support of petition... <.... 05. occ ccc ccc cas 31

I 55 ool G4 ils ce ra tee et 31

IIIS C5 bs hile p fee oa oo kc ee 32

IIS Sh ees nia Sova Wk Sel he peat wet 32

TEN iE GUS 2h oe ae eka ees 32

Mier hice Mee KOT a des Pe 32

ce | 32

ARIS ea Boats Were Bs tly em ent / 33

Ase ihGreeT ees coe Nin eee eee 36

Detar es ed CREAN eee oo on ck 43

| FLEE SOE ERE PIE ph Wea LR Rae 49

MESS < 03 oo GRA ERE eAne eee eae 52

| EEE OE CLE Maar re Ser ne gem 57

TABLE OF CaszEs CITED.

Auto Underwriters v. Camp, 217 Ind. 328............. 14, 48

City of Indianapolis v. Chase National Bank, — U. S. —,

Bis MR args Ce hee ee La sc a 22, 56

Cleveland, etc., R. R. v. Miller, 149 Ind. 490.......... 12, 42

Conqueror, The, 116 U.S. 110, 17 Sup. Ct. 510.......... 8

Court of Honor v. Hutchins, 43 Ind. App. 321........... 50

Court of Honor v. Rausch, 50 Ind. App. 161............. 50

Cray McFawn & Co. v. Hegarty, Conroy & Co., 27 Fed.

PC MR io 3 ck VEE RIE Coke ecole 10, 25, 52

Eastman v. Warren, 109 F. (2d) 198................... 52

—421

ii INDEX

Page

Erie R. R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188,

SERS ae err re 9, 10, 15, 24, 49, 51

Forsythe v. City of Hammond, 166 U. S. 506, 41 L. Ed.

eg LE Rn nay here ea ae 18

Gaines v. Fuentes, 92 U. 8. 10, 23 L. Ed. 524........... 21

Garreque v. Kellar, 164 Ind. G76....................... 51

George v. Stanfield, 33 Fed. Supp. 486.................. 52

Glasser v. United States, — U.S. —, 62 Sup. Ct. 457... 22, 56

Gypsy Oil Co. v. Esco, 275 U. 8. 498, 72 L. Ed. 393, 48

RS aes Gre are tee 8, 34

J.C. Penny, Inc. v. Kellermeyer, 107 Ind. App. 253...... 42

Lewis v. Brotherhood Acc. Co., 194 Mass. 1, 79 N. E. 802. 10, 19

N. L. R. B. v. Mackay etc., 304 U. 8S. 333, 82 L. Ed. 1381,

ge i Be alee cs s-aidiap a4 8, 34

Owing v. Hull, 9 Peters 607, 34 Sup. Ct. 246....... 10, 24, 51

Pride v. Interstate Bus. Men’s Acc. Ass’n, 207 la. 167,

ne a OE a ha seks aes 38

Roeh v. Bus. Men’s Assn., 164 Ia. 199, 145 N. W. 479. 12, 37

Russell v. Scharfe, 76 Ind. App. 191................. 12, 43

Shedd v. Automobile Ins. Co., 208 Ind. 621........ 14, 44, 48

Supreme Council v. Logsdon, 183 Ind. 183.............. 51

oe ee een ae 51

Tisch v. Protective Home Circle, 72 Oh. St. 233, 74 N. Ed.

Rel ie ein Gh air sigs sivinie A ocean os 50

fe A ere ere 22

Van De Water v. U. C. T., 77 F. (2d) 331.............. 50

Villamarette v. Sovereign Camp, 178 So. 648............. 38

Warren v. Indianapolis Telephone Co., 217 Ind. 93....... 19

og ae ae Re RE | ree 12, 37

Wild v. Sovereign Camp, 149 So. 906................... 38

Statutes CITED.

Indiana ‘“‘Uniform Judicial Notice of Foreign Law Act”’

(Acts Ind. Gen’! Ass. 1937, Ch. 124, Sec. 1 to 7, p. 703);

Burns, 1933 Stat. Ann. (Dec. 1941, Cum. Pack. Supp.)

Se ee Vas ode 51

Ohio Gen’! Code, 1930, Sec. 9467 and Sec. 9469, passed

re PE rs pee ae ee cial gs hak oe 50

Judicial Code, Sec. 240(a); 28 U.S. C. A. 347(a)........ 8

28 U.S. C. A. 41(1): Jud. Code, Sec. 24, as amended.... 8

28 U.S. C. A. 41(1) (b); Jud. Code, Sec. 24, as amended. 8

ee ee I er a IL ce ne os 6 oie 84 8

— RBI AARNE Tels S CPP Role EE Te

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1941

No. 1242

THE ORDER OF UNITED COMMERCIAL

TRAVELERS OF AMERICA,

Fo ae el RE SACS a co

Petitioner,

US.

NELLIE B. WIGGINTON.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

To the Honorable Harlan F. Stone, Chief Justice, and the

Associate Justices of the Supreme Court of the United

States:

Your petitioner respectfully shows:

Part I.

Summary and Short Statement of the Matter Involved.

As an introduction to this statement, it is proper to

say that the facts upon which the issues were tried were

all stipulated (R. 14, and then to 21-28). (The opinion

is reported in 126 F. (2d), p. 659.)

2

This action at law was begun by the respondent-plaintiff,

by the filing of her complaint against the petitioner-defend-

ant on August 19, 1940, in the Superior Court of Vander-

burgh County, Indiana. The case was properly removed to

the District Court of the United States, for the Southern

District of Indiana, on October 2, 1940, and upon appeal

from that court to the Cireuit Court of Appeals, the par-

ties stipulated that, this petitioner had been duly served

with summons in the State court, the cause properly re-

moved, and the District Court had jurisdiction to render its

judgment (R. 6-7).

The complaint (R. 1-5) alleged in substance that the

petitioner-defendant is a fraternal benefit association in-

corporated under the laws of the State of Ohio, that re-

spondent-plaintiff’s decedent, Charles S. Wigginton, was

issued a certificate of membership at Columbus, Ohio, on

January 15, 1906 (R. 2, 4, 23-24). (His application for

membership was signed August 25, 1905 (R. 22, Stip. of

Facts #3); on January 2, 1914, he was issued a Class A

Insurance Certificate at Columbus, Ohio (R. 5, 23-24, Stip.

of Facts #5); that at the time of his death, the plaintiff’s

decedent was a Class A insured member in good standing,

who had performed all of the conditions precedent to re-

covery, as had the plaintiff at the time of the bringing

of the action; that the plaintiff’s decedent died on No-

vember 4th, 1939, of a gunshot wound as a result of the

alleged accidental discharge of a firearm, independent of

all other causes.

The respondent-plaintiff claimed that she was entitled

to recover Five Thousand Dollars ($5,000.00) with in-

terest from November 4, 1939.

The petitioner-defendant filed its answer, consisting of

Four Defenses, on November 2, 1940 (R. 8 to 10); there-

after and before trial, the Third Defense, a suicide defense,

3

was withdrawn with the consent of the respondent-plaintiff

(R. 14) and likewise an amended Fourth Defense was filed

before trial, on March 25th, 1941, with the consent of the

respondent-plaintiff (R. 11-13).

The Amended Fourth Defense (R. 11-13) upon which the

issues were actually formed, admits that the petitioner-

defendant is a fraternal benefit association but adds that it

was at all times authorized to do business in the State of

Indiana; it admits the facts as to application for member-

ship, the certificate of membership and the issuing of the

Class A Insurance Certificate, but it points out and stresses

the fact that these constituted a contract made, executed and

completed in Ohio, and that under each and all of them,

constituting the contract, the decedent agreed to be bound

by the contract as it existed at the time of his death, that

is, that he agreed to be bound by subsequent amendments

to the Constitution of the Order (R. 11 to 12 and 21 to 26,

Stip. of Facts #1 to 6 and 8 to 11).

This defense further says that this petitioner-defendant,

at the annual session of the Supreme Council of the Order

held in the year 1931, duly amended the Constitution of

the Order by adopting the following amendment:

‘‘Nor shall the Order be liable for any death benefit

when the member dies as the result of injuries sus-

tained as a result of a gunshot wound or the alleged

accidental discharge of firearms where there is no eye-

witness except the member himself, in an amount

greater than Five Hundred Dollars ($500.00)."’ (R.

12, also 24-25, Stip. of Facts #7).

This defense then says:

‘‘That the insured member, the said Charles 8. Wig-

ginton, did, on the 4th day of November, 1939, die as

the result of j injuries sustained as a result of a gunshot

wound where there was no eyewitness except the mem-

ber, himself’? (R. 13).

4

The parties stipulated all of the facts (R. 14, then turn

to 21 to 28) and the case was tried on April 14, 1941,

without a jury (R. 15-20) upon the complaint (R. 1-5),

the First and Second Defenses (R. 9 at bottom) and the

Amended Fourth Defense (R. 11-13).

The stipulated facts, out of which this petitioner-defendant

claims the ultimate fact of ‘‘a discharge of a firearm, where

there was no eyewitness except the member himself’’, is the

only ultimate fact which can be inferred as a matter of law,

are the following:

**12. On November 4, 1939, the insured member,

Charles 8S. Wigginton, received a gunshot wound as

the result of the discharge of a firearm and as the

result of said gunshot wound, and independently of

all other causes, died within a few seconds thereafter.

‘*13. The insured member’s office on November 4,

1939, was in room 906 on the ninth floor of the Citizens

National Bank Building in the City of Evansville.

About 12:15 o’clock on the afternoon of November 4,

1939, he took his shotgun and placed it on his desk

in his office for the purpose of cleaning it. He also

placed on his desk at the same time a can of oil, a clean-

ing rag, the cleaning rod and his pocket knife, and

actually started to clean the gun. This was observed

by Mildred McGowan, his secretary, who left the

office about 12:15 P. M., and at the time she left the

office he was cleaning the gun.

‘*Reese Young was a coal dealer in the City of Evans-

ville who purchased coal from Mr. Wigginton’s Com-

pany. Shortly before 12:00 o’clock noon, he had

called Mr. Wigginton by telephone and made an ap-

pointment for about 1:30 P. M. to talk to him about the

problem of a shortage of coal and his desire to get

regular deliveries.

‘‘After Mr. Wigginton’s Secretary left the office, he

also left his office and was taken to the ground floor

of the building in an elevator operated by Freda

Chapel. This was about 12:45 P. M. He returned to

PEELE RGR AL OL OES, TN ESTOS ILO SFI HA Ait PCA A PNG RITA ARTY RM TG ERIE AEP asi arcana tl

4)

the elevator about ten (10) minutes before his death

and was taken to the ninth floor of this office building

in an elevator operated by Ocie Lemon, with whom

he had a conversation while on the elevator.

‘‘Between 1:15 and 1:30 P. M., Reese Young stepped

from the elevator on the ninth floor of this building and

immediately after stepping from the elevator and be-

fore taking more than three (3) steps from it, he

heard a sound resembling a gunshot. At this time he

was in a position where he could see the length of the

hallway to the door of Charles 8S. Wigginton’s office but

he could not see into the office. He did not see any per-

son in the hallway at that time. The door of Mr.

Wigginton’s office opened off of the side of the hall-

way and Reese Young could not see into his office until

he reached the doorway. He walked without accelerat-

ing his speed from that point down the hallway, a dis-

tance of fifty-three (53) feet, taking him approximately

twelve (12) seconds from the time he heard the gun-

shot to the office of Charles S. Wigginton, and saw

that the door was open and saw the body of Charles S.

Wigginton lying on the floor of the office, and saw the

shotgun and cleaning articles lying on the desk with

the barrel of the shotgun pointed toward the chair

of Mr. Wigginton behind his desk. He did not see

anyone else in the room at that time.

‘‘In a few moments several other people came into

the room. <A physician, Dr. Herbert Dieckman, was

immediately called and it was found that Charles S.

Wigginton had died from a gunshot wound to his left

chest and head and that death was practically in-

stantaneous. One barrel of the shotgun which was

lying on the desk had been discharged.”’

(R. 26-27, Stip. of Facts 12 and 13.)

The District Court announced its Special Finding of Fact

(R. 21 to 28) and Conclusions of Law (R. 28) on June

30, 1941, and rendered judgment on the same day in favor

of respondent-plaintiff in the sum of Fifty-two Hundred

Sixty-two Dollars and Fifty Cents ($5262.50) (R. 21).

—_ PERSE ENTER BPR MIRAI RASC HED ONS AIM ITT ieee LR TR NON Bo A NY ROR TS OSA HY MS AREAL

DNs 8 ES AR oe

6

Thereafter, an appeal was taken to, and by proper action

jurisdiction was acquired by, the United States Circuit

Court of Appeals for the Seventh Circuit to review the

above judgment on appeal. The latter court affirmed the

above judgment on appeal, to review which action this

Petition is filed. |

Note: The facts showing the jurisdiction of this Court

are set out under Part II hereof.

Part II.

Statement Disclosing the Basis Upon Which It Is Con-

tended This Court Has Jurisdiction to Review This Judg-

ment. <

The original complaint was by Nellie B. Wigginton, re-

spondent-plaintiff, a citizen of Indiana, brought in the

Superior Court of Vanderburgh County, State of Indiana,

against the petitioner-plaintiff, a corporation incorporated

under and doing business under the laws of the State of

Ohio, to recover the sum of Five Thousand Dollars

($5,000.00) with interest from November 4, 1939, which

action was duly removed to the District Court of the United

States for the Southern District of Indiana, and filed and

docketed in the Evansville Division in the United States

Court House in the City of Evansville, Indiana (R. 1-5).

Said Court rendered judgment in favor of the respondent-

plaintiff and against this petitioner-defendant on June 30,

1941, in the sum of Five Thousand Two Hundred Sixty-two

Dollars and Fifty Cents ($5,262.50), together with interest

from June 30, 1941, and costs (R. 21).

The parties, in preparing the record for appeal from

that District Court to the United States Cireuit Court of

Appeals for the Seventh Circuit, stipulated that the Dis-

ie

7

trict Court had jurisdiction of the parties and the subject

matter (R. 6-7).

B.

(1).

The United States Circuit Court of Appeals for the

Seventh Circuit on February 9th, 1942, rendered its opinion

(R. 61 to 74) in Cause No. 7785, reported in 126 Fed. (2)

659, and entered judgment affirming the judgment of the

District Court (R. 74).

(2).

On February 20th, 1942, this petitioner-defendant, filed

in the aforesaid Court in said Cause No. 7785, its petition

for rehearing and brief in support thereof (R. 75). This

petition was filed within the fifteen days permitted by the

rules of said court, Rule 22, page 12, of the Rules of the

United States Cireuit Court of Appeals for the Seventh

Cireuit, Effective May 31, 1941.

(3).

On April 13th, 1942, said court in said cause #7785, made

and entered its order (R. 75) which reads as follows:

‘It is ordered by the court that the petition and brief

of appellant for rehearing heretofore filed on February

20, 1942, be stricken from the files of this Court be-

cause of the impertinent and scandalous matter con-

tained therein.

‘‘It is further ordered by the court that the man-

date of this Court in this cause issue forthwith to the

District Court of the United States for the Southern

District of Indiana.’’

C.

This petitioner duly filed in this Court, this, its printed

Petition for Writ of Certiorari io the United States Cireuit

2p

8

Court of Appeals for the Seventh Circuit, together with

its Brief in Support Thereof, and one printed certified copy

of the Transcript below, together with the requisite num-

ber of printed copies of the Transcript, this Petition and

the Brief in support thereof, as required by the rules of

this Court, are filed with the Clerk of this Court on the

15th day of May, 1942.

D.

Wherefore, the petitioner says that this Court has juris-

diction to entertain this, its petition for writ of certiorari,

and to review the judgment of the United States Circuit

Court of Appeals for the Seventh Circuit, review of which

is sought hereby.

(1) The jurisdictional amount is present (Title 28, Ch.

2, Sec. 41 (1) U.S. C. A.; Jud. Code, See. 24, as amended).

(2) The requisite diversity of citizenship is present (Title

28, Ch. 2, See. 41 (1) (b), U.S. C. A.; Jud. Code, See. 24, as

amended).

(3) The petition for this writ of certiorari is filed within

time (Title 28, Ch. 9, See. 350, U. S. C. A.).

(4) A petition for rehearing was seasonably filed (II,

B, (2), supra) which suspends the time limited by the last

cited section of the statute until disposed of.

Gypsy Ou Co. v. Esco, 275 U. S. 498, 72 L. Ed. 393,

48 8S. C. R. 112;

N. L. R. B. v. Mackay, etc., 304 U. 8. 333, 82 L. Ed. 1381,

58 S. C. R 904;

The Conqueror, 116 U.S. 110, 113-4; 17 S. C. R. 510.

(5) This petition having been seasonably filed, the dis-

cretionary right or power of this Court for determination

and review is invoked. Jud. Code, See. 240 (a), amended,

U.S.C. A., Title 28, See. 347 (a).

Parr III.

The Questions Presented.

Preliminary Statement.

Two of the questions presented, of which complaint is

made, arise out of the construction of the following clause

in the petitioner’s Constitution and the analysis of the

facts made by the Cireuit Court of Appeals in determining

that an ultimate fact necessary to satisfy the contract was

present, whereas the reasoning processes by which the

ultimate fact was found are illogical and therefore re-

pudiated by the law of Indiana. The clause of the Con-

stitution reads as follows:

‘*Nor shall the Order be liable for any death benefit

when the member dies as the result of injuries sus-

tained as a result of a gunshot wound or the alleged

accidental discharge of firearms where there is no

eyewitness except the member himself, in an amount

greater than Five Hundred Dollars ($500.00).’’

There is no decided case in Indiana expressly construing

this eyewitness clause of the petitioner’s constitution; con-

sequently, the Cireuit Court of Appeals was bound to de-

clare the law of this case, but it was bound to do so under

the general principles of law, then prevailing in the State

of Indiana. The opinion states that the court was bound to

declare the law (R. 64, 1.18 to 1.26). The obligation to

declare it in accordance with the then existing rules of law

of the State of Indiana is, of course, implied. This impli-

‘ation arises because, under the burden placed by Erie R.

R. v. Tompkins, 1938, 304 U. S. 64, 82 L. Ed. 1188, 58

S. C. R. 817, a Federal court cannot violate the general

rules of the law of Indiana, as declared by the highest court

of that State, either in drawing inferences from stipulated

ee ee ee ee, ee eee SS ee ee ee eS ee ee ee ee ——* vo

10

facts, or in construing the meaning of the words of a con-

tract.

It is the petitioner’s contention that the opinion does

violate the general rules of law of the State of Indiana in

two particulars, hereinafter set out as ‘‘A’’ and ‘‘B’’ under

this subdivision of the petition, which constitute the first

two questions presented.

The petitioner also respectfully represents that the record

in this case presents a question which is passed over by

the opinion (R. 63, 1st rhet. par.), and so not decided harm-

fully to the petitioner, but the question is one which has

arisen previously in another district court of the United

States in which there is a reported opinion (Cray, McFawn

&é Co. v. Hegarty, et al., (Dist. Ct., So. Div. N. Y., 1939, 27

Fed. Supp. 93, 95, Syll. 1)). It is novel, but apparently is

actually bothering lawyers and judges in the courts of the

United States, namely :

Does the law as declared in Erie R. R. v. Tompkins, 1938,

304 U. S. 64, deprive a Federal court of the power to take

judicial notice of the laws of all of the States of the Union,

as first announced in Owing v. Hull, 1935, 9 Peters, 607, 34

S. C. R. 246, 253, and ever since accepted as the law?

This last question will be presented under C, under this

subdivision of the petition.

A.

The opinion declares an ultimate fact to arise from the

stipulated facts by mental processes which an analysis of

the opinion discloses are illogical and therefore contrary to

the law of the State of Indiana.

(1).

The opinion follows the leading ease of Lewis v. Brother-

hood Acc. Co., 1907, 194 Mass. 1, 79 N. E. 802, 804-807,

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FR AVRERR > pee PO pe a, ATER RRS Seca Seger”

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11

which first construed a clause similar in purport to the one

hereinabove set out, and which is recognized as the leading

authority upon the construction to be given the clause in

question; namely, that the ‘‘eyewitness’’ need not see the

actual event happen, but that the clause will be satisfied if

there is an eyewitness of primary facts from which the

‘operating cause’’ of the accidental event may be inferred.

(2).

The opinion correctly draws the analogy between the

canoe being paddled upon the river in the Lewis ease and

the primary facts necessary to show an operating cause in

a discharge of firearms case, and declares its construction

correctly in the following language:

‘*What was the operating cause in the case at bar?

In the Lewis case, it was the tricky canoe being paddled

in the river. In the ease at bar, it was a loaded shotgun

in the process of being cleaned.”’ (The italics are ours)

(R. 72, first three sentences in last rhet. par.)

(3).

The opinion then continues to set out and to analyze the

facts out of which it declares there arises the inference

that the witness, Mrs. McGowan, witnessed the operating

cause which caused the death of the respondent-plaintiff’s

decedent. (R. 72, beginning with 4th sentence in last rhet.

par., and ending with 2nd sentence in first rhet. par., p. 73).

Mrs. McGowan witnessed the gun being cleaned at 12 :15,

a then potential operating cause; that is, the actual cleaning

of the gun; she never saw him alive after 12:15 P. M., and

further, the record shows, the part of the transcript cited

discloses, and the opinion says, that Wigginton abandoned

this operating cause between twenty-five and forty-five

minutes prior to his death. He left his office and went

Bie seine PAwae a " SILI LEE OL ES IO OY ILE S RES ERO EAP RN EOS IE

12

out into the city for this period of time—after he returned,

about ten minutes before his death, no one saw him. (R.

26, Stip. of Facts #13).

Remembering that it is the actual cleaning of the gun

which is the operating cause, not a gun surrounded by

cleaning materials (Werner v. T. P. A., 1929, (D. C. Tex.)

3 Fed. (2) 803, aff’d 1930 (C. C. A. 5) 37 F. (2) 96, 97;

Roeh v. Bus. Men’s Assn, 1914, 164 Ia. 199, 145 N. W. 479,

480-482), it is apparent that the operating cause of Wiggin-

ton’s death was a new and different one which arose during

the ten minutes after he returned to his office, and no one

saw him or this new, actual operating cause in action, while

he was in the solitude of his office,—certainly Mildred Me-

Gowan did not.

(4).

The petitioner contends, therefore, that the opinion of

the court below, whereby it made Mildred McGowan an eye-

witness of the death of plaintiff’s decedent, is not logically

tenable, and the law in Indiana requires that inferences shall

be reached by logical methods, and that if an ultimate fact

cannot be established by a logical inference, a party must

fail.

Cleveland, etc. R. R. v. Miller, Admr., 1898, 149 Ind.

490, 507;

Russell v. Scharfe, 1921, 76 Ind. App., 191, 197.

Note: The Brief presents a more elaborate analysis of

this error in logic.

B.

The opinion declares an ambiguity to exist in the clause

in question, which ambiguity cannot arise by according to

the language of the section its ‘‘popular and usual signifi-

cance’’,

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13

(1).

The opinion says:

‘‘Furthermore, we think the provision of the con-_

stitution of the appellant order under consideration in ~

this case is ambiguous. It provides that there must

be an eyewitness. Witness to what? The dying or the

shooting? Surely, it cannot be said that this provision

is clear as to which one is meant. We are unable to

determine from a reading of the provision which one is

meant. Contracts of insurance are construed most

strongly against the insurance company, and so as to

give protection to the insured if this can reasonably be

done. Masonic Ace. Ins. Co. v. Jackson, 200 Ind. 472,

164 N. E. 628.

‘“In the case at bar, there was an eyewitness to the

death of the insured. Mr. Young was upon the scene

within twelve seconds. It is a fair inference, which

we are authorized in this case to draw, that Young saw

Wigginton dying. It is reasonable to construe the

policy, which is ambiguous, so as to mean that there

shall be an eyewitness to the ‘‘dying’’. We so con-

strue it. Young was the eyewitness to the dying.

Therefore, the requirements of the policy were met.’’

(R. 73, last two par., to top of p. 74).

(2).

The opinion states its own ambiguity, that the clause in

question requires an eyewitness to the accidental discharge,

(which every other court in the United States has said it

means), or it may be satisfied by an eyewitness to the

‘‘dying’’ (which no other court has said).

Since the opinion also says that the contract requires the

operating cause to be observed (R. 72, 1st three sentences

in last rhet. par.), an eyewitness to the ‘‘dying’’, who only

observed an operated cause, the effect, the ‘‘dying’’, by

the opinion’s own standard, cannot establish the ultimate

fact necessary for recovery by the plaintiff, as stated by

Se EBS DIMER SAEED LS SPONDS PEI ORPNTS LE ANIL OEE

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14

the opinion, itself—the witnessing of the ‘‘operating cause’’.

The concept of an eyewitness to the ‘‘dying’’ also must

be read in connection with the language found in the clause,

‘‘except the member himself’’. When so read, we create

the fantastic thought that a person is an ‘‘eyewitness”’ to

his own death. A construction of language which leads to

such a fantastic concept is not in accord with that adopted

by normal men.

The idea of a contract requiring recovery to be based,

even optionally, upon a person witnessing death, is so

morbid that it likewise creates a thought not found in

the minds of normal persons.

(3).

Therefore, the ambiguity is based upon an unusual and

fantastic construction of language. But, the law of Indiana

requires, even in the case of insurance companies, that

language in an insurance contract must be construed by

giving to words their ‘‘popular and usual significance’’.

It also declares that liability cannot arise ‘‘by imputing an

unusual meaning to the languare used in an insurance con-

tract’’.

Shedd v. Automobile Ins. Co., etc., 1935, 208 Ind. 621,

pp. 628-629 (Discussion of Sylli. 5 and 6-8) ;

Auto Underwriters v. Camp, 1940, 217 Ind. 328, 342

(Discussion of Syll. 10) also 347 (Discussion of syll.

12).

Since the case of Lewis v. Brotherhood, 1907, 194 Mass. 1,

supra, no case in thirty-five years, except the instant case,

has thought that there was an ambiguity in the language

of this clause or similar clauses of other fraternal benefit

associations. The ‘‘operating cause’’ construction in all

of the other cases in the United States has led to the logical

conclusion that an eyewitness who came upon a man dead,

PLE REESE TPL VE! © PDO oR 4

Pion

15

surrounded by a gun with cleaning materials, had not wit-

nessed an operating cause, but an operated cause; that is, an

effect, and that therefore, such a witness did not comply

with the provisions of the clause and entitle the beneficiary

under the policy of such a decedent to a recovery under the

clause (See Werner case and Roeh case, III A (3), this

subdivision of this petition).

Therefore, except for the declared ambiguity, the witness,

Reese Young, who saw no more than the witness did in

the Werner case and the Roeh case, would not be an eye-

witness of any facts which would permit a recovery under

this clause now in question.

However, the alleged ambiguity declared in this opinion,

that there may be an eyewitness to the ‘‘dying’’, makes it

possible under this opinion for Reese Young to qualify as an

eyewitness, upon which recovery can be based; but since the

alleged ambiguity rests upon a construction of language

which is contrary to the express and declared law of the

Supreme Court of Indiana (Sub-point immediately supra),

the alleged ambiguity does not arise under the law of

Indiana, or is invalid under the law of Indiana. Therefore,

the recovery allowed in this case upon the testimony of

Reese Young is contrary to the law of Indiana, and the Cir-

cuit Court of Appeals in this case has allowed a recovery

which is contrary to the declared law of the State of Indiana.

C.

The record, if reviewed, will permit this Court to declare

the power of a Federal court to take judicial notice of the

laws of all the States in the light of Erie R. R. v. Tompkins,

1938, 304 U.S. 64.

(1).

The plaintiff-respondent raised in the District Court, by

her objections to the introduction of some of the stipulated

3p

a se ea

16

evidence (R. 16, bottom of p. to top p. 17, also pp. 18-19), and

by her briefs, the question of the power of the District

Court of the United States sitting in Indiana, to take judi-

cial notice of the laws of Ohio, when the petitioner-defend-

ant failed to prove those laws under the provisions of the

Indiana law with reference to proof of foreign laws. The

District Judge overruled the objection, and, in effect, held

that it was not necessary, but he wrote no opinion.

The Court of Appeals disposed of the issue in the follow-

ing language:

‘*We lay to one side the question of the validity of

the amendment to the constitution and proceed to a

determination of whether under the undisputed facts

in this case there was an eyewitness within the meaning

of the amendment.”’

(R. 68, 1st full rhet. par.)

Therefore, the question has not been decided by any

opinion of either of the courts below.

(2).

The reference to the record and the authorities which

need be cited in order to show how this question arises

are too involved to permit their being presented in a con-

cise manner in this part of the petition. However, we have

presented them in the brief at pages 49 to 52.

(3).

We admit that the question was decided in favor of the

petitioner by the District Court, but it is a question which

apparently is beginning to bother the bench and bar of the

Federal courts, and we respectfully request the court to

grant this petition for the purpose of settling this question

before some other litigant, less able to finance an appeal,

loses his rights in some District Court of the United States

17

through a misapprehension of what the law is upon this

question.

The petitioner’s counsel do not believe that the power to

take judicial notice of the laws of all the States has been

lost; but if it has been, it is easy enough for a party fore-

warned to make proof of the law of a State, other than that

in which the court is sitting, if he is apprized of the neces-

sity of doing so before he begins the trial of his case in

Federal court. Certainly, impecunious litigants will be

benefited and protected against any misunderstanding as to

the law on this question, if this Court will exercise the writ

to declare the law upon that question, as well as the other

questions presented in this petition.

Part IV.

Reasons Relied On for the Allowance of the Writ.

Preliminary Statement.

The reasons for granting the writ are closely connected

with the Questions Presented. Therefore, in the Brief,

we shall enlarge upon the following reasons, as well as upon

the Questions Presented. The petitioner respectfully re-

quests the Honorable Justices to consider the Brief in con-

nection with this part of the petition for the writ.

A.

The opinion, insofar as it arrives at the ultimate fact

that Mrs. McGowan was an eyewitness to the ‘‘operating

cause”’ of the death of the respondent-plaintiff’s decedent

(R. 72, last par. and 73, Ist par.) is sustained by reason-

ing processes which are illogical and not ‘‘in accordance

with correct and common modes of reasoning’’, and to that

extent it is contrary to the local law of Indiana. (See

authorities under III A (2), p. 11, this petition.)

SRL

18

It should be remembered that the primary facts are stipu-

lated. Therefore, this petitioner is not asking for a re-

view of a question of fact. When the facts are undisputed

or stipulated, the process of inferring the presence of an

ultimate fact from primary facts requires the drawing of

an inference which is valid as a logical inference. This

process involves a question of law in Indiana, as well

as in every other known jurisdiction where Anglo-Saxon

jurisprudence is accepted as the jurisprudence of the State.

(1).

This Court, even before Erie R. R. v. Tompkins, has

granted the petition for the writ, where a decision and

opinion of the United States Circuit Court of Appeals

for the Seventh Circuit presented conflict between the law

of Indiana as declared by the Federal court and the law

as declared by the Supreme Court of Indiana.

Forsythe v. City of Hammond, 166 U.S. 506, 41 L. Ed.

1095, 17 S. C. R. 665.

(2).

It is submitted, that when this Court, through Frie R. R.

v. Tompkins, directed the Federal courts to follow the laws

of the various States, this Court inferentially assumed a

burden to grant relief to litigants, where a Federal court,

exercising intermediate appellate jurisdiction, has erred in

determining the law arising out of a factual situation,

which has not been ruled upon by the State court, but which

ruling upon the new factual situation violates established

general rules of law of the State involved.

Is it not persuasive, also, that the Supreme Court of

Indiana has declared, upon the question of ultimate review,

that under the Constitution of Indiana, it possesses not only

the power, but is burdened with the duty to review all deci-

19

sions of the Appellate Court of Indiana, in which the charge

is made that the Appellate Court has violated a ruling

precedent of the Supreme Court or has decided a new

question erroneously, notwithstanding a legislative enact-

ment denying the Supreme Court the right.

Warren v. Indianapolis Telephone Co., 1940, 217 Ind.

93, 114.

B.

The second question and error presented involves the

creation of an ambiguity out of the wording of the eyewit-

ness clause by giving to the language of this clause a mean-

ing which is not in conformity with its ‘‘popular and usual

significance’’, but which imputes an ‘‘unusual meaning to

the language used in an insurance contract’’.

Such construction of language is contrary to that per-

mitted by the law of Indiana.

(See authorities cited, III B, p. 12, this Petition.)

(1).

No other court, to our knowledge, has ever held that this

language was equivocal, or permitted the drawing of the

ambiguous meaning which the court below has drawn. These

contracts have been construed at least since 1907, the date

of the decision in Lewis v. Brotherhood, etc., 1904 Mass. 1,

79 N. EB. 802, 804-807, supra, and no court has found an

ambiguity therein.

(2).

Although the question of conflict of decision between

United States Circuit Courts of Appeal on matters of the

general law, not involving a Federal question, is no longer

a persuasive ground for exercising the power to issue the

writ here sought, nevertheless the fact that the opinion

below, by declaring the alleged ambiguity, makes a person

20

who has observed the ‘‘operated’’ cause, the effect,—death

—a qualified witness, where other cases (Werner v. T. P. A.

and Roeh v. Bus. Men’s Assn. etc. Part III A(3), supra,

this Petition, p. 12), not recognizing that there is any am-

biguity, have held such a person did not fulfill the obligation

of the clause, because he had not witnessed the ‘‘operating’’

cause, should influence the court in granting the writ.

This is especially true where the Federal court is at-

tempting to make new law for a State and in so doing,

not only does not recognize existing decisions of other

courts (Werner v. T. P. A., Roeh v. Bus. Men’s Ass’n, supra,

Part III, A, (3), this Petition, p. 12), which we have the

right to assume the Supreme Court of Indiana would

recognize, but also circumvents the effect of such decisions

by means of an alleged ambiguity, which ambiguity will not

stand the test laid down in the decided Indiana cases

(supra), Part III, B, (8), this Petition, p. 14.

C.

As to both A and B, supra, of this Part IV of this Peti-

tion, it is not a valid answer that the Supreme Court of

Indiana is not bound to follow the opinion which the

petitioner seeks to have reviewed.

First, if a Federal court undertakes to decide a question

of State law under Erie R. R. v. Tompkins, and decides it

contrary to State law, we again submit, that by granting

that right to the lower Federal courts, this Court inferen-

tially said to all litigants: ‘‘We will police those courts

and see that their opinions and decisions conform to the

law of the State involved’’.

Second, the opinion of a court, having the dignity, the

standing, and the reputation for correctness of decision

enjoyed by the United States Circuit Court of Appeals

for the Seventh Circuit, has such great weightthat factually,

AIR PN aE,

21

the strong probability is, that the courts of Indiana will

accept that opinion on its face and will brush aside all

efforts of lawyers to urge the errors inherent in it which

have been pointed out in this Petition. Any lawyer who

has gone through the frustrating experience of attempting

to overrule a prevailing precedent based upon illogical rea-

soning, knows that what has been said is factually honest.

Thus, the very wrong sought to be corrected by Erie R. R.

v. Tompkins, the intrusion upon litigants of the opinions

of the Federal courts, which are contrary to the laws of

that State, again will be fostered if opinions, such as the

one involved, which are contrary to the law of a State,

are permitted to stand.

Third, it will not do to say to this petitioner, ‘‘ You could

have stopped in the State court, you came here voluntarily,

uninvited and unwanted, therefore we will grant you no

relief.”’ Erie R. R. v. Tompkins grants this litigant the

right to a decision based upon the law of Indiana and

limits the right to nothing more. Therefore, one who comes

into a Federal court today, no longer can be charged with

seeking an unconscionable advantage or with an ulterior

motive. Factually, greater impartiality of juries (At the

time of removal, an agreement to try by stipulation and

before the court without jury is seldom, if ever in existence.

It was not in this case), greater skill and impartiality of

judges, easier and simpler methods of procedure, are some

of the considerations which have large persuasive effect.

Can it be said that these considerations are dishonorable?

Even so, the Congress of the United States has not seen

fit to further limit this petitioner’s right to invoke the

jurisdiction of the courts of the United States than by the

present statute upon the subject, although it has the

power to do so. Gaines v. Fuentes, 1876, 92 U. S. 10, 23

L. Ed. 524. Therefore, to refuse to grant the writ solely

EEL LP LIE CHE PIC

Odeon eee td eel

22

because the petitioner exercised a right which the Con-

gress has not seen fit to deny him, would amount to judicial

legislation which this Court has zealously avoided.

As to Paragraphs Second and Third hereof, the peti-

tioner respectfully invokes the doctrine that the factual

necessities and actualities of a situation will be recognized

behind the bare legal rule (that Indiana courts are not

bound by the opinion in question), as that doctrine is ex-

pressed by this Court in City of Indianapolis v. Chase Na-

tional Bank, etc., 1941, — U. S. —, 86 L. Ed. p. 27, at p.

29 (headnotes 1 to 3), and in the dissenting opinion of

Mr. Justice Frankfurter and the Chief Justice, in Glasser

v. U. S.,— U.S. —; 62S. C. R. 457 at 473.

D.

The effect of the opinion in question is to destroy the

contract which this petitioner, a fraternal benefit associa-

tion, has made with its members by the democratic process,

whereby the members, themselves, in conventions attended

by duly elected representatives, decide what contracts

should be made, by constitutional amendments, in order

to conserve its funds and to place all members on an

equal footing (U. C. T. v. Smith, 1911 (C. CG. A. 7), 192

Fed. 102, 102-5).

(This statement elaborated in Brief, pp. 57-61.)

The opinion, because it will be followed by many courts

(see Point C, above this Part IV, of this Petition), affects,

not only the amount involved, but also the assets of and

the actuarial problems of this petitioner. Likewise, it will

affect the assets of and the actuarial problems of similar

associations having like or similar clauses in their con-

stitutions and contracts. The actual amount of property

rights involved and affected by the opinion, not only in

23

Indiana, but throughout the United States, far exceed the

sum involved. It likewise affects the interests of the many

members of this petitioner and associations similarly situ-

ated, in the assets of their associations, as well as their

personal policy interests.

Because of this large public interest affected, and the

large amount of property factually affected, by the opinion

sought to be reviewed, this Petitioner respectfully prays

that this Court issue the writ prayed.

(1).

The Petitioner knows that the considerations urged im-

mediately above are not factually presented upon the ree-

ord. However, once jurisdiction to entertain the writ is

established, the question of whether a showing is made

sufficient to justify the court to exercise its discretionary

power to grant the petition and issue the writ is a mixed

question of law and fact, lying peculiarly within the juris-

diction of this Court, not necessarily dependent upon the

record as disclosed by transcript.

Therefore, the Petitioner has assumed that it is proper

to support the facts hereinabove last urged by affidavits

attached to this Petition and made a part hereof, solely

for the purpose now herein set out.

(2).

Your Petitioner therefore respectfully says that this

Petitioner had outstanding and in effect on December 31,

1941, 77,894 insurance certificates containing the clause in

question, with potential death liability of $343,534,620.00,

of which certificates, 2,007 were issued and outstanding to

residents of the State of Indiana, as shown by the affidavit

4p

24

of A. W. Franklin, Supreme Secretary, which is attached

to this Petition, marked ‘‘ Exhibit A,’’ and offered as a part

hereof, for the purposes last hereinabove set out.

Your Petitioner further respectfully says that the Iowa

State Traveling Men’s Association is a fraternal benefit

association, which has in its contract of insurance a clause

synilar to the one construed in the opinion sought to be

reviewed; that said association, on January 1, 1942, had

issued and outstanding 63,842 insurance certificates or

policies containing said clause, of which 1,134 were held

by residents of Indiana, all as shown by the affidavit of

Currie C. Chase, its Secretary-Treasurer, which is attached

to this Petition, marked, ‘‘Exhibit B,’’ and offered as a

part hereof, for the last mentioned purpose hereinabove

set out.

Your Petitioner further respectfully says that the Wood-

men of the World Life Insurance Society is a fraternal

benefit society, which has in its contract of insurance

a clause similar to the one construed in the opinion sought

to be reviewed; that said association, on January 1, 1942,

had issued and outstanding 74,733 benefit certificates con-

taining said clause, all as shown by the affidavit of Farrar

Newberry, its Secretary, which is attached to this Petition,

marked ‘‘ Exhibit C,’’ and offered as a part hereof, for the

last mentioned purpose hereinabove set out.

EK.

This Petitioner finally says that the question of whether

or not the decision of this Court in Erie R. R. v. Tompkins,

1938, 304 U. S. 64, has destroyed the right of the courts

of the United States to take judicial notice of the laws of

all of the States of the United States, as first announced in

Owing v. Hull, 1835, 9 Peters 607, 625, 34 8. C. R. 246, 253,

25

is of such importance that this Court will confer a boon

upon litigants in, and the bench and bar of, the Federal

courts, if it will declare the law upon the question.

The question arose in the District Court of the United

States for the Southern Division of New York, Cray Mce-

Fawn & Co. v. Hegarty, Conroy & Co., 1939, 27 Fed. Supp.,

93, 95, Syll. 1, aff'd Per Curiam, question not discussed,

1940, 109 F. (2) 443. It was strenuously advanced by the

respondent, in both Federal courts below, that the right

had been taken away, and apparently seriously considered

at the oral argument in the Circuit Court of Appeals, by

Lindley, District Judge.

These facts evidence the uneasiness and uncertainty of

lawyers and judges over this question, which can easily

cause an impecunious litigant, who cannot afford an appeal,

or whose attorney is afraid to try one (incidentally most

of us are scared to death of Federal courts and procedure),

to lose valuable rights, if a District Court J udge holds that

the right has been destroyed.

Wherefore, your Petitioner prays that a writ of cer-

tiorari issue under the seal of this Court, directed to the

United States Cireuit Court of Appeals for the Seventh

Circuit, commanding said court to certify and send to this

Court a full and complete transcript of the record and of

the proceedings of said United States Circuit Court of

Appeals for the Seventh Circuit, had in the case numbered

and entitled on its docket, No. 7785, Nelhe B. Wigginton,

plaintiff-appellee, v. The Order of United Commercial Trav-

elers of America, defendant-appellant, to the end that this

cause may be reviewed and determined by this Court to

the extent prayed in this Petition, and as provided for by

the statutes of the United States; and that the judgment

herein of the said United States Circuit Court of Appeals

26

for the Seventh Circuit be reversed by the Court, and for

such further relief as this Court may deem proper.

This day of May, 1942.

Respectfully submitted,

Tue Orper or UniTrED COMMERCIAL

TRAVELERS OF AMERICA,

Petitioner,

By Ricuarp T. Rector,

of Columbus, Ohio;

K. W. Ditton,

of Columbus, Ohio;

Cuartes M. La Fouuertte,

of Evansville, Indiana;

Herman L. McCray,

of Evansville, Indiana;

F. Bayarp CuLLey, JR.,

of Evansville, Indiana;

Counsel for Petitioner.

27

EXHIBIT A.

THE SUPREME COURT OF THE UNITED STATES

SEVENTH DISTRICT.

No. —.

THe Orper or Unirep CommerciaL TRAVELERS OF AMERICA

v.

Neuure B. Wiceinton.

Affidavit.

State or Ouro,

County of Franklin, ss:

A. W. Franklin being first duly sworn says that he is the

Supreme Secretary of The Order of United Commercial

Travelers of America; that said association indemnifies

the beneficiaries of its certificate holders for death result-

ing from accidental means, and that the contract of insur-

ance issued to its said certificate holders contains, among

other things, the following:

‘*Nor shall the Order be liable for any death benefit

when the member dies as the result of injuries sustained

as a result of a gun shot wound or the alleged accidental

discharge of firearms where there is no eye witness

except the member himself, in an amount greater than

Five Hundred ($500.00) Dollars.’’

Affiant further says that as of December 31, 1941, there

were outstanding approximately 77,894 certificates contain-

ing the above quoted eye witness provisions with a potential

death liability of $343,534,620, of which 2,007 certificates

were issued and outstanding to residents of the State of

Indiana.

Further affiant sayeth not.

A. W. FrRankuin.

Sworn to and subscribed before me this 29th day of

April, 1942.

Luioyp WEEKs,

[SEAL. ] Notary Public, Franklin Co., O.

My commission expires Aug. 24, 1943,

28

EXHIBIT B.

THE SUPREME COURT OF THE UNITED STATES

SEVENTH DISTRICT.

No. —.

Tue Orper or Unirep CoMMERCIAL TRAVELERS OF AMERICA

v.

Neuure B. WiccGInTon.

Affidavit.

Strate or Iowa,

County of Polk, ss:

Currie C. Chase, being first duly sworn, says that he is

the Secretary-Treasurer of the Iowa State Traveling Men’s

Association; that said association indemnifies the benefici-

aries of its policy or certificate holders for death resulting .

from accidental means, and that the contract of insurance

issued to its said certificate or policy holders contains,

among other things, the following:

‘*H. The Association shall not be liable for death,

disability or specific loss in excess of one-tenth of the

amounts of these by-laws provided for indemnity for

death, disability or specific loss when said death, dis-

ability or specific loss arises from or is effected or ag-

gravated by any of the following causes, conditions or

acts or results therefrom, to-wit: * * * death or

injuries resulting from the discharge of firearms where

the member (or beneficiary in case of death of the mem-

ber) is unable to prove by actual eye witness other than

himself or the claimant, the nature and circumstances

of the discharge of the firearms and the infliction of

the injury.’’

Affiant further says that as of January Ist, 1942, there

were outstanding approximately 63,842 certificates or poli-

cies containing the above quoted eye witness provisions, of

29

which approximately 1,134 were held by residents of

Indiana.

Further affiant sayeth not.

Currie C. CHASE.

Sworn to and subscribed before me this 30 day of Apr.,

1942.

Earu C. Mis,

[seat.] Notary Public, in and for Polk County, Iowa.

My commission expires July 4, 1942.

EXHIBIT C.

IN THE SUPREME COURT OF THE UNITED STATES

UPON APPLICATION FOR WRIT OF CERTIORARI

TO THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SEVENTH CIRCUIT.

No. —.

Tire OrpER oF Unirep CoMMERCIAL TRAVELERS OF AMERICA

v.

Neuure B. Wiaceinton.

Affidavit.

Srare oF NEBRASKA,

County of Douglas, ss:

Farrar Newberry, being first duly sworn, deposes and

says that he is the Secretary of the Woodmen of the World

Life Insurance Society, a fraternal benefit society incorpo-

rated under the laws of the State of Nebraska; that said

Society pays double indemnities to beneficiaries of the hold-

ers of its benefit certificates for death resulting from acci-

dental means; and that the Constitution, Laws and By-laws

of said Society, which are a part of every benefit certificate

—

30

issued by it, contains among other things the following

provision:

‘The Society shall not be liable for the payment of

double indemnity under any beneficiary certificate pro-

viding for double indemnity in case of the death of the

member by accident, where it is claimed that death re-

sulted from accidental drowning, cutting, poisoning,

hanging, inhalation of gas, discharge of firearms or

shooting, unless at least one person other than the

member was an eye witness of such drowning, cutting,

poisoning, hanging, inhalation of gas, discharge of fire-

arms, or shooting.’’

Affiant further states that as of January 1, 1942, the

Woodmen of the World Life Insurance Society had out-

standing Seventy-four Thousand Seven Hundred Thirty-

three (74,733) benefit certificates which were subject to the

above quoted eye witness provision.

Farrar NEWBERRY,

Secretary of the Woodmen of

the World Life Insurance Society.

Sworn to and subscribed before me this 30th day of

April, 1942.

[ SEAL. ] KATHERINE V. PETERSON,

Notary Public in and for Douglas County, Nebraska.

My commission expires September 1, 1944.

nee ee oe Fee ae ee ee ee

FEMS By

ERNEST! Sey wee

SYN ENS cS SAR ROE

TMRURI ERR DARREN