# Petition for A Writ of Certiorari — Order of United Commercial Travelers of America v. Wigginton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_1118%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1942 - **Citation:** 317 U.S. 636 ## Text 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... pee PO pe a, ATER RRS Seca Seger” oe 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’’, GAS: SPREE RI OO gO ORE IEE a he ey ee. : < — - . ars BE PRE LER, MELEE ONE GSD SEATTLE EO MY S59 ieee Nabe ey aprecameaty ajc a —— ants! ‘ &s #2 Bo BP ae re LEE OL ELL ALLL AE LEIA ADS READ Sasa ae OS ge tas 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 q 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_1118%3A1. Public record. Not legal advice.