Trivette v. New York Life Insurance Company

• Decision Date: 31 October 1960
• Docket Number: No. 13910.,13910.
• Citation: 283 F.2d 441
• Parties: Mildred C. TRIVETTE, Plaintiff-Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

283 F.2d 441 (1960)

Mildred C. TRIVETTE, Plaintiff-Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellee.

No. 13910.

United States Court of Appeals Sixth Circuit.

October 31, 1960.

O. T. Hinton, Pikeville, Ky., for appellant, Herman G. Dotson, and Hinton & May, Pikeville, Ky., on the brief.

R. Lee Blackwell, Louisville, Ky., for appellee, Thomas W. Bullitt and Bullitt, Dawson & Tarrant, Louisville, Ky., on the brief.

Before MILLER and POPE, Circuit Judges, and KENT, District Judge.

KENT, District Judge.

This action is based upon four policies of insurance issued by the defendant company prior to the death of the insured, Maurice Trivette, of which the plaintiff widow was the beneficiary. Under the terms of the policies "double indemnity" was to be paid in the event of accidental death. The principal amount of the four policies was $30,000, which was paid by the defendant company. The District Court directed a verdict against the plaintiff (appellant) at the conclusions of the plaintiff's proofs. The issue is whether the plaintiff is entitled to double indemnity for the death of the insured.

During the argument in this Court plaintiff's counsel conceded that the decedent shot himself. It was the theory and claim of the plaintiff that the decedent "might not" have intended to shoot the gun, that he "might not" have intended to kill himself, that he only intended to "scare" the members of his family. Admittedly, he put the gun to his forehead in the presence of the plaintiff and the gun was fired resulting in the death of the decedent. Plaintiff relies upon Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (and other cases which need not be discussed), a case decided under the law of North Dakota in which the Supreme Court of the United States held that the burden was upon the insurer to establish that the death of the insured was due to suicide. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, this Court and the District Court are required to follow the law of the State of Kentucky. The trial court had before it the decision of the Court of Appeals of the State of Kentucky in Prudential Ins. Co. v. Tuggle's Adm'r, 254 Ky. 814, 72 S.W.2d 440. After that decision and prior to the argument of the principal case before this Court, the Court of Appeals of Kentucky decided Prudential Ins. Co. v. Hattie Bell Redwine, Adm'x of Ewen, 1959, 332 S.W.2d 643. In many respects the facts in Prudential Ins. Co. v. Redwine, supra, were similar to the facts in the present case and as pointed out by the Court at 332 S.W.2d 643, at page 646 — "It must be remembered that the plaintiff had the burden on the whole case of proving death by accident. Massachusetts Mut. Life Ins. Co. v. Bush, 236 Ky. 400, 33 S.W.2d 351."

In Prudential Ins. Co. v. Redwine, supra, the Court of Appeals of Kentucky approved its earlier decision in Prudential Ins. Co. v. Tuggle's Adm'r, supra. The facts in the instant case are such as to require the same result as that reached by the Court of Appeals of Kentucky in Prudential Ins. Co. v. Redwine, supra. The District Judge could not submit the principal case to the jury for speculation or surmise as to some cause other than suicide for the death of the decedent. At the conclusion of the argument on the motion for a directed verdict Judge Swinford stated in part —

"In my opinion, gentlemen, there is no point in prolonging something unless there is a basis of law on which it might rest. In my opinion, in this case it was conclusively shown that it was not the result of an accident but it was the result of a deliberate act on the part of the deceased, under circumstances under which, by no stretch of the imagination, could the jury conclude that there was an accident. That will be the judgment of the court."

For the reasons set forth by Judge Swinford as the basis for directing a verdict for the defendant, and on authority of Prudential Ins. Co. v. Tuggle's Adm'r, supra, and Prudential Ins. Co. v. Redwine, supra, the decision of the District Court must be affirmed.

POPE, Circuit Judge (dissenting).

Since I find myself unable to concur in the majority opinion, I think I should state the reasons for my disagreement. They are several.

The opinion assumes that the rule of Erie Railroad Co. v. Tompkins is to be applied here. As I shall indicate later, I think a more complete statement of the facts would call for a different result even assuming the propriety of the Erie Railroad Co. approach. But if, as I am convinced, this case is not ruled by Erie, then the reasons for a different result are even stronger.

I realize that in Lovas v. General Motors Corp., 6 Cir., 212 F.2d 805, 807, this court said that in a diversity case whether a plaintiff's evidence is sufficient to take the case to the jury is a question to be decided according to state law. But an examination of that case shows that it was decided, as the court said, upon principles that "are well settled under both state and federal law." It cannot be said that any different result would have been reached no matter which law, state or federal, was applied. In short, it cannot be said that the expressed view as to the applicability of the Erie Railroad case was necessary to the decision.¹ Our case, however, is one which might well turn on the question whether I am right in my view that, as put by Professor Moore,² "The sufficiency of certain evidence to raise a question of fact for the jury * * * should not be controlled by state law."³

As time goes on it becomes increasingly clear that, as often stated by the Fifth Circuit, "the kind of jury trial to which the parties are entitled in Federal Courts under Rules 38 and 39 of the Federal Rules of Civil Procedure, 28 U.S.C.A., is that preserved by the Seventh Amendment to the Constitution, to which the doctrine of Erie Railroad Co. v. Tompkins, * * * is of course subservient." Pogue v. Great Atlantic & Pacific Tea Company, 5 Cir., 242 F.2d 575, 582.⁴

This is exactly the same principle applied by the Supreme Court in Byrd v. Blue Ridge Cooperative, 356 U.S. 525, 537, 78 S.Ct. 893, 901, 2 L.Ed.2d 953, where the Court said: "An essential characteristic of that system is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury and, under the influence — if not the command — of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury. * * * The policy of uniform enforcement of state-created rights and obligations, * * * cannot in every case exact compliance with a state rule — not bound up with rights and obligations — which disrupts the federal system of allocating functions between judge and jury."

I am not suggesting that the Byrd case dealt with the precise question presented in the case now before us. It is plain that the Supreme Court has not thus far directly expressed itself upon the question which I here discuss.⁵ But the clarity with which the Court there declares the principle which underlies the decision of the Fifth Circuit in the Pogue case, to my mind furnishes clear evidence that when it does find occasion to speak, the Supreme Court will agree with what was said in the Pogue case.

In my opinion there are compelling reasons for regarding the position of the Fifth Circuit as the only tenable one. Such is also the view of the Courts of Appeals for the Fourth, Ninth and Tenth Circuits. Davis Frozen Foods v. Norfolk Southern Ry. Co., 4 Cir., 1953, 204 F.2d 839, 842; State of Washington v. United States, 9 Cir., 1954, 214 F.2d 33, 40; Smith v. Buck, 9 Cir., 1957, 245 F.2d 348, 349; Allen v. Matson Navigation Company, 9 Cir., 1958, 255 F.2d 273, 281-282.⁶ Diederich v. American News Co., 10 Cir., 1942, 128 F.2d 144; Basham v. City Bus Co., 10 Cir., 1955, 219 F.2d 547, 52 A.L.R.2d 582; Miller v. Irby, 10 Cir., 1955, 227 F.2d 942.

As noted in Dick v. New York Life Ins. Co., 359 U.S. 437, 445, 79 S.Ct. 921, not all of the courts of appeals have agreed upon this proposition. An examination of those cases which have purportedly followed state decisions as to what constitutes a sufficient case for the jury convinces me that in the main they are distinguishable either on the ground that the court found it unnecessary in the particular case to pass upon this point, or because the case really involved a problem of state substantive law such as the existence of presumptions and the location of burden of proof.⁷

For instance, the latest discussion of a similar question in the Second Circuit is to be found in Presser Royalty Company v. Chase Manhattan Bank, 1959, 272 F.2d 838, 840. There the court said: "In this diversity action brought in the Southern District of New York and involving only issues of state law the question whether the evidence was sufficient to take the case to the jury is probably to be determined by New York law." (Emphasis mine.) The use of the word "probably" clearly indicates that the court found it unnecessary for the purposes of the case to decide the question, and also that it had some reservations upon the question.

This is further indicated by the fact that the court called attention to a dissenting opinion of Judge Magruder expressing an opposite view. (In Pierce Consulting Eng. Co. v. City of Burlington, Vt., 2 Cir., 1955, 221 F.2d 607, which the court cited, the court showed similar doubts as to whether state law controlled, citing Moore and cases from the Fourth and Tenth Circuits.) Interestingly, although the court cited a number of other cases from the Second Circuit, it failed to cite its own decision in Reynolds v. Pegler, 223 F.2d 429, 433-434, where it said that the "better view" would seem to be that expressed by Moore and by decisions in the Ninth and Tenth Circuits. I am of the opinion that the question is still an open one in the Second Circuit.⁸

I am therefore confident that Professor Moore is basing his...