Wigginton v. Order of United Commercial Travelers

• Decision Date: 13 April 1942
• Docket Number: No. 7785.,7785.
• Citation: 126 F.2d 659
• Parties: WIGGINTON v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.
• Court: U.S. Court of Appeals — Seventh Circuit

126 F.2d 659 (1942)

WIGGINTON v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.

No. 7785.

Circuit Court of Appeals, Seventh Circuit.

February 9, 1942.

Rehearing Denied April 13, 1942.

E. W. Dillon, of Columbus, Ohio, and Chas. M. LaFollette, Herman L. McCray, and F. Bayard Culley, Jr., all of Evansville, Ind., for appellant.

Richard Waller, Richard R. McGinnis, and D. Bailey Merrill, all of Evansville, Ind., for appellee.

Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

Charles S. Wigginton died November 4, 1939 in his office in Evansville, Indiana, as the result of a gunshot wound. At the time of his death he was a Class A member in good standing of the Order of United Commercial Travelers of America, the appellant herein. The appellant is a fraternal benefit society incorporated and existing under the laws of Ohio and authorized to do business in Indiana. It had issued on January 2, 1914 to the deceased, Wigginton, an insurance certificate which contained the following provision:

"This Certificate, the Constitution, By-laws and Articles of Incorporation of said Order, together with the application for insurance signed by said Insured Member, shall constitute the contract between said Order and said Insured Member and shall govern the payment of benefits, and any changes, additions or amendments to said Constitution, By-laws, or Articles of Incorporation, hereafter duly made, shall bind said Order and said Insured Member and his beneficiary or beneficiaries, and shall govern and control the contract in all respects."

The benefit certificate when issued to the deceased contained this provision from the association's constitution:

"Class A. Insured Members shall be indemnified, in accordance with the terms hereinafter set out in this Article, against the results of bodily injury hereinafter mentioned effected through external, violent and accidental means, herein termed the accident, which shall be occasioned by the said accident alone and independent of all other causes.

"Item (11) For death ........ $6,300.00

"Five Thousand ($5,000.00) Dollars of which shall be paid within ninety (90) days from the receipt by the Supreme Executive Committee of satisfactory final proofs of death and Thirteen Hundred ($1300.00) Dollars in weekly installments of Twenty-five ($25.00) Dollars each, beginning within ninety (90) days from the receipt of such final proofs."

At the annual meeting of the Supreme Council of the appellant held in 1931 the following change was made in the constitution of the appellant:

"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 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)."

Thus it will be seen by the amendment of the constitution the appellant has purported to change the contract with the deceased as to appellant's liability thereunder if death was caused by a gunshot wound.

The appellee was the wife of deceased and the beneficiary in the certificate. She brought suit in the Superior Court of Vanderburgh County, Indiana, to recover. The appellant, the defendant below, removed the case to the United States District Court for the Southern District of Indiana on the grounds of diversity of citizenship. The appellee recovered a judgment and this appeal followed.

We are presented with a question on the evidence as to whether there was an eyewitness, within the meaning of the constitution as amended, and a question as to the validity of the change in the constitution of 1931 as applied to the certificate issued to the deceased, Wigginton.

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.

Since the facts are not in dispute, we are free to consider them and to reach our own conclusion, untrammeled by the District Court's findings and conclusions of law. Especially is this rule applicable in the case at bar, where all the facts are stipulated. United States v. Anderson Company, 7 Cir., 119 F.2d 343, 346; United States v. E. J. Biggs Construction Co., 7 Cir., 116 F.2d 768, 770.

On November 4, 1939, the deceased was in his office on the ninth floor of an office building in Evansville, Indiana. About 12:15 p. m. he took his shotgun and placed it on his desk in his office for the purpose of cleaning it. At the same time he also placed upon his desk a can of oil, a cleaning rag, the cleaning rod and his pocket knife, and actually started to clean his gun. These facts were observed by his secretary, Mrs. McGowan, as she left the office about 12:15. At the time she left, deceased was actually engaged in cleaning the gun.

Reese Young shortly before noon had called the deceased and made a business appointment with him in his office for about 1:30 p. m.

After Mrs. McGowan had left the office, the deceased left his office at about 12:45 p. m., went down to the ground floor on the elevator and returned shortly thereafter by the same means to the ninth floor of the office building. On this occasion he had an ordinary conversation with the elevator operator.

Between 1:15 and 1:30 p. m. Mr. Young stepped from the elevator on the ninth floor of the building and had taken about three steps when he heard a sound resembling a gunshot. At this time he was in a position where he could see the length of the hallway and the door of the deceased's office but he could not see in the office. He saw no one in the hallway. The door to the deceased's office was open into the hallway along which Young was walking. Young proceeded along the hallway to the office of the deceased and entered through the open door within about twelve seconds from the time he heard the gunshot. There he saw the body of the deceased lying on the floor of the office, and saw the shotgun and the cleaning articles lying on the desk, with the barrel of the shotgun pointing towards the chair of the deceased behind his desk. He did not see anyone else in the room at that time. There is no evidence that deceased's actions or conduct indicated anything out of the ordinary, or that he might be contemplating suicide.

In a few moments several other people came into the room. A doctor was summoned immediately and it was found Wigginton had died from a gunshot wound to his left chest and heart and that death was practically instantaneous. One of the barrels of the shotgun which was lying on the desk had been discharged.

Was there an eyewitness within the meaning of this amendment to the constitution which was a part of the insurance certificate? The courts of Indiana have never passed upon a case of this kind. If we knew what the law of Indiana was on the question, we would be bound to follow it. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. Since we have no guide from the courts of Indiana as to what the law of Indiana is, we are bound to declare the law of this case. We shall therefore turn to a consideration of the decisions of courts of other states in our efforts to determine the law of this case.

The leading case on this subject is Lewis v. Brotherhood Accident Company, 194 Mass. 1, 79 N.E. 802, 804, 17 L.R.A., N.S., 714. In this case the insurer had a limited liability under its certificate if death occurred by drowning "when the facts and circumstances of the accident and injury are not established by the testimony of an actual eyewitness." We quote at length from this opinion as it is the leading case from which all others stem:

"What does the clause mean? An eyewitness is a person who testifies to what he has seen. By the terms of this policy the facts and circumstances of the accident and injury are to be established by those who saw them. Not only the fact and circumstances of the injury is to be established by an eyewitness, but also the facts and circumstances of the accident, that is, the operating cause of the injury. Enough must be testified to by eyewitnesses to show the operating cause of the injury, or at least to show that at the time of the injury there was an operating cause to which the accident may fairly be attributed, and to indicate in a general way the nature of that cause and the manner of its working. To illustrate. Suppose a person standing upon the shore sees not far out a boat sailing peacefully along in a mild breeze, with a competent and careful man at the helm. The boat is so large and steady that it is not likely to be capsized by any movement the man would make, nor by the wind as then blowing. In no sense can the boat be said to be in then present peril from any cause. Suppose the observer leaves the shore and returns in an hour, and then sees the upturned boat near where he first saw it. During his absence an accident has happened resulting in the upsetting of the boat. Can it be said that he has seen the circumstances of the accident within any fair interpretation of the language? He has seen no cause in operation to which the accident may be fairly attributed. But suppose that when he first sees the boat, or while he is looking at it, a squall suddenly looms up in the distance and rapidly approaches the boat. He sees it strike the boat, putting her in evident peril. Wanting to get a better look he runs to a house for a spy glass, is gone only a few minutes, and when he returns sees only a capsized boat. Such a man is an eyewitness of the accident, although he did not actually see the boat capsize. He saw the boat in peril from a then impending cause. He saw the cause at work and he saw what was the natural effect of such a cause. That is far enough; and in such a cause the cause of the accident must be held to have been...