Mildred C. Trivette v. New York Life Insurance Company

283 F.2d 441, 1960 U.S. App. LEXIS 3441

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 31, 1960
• Docket: 13910
• Status: Published

Opinions

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 ease 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. Red-wine, 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.