Dick v. New York Life Insurance Company – Oral Argument – January 12, 1959 (Part 2)

Media for Dick v. New York Life Insurance Company

Audio Transcription for Oral Argument – January 12, 1959 (Part 1) in Dick v. New York Life Insurance Company

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Earl Warren:

Mr. Vogel, you may proceed.

Philip B. Vogel:

May it please the Court.

I will conclude my opening argument merely by saying that under the clear edict of all four North Dakota cases on this subject that trial judge in the federal court was right in submitting this case to a jury.

He was required to submit it to a jury and that the Eighth Circuit Court of Appeals, I submit, was in error when they reversed the judgment.

Thank you.

Earl Warren:

Mr. Tenneson, you may proceed.

Norman G. Tenneson:

Mr. Chief Justice, may it please the Court.

I think in this case, there is very little dispute between us as to the essential facts.

I have disagreed very hardly with some of the inferences as to this man’s conduct prior to death as stated by Mr. Vogel.

I think also it can be said that there is no argument between us as to the applicable North Dakota substantive law.

The law of North Dakota is that proof of death by gunshot wound aided by the presumption against suicide creates a prima facie case, that is the law of North Dakota as enunciated in the four cases that counsel has referred to and set forth in the Svihovec case which Judge Sanborn in his opinion expressly referred to.

Now, under that rule a verdict for a plaintiff in this type of case will not be set aside unless the facts and circumstances cannot be reconciled with any reasonable theory of accidental death.

William J. Brennan, Jr.:

But, Mr. Tenneson, do I understand from that that you do not — you and your adversary then do not disagree on what the law —

Norman G. Tenneson:

We do not disagree, Your Honor.

William J. Brennan, Jr.:

— the law —

Norman G. Tenneson:

I did endeavor to convince the trial court that the North Dakota rule was not the best rule.

I endeavor to convince the trial court that once we had offered credible evidence indicating suicide that the presumption fell out of the case and should not be referred to in the instructions.

That I believe is the better rule.

The rule sponsored by both Professor Wigmore and Professor Morgan but unfortunately, to our view, it is not the law of North Dakota.

Our contention, of course, here is that the facts and circumstances as disclosed here are consistent only with suicide and wholly inconsistent with accident.

Now, counsel has drawn in his argument numerous inferences which I think are based on little foundation of fact.

I, of course, concede the right of counsel to draw inferences but as the Court of Appeals in its decision said that the plaintiff is not entitled to the benefit of inferences which are unreasonable or which are opposed to the undisputed facts.

I think that is sound to all.

Now, I think when you’ve boil this case down, what you’ve got here as far as the plaintiff is concerned is only two ultimate facts, namely, the insured is death.

And second, none of the usual motifs that appear in these types of cases is present here.

The evidence did indicate some ill health on the part of this insured.

He was troubled with prostate, land trouble that he felt helpless, not well that he was in some pain.

The testimony is clear that he went to his family physician during the months of September, October, November and December preceding his death on January 20, 1955.

His wife testified that she knew of only two trips to the doctor and the family has closely met as counsel has indicated this family is with such a fine seating back and fort between the parents and the children, the neighbors and everybody else.

It’s somewhat inconceivable that this man would not disclose to his wife the six of the trips.

Norman G. Tenneson:

Now, I conceive that certainly, this travel he had is not of such a nature that it would ordinarily lead a man to commit suicide.

But I think it is argued that perhaps, he regarded this illness much more seriously than he was justified in doing.

Now —

Earl Warren:

What did the doctor say about — about the seriousness of it?

Norman G. Tenneson:

Oh, he said, he had a mild to moderate nonspecific prostatitis, I think.

Then he said he had a certain amount of pain with it.

Well, he has certain discomfort but I don’t think I can fairly say that this was a serious illness.

He was a farmer and customized whom to sitting on tractor seats and he had trouble in his back, in the area of his back.

The doctor did give him hormone injections and as I recall the testimony put him on sulfa therapy.

But the man came in and I think the doctor’s testimony is the last time in December that it was a windy and a cold day and he said he probably had some aches and pains in his back and that’s the reason he came in.

Now, the plaintiff here naturally has made much of the absence of some of the usual motifs which are common in the suicide cases.

As the courts have said, a motif, of course, is helpful to the defendant naturally but it is not essential.

That is the holding of the courts.

And I think it is common knowledge and as the Court say that men who have no known motif to commit suicide perhaps there is always a motif but it is not always disclosed.

Now, I hope — I think you noticed in the argument that counsel made the statement, “He may have done this.

He might have done this.

It’s likely that he did that.”

Now, that seems to me that makes a weak case on the part of the plaintiff.

The plaintiff has the burden of showing how this accident occurred if this was an accident.

Seems to me that you are entitled to something more here than bare conjecture as to what might have happen.

William J. Brennan, Jr.:

I thought you have said you and your adversary agreed on the laws of North Dakota?

Norman G. Tenneson:

Yes.

William J. Brennan, Jr.:

And now you just said that he has the burden of showing that this was an accident.

Norman G. Tenneson:

Well, he does have a prima facie case, of course.Once you have a violent death plus the presumption.

William J. Brennan, Jr.:

He has made out his case.

Norman G. Tenneson:

He has made out a prima facie case.

Yes, Your Honor, I think that is the law of North Dakota.

Earl Warren:

What burden did he have after that?

Norman G. Tenneson:

Well, my point is simply this, perhaps, I used the wrong words, stronger words than I meant to is that the plaintiff in his effort to point out how this might have happened has indulged in what I would say is conjecture rather than embodying but on some facts that were established by the evidence in the case.

And I think its — pursuing that line of inquiry will lead us into the realm of speculation based upon —

Tom C. Clark:

It was (Voice Overlap) —

Norman G. Tenneson:

Pardon, Your Honor.

Hugo L. Black:

All those conjectures did happen, didn’t it?

Norman G. Tenneson:

I think on our part, as I will attempt to demonstrate later, that there are certain, essential facts here which are proven and which, in our view, are consistent only with suicide and wholly inconsistent with accident.

Now, what are the undisputed facts here?

As I view, perhaps counsel will disagree with me or the Court may disagree.

But we do have testimony from the wife, the brother, the nephew and the other relatives that William Dick was an experienced hunter.

We’re not dealing here with a man that was not familiar with firearms.

He had hunted practically every fall since 1926.

He had hunted for pheasants, ducks, geese and deer.

That’s not uncommon in our part of the country where game is quite plentiful.

He was very thoroughly familiar with shotguns and how they operate it.

He had owned this gun for 26 years after all.

And the testimony by his wife and his brothers is uncontradicted that he was careful in the handling of firearms.

He was not a careless man.

The gun he owned, the gun that caused his death was the only gun that he owns.

Testimony is undisputed that he was a husky, strong man and the doctor said that he would do his regular farm work in spite of the misery that he was having from this prostate trouble.

Now, I think it’s important here to consider the gun that is here on evidence.

What kind of a gun is it?

Well, it’s a 12-gauge, Stevens, double-barrel.

And when you break the gun, insert the shells in here close that breech, this gun is automatically unsafe.

You cannot fire both triggers.

And to guide the hunter, there’s an S above this little button here on this top.

In order to fire both triggers, you have to do something.

You have to push this button forward and take it off safe, then you may fire both triggers.

You break the gun again when you insert shell, do it again, that gun is unsafe.

So it is obvious that this gun must have been taken off safe otherwise it would not have fired.

And as was asked earlier in the argument, the front trigger fires the right barrel.

The rear trigger fires the left barrel.

I think that is common in practically all shotguns although some of the modern ones, you could select what trigger you want to push if you’re fast enough to do it.

Norman G. Tenneson:

Now, immediately after this death was reported, the sheriff in the corner came out to this little farm, found this man lying in what is known in the evidence as a silage shed.

It is a small building between the barn and the silage and has been testified that he was lying on his back with his right knees slightly cocked up against an outer door.

Along side up of him was this gun, the barrel up high, the stack down below, thus beyond that again was an 8 to 10 inch screwdriver.

That’s the way he was found in the record.

There are pictures showing the way he lay as post by his brother who came there afterwards.

Earl Warren:

An 8 to 10 inch what?

Norman G. Tenneson:

Screwdriver.

Earl Warren:

Oh, screwdriver.

Norman G. Tenneson:

Yes.

Now, the sheriff took this gun back to the courthouse and he proceeded to make a series of test of it.

He put the gun off safe.

And then as I recall the testimony, he pounded at 10 times on the floor.

This would have stopped down.

See if it would discharge, it did not.

He reversed it and did the same process to the barrel, then he put the gun in firing position and banged it against an object then took the gun and dropped it several times.

He made all these tests and then that results of all the test was the gun did not fire, warded off safe.

What’s indicated should indicate and I think it’s a reasonable inference that that gun was in good working condition.

It certainly was immediately after this man’s death.

Earl Warren:

Had it always been in good condition as far as you know?

Norman G. Tenneson:

Well, there is some testimony on the record that some time previously the gun was accidentally discharged but I don’t think quite of the — the — on cross examination, the testimony does not stand up but there is some such testimony.

Earl Warren:

Who is — who is handling it when it went off accidentally, supposedly?

Norman G. Tenneson:

I think if — if it went off accidentally, Your Honor, Mr. Dick.

Yes.

Now —

Tom C. Clark:

Where do they keep the gun?

Norman G. Tenneson:

That is not too clear in the record.

The only testimony, as I recall, is the testimony of the widow that it was usually kept in the barn.

But I — I’m sure there is no other testimony as to that, usually kept in the barn.

There was this barn and then it right angles to the barn was this little silage shed and beyond that, the silage.

(Inaudible)

Norman G. Tenneson:

None whatsoever, Your Honor.

The testimony is that at the time of Mr. Dick’s death, there were only two people there, Mr. Dick and his wife.

At the time Mr. Dick was found in the silage shed, two discharged 12-gauge shells were in the chambers indicating that two shots had been fired.

As I’ve said, the shot came lay along side, the left of the body and beyond that the screwdriver about in line with the axis of the body.

Now, counsel has made much of the argument that if a man is going to commit suicide, he would take his gloves off.

The testimony is that this was a cold day somewhere around zero as I recall.

And it is not uncommon in our country for people to wear gloves and it is not uncommon for hunters to use gloves.

If it means anything, I have hunted myself and whether it gets wet or gets cold you always wear gloves, and generally, gloves of this type.

Tom C. Clark:

He always (Inaudible)

Norman G. Tenneson:

No, my —

Tom C. Clark:

(Voice Overlap) —

Norman G. Tenneson:

— just ordinary 25 Cents Store gloves that most fit fingers but it’s obvious this can be put in there.

Now, here’s another evidentiary fact that we consider of great importance here is the presence of shot pellets or patterns in this little shed.

Now, then quoting now the testimony from George Dick, the brother of the insured, he said that there were shot pellets in the northwest corner of this little shed and that they were also shot pellets in the southeast corner near this outside door.

The shot pellets at the southeast were four or five feet from the floor, as I recall the testimony.

The others were up in the corner.

Earl Warren:

Which — which one — which pattern was the one that had some of the —

Norman G. Tenneson:

The brain matter, that —

Earl Warren:

(Voice Overlap) —

Norman G. Tenneson:

— would be in the southeast corner.

Earl Warren:

That’s where those on the lower?

Norman G. Tenneson:

The lower down.

Yes.

Earl Warren:

Lower down.

Norman G. Tenneson:

Now —

Earl Warren:

How far was that from the floor?

Norman G. Tenneson:

My recollection is four to five feet.

Earl Warren:

Four to five.

Norman G. Tenneson:

And maybe three to four but it’s somewhere in that (Inaudible).

Now, our theory as to what happened here is simple.

Norman G. Tenneson:

This man took this gun like this, intending he’s hit in the left side, he’s hit in the left side, a glancing blow.

Charles E. Whittaker:

(Inaudible)

Norman G. Tenneson:

That’s the first shot, yes?

Charles E. Whittaker:

(Inaudible)

Norman G. Tenneson:

Well, he was leaning over, which what the counsel — what Mr. Vogel referred to.

Charles E. Whittaker:

(Inaudible)

Would you get out a little further so we can all get a look at you while you’re doing this?

Tom C. Clark:

Here, it is unloaded.[Laughter]

Norman G. Tenneson:

I hope it is.

Now, to corroborate our theory here —

Tom C. Clark:

When he shot the first time, what happened to the gun?

Norman G. Tenneson:

I don’t know.

Tom C. Clark:

Yes, but —

Norman G. Tenneson:

I don’t know, Your Honor.

I — it may have, it may have.

William J. Brennan, Jr.:

Well, now, wasn’t the testimony that at least one expert, as I understand it, testified that the shot entered the back and went out the front of his back.

Norman G. Tenneson:

I recall of no testimony in the record that the shot entered from the rear.

The testimony of the witness which we whom we call who was an expert in firearms attached to the Fargo Police Department, a young man but a — who qualified as an expert was that the shot that there were powder burns on the outer jacket worn by this man at the point where the shot entered and that the shot spreads somewhat as it came out the back.

Earl Warren:

And where did they say those powder burns were on the jacket?

Norman G. Tenneson:

Right in the area of the hole made by the shotgun fire.

Earl Warren:

Toward the front or toward the rear?

Norman G. Tenneson:

In the — toward the front.

Earl Warren:

Toward the front.

Norman G. Tenneson:

And from the presence of powder burns, he deduced the inference that the gun — that the shot came this way rather than this way.

William J. Brennan, Jr.:

Well, was there testimony of anyone that the shot may have come — entered the body from the back?

Norman G. Tenneson:

Well, I think —

William J. Brennan, Jr.:

(Voice Overlap) —

Norman G. Tenneson:

— that argument was made to the jury and apparently quite successfully than —

William J. Brennan, Jr.:

No, I thought Mr. Vogel had said that one of your witnesses said one thing and the other said the other.

Norman G. Tenneson:

I — I am aware of no contradiction in the testimony of our witnesses as to where —

William J. Brennan, Jr.:

No.

Norman G. Tenneson:

— the shot came from.

William J. Brennan, Jr.:

Mr. Vogel, tell us if I heard it right.

Tom C. Clark:

How do you play the second shot?

Norman G. Tenneson:

Well, yes.

Our theory is simply the second shot was this.

Earl Warren:

Well —

Norman G. Tenneson:

Let’s took off the left side of his head.

Earl Warren:

Well, now, let’s see — let’s see you do that and get — get it on your head in a way so that will —

William J. Brennan, Jr.:

This was on a big hole in his side that was mortalized.

Earl Warren:

Can you reset back — can you reset back the trigger?

Norman G. Tenneson:

I can.

Earl Warren:

I beg your pardon?

Norman G. Tenneson:

I can.

Charles E. Whittaker:

You haven’t got it on the back.

Norman G. Tenneson:

No, I got it.[Laughter]

Earl Warren:

Well, you are not — you haven’t got it on your head.

You got off the side of your head.

Get on your —

Norman G. Tenneson:

Well, they took off the side of his head, Your Honor.

Tom C. Clark:

Did it hit the front side?

Norman G. Tenneson:

Yes, a part over here, bottom of the eye.

William J. Brennan, Jr.:

But he was facing in another direction, isn’t that right?

Norman G. Tenneson:

Yes, that’s correct.

That the pattern was (Inaudible) that was the first shot, the second pattern is over this way.

William J. Brennan, Jr.:

Was he standing up or kneeling down?

Norman G. Tenneson:

Well, the evidence will show and we have the man’s underwear here, there was blood concentrated down the back and here in the crotch indicating that he was either standing or stooped because the blood had gathered there.

What part (Inaudible)

Norman G. Tenneson:

Well, the screwdriver was there.

It is conceivable that he used the screwdriver to fire the triggers.

Earl Warren:

To what?

Norman G. Tenneson:

To fire the triggers.

I do not think it is necessary but that evidence was there, the screwdriver lay along side the barrel of the gun and beyond it.

Earl Warren:

Well, what other — what other evidence beside the fact that — that a stray screwdriver was laying on the floor of the silage?

The silage shed would indicate that he used it to pull the trigger.

Norman G. Tenneson:

It is purely inference, Your Honor.

(Voice Overlap) —

Earl Warren:

And — and what about — what about the stray screwdriver around a bar (Inaudible) is that evidence?

Would you take that as the evidence normally that — that’s the way a man discharge a gun?

Norman G. Tenneson:

It is one way that it could be done.

Earl Warren:

Oh, yes, one way it could be done.

Norman G. Tenneson:

Yes, yes.

Earl Warren:

I wonder if you’d you mind showing us now how you would — you would discharge that gun at your head and use the — and use the screwdriver?

Norman G. Tenneson:

I have no screwdriver obviously.

I can use a pen.

Earl Warren:

Put your gloves on.

Put your gloves on.[Laughter]

Norman G. Tenneson:

You want my gloves on?

Earl Warren:

Yes.

Why you’d shoot all those people at — in the back of the Court and miss yourself entirely with that.

You didn’t have a gun in your hand at all, as I saw it.

Norman G. Tenneson:

Your Honor is right again.

Earl Warren:

You have been pointing over your head and at — at those people back there.

William J. Brennan, Jr.:

Well, we can’t ask you to put your — a hole in your side but that must have been quite a feet, must it not, with that mortal wound I understand the side before he did it?

Norman G. Tenneson:

Well, we don’t think so.

Charles E. Whittaker:

(Inaudible)

Norman G. Tenneson:

Well, if you regard them both as accidents, I would — I would —

Charles E. Whittaker:

(Inaudible) this was accident (Voice Overlap) —

Norman G. Tenneson:

Yes, yes, yes, conceivable.

Earl Warren:

I beg your pardon?

Norman G. Tenneson:

Yes, Your Honor.

That’s conceivable.

The first explosion might have been accidental but the sequence of the two in our view at least rules out that possibility.

Charles E. Whittaker:

Now, I have shown in our brief on pages 12 and 13 in trying to show —

(Inaudible)

Norman G. Tenneson:

That is correct, Your Honor.

I think that that was the decisive factual element in the case that led him to set aside the jury verdict, and particularly when this — this blast occurred at 180 degrees angle from each other.

Hugo L. Black:

How can you possibly know that there were two separate accidents rather —

Norman G. Tenneson:

Well —

Hugo L. Black:

— than the gun falling and — and shooting twice?

Norman G. Tenneson:

How can I know, Your Honor, that there were two accidents?

Hugo L. Black:

A man shot followed in the shooting.

How can you know this too?

Norman G. Tenneson:

Well, we know that two shots were fired.

Hugo L. Black:

I know you know there were shots (Inaudible)

Norman G. Tenneson:

Yes.

Hugo L. Black:

— but I — I understood you to say there had to be two separate accidents.

Norman G. Tenneson:

I do not concede that there are accidents, Your Honor.

Hugo L. Black:

Well, I mean if they were, I — I know that you don’t think he’d make the shot.

Norman G. Tenneson:

Yes.

Hugo L. Black:

How though can you reach in conclusion at the one end that both of them had to be accidents?

How can you reach a conclusion —

Norman G. Tenneson:

Well, I am willing to —

Hugo L. Black:

— that both of them (Voice Overlap) —

Norman G. Tenneson:

I am willing to —

Hugo L. Black:

— separate accidents?

That’s what I’m getting at.

Norman G. Tenneson:

I’m wiling to concede that one shot might have been accidental, might have.

I don’t think we’d be here in this Court today if there were only one shot fired.

Hugo L. Black:

You mean that what you — what you’re be wiling to concede would be that if there’s one shot fired —

Norman G. Tenneson:

Might have been accident.

Hugo L. Black:

— you would concede that that was sufficient to draw the inference that there was an accident.

Norman G. Tenneson:

Yes.

Yes, I would think that would be correct, Your Honor.

Hugo L. Black:

But you say one is —

Norman G. Tenneson:

You get two of them and —

Hugo L. Black:

— the man shot twice, the man shot twice, he can’t do that

Norman G. Tenneson:

You’re — you are stretching credulity as the — beyond the breaking point as the Court of Appeals said.

Hugo L. Black:

Why?

Getting away from that word, why?

How do we know that it didn’t drop one — shoot the (Inaudible)?

Norman G. Tenneson:

We don’t know except that the test of the gun by the sheriff, the violent abuse that it was subjected to immediately after the shooting indicates the gun was in good working condition and it could not have been fired unless it were off safe.

Hugo L. Black:

That indicates there had no accident at all?

Norman G. Tenneson:

Yes, yes, Your Honor.

Hugo L. Black:

But it doesn’t — it doesn’t indicate, does it, that there might not have been two shots fired almost simultaneously —

Norman G. Tenneson:

That is —

Hugo L. Black:

— in accidental discharge?

Norman G. Tenneson:

The only effect in the case which cast doubt upon that is the fact the shot patterns are in different corners of the shed, one in the northwest corner, one in the southeast, 180 degrees angle.

If you had exploded two triggers at once, it is extremely unlikely that you would get shot patterns in the area and where they were found.

Charles E. Whittaker:

(Inaudible)

Norman G. Tenneson:

I’m — that is the statement I make.

I’m erroneous, I would like to be corrected.

William J. Brennan, Jr.:

Mr. Tenneson, I understand you to say that double indemnity is recoverable under this policy as long as its violent steps, violent means whether accidental or —

Norman G. Tenneson:

No.

No, Your Honor.

We must, of course, concede that this injury that caused his death was external and violent.

William J. Brennan, Jr.:

As also to be accidental?

Norman G. Tenneson:

Yes.

Yes, that is the language of the policy.

William J. Brennan, Jr.:

So, in other words, had he been actually the victim of a murder, there’d be no recovery for double indemnity?

Norman G. Tenneson:

Well, that is a question, it is not in the case.

At least there’s no evidence that he —

William J. Brennan, Jr.:

No.

Norman G. Tenneson:

— was murdered.

And I, frankly, have not briefed it.

The — the policy does provide that double indemnity benefit shall be fail if the insured’s death resulted from self — pardon me, I’m reading too far again, “The double indemnity benefits referred to shall be payable only upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means.”

William J. Brennan, Jr.:

And accidental.

Norman G. Tenneson:

Yes, Your Honor.

Potter Stewart:

What page are you reading from?

Norman G. Tenneson:

I’m reading from the pleadings on the record.

Potter Stewart:

What page?

Page 5?

Norman G. Tenneson:

Yes, Your Honor.

Potter Stewart:

Yes.

Earl Warren:

It is quoted there.

Hugo L. Black:

Mr. Tenneson, is Mr. (Inaudible) the sheriff?

Norman G. Tenneson:

Yes.

Hugo L. Black:

What did you understand by this evidence that you gave, “On January 28, 1955, I testified at Lisbon that it appeared the charge was up from the floor into the body rather than into the body from an upward position because the wound is larger at the bottom and it is upside”?

Norman G. Tenneson:

My understanding of that testimony, he is referring to the wound on the left side —

Hugo L. Black:

What do you mean —

Norman G. Tenneson:

— up — up from the —

Hugo L. Black:

— what do you mean by saying up from the floor into the body?

Norman G. Tenneson:

It’s like — like this.

Hugo L. Black:

Whether — and — but the — it’s up to the floor.

It couldn’t have been — started at the front, could it?

Norman G. Tenneson:

Well, the undisputed testimony in the case is that there were powder burns on the — on the —

Hugo L. Black:

I know that.

That’s another —

Norman G. Tenneson:

(Voice Overlap) and that the charge came from front to rear.

Hugo L. Black:

Front — that — that’s another piece of evidence.

Norman G. Tenneson:

Yes, Your Honor.

Hugo L. Black:

I know that’s different with — what do you understand he meant when he said that it was up from the floor into the body rather than into the body from an upward position because the wound is larger at the bottom and isn’t the top side?

Norman G. Tenneson:

Well, the wound would be larger as it — as the shots exited from the body and it would be where the shots entered.

Hugo L. Black:

But what do you understand he meant to say by this (Voice Overlap) —

Norman G. Tenneson:

Well, as you read it, Your Honor, it’s not too clear.

Hugo L. Black:

But it looks — sounds pretty clear to me that he thought it came from the bottom up.

Maybe I’m wrong in reading that.

Norman G. Tenneson:

Well, I have always understood him to mean that the shot charge here came from the bottom up and entered — came in this angle rather than on the other angle.

Hugo L. Black:

He said by that testimony, I meant that the charge started from the position of the ground rather than by holding the gun in the air.

Norman G. Tenneson:

Yes, yes, that the stack was on the ground.

That’s my understanding of what he’s saying.

(Inaudible)

Norman G. Tenneson:

That’s correct.

(Inaudible)

Norman G. Tenneson:

That’s correct.

That’s my understanding of what he meant.

Earl Warren:

But on the — on the body itself, the — the wound to the rear — on the rear of the side was lower than the wound in front.

Norman G. Tenneson:

That is correct.

And the way I —

Earl Warren:

And how much — how much lower?

Norman G. Tenneson:

I don’t recall.

It was not very much, as I recall the testimony.But we account for that the fact that he was stooping over.

We’ve demonstrated that in our office a number of times and that is the effect of it.

Earl Warren:

Would it necessarily — I — I don’t know but — but it necessarily followed that it was lower in the back if he did lean over this — this way?

Norman G. Tenneson:

Well, depending upon the degree that you lean.

Earl Warren:

Yes, it could be that way.

Norman G. Tenneson:

Yes, yes.

Earl Warren:

It could be either way I suppose.

Norman G. Tenneson:

Yes, I suppose it could.

Earl Warren:

Yes.

Norman G. Tenneson:

Yes.

Earl Warren:

I — I’m looking at this — this picture on page 25, defendant’s Exhibit 17 which shows the wounds on — on the body that — that wound in — in the breast and looked to be too far from the heart region, does it?

Norman G. Tenneson:

No.

It is somewhere as I recall the testimony in the arch of the ribs here.

It did take off some of the arch in the rib bone here.

Earl Warren:

It took some of the ribs off.

Norman G. Tenneson:

Yes, that’s right, some of them.

Earl Warren:

And it did collapse a lung.

Norman G. Tenneson:

I believe he testified it did.

That’s my recollection.

Earl Warren:

Well, wouldn’t — wouldn’t the force of that shotgun in that particular part of a man’s body be so terrific that he’d have very little control over his arms and his movement after that?

As I view this — as I — as I look at this picture here.

Norman G. Tenneson:

Yes.

Earl Warren:

Looks very close to the heart and — and his lung was collapsed and his ribs were — were taken off, you say some — some of them?

Norman G. Tenneson:

Well, they were.

Earl Warren:

Wouldn’t that shock of that — that 150 or so pellets in the shotgun with the force of that powder behind it be such not only as to give him great pain but as to stun him and make him incapable of agility or falling out of course of conduct after that?

Norman G. Tenneson:

Well, I suppose that is one possible inference, they’re conjecture, one can go from it.

Earl Warren:

Is it unreasonable?

Norman G. Tenneson:

I think, Your Honor, it is.

The testimony of the physician and I’m trying to stay with the testimony in the record here —

Earl Warren:

Yes, of course.

Norman G. Tenneson:

— is that he was conscious and that he had the strength and ability to discharge that second barrel.

Now, you may disagree with the doctor’s conclusion —

Earl Warren:

No.

Norman G. Tenneson:

— but that is the record in the case.

Earl Warren:

Well, the fact that he was conscious and the fact that he had some strength —

Norman G. Tenneson:

And he had the ability —

Earl Warren:

— still leave it very, very arguable as to whether he had the agility to — to go through the contortion that you had to go through to get that gun —

Norman G. Tenneson:

Well, the only —

Earl Warren:

— shoulder to do it then in a — in a parallel way.

Norman G. Tenneson:

We have the evidence that blood had drained into the crotch of the underwear and the underwear is here indicating that he was in an upright position.

Now, he might have been down this way as well as standing which would, of course, give him more support.

Earl Warren:

When?

On the second shot?

Norman G. Tenneson:

Yes.

Earl Warren:

Well, then, he’d — then he’d have more trouble — more trouble in getting to the triggers to shoot himself parallel wise through the — through the head, wouldn’t he?

Norman G. Tenneson:

Well, he’s got the advantage of this shoulder out here the distance of — from the head to the shoulder but he doesn’t have otherwise.

Earl Warren:

What the doctor say about the use of his left arm after that — after that shot, was this —

Norman G. Tenneson:

He didn’t testify.

Earl Warren:

Does — does — would it be unreasonable to suppose the man wouldn’t have much use of that arm after — after a jolt and the wound of this kind?

Norman G. Tenneson:

I frankly cannot answer your question, Your Honor, I am not a petitioner and I don’t know.

Earl Warren:

Well, we’re dealing in — we’re dealing in conjecture, all of us are.

Norman G. Tenneson:

Yes.

Earl Warren:

You — I just wondered if it would be unreasonable to — to believe that.

Norman G. Tenneson:

Well, it is my personal opinion it would.

And I’m thoroughly satisfied as to the sequence of events here.

And the hazard in this case, as I see it, is that we can indulge in any kind of speculation and conjecture and depart from what’s in the record.

Now, we can build theories one way or the other and I have tried in my argument here to stay with the undisputed facts in the case.

And I realize if this is a fruitful case in which to indulge in speculation as to what might have happened.

But I –we feel it is our position from these undisputed facts here that this was not accident that it had to be suicide.

Earl Warren:

Well, if we all deal in theory, why couldn’t the — why couldn’t the jury and the trial judge be entitled to — to indulge in theory as well as the Court of Appeals?

Norman G. Tenneson:

Well, I’m sure the jury did.

Earl Warren:

Well, is there any reason why they shouldn’t?

Norman G. Tenneson:

Well, I think that they are bound to stick to the record facts that they can draw inferences which are unreasonable or which are opposed to the undisputed facts.

Of course, that’s the function on — of the Court of Appeals if the jury indulges in that type of thing.

Hugo L. Black:

You mean that the Court of Appeals has — has more expertise in regard to determining whether that was reasonable?

Norman G. Tenneson:

Well, they have, I would say, obviously agree to expertness in weighing evidence than the jury would have.

And I think Your Honor is well-realized as the burden that attorney has defending a case of this kind so far as the jury is concern.Sympathy naturally is with the plaintiff.

Charles E. Whittaker:

(Inaudible)

Norman G. Tenneson:

Yes, and I assume that involves the process of weighing it if they’re going to consider it.

Charles E. Whittaker:

(Inaudible)

Norman G. Tenneson:

Yes, yes, and that is about the position that the Court of Appeals took and the appellate court on the record concluded the judgment couldn’t stand because as Judge Sanborn said, you can believe an experienced hunter might accidentally shoot himself once but the certain theory that he could accidentally shoot himself first with one barrel and then with the other stretch his credulity beyond the wrecking point and that was the view of the — of the Court of Appeals.

Now, you got another circumstance here, I haven’t dwelled on.

I don’t believe that this death occurred in a small shed probably 7 feet wide and 11 or 12 feet long, as I recall, I maybe off 1 foot or more.

What was this man doing in the shed if there were wild dogs around, as the counsel would have us believe?

What was he doing in the shed?

He can’t shoot them there and a significant fact in the record here as far as these wild dogs killing sheep is concerned, there isn’t any testimony from the witness anywhere that the sheep or the cattle or anything else was being molested around that farmstead that morning and this wild dog business happened more than a year, about a year prior to this particular day.

Hugo L. Black:

What — what weight do you attribute to the fact here?

He went into the shed.

Do you think that he couldn’t have committed suicide outside this as well?

Norman G. Tenneson:

Oh, I think he could, yes, personally.

But I say that it is improbable that he would go into that shed if he had any design to use that gun for a legitimate purpose.

Charles E. Whittaker:

Do you mean sheep or dogs?

Norman G. Tenneson:

Dogs or anything else that might have been around.

In other words, the dogs hadn’t cornered him in the shed.

Earl Warren:

Might not the gun had been kept in the shed?

Norman G. Tenneson:

We don’t know where the gun was kept except the widow’s testimony, as I recall, that she thought it was kept in the barn.

Earl Warren:

Well, that’s — do you say what possibly could have taken him into that shed?

Maybe he went in there to get the gun.

Norman G. Tenneson:

All right, let us — let us assume that he did.

Now, it is — there — there is no evidence here that he stumbled anywhere.

There is no evidence, physical evidence that there was any showing that he had slid on the silage shed or any such thing as that, no bear marks to — on the silage floor to indicate that he slipped or he had fallen.

There is no testimony.

There are no nails, hooks or projections in the shed of any kind might uphold these triggers.

And certainly, it required some act of somebody to discharge these triggers unless you are going to throw out completely the testimony of the sheriff as to the efforts he made to discharge this gun and he also testified that it took seven pounds pull to discharge these triggers and that he made that test on both triggers.

Now, what —

Earl Warren:

Is there any — oh, pardon me.

Is there anything in — in the record as to the condition of the floor in the silage shed?

Norman G. Tenneson:

Yes, Your Honor, there is.

Earl Warren:

What is it?

Norman G. Tenneson:

The testimony is that there was, as I recall, a slight sprinkle of silo on the floor and on the steps.

Earl Warren:

And what does that — what, if any, does that do to the (Voice Overlap) —

Norman G. Tenneson:

I — I — to — as far as I’m concerned, it has no significance whatsoever if there had been testimony that this silo had been disturbed in various spots that occurred indicating slipping.

That might some point but the silage floor and steps were relatively clean.

William J. Brennan, Jr.:

Is the seven pound pull something that requires a considerable effort?

Norman G. Tenneson:

Yes.

William J. Brennan, Jr.:

A very considerable effort?

Norman G. Tenneson:

I would say so — oh, no.

I can discharge this trigger without much exertion but it does require some pull indicating that there — the trigger was firm.

William J. Brennan, Jr.:

Well, if that so, then you’re asking us to believe the demonstration you put on that it took quite an effort to discharge the second barrel as —

Norman G. Tenneson:

Oh, no, no, there is no effort in discharging (Inaudible) at all.

William J. Brennan, Jr.:

Then what’s the significance of the seven pounds?

I don’t know.

Norman G. Tenneson:

Well, to show that this was not an easy pull, that it was not — the gun was — was in poor condition, that the pull was so slight that touching it with your fingers or anything at all might cause this gun to go off.

William J. Brennan, Jr.:

Well, then, it must have taken an effort in any event for —

Norman G. Tenneson:

It took an effort, yes, Your Honor.

William J. Brennan, Jr.:

— for — for the second shot.

Norman G. Tenneson:

Both shot.

Hugo L. Black:

You mean a very slight pull of the finger but when it’s caught dropping, it wouldn’t do it.

Norman G. Tenneson:

Dropping it or any other the test that were made and they gave subject to this gun to vary violent abuse to determine whether it was conceivable that this gun might have accidentally discharge.

That was the purpose of the test.

And I might close by quoting here the — briefly the conclusion of Judge Sanborn that the infliction of two wounds in succession, one in the left side in close proximity to the heart and the other in the head cannot be in reconciled with any reasonable theory of accident, and that under the evidence, the question whether the death was accidental, was not a question of fact from the jury.

And in the language of the Svihovec case which is the last question of our court and which restates the holding in the other cases that — it’s our view here that any inference of accidental death from the known facts, not speculation would take us away from the field of rational inferences based on human experience and into speculation upon fantastic possibility.

Earl Warren:

Is that the strychnine case, the Svihovec case that you mentioned?

Norman G. Tenneson:

I believe it is.

Is it not, Mr. Vogel?

The Svihovec case?

Philip B. Vogel:

No, it is not?

That is the murder case.

(Voice Overlap) —

Norman G. Tenneson:

Oh, that’s where they were found shot and the place was burned.

Philip B. Vogel:

Through the heart —

Norman G. Tenneson:

Yes.

Philip B. Vogel:

Their bodies were burned.

Earl Warren:

Very well, Mr. Vogel.

Philip B. Vogel:

May it please the Court.

The evidence that was read from the record by Mr. Justice Black is the record that I relied upon in saying that one of the witnesses produced by the insurance company did say that the shot was up from the ground and across the body, and I think that that is the fair inference to draw from that particular evidence.

Hugo L. Black:

What evidence?

Was that on cross-examination?

Philip B. Vogel:

On cross-examination, Mr. Justice.

Hugo L. Black:

Well, there any redirect evidence brought out, just to try to explain this?

Philip B. Vogel:

There was not.

Earl Warren:

Where does that appear, Mr. Vogel?

Philip B. Vogel:

It appears, Mr. Chief Justice, on page 22 of the transcript of the record.And the words that Mr. Black — Mr. Justice Black read are exactly the words that I would have read.

Insofar as the North Dakota law regarding the burden of proof is concerned, it is more than just the burden of going forward with the evidence or the burden of making out the prima facie case.

In the four lawsuits that were tried in the four decisions that were quoted, our Supreme Court has said that the burden of proof is on the insurance companies but it does seem to me that as far as this lawsuit is concerned, the big factor is the fact that the first wound of this man received on his left side was a serious wound that it was a mortal wound from which he was going to die in a matter of days according to the testimony of the doctor.

It injured his ribs.

It collapsed his lungs.

And to think that under those circumstances, if the man had wanted to kill himself that he would have had the will or the strength or the power to lift up that gun and hold it in a horizontal position out to one side the way Mr. Tenneson tried to hold it with one lung on his left side collapsed, with a mortal wound in his side to say that he would do something like that in Justice Sanborn’s words passed the bounds of credulity.

And I’m sure the jury felt that too.

Charles E. Whittaker:

(Inaudible)

Philip B. Vogel:

Well, Mr. Justice, I don’t know how the accident did happen but I do know in the first place that the burden of proof was on the insurance company.

I think what did happen was that the man was outside feeding his cattle.

He put down his basket of corn, he went into the barn to get his gun and the quickest way out of the barn to where the vicious dogs might be would be through this little shed that we’re talking about and out the side door.

That would be the perfect way for him to go.

He could have stumbled on the steps.

The first shot could have come along his left side and could have landed in the wall in the northwest corner where the shot did land.

He could have been turned around by the force of the explosion and as the gun was thrown against the south wall, it could have gone over once more when he was falling from his first mortal wound and taken off the top of his head.

I don’t know that it happened that way but it could have happened that way.

Charles E. Whittaker:

(Inaudible)

Philip B. Vogel:

I believe that it would be.

I believe that it would be a good deal more consistent with that than the theory that the insurance company has put forward that this mortally wounded man would have the strength and the power to hold that gun out with a collapsed lung and shoot off the top of his head.

Charles E. Whittaker:

(Inaudible)

Philip B. Vogel:

Then, I think, if that had happened, Mr. Justice, then, I think, the shots in the southeast corner of that little shed would not have been four or five feet from the ground, they would have been up much further and probably in the ceiling of the little shed.

And that’s why in the brief of the insurance company has filed.

They say that the shot that come in from the side must have come with the gun held in more nearly they say a parallel position just as demonstrated by Mr. Tenneson.

He has stooped down a little so that the shot would go in to the wall with the top of this man’s head four or five feet from the ground.

Charles E. Whittaker:

(Inaudible)

Philip B. Vogel:

A considerable distance because his body, when it was lying, was lying somewhat west of the little door that went out of the shed into the farmstead yard.

And as I say, the gun was lying by his side.

Earl Warren:

Well, if the butt of the ground — butt of the gun was on the ground when he shot the top of his head off, it could — couldn’t possibly have been parallel, could it?

Philip B. Vogel:

It could not have been.

Earl Warren:

It would have to be elevated if — if the butt was on the ground, the barrel would have to be elevated.

It couldn’t possibly shoot parallel.

Philip B. Vogel:

It could not possibly go parallel into the wall.

Earl Warren:

And — and the evidence is that those — those pellets did go parallel into the wall.

Philip B. Vogel:

That is right.

Earl Warren:

And at a — at a height of about four to five feet.

Philip B. Vogel:

Four to five feet from the ground.

Charles E. Whittaker:

(Inaudible)

Philip B. Vogel:

Mr. Justice, I don’t know how I would tell it but I know that it is a concession that is made by the insurance company lawyers in their brief.

They take the position that the shots that went into the southeast corner went into the corner in such a position so that the gun must have been parallel when it was fired.

It is true that there is evidence in the record, as Mr. Tenneson has said that the insurance company investigator and the sheriff did make certain test with his gun and that it did not fire when they made the test even though the gun was off safe.

But on the other side of the coin, there is testimony from Mrs. Dick herself that is completely uncontradicted that her husband did not like to hunt with this gun because a lot of times, it went off when it was not suppose to go off and sometimes it would not go off when it should have gone off.

Now, that was testimony that was in the record.

And the jury under those circumstances could have believed that and form their conclusion that under those circumstances, the gun was accidentally discharged.

William J. Brennan, Jr.:

Can you put your finger on that, the testimony, quickly?

Philip B. Vogel:

It is in the testimony of — of Mrs. Dick, the widow, and I let Mr. Holand here to find it.

William J. Brennan, Jr.:

Yes, but don’t waste your time looking for it.

Oh, here it is page 12.

Earl Warren:

Well —

William J. Brennan, Jr.:

It said “Sometimes, it wouldn’t fire when he wanted it to or would when he didn’t.”

Is that it?

Philip B. Vogel:

That is right.

William J. Brennan, Jr.:

“When my husband went hunting, he sometimes picked up his father’s gun because he did — he didn’t trust his own.”

Is that it?

Philip B. Vogel:

That is right.

It is true, as Mr. Tenneson said that the attending physician who, by the way, was the examining physician for the New York Life Insurance Company testified that in his opinion, in spite of the fact that this man had unbearable pain, in spite of the fact that the first wound was mortal, in spite of the fact that he could hardly stand it would still be conscious after the first wound, but as our Supreme Court in North Dakota has said many times, the jury was not bound to believe that evidence if the jury didn’t want to believe the evidence.

The position of the appellant here, the plaintiff below and the petitioner is simply that under these circumstances, there was evidence in this record from which the jury could have concluded that the death was accidental.

We believe that the District Court in denying the motions for a new trial or for judgment not withstanding the verdict was correct.

And we believe that the Circuit Court of Appeals in reversing that judgment was in error.

Thank you.