# Petition for Writ of Certiorari — States Marine Corp. of Delaware v. Aldridge > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0961%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 361 U.S. 814 ## Text ree COPY -.. f. freed. J re 1956 “Gravram, James & Rourn, JAMES R.- BROWNING. Clerk | Iu the Supreme Coitrt | OF THE: , : Anited meee eee (h Bes kTERM 1958 . > *% cise P Srates Marine Cor PORATION OF Dlr. . aC orporation,” " i litioner, Vs, é Vin \iipa Asuahpas, Z . ; ‘ : : Seog ae R c sponde ni. oe = ees ae el feorns/ ; -_ PETITION FOR A WRIT OF CERTIORARE = to the United States Court of Appeals ) . - for the Ninth Circuit. Pritxcis 1. TerReEAULT, gta : : ; 310 Sansome Street. 2 : as ; San Francisco 4, Califoraia,, ° ; peta 5g _. _Ceonnsel tor Prine, Nonere BE. Parwonr, * “70 Sansome St reet, San Pranciseo 4, California, o Ot Counsel. a ‘ ' : bs - ° Gireuit rendered in the above- entitled case On Agen 23, , pe ., - OPINIONS OF THE COURTS BELOW. go. . The opinion of. the ‘United States District’ Court for the, Northern District of. wars Southern « tee ie | (Edward re Murphy, District Judge) as contained in on Order dated July 2, 1957 dismissing ‘plaintiff’s complaint is “unofifeially reported in 1957 A.M.C. 1699, See also F i ranscript of. Record, pp, 33- 36. 'T he United States C ourt of Appgals for the Ninth Circuit (Chief Judge Pope and es irenit Judges Healy and ‘Hamleyy rendered an opinion on. Mare +h 16, 1989, awRigh was withdrawn and replaced by an opinion dated ‘April 23, 1959. Ehe opinion of March. » > 14 will not be published, but the opinion of April 2 will . che published on June 8 1959, in Volume 269 of the Fed- eral Reporter, * Second widics, page not yet know n. Both opinions of? the Court of Appeals are set forth in the . Appendix to this. Petition. ain 8 ‘JURISDICTION. ; ’ The jariediction of the District Court was invoked he- ~ vause of diversity of citize nship, the plaintiff being a citizen of California and the defendant a Delaware cor- Sep the amount in controyersy was. $150,000. USE. § 1382, 1441 (1952). ae ' The —— of the United States Court ‘of. Appeals fér the Ninth Circuit sought tov b@reviewed was dated and éntered on Apri! 28, 1959. The Court of Appeals. for the Ninth Circuit originally rendered an. ‘opinion in this ease on Mareh - 1959, but the earlier opinion was with+ drawn and the’ Spinion and judgment of April 28, 1959 was substituted therefor." Rehearing was also denied on April 2S, TR0e. On April 28, 1959, mandate upon the. 'The opinion of April 23, 19: 59 was itself’ sedinidind by the © ourt of Appeals on May 7, 1959. See Appendix, p. iv. ° ah / ‘ © / ~ | rene 3 judgment of April 23, 1959, was stayed by the Court of Appeals pending the filing of this ats for certiorari ~» on or before June 1, 1959. - ‘The jurisdiction of this Court is inioheed Meike Spetion. 1204 (1) of Title 28 of the United States Code. _. | QUESTIONS PRESENTED. 1. Can stiaatinin of negligence resulting i in the death of a longshoreman be deemed sufficient to require a case to proceed to trial in a District Court when the cireum- stances alleged in the complaint fail to state a valid clair ‘ under the laws of ‘the state under whose wrongful death statute the: action is brought? 2. Does the. decision of this Court in United Pilots Assn. v. Haleckt (1959), 358 U. S; 613, change the rule that a iene is not liable in negligence for harm to “his business guests resulting from obvious. ‘dangers, known to and created by them? 3. Dees a shipowner’ x “auty to provide a sae place ‘to work include a duty’ to supervise the work Tnethgds used -by. ‘longshoremen eniployed by an independent steve- — see do oring contractor to prevent them from disregarding plain Ineasures to be taken for their own safety? ' 4. Is it improper for a court to rule on a. question of proximate causation in a case where the unhcontroverted we facts of an avcident are admitted hy the pleadings and ‘the inferences to be drawn therefrom are not épen ‘to a ; reasonable difference of opinion? 4 . ad THE STATUTE: INVOLYED. The plaintiff’s action was based - upon: Section 377-.ol the California Code of Civil Procedure, the relevant pot- tions of hich read as follows : ‘‘When. the death of a person not being-a minor, -or, when the déath of a. ininor person. who leaves surviving him either x husband or wife or child or children or father or mother, is caused by the wren: ful uci or, neglect of another, his heirs or personal ° representatives mlay maintain an action for dajases against the person causing the death, or.im ¢ase ot the death of such wrongdoer, against the personal \ representative of ‘such wrongdoer, whether the wrous- doer dies before or after, the death of the person injured.” water : STATEMENT OF THE CASE. Plaintiff, as the widow and heir of Williain J. Aldridge, commenced this action, in the Superior Court for the ‘City and County of San Francisco, and’ the case Was » removed to the United States District Court for the . Northern District of California. The action was “brought pursuant ‘to the California wrongful death statute (Cal. Code Civ. Proe., sec. 377). Plaintiff sought to recover . damages for the death of her husband, a longshoreman, who died as & result of injuries he received while work- ing as an employee -of the. Schirmer Stevedoring Com: pany in loading the SS LONE STAR STATE, a ship owned by the defendant, while the vessel was berthed at San Francisco. | ie | ~The ‘complaint’ alleged that when a load of dunnace weighing. between one and two tons Was intentionally \ © | 5 broken apart by being raised into the air by plaintiff’s . decedent and his. fellow longshoremen, ‘several ‘heavy timbers fell upon him causing injuries which resylted , in his death. ‘Aceording to the complaint the load of dunnage, which was strapped together by metal bands, had been lowered: into the vessel’s No. 3. hold to be used by the longshoremen in the course of their work. The plaintiff alleged that it became necessary for her decedent and his fellow longshoremen to break the metal hands, and that they ‘did this by inserting the cargo hook inthe bands ‘‘and thereafter raising the load of dunnage ~ and attempting to break the steel bands by means of the weight of. said dunnage, through raising the dunnage 2 into the | air and causing the weight thereof to break said straps.”’ The coniplaint as originally filed coriained counts for both negligence and unseaworthiness. - Plaintiff dropped the count for unseaworthiness, however, and filed an “amended complaint based solely on averments of negli- gence. The charging allegation against the defendant - Was that.it negligently failed to provide band cutters or some ‘other proper means whereby the bands around the - load of dunnege could be eut or broken. : The defendant moved to dismiss the amended complaint on. the ground that it affirmatively appeared from the facts aNeged by plaintiff that the asserted. negligence of | the shipowner was-not the proximate cause of Aldridge’s des ‘ath. Defendant. argued that even though the allega- tions of- the amended complaint be viewed. in a light most favorable to the plaintiff, thevshowed (a) that the work method which resulted in Aldridge’s death, i.e.; 6 ee raising a heavy load intended to break apart and fall, was voluntarily selected by the decedent and his fellow longshoremen, (b) that this. work method owas * patently dangerous and created an ‘obvious risk of serious bodily harm to the decedent, and (c) that the shipowner "3 negli- gence, if any, in failing to provi ride band cutters was too reinote to constitute a legally sufficient cause.of Aldridge’s death, which instead resulted solely from: the danger@us work method used by employees of an independent con. ‘tractor. | | t | The District Court. granted the defendant’s motion to disiniss and, after full argument, denied the- plaintiff's motion for reconsideration and for leave to file a second amended complaint. Plaintiff has never filed a draft of the proposed second amended” complaint ‘and neither in extensive argument nor subséquent briefing has plaintiff? suggested any basis imposing, liability on defendant other a than the allegations of the first amended complaint. | en Plaintiff appealed to the Court of Appeals for the. Ninth Circuit, where the case was argued and submitted on Aprif 8, 1958. On November 14, 1958 the Courf of Appeals entered an Order V acating Submission of Cause, noting that this Court had granted a petition for cer-: tiorari ‘in Haleckt v.. United New-York & New Jersey: S:H.P: ‘Ass'n. ( 2 Cir. 1958)| to’ produce negligence liability without regard to the degree of knowledge which the person harined has of | the dangers and risks inherent in such work methods. — _Accordingty, petitioner, applied for a stay of mandate . upon the devision of April %, 1959 in order to seek a review of the matter by this Court. On April 28, 1999 the Court of Appeals for the Ninth Cireuit ordered rian. date stayed pending the disposition of this -petition to be. filed on or before June 1, 1959 REASONS FOR GRANTING THE WEIT, THE COURT OF APPEALS FOR THE NINTH CIRCUIT HAS DE- /QIDED AN IMPORTANT QUESTION INVOLVING THE RELA- . TIONSHIP OF MARITIME AND LOCAL. LAW WHICH HAS , NOT BEEN, BUT SHOULD BE, DECIDED BY THIS COURT. In rendering its decision of April 23, 1959, the Court “of Appeals for the Ninth Cireuit had before it two very recent decisions of this Court whieh bear directiy on the issues here involved. The Tungus.v. Skovgaard (1999) Me > 358 U.S. 588, which was decided on February 24, 1959, -- concerned an action arising under the -New Jersey | Wrongful Death Act (N.J.S.A, 2A.:31-1 through 6). This Court there held that the rights of the parties in such — an action depend entirely upon the law of the state under whose WR ngfu! death statute the action is brought. United ‘hots Assn. v. Halecki: (1959)? 358 U.S: 613 was decidéd the same po and also involved the New. Jersey Wrongful Déath Act. The main issue in that case was whether or not there could be recovery for the — " cedent's death’ under the doetrine ‘of seaworthiness, _and it was, held that. the decedent was not a member of . “the class. in whose favor the doctrine’runs. Although the case was remanded for a new trial, this Court did © indicate its approval of the negligence. aspects of the _ decision of the Court of Appeals for the Second Circuit unde® review. In delivering’ the majority opinion Mr. Justice Stewart stated (358 US. at pp. 61 18-619) : ‘*As to_the claim hased upon negligence, for which the New Jersey Wrongful Death Act clearly gives a right Of aetion, we agree with the Court of Ap- - peals that ‘the evidence ‘created an issue that could be decided only by a verdict.’ The defendants, owed a duty of exercising reasonable care for the safety of the decedent. They were charged with the. knowl- edge that ‘carbon tetrachloride was to be used in the _ confined spaces of. the engine room. It was for the’ triers of fact to determine whether the. defendants were responsibly negligent in permitting or: author- izing the method or manner. of its use.’ \ t a Relying upon ‘‘sharp resemblances’? hetween the facts in Haleckt and_ those’ alleged in the‘complaint here in- , - 77 i vo volved, the Court of Appeals he the Ninth Circuit reasoned that the decision in Halecki likewise requires” the negligence. issues: raised by the. plaintiff's Complaint: to be determined only: bya jury. But the Court ef Ap- a peal for the Ninth Circuit did not and could not. reach - this conclusion as @ matter of state law. Ht is well settled in California that a complaint which danger fails to state a cause of action. Shanley ve. Amer-- ican. Olire Co. (1921) 185 Cal. 552, 197 Pac. 793; Hanser . Pac. G. & E. Co. gs) 133 Cal App. 222; 23 P, 2d pen Royal. Ins. Co. v. Maz cei (1942) 59 Cal. App. 2d 549, 123 P. 2d 586. Defendant's motion to dismiss, ‘made pursuant to Fed. Rules Civ. Proe. 12 (b) (hi) for failure to state a claim upon which relief could be granted, was proper under the Skorgaard. doctrine , because the: law of California applicable to deterigine the rights of the parties in this action precluded any recovery. — discloses_that harm. occurred as qa result of an obvious | For reasons stated elsewhere in. this petition, thé peti‘ tioner will show that the Halecri case has. led to can “erroneous conclusion by the Court of Appeals for the Ninth Circuit on the neglifence questions involved: in this case. To the extent, however, that Halecki can be read to fori a basis for negligence liability whieh is precluded by the law- ‘of the state under whose wrongful death statute the- action is brought, an independent reason exists for allowance of the writ sought by this petition. ~ Pe- titioner respectfully requests, therefore, that this Court review the decision render ed by the Court of - Appeal for the Ninth Cireuit on Aprii 293, 1959 fer the purpose of settling the important and unresoly ed question whether % ete the Halecki case constitutes. an inroad on the Skovgaard principle -that the “federal courts “must enforce rights created by.a state : wrongful death’. statute entirely in ac cordance & ith the laws of that state. Il. APPLICATION BY THE COURT OF APPEALS OF THIS COURT'S RECENT DECISION IN THE HALECKI CASE HAS RESULTED _IN A NOVEL BASIS FOR NEGLIGENCE LIABILITY SO FAR IN CONFLICT WITH ACCEPTED, LEGAL PRINCIPLES AS TO CALL FOR AN EXEROISE OF THIS —* POWER OF — - REVIEW. : . In every ease involving injury or death of an employee ' of an independent contractor occurring in the course of - his work on-a vessel, ‘the negligence Jiability: of the de- fending shipownér ‘will necessarily. depend on the extent . ‘to which Halecki may be deemed to have imposed New 4, duties. on the ‘shipowner. # The Halecki case as now interpreted ‘by’ the Court. oft Appeals for the Ninth Circuit stands for the proposition that a -shipowner owes a duty to the employees pf an. inde »pendent contractor to exercise continued: supervision “over the methods by which they perform their work-on ~ his vessel. “The extent of this’ duty’ is’ said to. be such — that the shipowner can be liable for harm to-.these persons — by > method in which they — —_ work, . peers from risks which oe y_ knew and ‘created. Petitioner-respectfally urges that this proposition is > far too broad. Although it has become commonplace to. ‘ find’ expanding concepts of vessel liability in maritime pérsonal injury actions, we are not here dealing with the ‘*snecial features” of a statutory negligence action which may impose ‘‘far more drastic’’ duties on an em ployer in 4 master-servant situagion than those, existing: — in an ordinary negligence case.6 Nor does this case ia- .volve elements of non-fault liabilityggunder” the doctrine . of unseaworthiness. - Instead, the. shipowner’s asserted liability in this case depends solely upon the application of essentially common law principles .pertaining. to husi- ness guests as enforced through: a ‘state wrongful. death: statute. were : The opinion of the Court of Appeals for the Second -Cireuit ‘on the negligence aspects of Halecki is based upon the Restatement of Torts, Vol. Il, § 344, which reads as: follows: a ‘* A possessor of land who holds it open to the entry» of the public for_his business purposes is subject to liabi.ity to members of the public entering for gach purposes for bodily harm caused to them by his failure. to exercise a reasonably careful Supervision of the appliances or methods of ‘an, jndependent con- -raetor or goncessionaire whom he has employed or permitted to carry ‘on upon the land fin activity which © is directly .or. indirectly connected with his business ok SE SO AS oo Skea _ There is no question that the reasonably careful supers vision required under ‘this section must be exercised fet _ 5Eig., the Jones Act, 37 Stat. 1185 (1915); as amended, 41 Stat. ° “1007 (1920}, 46 U.S.C. $68% (1952)... ce ae . $The quoted phrases ar¢ from. Mr. Justice, Brennan's opinion ars Rogers'v. Missourt Pacific R. Co. (1957), 352 U.S. 500 ‘at pp. 507. 509: “tials rere ; ic 13 . the pansetie a ‘members of the public. aniileing the " preinises for business purposes during the entire period > while the independent contractor carries on his activities. ‘This ‘is of course expressly stated in Section ’ 344, Com- ~ ment: b.. But there i is also. no question that the rule stated. a this. section makes a clear distinction between ‘the ‘‘in- | dependent contractor.or concessionaire’ ’ who creates the risk and other ‘‘members of the public,” unaware of that -Tisk,; who may tawtully enter the premises and sinffer harm. 6 Possibly: the facts in the Halecki case may have justified . an application of Section 344 of the Restatement of Torts ‘on the’ ground -that the decedent there was a member aes the: public lawfully entering the, premises, and the dangerous condition, i.e., inadequate ventilation, was a risk . neither apparent to nor created by him. The. difficulty, ~ however, is that neither the opinion of the Court of Ap- _ peals for the Second Circuit nor ‘the opinion of this Court in Halecki deals with this distinction.’ As a result the Court of. Appeals ‘for the Ninth Circuit has given Halecki the broadest possible int rpretation : it has applied that: case to impose upon a oe the duty ‘to exercise with respect. to longshoreman employees of independent steve- doring: ‘contractors a supervisofy responsibility to pre- — : vent them from disregarfing the plain measures to be taken for their own safety. “It has used Halecki to sup- ee ' ‘ = ‘In this connection the petitioner in " Halecki likewise did not - ‘suggest that this distinction should have been made. Its entire argument on the negligence aspects was devoted to the proposi- tion that the respondent failed to establish. the existence of a de- : fective, condition in- the first instance. See Brief for the Peti- -. tioner, pp. 56-60, United Pilots Assn. v. Halecki (1959) .358 U.S. 613. ce geier 2% y g #. of Torts, Vol. 11, §340, which states > ‘ . 2 a ieee ° port a claimi of negligence liability in a situation where the plaintiff’s. allegations show that the type of risk inyolved—was apparent to and created by the person harmed and his fellow employees of an independent con- tractor. , 7 . : . @ Petitioner respectfully submits that this application .af the Halecki case is in direct conflict, with the Restatement ‘*A possessor of land is not subject to liability, to his licénsees, whether ‘business visitors or ‘gratul- tous livensees, for bodily harm caused to them by any dangerous eondition thereon, whether natural or artificial, if they know of the condition and realize the risk ‘involved therein.’: : a5 Moreover, this application of Haleckt cannot be recon- - eiled with the récent decision of the Court of Appeals forthe Second Cireuit im F ilipek v. “Moore-McCormack Lines (2 Cir: 1958) 258 F. 2d 734, cert. denied (1959), _ 359 U.S. 927, where it was recognized. that, even under "where the risks: are apparent to. the person j ‘be supported only if Halécki extends the dutiés of ashipy ° the liberal doctrines of the general maritime law-a ship- owner could not” be -held responsible ‘fo protect an «et a . ployee of an independent contractor from the risks in- - ferent’ in’ and created by -the very work which he was- performing on the’ vessel. _ : : ; The Court of Appeals’ interpretation of Halecki as establishing a basis for negligence liability uatron ined can owner to include an obligation to supervise and: contre * ~ ~ > 4 ¥ ~ all details. of the manner in. which employees. of an indes. pendent contractor perform: their work, and to prevent 3 o% r te 7 = > df f / 18, iv 3 ‘i from voluntarily selecting ond continuing to use any ‘unsafe method. . The; imposition of such a direct super-— visory duty on a shipowner represents a momentous me. _parture from the: settled rule to the contrary in both the Second and Ninth’ Cireuits. Berti. v. Compagnie: Cyprien Fabre ; (2 Cir. 1954) | 213 F. 2d 3975: Lynch v. United States- “(2 Cir. - 1947) “163 F. 2d 97 ; Freitas v. -Pacifie- Atlanti¢” Steamship Company (9 Cir. 1955) 2t8 i F, 2d 562; Vileski wv. Pacific.Atlantic + *§.°S. Co. (9 Cir. . 1947) 163. F. 2d 553; The Daisy (9 Cir. 1922) 282 Fed. hw See also Héss v. United States (9 Cir. 1958) 259 _F. 2d 285, ‘cert. granted (March.2, 1959), 359: U.S. 923;. West v. United. States’ (3 Cir. 1958) 256 F. 2d 671, cert. granted ( March = 1959), 359 US. 924. } Petitioner respectfully uifges What hin Court exercise. | ‘its power of review in this case because the: application of its decisien in Halecki. has. now led the- Court of Ap-:- - eals, for the Ninth Circuit to render a decision plainly i in -conflict with established principles of negligence liability. a Tl. . : THIS.COURT SHOULD REAFFIRM THE PRINCIPLE THAT QUES- TIONS OF PROXIMATE CAUSATION MUST BE DETERMINED ~ ASA MATTER OF LAW WHERE FACTS ARE UNGONTRO- - _ VERTED AND THEIR EFFECT IS NOT OPEN TO A REASON- ’ ABLE’ DIFFERENCE OF OPINION. Petiti tioner again refers to. the Restatement of ‘Torts, : ; Vol. IT, § 434; which. provides: 7 - “Tt is the duty of the court to determine whiter, ' 16 A the actor’s conduct is a substantial factor in bring- _ ing about harm to another, unless the question is open to a reasonable difference of opinion, in which - -ease it is to be left to-the jury.” , °° In‘ this case the facts of the aceident as ‘stated by the _ plaintiff were not in dispute. "These facts were set forth’ in the detailed allegations of two. separate. complaints, and at no time during the. pendency of the action, including briefing and extensive argument : ‘in the District Court and briefing and argument in the Court of Appeals, was . i) > . . i . there any material change in the allegations themselves _ or in the nature of the facts asserted. by plaintiff’s-coun- 3 sel. The accident resulted, according to the facts admitted - . . & ‘ . by the plaintiff, because her decedent and his’ fellow long- ‘ . shoremen elected ta raise, a load of dunnage weighing - between one and two ‘tons by means of straps which -they intended and knew: would break. Plaintiff affitma. tively alleged that her decedent participated i in this opera- tion and the conclusion that He was ‘or should have been, aware of the risks involved isgnot open to doubt.* ~ On May 7, 1959 the Court of Appeals for the Ninth Circuit amended its opinion of Aprif 23, 1959 to. include a citation. of this Ccuart’s decision Glus v. - Brooklyn Eastern District Terminal (April 20, 1959)... Us: 2° 1,. Ed. 2d 770. Presumably the Glus case. was felt _ the Cogyt of Appeals to reinforce jts view that the fac- ‘ tual foubdation presented by the record before it was too niet to support: a saa on the merits.” Cf. Conley « a ° ‘Petitioner suggests that the ‘decedent was lik® a_ willing _ Damocles, whom Dionysius of Syracuse seated, at a royal hin - quet beneath a sword hung by a single hair.. * 9 i ) . Gtbson (1957) 335 U.S. 41, 47-48. Petitioner respect- fully submits, however, that this is not a case which requires the development of further facts by way of discovery, pretrial o2 trial because the dispositive fact, “ite, the decedent’s awareness of danger, has been re- peatedly admitted and alleged by the plaintiff. The asserted negligence of. the shipowner in failing to provide band cutters cannot overcome the admittea fact © which precludes any recovery, in this case. This is clearly so under the law of California applicable to this case and it is equally so Simply. as a ni&tter of proximate causa- ‘tion. _dackson v. Pittsburgh 8. 8. i. (6. Cir. 1942) 131 F. 2d 668. The imagination and ingenuity of lawyers, benefited b¥ hindsight, “ean devise - -a factual theory in every ship- . ‘board accident to support the allegation that the accident ‘ would not hage happened if the shipowner had done something , dithently In’ this sense every accident is to some extent forese@@ble. But ‘‘proximate cause’? is an essential - element of actionable negligence, and not: all results which are fo some extent foreseeable are neces- sarily proximate results. Wheg the determinative facts ~ are known or admitted, proximate cause is a matter of the extent of the legal duty-involved and is to be deter- Inined by the court as a matter of law. Moch vr. Rensselaer Water Co. (1928) 247 N. Y. 160, 159 NE. R96. To the extent that’ the Court of Appeals for the Ninth -Cireuit’has found support in the decisions of this Court for its refusal to rule on the matter of proximate causa- tion in the face of undisputed facts, the writ should be > granted for the purpose of enabling this Court to reaffirm . 4% 18 the principle that such rulings are required under the - Gireumstances presented by the record here. | “CONCLUSION. A writ of certiorari should be granted in accordance s with the prayer of this" petition. Dated, San Francisco, California, May 238, 1959: * Respectfully submitted, Francis lL. TETREAULT, Counsel for Petitioner. j Rosert E. PATMONT, : . GranaM, JamEs & Roupu, Of Counsel. eee, j _ (Appendix Follows.) eT ae ‘ % a a a ac ° : ; * . ° = . - . 4 ” e . x ai { ; cee . . ; f : : . : | mm : ‘ | x , : F ; eee ene \ aye } A \ . [ + . . . F F ; ‘ ; . : ie * . r - 3 5 ; . . a: . . s a « . * ° oo . $ : ao . ae ; % Pe . "> . ; " : z / : “ a 2 r . : . ther longshoremen with him required dunnage made, up of sticks and _ boards, for use in wedging and stowage of the cargo. As the 1After the order dismissing the: complaint, plaintiff moved for all order setting aside the order of dismissal ‘‘and:.to permit plaintiff to . file a-second amended complaint herein.’’ This was denied July 25, 1957. The notice of aptieli was from the order of dismissal and from the order of July 25, 1957 denying this motion to set aside the order of dismissal. Under these circumstances it is clear the decision was 8 final one and hence -appealable. See Asher v. Ruppo, 7 cir., 173 F. 241 10, - discussed in Williams v. Peters, 9 cir., 233 F. 2d 618. . 2On March 2, 1959, the Supreme*Court also granted certiorari in Hess ~. United States, 9 cir., 259 F. 2d 285. We see no reason for further withholding decision here since the questions presented in that. case do not resemble the problems now before us. The primary question in the « Hess case was what law should govern liability, a matter not yet before us. The principal difference was that the Hess case was heard on.evi- _.dence and decided on findings of fact. It was not disposed of by a - . dismissal based.on the pleedings alone. ~ ee cs * 3°©4377, ... . When the death of a person . .“. is caused by the wrongfu! act or “neglest of another, his heirs or personal represertatiy es may maintain an action for Gamages against: the person os the death’? — dunnage was lowered into, the. hold it was “held in bundles by _ metal bands. The longshoremen asked the defendant’s officers .for band cutters to break the bands, The latter advised they had no cutters, but sent a carpenter with hammers to do’ that work. For atime this method of opening the bundles was pro-. yided.»Later; when it. became necessary to break the bands of additional " dunnage, “similar—requests_were I made of defendant's _ officers, “but the defendants did negligently “and ¢aretessly. . fail to provide or supply, either persons or proper means... . and by reason thereof the one means and method remaining to ‘said longshoremen .°..: was to employ. the hook secured to the ‘winch, by inserting the same in the steel bands and thereafter raising ‘the load of dunnage and attempting to break the steel bands ‘by means of the weight of s.id dunnage, through raising _the dunnage into the air and causing the weight thereof to break said straps; by reason of the aforesaid it was necessary to, and the said longshoremen did, use said method of breaking the durinage straps for a period of several hours, during all of which the defendants negligently and carelessly failed to supply any band cutters, or any persons to cut or break said bands, and in the course of such operations, at approximately 1:55 o'clock a.m., upon the breaking of the bands of one. of said dunnage loads several heavy timbers did break loose and did fall upon said William J. Aldridge, directly and proximately inflicting upon him serious and fatal injuries from which he died in route by ambulence to a hospital.” : We think the complaint was sufficient to'state a claim requiring _ the court to proceed to trial. o United Pilots Assn. v. Halecki, 359 &.S. _... (Feb. 24, 1959), dealt with an action brought in federal ‘court. by reason of diver- _ sity of citizenship to recover for wrongful death, based on the New Jersey wrongful ‘death act, and upon ¢laims both of_ unsea- worthiness aid negligence. The tortious conduct charged to the. vessel owners occurred on navigable waters in New Jersey. The Court of Appeals upheld recovery on either unseaworthiness or negligence. Haleecki v.. United ‘New York & New Jersey S.H.P. Assn., 2 cir, 251 F. 2d 708. The ‘Supreme Court disagreed as to the claim ‘of unseaworthiness,* but approved the lower court's ‘The reason given was that the work performed by the plaintiff was not the type of work ‘traditionally done by seamen within the rule of _ Seas Shipping Co. v. Sieracki, 328. U.S. 85. = . : . “4. holding as to negligence, saying: “As to the claim based upon. negligence, for which the New Jersey Wrongful Death Act, clearly gives a right of action, we agree with the Court of Appeals that ‘the evidence created an issue that. could be decided o uly by a verdict.’ ” The -facts there have certain sharp nesemblnnies to. those alleged in the complaint here. The decedent Halecki was em- ployed by an electrical contractor to work. on- defendant's ship's generators.s Halecki and another were spraying the generators with carbon. tetrachloride, a toxic. compound. They knew it was an. operation dangerous to humans if the fumes reached certain concentrations in the atmosphere. They took. some ——. to procure ventilation, but there was evidence these were not: quate to remove\the fumes.” In each case, in\Halecki and in this one, it could be said, | view of the risky procedures adopted by the subcontractor or a stevedoring company, \as the Supreme Court did in the Halecki case: “It was for the\triers of fact to determine whether tne: defendants were responsibly negligent in permitting or author- izing the method or manner of [their] use.’ ; As was said in Conley v. Gibson, 355.U.S. 41, 45: “In apprais- ing the sufficiency of the complaint we follow, of couirse, the. ‘accepted ‘rule that a complaint should not be dismissed. for failure ‘to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim‘ which would entitle him to relief.” Had the facts here been developed through } , pretrial coriference, or on trial, the degree of knowledge whicle. . the ship's officers had, after they refused further to furnish the carpenter and his hammers, that—a—less_safe_method was in use. would have been made apparent for evaluation by fhe judge and jury. “No conclusion in such a-case should prudently be rested on an indefinite factual foundation.” Kennedy v. Silas Mason Co., 334 U.S. 249, 256. It would be “good: jndicial administration to withhold .decision of: the ultimate questions involved in this case until this or another record should present a more . solid basis of findings based on Itigation or on a comprehenswe statement of agreed facts.’’ Idem, p. 257. [Cf. Glus’y. Brooklyn Eastern District Terminal, .... U.S. .... (April 20, 1959).]* ; \dded by amendment filed May 7, 1959, 7 FF The evidence which sites: be adduced urider this complaint. ‘nfight even enhance the resemblance of the facts here to those. in Halecki. It would appear then that Aldridge was in a posi- | “tion comparable to that of Halecki, of whom the-Court of Appeals said (p. 711): “The deceased was certainly an ‘invited’ ‘ person’,-.or ‘business guest,’ and the shipowner was liable, not © only ‘tor the negligence of: the master, but, although the,work . was jet out to a subcontrattor, also for any lack of ‘reasonable i care to ascertain the methods and manner in which the con- ~ eessionaire or independent ‘contractor Carries on his activities __,not only at the time when the concession is let, or the contractor — employed, but also ‘during the entire period in which the con- cessionaire or contractor carries on his activities. sey, We speak here of the shipowner’s negligence. Appellee argues that the action is barred by ‘contributory negligence. We think such argument is premature here. We: have before us only the complaint. Normally the existence of con- tributdry negligence is a question for a jury. That the complaint shows that. Aldridge was present when the alleged unsafe prac- tices were in progress does not require uS, at this stage of the - ease, to say ‘that Aldridge was necessarily negligent. Halecki was doing the’ ‘spraying in that case, and he was “aware ofthe necessity of taking special precautions in undertaking the job.” Yet.no judge who participated in that case, either in the GEE Court of Appeals, (ineluding Judge Lumbard who dissented), or in the Supreme Court, suggested that Halecki was negli- gent as a matter of law. ‘Even Judge Lumbard who in his dissent thought that contributory negligence was a defense, con- sidered that the case should go-béeck for a-new trial “ ‘a the issue of negligence.” — F. 2d 713) *The court. was quoting from Réstateme nt of Torts, Vol. II, $34, comment b. °Plaintiff's original- complaint contained two counts, one for unsea- worthine ‘ss and one based on negligence. The unseaworthiness count. was dropy ed, apparently -on_theissumptionthetthe-California_Wrongful “Dedth Act did not encompass such an action. Whether: the remaining counts’ allegations respecting a failure to supply means of cutting bands would.megsare up to an allegation of unseaworthiness under the se second proposition stated in The Oseeola, 189 U.S. 158, 175, relating to “a failure to. supply ‘and ‘keep in order the proper appliances ap- purtenant to the ship’? is also a question we do not face here. Pp q ¢ ae es : eae pane In tasking its eninibiait “that entpshuatory cations bars this action, appellee says, (a) an action under a state wrongful "death act must be governed by state law, and (b) contributory _ negligence of decbased is:a defense in such actions in California. ~ Even if such were the whole.of the applicable law here. we- would not,. for the reasons stated, in the precedirig paragraph, assume "to make a finding of contributory negligence at this, the plead ing stage of this action. But appellee’s statement of the law is * incomplete. In its’ petition for rehearing, appellee asserts that in Halecki the Supreme Court “did not deal with the question of contributory negligence.” On the contrary, the court made ‘a significant Prick: on that point. It said: “F or the reasons stated in M/V nr tgp reg decided today, we hold that . the Court of App was correct in viewing its basic task’ as one of ‘interpreting. the. law of New Jersey. For reasons also: _ stated in Tungus, .we accept. in this: case the Court of Appeals’ determination of the effect which New Jersey law would decord — to the decedent’s contributory negligence.’ ~ The. determination of the Court of Appeals thus eoateiia: was | ‘as. ee ee Gs “TWJe hold that the New Fersey - ——~— statute should be construed as taking over as a part of the . model .it accepted the exemption of contributory negligence as ‘a bar.” In that case the Court felt itself ‘obliged to” construe the .New Jersey statute, although the courts of the state liad - never passed: upon the question, for Halecki’s ease had heen tried under instructions refusing to ‘charge that cohtributory negligence was a bar. ‘ ‘In a similar manner the Supreme Court: in M/V T TUNGUS v. ‘Skovgaard, 359 U.S, .., (Feb. 24, 1959)‘ refused to disturb, _* the Third Circuit’s interpretation ‘of the New Jersey -Wrong- . ful Death Act as comprehending recovery for death of a long- shoreman eansed by unseaworthiness of a vessel. Said the ~ Court:. “Yet the fact is tliat the. New Jersey courts have simply not spoken upon the’ question of: whether in a case such a& this maritime. law or common law is applicable under the. State's Wrongful Death California courts may. decide. They’ might be persuaded. that the reasoning followed by. the Second’ Cireuit in its construction of the- New Jersey.Act would _ “apprépriately be applied to the: California Act; or they: might be in- fluenced’ by a consideration of the desirability of uniformity in the > law refating to fatal. and non- -fatal injuries from maritime torts. 7 2° a ° Min a = 2. Opinion dated March 16, 1959. ° “UNITED STATES COURT Or APPEALS , ; FOR THE NINTH CERCU iT . . ARMIDA ALDRIDGE, at : Appellant, ote scl ae ire | No. 15,698 4 - SraTEs MARINE CORPORATION OF - DaLawane, a! Mar. 16,1959... Corporation, ever %, pean Ne . here.! ‘ ¢ prem | from the United States District Court for the Northern District of California, Southern, Division. Béfore POPE, HEALY and HAMLEY, Circuit Judges. . POPE, Circuit Judge. Appellant, plaintiff below, brought this action as the’ widow and heir of «William. J. Aldridge, a longshoreman who died as the result of injuries he received while working as an employee of a . stevedoring company in loading the S.S. Lone Star State, a ship . owned. and: operated by the defendant: corporation while the ‘vessel was at berth at San Franciseo. The action was brought in the - Superior .Court for the City and County of San Francisco, but. removed to the court below on the petition of defendant on the ground of diversity of citizenship of the parties. Upoin. motion “of defendant, plaintiff's amended complaint was dismissed. [eave to file a second amended -complaint was denied. Plaintiff then’ 1After the order dismissing the complaint. plaintiff moved for an order setting aside the order of dismissal ‘‘and to permit plaintiff to file acsecond amended complaint herein.’’ This was denied July 25, 1937. - The notice of appeal was ‘from the order of dismissal and from the order The sole. question is the sufficiency of the complaint to state a claim. After argument and submission of the appeal here, the ‘parties forwarded to thé ‘court additional: citations. Upofi noting that certiorari had been granted by the Supreme Court in’one of those. cases, and that other cases “involving questions.similar to. ay the ones argued here were pending in that Court, we vacated the submission periding decision by the Supreme Court, ordering that upon the ~handing down. of that decision, the case would be * deemed resubmitted. The cases referred to were. decided hy /the ‘Supréme Court on February 24, 1959. As some of them, here- — after cited, are clearly determinative of this case, we now pro- ceed to state our reasons for our decision here.!* Thé complaint sought damages for the alleged, wrongful death : 2 of William J. Aldridge, the longshoreman. It is based upon §377 7 of the California Code of Civil Procedure, “permitting actions for .damages for death caused by the wrongful act or neglect” of 2s ‘another.2. The frame of the complaint in general parallels the fact a > - wv ee ot July 25, 195 7 denying this motion to sét aside the order of dismissat,¥ ~ Under these eiré ‘umstaftces it is clear the decision was 4 final oneAnd hence appealable. -See Asher v. Ruppo, 7-cir., 173 ¥F. 2d 10, diseyesed in Williams’ y. Piters. 9 cir.,-233 F. 2d 618. On March 2 2, 1959, the Supreme Court also. granted certiorari in. '. Hess -v, United States, 9 cir., 259 F. 2d 285. . We. see no reason for turther withholding degision here sinée the’ questgons presented in that ‘ase do not- resemble the problems now before-us. Tlie primdry quegtion. -.. % “ the Hess ease was what law should govern liability, a matter not apen = to doubt here. Another difference was that the Hoes: case was heard on evidence and decided on findings of fact. It was not disposed of by a dismissal of the action. _ , **9377... When the death of a person... is caused by the swrongfal act or neglect of another, his:heirs or personal representatives may main- ! tain an action’ for damages against the person causing | the death. "sd The latest word on the effect of a similar statute is in M/V TUNGUS : : v. Skovgaard, 359 US: .., decided February 24, 1959, as follows: Obviously the New Jersey Wrongt ul death statute embraces a claim for death negligently ‘caused.”’ ow C Plaintiff's original compliant sensaieiiil two counts, hie for unsea- worthiness an 1 one based on negligence. The unseaworthiness count was _ dropped from tgzamended complaint, counsel.for plaintiff explaining to re the court that it had been decided ‘‘that in a death action, we have the ‘ anomalous situation where a longshoreman’ ® widow is not entitled to benefits of the’ doctrine of unseaworthiness.’’ -A few ‘months after that statement Was made, the court in Skovgaard v. TE M/V TUNGUS, 3 cir., 252 FP 2d 14, lv, construed the — Jersey statute to reach an “Op- s . x mea a situation presented in Pope & Talbot, Inc. v. Hawn, 346 US. 406." The injury on navigable waters. .makes shia’ potion: one for a maritime tort. The suit under diversity. jurisdiction does riot alter or ‘jeopardize the right .of recov Pope & Talbot, Ine. y. Hawn, supra.’ The substantive law governing plaintift” s right to recover is the same whether she sues on the “law side” or on’ “the “admiralty side’. The sufficiency. of ghe complaint must be, judged in the. light of maritime law. The complaint alleges that as Aldridge - was performing his work of stowing the cargo’ being loaded, he and the other Jong. - shoremen. with’ him reyuired dunnage made up -of sticks and boards, for use in wedging. and stowage of the cargo. As wh bes dunrfage was lowered into the hold it was held in bundles hy metal bands. The, longshoremen asked the defendant’s officers {or vand cutters to break the bands. The latter advised they had no cutters, but sent a.carpenter with hammers.to do that work. For. a time this method of opening the bundles was provided. Later, when it became necessary to break the bands of additional! dun. *» nage, ‘similar requests ‘were made of* defendant's oficers, “but _ the defendants did negligently and carelessly ... fail to haieitide . or supply, either persons or proper means .*. . and by reason thereof the one means and method remaining to said lorrgshore- ,men .. . was to: employ the hook secured to the winch, by insert- “ing thas same inthe steel bands’ and. thereafter raising the. load of dunnage .and attempting to break the steel bands by means of the weight of said dunnage, through raising the dunnage into th air and causing the weight thereof to break said straps; by reason: of the aforesaid it wag necessary to, andthe said longshoremen, did, use said method of breaking the dunnage otrgps for a period posite coneldsion, and that was upheld in the case first cited inthis note In view of our disposition of this ease, and the Tact: that: the issies herein may be altered by amendment or pretrial, it “might be profitabie : to reexamine the California statute in the light of the Tunsus ruse, " SNpra. 3In Allen v.-Matson Neviaation | ‘Company, 9 cir, 255 F. 2d 273. hy note 5 at p. 277... we had . this to say: ‘*As ‘snggested ine Chelentis s Luekenbaely S.S. Co., 247 ‘U.S, 372, even if this is to be re mnaritime tort plaintiffs were permitted - to bring their sttit- diversity ef eitizenship and demanding a jury by virtne of ete \s axing szaried as a to snitors’ elanse of Title 28 $1333, bat it would not follow that — . d ant *s liability would be measured by state law or common law stand . ww j " P a 5% : : . x1 ° . - of several hours, during all of which the defendants negligently ,. aa and carelessly failed to supply any band ‘cutters, or any persons to cut or break said bands, and in the course of such operations, at approximately 1255 o'clock a. m., upon the breaking of the bands of one of said dunnage loads several heavy. timbers did’ break foose and did fall upgn said William J-- Aldridge, directly and proximately inflicting upon him serious and fatal injuries from which he died en route by ambulance to a hospital.” a menmmee W e think the complaint was sufficient to state a claim requir- ing the court to proceed to trial. United Pilots Assn. v. Halecki, 359 U.S , (Feb. 24, 1959¥ dealt with an action brought in federal court. ‘by reason of diver- sity of citizenship to recover for. wrongful death, based on the “New Jersey wrongful death act, and ifpon claims both of unsea- wortiiness and _itegligence, The tortious conduct charged to the vessel ‘owners occurred on navigable waters in Nev: Jersey, The Court of Appeals upheld reeovery on either unseaworthiness or negligence. Haleeki v. United New York ‘& New Jersey S.H.P. Assn., 2 eir., 251 F. 2d 708. The Supreme Court disagreed as to the claim of unseaworthiness,4 but approved the lower court’s holding as to negligence, saving: “As ‘¢- the claim based upon negligenee, for which the New Jersey Wrongful Death’ Act clearly giyes a right of action, we agree | with the Court of Appeals that ‘the evidence created an issue that could be decided only by a verdict.’ ” . The facts. there have: eectiin alike wheuihic ees, to il al- -leged in the complaint here. The decedent Halecki was employed hy an electrical contractor to work on defendant's ship’s gener. ° ‘2 ators.” Haleeki and another were spraying the -generators with ‘carbon. tetrachloride, a toxie compound. They knew it was an operation dangerous to humans if the fumes reached certain con- _centrations in the—atmosphere._-They—took, some precautions to 4 procure ventilation, but. there yas evidence these were not “ade- quate to remove the fumes... ° Ip each case, in Hatecki) and in. this one, it epuld be said, view of the risky procedurés adopted by the subcontractor or ree stevedoring ‘ company, as the Supreme | Court did in fhe Haleeck# ne ee en ee ce reason given was a that the work pertormed by the plaintiff was “net the type of. work traditionally done by seamen within the rule of Seis M TD pecs Co, v, Sieracki, 328 U.S, 85., eee ¢ ‘ a er _ = ee 4 ees xu case: “It was for the’ triers of fact to determine whether the defendants: were responsibly negligent in permitting or author. | izing the method or manner of. {their) use.” “In appraising the sufficiency vf* the complaint’ we tina of course, the accepted rule. that a complaint should not. be dis. .— missed for failure to state-a claim unless it appears beyond doubt that the: plaintiff can’ prove no set of facts in support of his claim which ‘would entitle hgm to relief.” Conley v. Gibson. 355 U.S. 41, 45. “Had the facts here been developed through a scat conference, or on trial, the degree of- knowledge whieh the ship's officers’ had, after they refused further to furnish the carpenter and his hammers, that a less safe method was in tse, would have been made apparent for evaluation by the judye and jury. “No conclusion in such a case should prudently be rested on an indefinite factual foundation.” Kennedy v. Silas Mason (o., ‘334°U.S. 249, 256. It would be “good judicial administration to” withhold. decision ‘of the ultimate questions involved in this case’ until this or another record should present a more solid basis of findings .based ‘on litigation or on a comprehensive statement of agreed feets.” Idem, p. 257. The evidence which might be adduced under this complaint might eyen enhance the resemblance of the facts here to those in Halecki. It would appear then that Aldridge was in a_ position comparable to that of Halecki, of whom the Court of Appeals said (p. 711):,.“The deceased’ was certainly an ‘invited oie ‘ or ‘business guest,’ and the shipowner was liable, not only fir the negligence of the master, but, although the work was let ow to a subcontractor, also for any lack of ‘reasonable care to asevr- tain. the metltods and manner in which the concessionaire or in- dependent contractor carries on his activities, not only at tie time when the concession i§ let, or the contr&ctor employed, | also during the entire period in which the concessionaire or cn: .tractor carries on his activities:’ "5 — We speak here of the shipowner’s negligence; and sine Aldridge, like Hawn, was not a crew member, he-may maintats _ a negligence action against the shipowner. Pope & Talbots Inv. ¥. Hawn, supra, ‘at p. 413. As in the.case of Hawn, any contriy tory negligence on his part: would operate only in mitigation ot 5The court, was quoting trom Restatenient of Torts, Vol. ti, jah comment b. Rs } : ? x ill damages. Cf. Kermarec v. Transatlantique; 359 U.S. —., (Feb. 24, 1959), ‘Appellee argues that since plaintiff here had to, rely on the California death statute the effect of contributory negli- gence must be governed by the law of California. - In support of this it cites Curtistv. A.- Garcia, 3 eir., 241 F. 2d 30. But in: Halecki v. United New York & New Jersey S.H.P. Assn., supra, the court expressly disapproved of that case, (see 251 F.2d at p.. 713), holding that the. New Jersey statute “should be construed a@s taking over as a, part of the model] it accepted the exemption of contributory negligence as a bar”, As we have seen, the Su- preme Court, reviewing Halecki, accepted without exception the Court of Appeals’ decision on the negligence aspects of that case. We see no réason to draw any different conclusion as to the Califdrnia statute. In Halecki neither the Court of Appeals nor the Supreme Court noted any ptoblem of proximate cause. Nor do we see any -here, That, like the question of reasonable care, is a question of fact: ; Reversed and remanded. ‘Endorsed :) Opinion. Filed Mar. 16, 1959, , Paul: P.O’ Brien, Clerk. 2. xiv | * $y Judgment dated April 23, 1959. United States Court of Appeals for the Ninth Circuit . Armida Aldridge, : : “7 | ue —* ~The. \ No. 15,698" ‘States | hitise Corporation of Delaware, a Cor poralsn, hgelen. J: rs -JUDGMENT - A; peal from the United States District Court for the Northern District of California, Southern Division. This cause came on to be heard on the Transcript ‘of the Record from the United States District Court for the - Northern District of California, Southern Division, and - was duly submitted. ‘On consideration whereof, it is now here ordered and adjudged by this Court, that the order of the said District Court in this cause be, and hereby is. reversed, With cosis in favor of the Appellant and against the Appellee, and that this cause be, and hereby is remanded to the said District Court. ¢ IT Is FURTHER ORDERED and tadjudged by thir Court that the Appellant recover against the Appelley for her costs herein expended and have execution the re for. (ENDORSED) ‘Judgment . Filed and entered:- April 23, 195% Paul P. O’Brien, Clerk . “ ’ “ . ® e Ps . % * - . ’ : ¢ bs * . . ay . . . . t . . ° . } ; * “ . ” 7 . o . : . F ‘ . . ae } ~ . | . . ° . rae , é ; . eae « Ba, ‘ ae , PY . j | . ° ». . Pe > . ‘ : ° e ’ . . ° . i . " - ™ . . a %e - ‘ . ‘ nme F i 3 ‘ . F ee ate . . “ ; . ad " ? s . OES at 0 Oe sae «oe JUN 25 955. Mts R. mite Clerk In th Supreme Court i OFTHE Gs ed = States. 1 ILE coPyY | : a oe : a I arene Coun US] a ; : e | f | . . ion OBER Tren, 1958" Sate Go ee aT s ies Manixe Norron ATION Of Dry Awake? a Corporation, | e ¥ ' ae . ; id lilione 7 \Eauiby Aboripar, ” ve . spondent, : . J RESPONDENT'S S BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI to. the United States Court of Appeals ior the Ninth Circuit. \ oaks a (it. \PSFEINY: Aner RSEN. LEON AR bes SIBRETT, Ric HARD GLADSTELN, a ats : NoraraX Lrox ARD,.-. 240 Mont ery Stree, San Franci sd ‘alit orhia, ue Ka ye ys for R, spoudi ne. RNa ° y ._ °°? 4 . MCR : ¢, . . 4 - -* ee y | ora , Pe ae coe 4 5 ALE COPY " : i : | | Ottice Supre ie Cho iL] c ms [JAMES ~ tm IWIING ce | an the Supreme Court — : OF THE Huited States” gat oe * ered er Teaw-tase NGS 7 ee Sp MM VANE Conan VT LN “On aera wait} i. ration, sah ~~ Pielvliana = ei \ : be ie Pk \ ® \ VND Ponti ‘ We, ee Wie Pi S proud wf, , -RE SPONDENT'S S BRI EF IN OPPOSITION 10 PETITION FOR A. WRIT OF CERTIORARI : to the United States Court of Appeals . -. for the Ninth Circuit. ‘ GLADSTTIN, A NDEBSE N. Low trp & Steere: | Rite ee ay Rie HARD GLADSTELN, ee ee Nor: MAN Lrox yvrp, . 4) Montgomery Street, San Prapeice, 1, California ‘ ANitave YS for Re spol vt, fo ’ NN, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0961%3A3. Public record. Not legal advice.