# Brief for the United States in Opposition — Selby v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0969%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States in Opposition - **Published:** January 1, 1959 - **Citation:** 361 U.S. 815 ## Text -INDEX Opinions below. ___ peaks ae Amana oat yoke ctecntas, syed EEE ROR ee eae Question presented is ihascemaledcenee : Rule involved... __ Bu see mas Statement __ __ AE en pee, oye %. i Argument _- Ree Cone lusion.- eee aan CIEATIONS Cases: *. Comstock v. Group of Investors; 335 Us S. 211 Corn Products ia: 4. © ommissioner, 350 U.S. ‘Hecht. ioc & Males. v. The SS. President - .. Buchanan, 236 F: 2d 627__ : ar Kelley v. Everglades Drainage District, 319 Us i Newer peer ee ee es BD Koehler vy. U nited States, IS? F: ‘2d 933. Spires McAllister v.-United States, 348 ne S: 19... Petterson. Lighterage & T. Corp. \ Me u York Central R. Co., 196 F: 20002... .. eee oe: United States v. Ladd, 193°¥. 24929... , United States v. Oregon Med. Soc., 343 U.S. a 8 es Shae ee ee re ae Statutes: Jones Act, 46U a. ES eens ete 46 U.S.C. et Se aaa : Miscellaneous: Admiratt\ Rule 4615, 28. U a6. sical apes emo Sith 59>. ~J Ow an the Supreme Court of the wii States Octonr R TERM, 1959 Xo. 92 were Inadequate (R. 235-2380). Indeed, | ° ateleast insefar - ats the epinion of the Court of ’ peals dise ‘loses, it app ‘ars that. the only. arcume nt . seriously urged in that court hy the petitione 7 was that the findings: of the District: Court were clearly er- roneous (CR, 238a). fed -The petitioner urges that both lower courts failed to pass upon. the material issues litigated at the trial. In listing these “material issues’ in his petition, he makes reference tovissues which were either decided squarely against him in the lower courts or whie h are but ‘refined, almost Whisory, variations: on the theme whith was rejected by these courts. The petitioner's lain of. negligence and nseaworthiness predicated pon aceeptance and transportation. of sick and dying “horses is merely a rephrasing of his allegation that he was compelled to. live in proximity with sick horses’ and with dead horses, whose bodies had not been dis- charged. With r spect to this allegation, the District Court. held that the. petitioner had utterly failed: to sustain his ‘burden of proof, The court found, that the petitioner's evidence was inadequate to establish , that horses had oce upied a significant area of the deck for a significant period of time’ (R. 138a). It found _ that, contrary to the petitioner's testimony’ dead ‘horses had been regularly dise charged on weekends, as Well as weekdays (R. 146a). It found that the petitioner had failed to prove that this degree of ee mortality. is not an n -expectable incident of the trans. | portation of animals (R. 149a), and had not estab- lished by the weight of credible. evidence the Jurid . conditions aboard the Rockland. which he had alleged SO graphically (KR. 151la). Since the petitioner failed to. prove the existence of conditions dangerous to human health, it follows inevitably that’ he failed to prove negligence or aworthiness in respondént’s ' Aecepting the horses for tr: ansportation. The District Court concluded; specifically, that. unseaworthiness _ had not been proven (R\ 149%) and that. negligence had not been proven (R. 151a). bare Although the District Court rejected the peti- ~~ tigner’s description of the \ conditions on board the Rockland and thus was not compelled to consider the . issue of proximate cause, it, ‘nevertheless, ruled that ~ the petitioner had not established his theory of causa- “tion. The: court pointed. out that none of the peti- tioner’s medical experts were familiar with the state * of his physical condition before he had signed on the. Rockland (R. 150a) and that the medical testimony concerning the interpretation. of a pre-Rockland’ X-ray was conflic ‘ting (R. 142a). It found the tes ‘timony of the petitioner’s experts “at the most an expression of a belief based upon the assumption of his accurate statement of conditions on the ship, | that his tuberculosis could have arisen on the first voy age” ~(R. 150a).’ Finally, the court concluded that the ‘ Indeed, thers “was no convincing proof that the petitioner did not have tuberculosis before hg joined the S.S. Rockland Victory and that what happened thereafter was not simply the normal progress of the disease one would expect:to. occur 9 long as he continued working and cau from any course @ of conduct other than rest. petitioner’s proof had failed on several Issues, inchud- ing that of causation (R. 15la). | The Court of Appeals reviewed the. findings of _ the District Court and held that they were not clearly erroneous. “Of course, with the issue of liability de- cided adversely to the petitioner, there | was no ‘need » for findings'ba the issue of damages. : Court rulessfroviding for findings of fact and con- ~ clusions of law. require only that findings be suffic rent . to indicate the factual basis for the court’s. ultimate. “conclusions, and do not impose. the requirement that a finding be made on every issue. whieh is conceivably . - relevant, ef. Kelley v. Ev erglades. Drainage Distriet, 319 U.S. 415. More specifically, coficlusions and find-_ , ings laid down pursuant to Admiralty Rule 46 must be Strictly limited to those upon w hieh the ita ment is based and should not he discursive. Petter- 7. son ‘Lighte rage &° T: Corp. y. New York Central R. Co., 126 F. 2d. 992 (C.A. 2); Hecht, Levis & K ahn Vv. ‘The N.S. President Buchanan, 236 F. 2d 627 (C.A. 2). The opinion of ‘the District. Court in the’ instant case complied with this- standard. It determined the basic issues concisely and completely. Although the :petition ostensibly compktins of the | | - failure of the lower courts. to make adequate find- ings, its thrust. seems. to be equally directed at advo- cating the proposition that the findings of fact whic h \ . were made were erroneous. © Such a contention clearly ¢antiot form a basis, for review of this’ case, In + Teviewing the-findings of a trial-court, sitting without _ a jury in admiralty, the 1 view of the Supreme Court, _ as well as. that of the Court. of Appeals, js limited to * . 2 . | the question of whether the findings are elvarly erroneous. McAllister v. United States, 348 US. 19, The trial court 8 findings are particularly Secure where, ax in this case, determination of the crucial issues hinges. largely on the credibility of Witnesses, United States v. Oregon Med. Svc.y 343 U.S. 326. 332... The District. Court considered the petitioners allegations, heard his ‘t testimony and that ‘of his wit- _ NeSSeS, and coneluded: that such facts: had not been’ - established &s would render the United States liable | for the -petitioner’s unfortunate disease. The Court of “Appeals upheld these findings. There remain: no issues worthy of this Court’s consideration. In the. event that certiorar should be granted here.” the Government would argué, in addition, as it die in the courts helow, that the petitioner's claim is. barred by the statute of limitations 46 USC. T40. We do’ not. develop. the point further here. SINCE We believe that the Court should deny certiorari for the other reasons he ‘rein set forth. ’ : Tn addition, the two court rule is faliv applicable in the. instant case. Comstock. v. (rroup of Investors, ong US. 2. 214; Corn Products Co. v. Commissioner, 350 US. 46, 51. * This issue was tac tly. decided by the: District pond agalis the United States. The Court of Appeals’ opinion did not refer to it. The relevant. facts concerning this issue appedr «! R. 142a-1#4a and 216a-229a. ; 9 = ey | P , CONCLUSION c ° Oe For the foregoing reasons, we respectfully submit _ that the petition for a writ of. certiorari should be denied. ? ; . No, 92 | O Huperr N. Seusy, dr., 2 Petitioner, against Unxirep Srates oF AMERICA, ae Respondent. . O “PETITIONER’S REPLY BRIEF The brief for the United States in opposition to the petl- tion for a writ of certiorari states at page 7: “The Court of ‘Appeals reviewed, the findings of the District Court * * *,"" eS a | This is not so. That is the Very purpose of the petition. This writ of certiorari is prayed for because the Court , of Appeals did not review the findings of the District Court. The ‘petitioner did riot, in fact. have the benefit of an -appral, = i ; Furthermore, an unwarranted license has been assumed by respondent in taking a part of a statement out of con- text_on page 6 of its brief: “It found the testimony. of the petitioner’s experts “at the most an expression of a belief Baséd upen-the assumption of his accurate statemént of conditions on the’ ship, that his tubereulosis could have arisen on the first voyage’.”’ “ 7 This is not what the. ev idduce showed. The uncontra- | dicted evidence by petitioner’s doctors established the - proximate causation, which ev idence, was misquoted by the trial court. ; The entdenne: was that the tuberculosis was eins ‘other than as the trial court stated that it could have been vaused. We are fully aware of ‘the fact that when.a litigant lias had the benefit of a‘trial and an appeal, that he must pos- sess compelling reasons for iatishtesd his application for a writ. We know .of no better reason than the fact. that a liti- . gant was denied his rights toa trial on the merits. . The District Court did not’ pass on the most important basic ground of recov ery, the’ transportation of sick: and dying horses, and the Court of Appeals for the Second Cir- cuit did not review this _question and ignored it completely — -in its decision. : . Petitioner accepts the two court holdings mentioned on page 8 of respondent’s brief, citing Comstock v. Group of Investors, 335 U. S. 211; 214; Corn Products Co. v. Com- missioner, 350 U.S. 46, 51. The decision of the lower court and the decision of the Court of Appeals for the Second Cireuit do not comply with these decisions’ because peti- tioner did not have two trials, he was denied even one on the merits. Respectfully submitted | Jacop Rasgner and Kuprer & Levine, Proctors for Petitioner. _ JacosB Rassner, _ Tuomas F. Fraw ey, : of Counsel, and on th< Brief. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0969%3A4. Public record. Not legal advice.