Petition for Writ of Certiorari — Mercer v. Theriot

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IN THE

SUPREME COURT OF THE "NITED STATES

OCTOBER TERM, 196...

No, 336

MRS, WANDA MERCER, Petitioner

versus

PARIS THERIOT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT.

-H. ALVA BRUMFIELD,

SYLVIA ROBERTS,

205 American Bank Building,

Baton Rouge, Louisiana,

Attorneys for Mrs. Wanda Mercer,

Petitioner.

SUBJECT INDEX

OPINIONS BELOW

JUSISDICTION

QUESTIONS PRESENTED

STATUTES INVOLVED

STATEMENT ...

REASONS FOR GRANTING THE WRIT

I. In Reexamining Facts Previously Found By The

Jury, The Court of Appeals Violated the Mandate

of the Seventh Amendment As Well As The

Settled Jurisprudence of This Court

II. The Court of Appeals For The Fifth Circuit

Erred In Finding Petitioner’s Evidence Was In-

sufficient To Justify Submission Of The Case

To The Jury

CONCLUSION Poles

PROOF OF SERVICE

APPENDIX “A” Opinien of the Court of Appeal for the

Fifth Circuit

APPENDIX “B” Judgment of the Court of Appeals for

the Fifth Circuit

APPENDIX “C” Judgment of the District Court Denying

Plaintiff's Motion for New Trial

APPENDIX “D” Motion of Plaintiff for Rehearing of

Plaintiff's Motion For New Trial Previously Denied-

Excerpt from Proceedings

“oo wo CO HS W

TABLE OF AUTHORITIES

Aikens v. United States, 212 F.2d 53 (10th Cir. 1960)

Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.

369 U.S. 355, 82 S.Ct. 780, 8 L.Ed. 2d 284 (1962)

Baker v. Texas & Pacific Railway Co., 359 U.S.’ 227, 79

S.Ct. 664, 3 L.Ed. 2d 756 (1959)

Basham vy. Pennsylvania Railway Company, 83 S.Ct. 965

(1963) %

Berry v. United States, 312 U.S. 450, 61 S.Ct. 687, 85

L.Ed. 945 (1941)

Carlsen v. Chisholm-Moore Hoist Corp., 281 F.2d 766 (2d

Cir., 1960)

Central Truck Lines, Inc. v. Lott, 249 ‘F.2d 722 (5th Cir.

1957)

Cochran v. M. & M. Transp. Co., 110 F.2d 519 (1st Cir.,

1940)

Continental Co. v. Union Carbide, 370 U.S. 690, 82 S.Ct.

1404, 8 L.Ed. 2d 777 (1962)

Davis v. Virginia Railway Co., 361 U.S. 354, 80 S.Ct.

387, 4 L.Ed. 2d 366 (1960)

Dick v. New York Life Insurance Company, 359.U. S. 437,

79 S.Ct. 921, 3 L.Ed. 2d 935 (1959) 16,

Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255

(6th Cir., 1961)

Eastern Transportation Lines v. Hope, 95 U.S. 297, 24

L.Ed. 477 (1897)

Eastman Kodak Company of New York v. Soutnern Photo

Material Company, 278 U-S. 359, 47 S.Ct. 400, 7 L.Ed.

684 (1927)

Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598,

91 L.Ed. 572 (1947)

Fequer v. United States, 302 F.2d 214 (8th Cir, 1962)

Filipek v. Moore-McCormack Lines, 258 F.2d 734 (2d Cir.,

1958)

Gallick v. Baltimore and Ohio Railroad Company, 369 U.S.

8418, 83 S.Ct. 659, 8 L.Ed. 2d 8 (1963)

Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1233, 87

L.Ed. 1546 (1942) 22,

Gardner v. Michigan Central Railroad, 150 U.S, 349, 14

S.Ct. 140, 37 L.Ed. 1107 (1893)

Gearhardt v. American Reinforced Paper Co., 244 F.2d

920 (7th Cir. 1957)

General Accident Fire & Life Asurance Corp. v. Zapel.

231 F.2d 917 (5th Cir. 1956)

Great American Insurance Company v. Cutrer, 298 F.2d

79 (5th Cir. 1962)

Greyhound Corporation v. Dewey, 249 F.2d 899 (5th Cir.

1957) 13,

Harrison v. Missouri Pacific Railroad Co., 83 S.Ct. 690

(1963)

Holmes v. Goldsmith, 147 U.S. 150, 33 S.Ct. 288, 87 L.Ed.

118 (1892)

In Re Allied Electric Products, Inc., 194 F.Supp. 26 (D.C.

N. J. 1961)

‘ en he

Jefferson v. Taiyo Katun, K.K., 310 F.2d 582 (5th Cir.

1952)

Johnson v. Hill, 274 F.2d 110 (&th Cir. 1960)

Kennelley v. Travelers Insurance Company, 273 F.2d 179

(5th Cir. 1960)

Kore! v. United States 246 F.2d 425 (4th Cir. 1957)

Kreigh v. Westinghouse Co., 214 US. 249, 29 S.Ct. 619,

53 L.Ed. 984 (1909)

Lavendar v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed.

916 (1946)

Lincoln National Life Insurance Co. v. Roosth, 306 F.2d

110 (5th Cir. 1962)

McQueen v. Navajo Freight Lines, Inc., 293 F.2d 590

(8th Cir. 1961)

National Biscuit Co. v. Litzky, 22 F.2d 939 (6th Cir. 1927)

Nordmeyer v. Sanzone, 314 F.2d 202 (6th Cir. 1963)

Panama RK. Company v. Bosse, 249 U.S. 359, 39 S.Ct.

211i, 63 L.Ed. 466 (1919)

Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 435, 7

L.Ed. 732 (1830)

Penn Co. v. Zahner Metal Sash & Door Co., 273 Fed. 993

(6th Cir. 1921)

Peoples Gas Company of Kentucky v. Fitzgerald, 188

F.2d 198 (6th Cir. 1951)

Pritchard v. Nelson, 288 F.2d 878 (2d Cir. 1955)

Pruitt v. National Hardware Dealers Mut. Fire Ins., 112

F.2d 140 (5th Cir. 1940)

Readnaur v. Commercial Standard Insurance Company,

253 F.2d 907 (10th Cir. 1948)

Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct.

443, 1 L.Ed. 2d 493 (1957) : 13,

Roundtree v. Post, 134 F.2d 340 (5th Cir. 1943)

Scholle v. Cuban Venezuelan Oil Voting Trust, 285 F.2d.

318 (2d Cir. 1960)

Schulz v. Pennsyivania Railroad Company, 350 U.S. 523,

76 S.Ct. 608, 100 L.Ed. 668 (1956) 16,

Sears Roebuck v. Peterson, 76 F.2d 243 (8th Cir. 1935)

Sentilles v. Inter-Caribbean Shipping Corporation, 361

U.S. 107; 80 S.Ct. 173, 4 L.Ed. 2d 172 (1959)

Simler v. Conner, 368 U.S. 966,83 S.Ct. 609, 7 L.Ed. 2d

395 (1963)

Sitta v. American Steel and Wire Div. of U. S. Steel Corp.,

254 F.2d-12 (6th Cir. 1958) .

State Farm Mutual Automobile Insurance Co. v. Can-

zoneri, 297 F.2d 369 (5th Cir. 1861)

Tennant v. Peoria P. U. R. Co., 321 U. S. 20, 64 S.Ct. 309,

88 L.Ed. 520 (1944) 12,

Texas & Pacific Railway Company v. Harvey, 228 U. S.

319. 33 S.Ct. 518, 57 L.Ed. 852 (1913)

Texas and Pacific Railway Company v. Watson, 190 U.S.

237, 23 S.Ct. 681, 47 L.Ed. 1059 (1903)

vi *

The Robert Edwards, 6 Wheat. 187, 5 L.Ed. 288 (1821) 18

Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct.

444, 87 L.Ed. 610 (1948) x 15

Union Insurance Company of Philadelphia v. Smith, 124

U.S, 405, 8 S.Ct. 544, 31 L.Ed. 2d 505 (1888) 22

United States v. Gavagan, 280 F.2d 318 (5th Cir. 1960) 20

Western Production Company v. Yarbrough, 234 F.2d 899,

(5th Cir. 1955) , 16

Williams v. National Surety Corporation, 257 F.2d 771

(5th Cir. 1958) i6

Williams v. Reading Co., 175 F.2d 82 (31d Cir. 1949) ' 18

SECONDARY AUTHORITIES r

Annot., The Supreme Court’s Review of Sufficiency of

Evidence in Actions Under the Federal Employers’

Liavility Act, 4 L.Ed. 2d 1787 (1958) 9

James, Sufficiency of the Evidence and Jury Control De-

vices Available Before Verdict, 47 Va. L. Rev. 218

(1961) 16

6 Wigmore, Evidence, Sec. 1766, p. 180 (1940) 20

Note 46 Iowa L. Rev. 210 (1961) , 20

Note 40 Minn. L. Rev. 455 (1956) ~ ~20

Note 5 Okla. L. Rev. 270 (1952) 20)

STATUTES

U. S. Const. Amendment 7 9

Rule 43(a) Federal Rules of Civil Procedure :

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 196

MRS, WANDA-MERCER, Petitioner

versus

PARIS THERIOT

on OO PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT.

Mrs. Wanda Mercer, petitioner, prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit in the above entitled

, Case.

OPINIONS BELOW

Wher, this case was tried to a jury, resulting in a verdict

for petitioner, the District Court entered judgment in ac-

cordance therewith, without written opinion. The opinion of

the United States Court of Appeals for the Fifth Circuit,

reversing the jury verdict, with directions to ente. . judg-

ment for defendant unless petitioner made a satisfactory

showing that on another trial, evidence of sufficient proba-

tive force, warranting submission of the cause to the jury

would be offered, in which case, the judgment would be for

a new trial, is reported at 262 F.2d 754 (5th Cir. 1959),

certiorari denied, 360 U. S. 914 (1959). The opinion of the

District Court, appearing in the Record at page 352, (Ap-

pendix “C,” infra, p. 54), refused to grant petitioner a

new trial/on grounds the additional evidence she presented

was incompetent, and thus did not satisfy the mandate of

the Court of Appeals for the Fifth Circuit. This judgment

was affirmed by the United States Court of Appeals for the

Fifth Circuit (Appendix = .” infra, pp. 25-53), reported at

316 F. 2d 635, sitting en banc, with four judges dissenting.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit in Mercer v. Theriot, (No. 19,068) was entered on

March 14, 1963. (Appendix “B,” infra, p. 53). The juris- aes

diction of this Court is invoked under 28 U.S.C., Section

1254.

QUESTIONS PRESENTED

1. Whether the Court of Appeals for the Fifth Circuit

can re-examine facts found by a jury contrary to

the Seventh Amendment of the United States Con-

stitution and decisions of this Court.

Whether the Court of Appeals for the Fifth Circuit

can withhold a cause from the jury when reasonable

men could draw different conclusions and inferences

from the evidence presented.

: 8

STATUTES INVOLVED

1. Constitution of the United States, Amendment Seven.

2. Rule 61, Federal Rules of Civil Procedure.

3. Rule 43 (a), Federal Rules of Civil Vecentere.

STATEMENT

Petititoner, Wanda Lane Mercer, and Byrd Mercer were

married on May 5, 1948, and continued to reside as husband

and wife up to the time of his death on December 18, 1955,

for which she brought this wrongful death action. Byrd

Mercer was then employed in construction work, laying a

pipeline in the Gulf of Mexico, ‘and was living with petitioner

in a trailer court on Grand Isle, in the State of Louisiana,

approximately four miles east’ of the docks where Mercer

caught the boat which transported him to the job (R. 78).

After arriving at the dock after work on the evening of

December 18, 1955, Mercer did not ride home with his co-

werkers as he customerily did (R. 170), and was last seen

alive at approximately 7:00 P.M. (R. 166).

Paris Theriot, the defendant, had homes in Golden Mea-

dow, Louisiana, as well as on Grand Isle (R. 48) and in De-

cember of 1955, waS living in his Golden Meadow home (R.

49). Theriot, in partnership with his brother, Leo Theriot,

owned an automobile agency selling Oldsmobiles and Chev-

rolets. The defendant went to Grand Isle on Sunday, De-

cember 18, 1955, for the stated purpose of selling an Olds-

mobile to Leo Terrebonne (R. 54): defendant was driving a

1955 Oldsmobile painted white in front and red in back (R.

49). Theriot made a deal with Leo Terrebonne to sell him

an automobile, and then spent the afternoon in a tavern

known as Fisherman’s Bar in Grand Isle (R. 57). He ad-

mitted consuming four or five drinks of Scotch and water

(R. 55), but the bartender, Louis Bradberry, stated he served

Theriot ten or fifteen Scotch and water drinks (R. 157).

About 7:30 P.M., the defendant left Grand Isle to return

to his home in Golden Meadow, traveling over Louisiana

Highway 1, which is the only read on Grand Isle, going in an

easterly direction (R. 61). The weather was foggy and rainy

AR. 68).

Around 7:00 or 7:30 A.M., on Monday, December 19,

1955, petitioner was informed that her husband had been

found dead on the right shoulder of Highway i, on Grand

Isle. The Coroner’s certificate, introduced in evidence, mark-

ed Plaintiff Exhibit 2. shows that Mercer died on Grand Isle

toad No. 1, about 7:30 P.M. December 18, near the Humble

Oil Camp, and was thirty-two vears of age, white; the final

diagnosis as shown on the autopsy report of the pathologist,

all as shown on Flaintiff’s Exhibits 3, 3-A, 3-B and 4, indi-

cated that the deceased died from fracture dislocation of the

antlantooccipital joint with traumatic contusion of spinal

cord: comminuted fracture of left tibia and fibula; partial

separation if lambdoid suture of the skull; rupture of the

spleen, liver and both renal arteries, laceration of scalp,

face, right thigh, right hand and left leg (R. 28-29).

At approximately 10:00 A.M., on December 19, 1955,

Deputy Sheriff Gautreau. in charge of the investigation of

this death (R. 88), took photographs of the scene while the

body was still in the position in which it had been found (R.

30). on the right side of the road going in the direction of

the bridge connecting the island with the mainland (R. 37,

84). The body was some two to three feet off the edge of

the pavement (R. 45, 221). A spet of blood was observed by

Officer Folse, in what appeared to be an automobile tire

track, which ran off the road quite a way (R. 85). The dece-

dent was wearing blue denim work clothes, and his lunch

pail was found by the body at the side of the road (R. 85).

The investigating officers proceeded to Golden Meadow

where they gave Theriot’s car a careful examination; Deputy

Sheriff Gautreau made six pictures of the automobile intro-

duced in evidence as Plaintiff's Exhibits 7 through 13 (Kn.

35). These photographs, together with the testimony of the

officers, revealed that Theriot’s car was damaged; the right

front fender was dented, the rim of the headlight missing,

and there was a large indentation on the hood of the auto-

mobile (R. $2). Serapings were taken bv these officers of a

blue colored spot, which Appeared to be a dve stain, and also

of a white substance. take. from the indented section, which

appeared to be soap powder, in a film left on the surface of

the car (R, 91, 92, 115): as well as a hair-like substance

taken from the right front axle (R. 93, 115, 123). Former

Deputy Sheriff Guidry found a towel in the car, between

the back seat and the seat cover, bearing dark brownish spots

appearing to be blood (R. 198, 146). This evidence along with

the lunch pail, clothing and other articles were breugnt to

the Sheriff’s office whence they were to be sent to the De-

partment of Public Safety’s laboratory in Baton Rouge.

Deputy Prudhomme requested permission to bring this

evidence to Baton Rouge, but was refused (R. 94). The evi-

dence, along with Prudhomme’s notes were found to have

been tampered with, and then subsequently disappeared (R.

94). Several inquiries were made by Deputy Milliet and Of-

ficer Folse regarding the disappearance of the evidence, all

to no avail (R. 228). Trooper Folse said that this evidence

and the investigation made would furnish definite proof as

to the identity of the driver responsible for Mercer’s death

(R. 226). Trooper Folse further testified without objection

that he heard there had been a pay-off in the case (R. 229-

233). Deputy Sheriff Milliet testified that he had been fired

as a result of the case (R. 135).

Paris Theriot gave conflicting explanations as to the

cause of the damage to his automobile. He told Deputy Mil-

liet and former Deputy Guidry that he had hit a cow with his

car the day before (R, 117, 142). He also told Trooper Folse

and Deputy Prudhomme that he had collided with a truck

which was proceeding in the same direction in which he was

going, in which he ran off the road for some 150-200 feet

and then pulled back onto the road (R. 211). The officers

investigating the side of the highway saw no such markings.

Trooper Fclse testified that there was some evidence that

a car had run off the highway but at that spot, the mud was

so thick and wet that the only way the vehicle could have .

gotten back on the road was for it to have been pulled out.

(R. 226).

It was shown that Paris Theriot sold his interest in the

automobile agency business to his brother, effective Decem-

ber 31, 1955, less than two weeks after this accident. In ad-

dition, Theriot endorsed a note for one of his witnesses, Leo

Terrebonne, in the amount of $20,000.00. Under Rule 43 (b)

of the Federal Ruies of Civil Procedure, the deposition of

the defendant was offered in evidence out of the presence

of the jury; which deposition shows that Theriot admitted

running over two other individuals. This evidence was ruled

inadmissible by the trial judge who stated that if such evi-

dence came out even without any prompting from any wit-

ness, the Court would immediately order a mistrial, and the

excluded evidence was admitted for the record.

The jury returned a verdict for petitioner in the amount

of $25,000.00, and judgment was entered on October 25,

1957, in conformity with the verdict, in denying defendant's

motion for judgment notwithstanding the verdict and motion

for new trial, the District Court gave as its reasons, the fol-

lowing: “No one who sat through this trial and heard the

witness could reasonably come to any conclusion except

the one the jury came to.” (R. 302).

The Fifth Circuit Court of Appeals reversed the judg-

ment of the District Court and remanded. the case with di-

rections to enter a verdict for the defendant, “*** unless

plaintiff, within a time and under conditions to be fixed by

the district judge, make a satisfactory showing that on an-

other trial evidence of sufficient probative force to justify

submission of the cause to the jury will be offered, in which

event the judgment shali be for a new trial.” Thertot »v.

Mercer, 262 F.2d 754, 761 (1959).

In response to the appellate court’s mandate, petitioner

presented the following evidence: __a-Teport by Dr. Ralph

Snyder, safety engineer and accident analyst, made after a

study of photographs of the defendant’s damaged automo-

bile, and ten depositions. The District Court denied peti-

tioner’s motion for a new trial for the reason that such evi-

dence, “. . . while persuasive, would be inadmissible*®in a

new trial under the hearsay rule.” (R. 352; Appendix “C,”

p. 54). Granting petitioner's motion for rehearing, the

District Court observed: “There isn’t any question in my

mind that there was a denial of justice in this case. There

isn’t any question in my mind either that Paris Theriot

killed this man.” (R. 363, Appendix “D,” p. 56).

Following petitioner’s appeal, the Court of Appeals for

the Fifth Circuit, en banc, with four judges dissenting af-

firmed the lower court’s judgment.

REASONS FOR GRANTING THE WRIT

The errors in tne judgment of the Court of Appeals

for the Fifth Circuit herein are most clearly stated by the

Judge Rives’ dissenting opinion and may be summarized as

first, the “. . . Court’s decision both on the original appeal,

and on this appeal is in direct contravention of the mandate

of the Seventh Amendment.” ‘Appendix “A,” p. 34); second,

the Court of Appeals erroneously concluded that petitioner's

evidence did not present a jury question because it was in-

competent, despite the fact that petitioner had adduced ad-

missible evidence from which conflicting inferences could

be drawn, thus satisfying the standard of the quantum of

proof necessary for a jury question under the decisions of

this Court. Because this holding imposes strict. and unto-

ward limitations on the right to a jury trial, and the func-

tion of tne jury as fact-finders, both of which have been

reprobated by this Court, it is submitted that certiorari

should be granted to consider these questions and rectify

the errors velow.

I. IN REEXAMINING FACTS PREVIOUSLY FOUND

BY THE JURY, THE COURT OF APPEALS FOR THE

FIFTH CIRCUIT VIOLATED THE MANDATE OF

THE SEVENTH AMENDMENT AS WELL AS THE

SETTLED JURISPRUDENCE OF THIS COURT.

As Judge Rives observed in his dissenting opinion here-

in, “. . . the most practical and effective safeguard of lib-

erty and justice is the right of trial by jury.”" (Appendix

“A,” p. 24) Determinations of the jury must have binding

force if such a right is to have any meaning; to this end

the Seventh Amendment was enacted.’ It is petitioner’s con-

tention that the action- of the C ourt of Appeals herein, in

reweighing the facts as previously found by the jury, is

in direct conflict with this Court’s commitment to the Con-

stitutional guarantee embodied in the Seventh Amendment,

zealously protected through the granting of certiorari in

countless instances and subsequent reversal of lower courts’

overturning of jury verdicts.’

1In Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 443.7 bL Ed

732. (1830), this Court declared:

“The triai by jury is justly dear to the Amefican people. It has always

been an object of deep interest and solicitude, and every encruach-¢¥

ment upon it has been watched with great jeaiousy. The right to such

a trial is, it is believed. incorporated into and secured in every State

constitution in the Union: and it is found in the constitution of

Louisiana.”

Simler v. Conner, 368 U.S. 966, 83 S.Cit. 609. 7 L.Ed.2d 395 (1963),

contains these words: “The federal policy favoring jury trials is of

historic and continuing strength.” bd ,

2“In suits at common law, where the value in controversy shall exceed

twenty dollars, the right of trial by jury shall be preserved, and no

fact tried by a jury, shall be otherwise reexamined in any Court in

the United Siates, than according to the rules of the common law.”

U.S. Const. Amend. 7.

8See Annot. The Supreme Court’s Reyiew of Sufficiency of Evidence in

Actions Under the Federal Employers’ Liability Act, 4 L.Ed. 2d 1787

(1959), and the dissenting opinion of Judge Clark. Chief Judge of the

Court of Appeals for the Second Circuit, in Fihpek v. Moore-Mc-

Cormack Lines, 258 F.2d 734 (2d. Cir. 1958). in which over twenty

cases are cited as examples in which this Court granted certiorari in

order to restore jury verdicts reversed by Courts of Appeals.

The verdict herein was supported by ample evidence,

according to the view of the trial judge, and the four dis-

senting judges on the Court of Appeals. The assumption of

the jury’s function by a Court of Appeals, under those cir-

cumstances cannot be permitted, according to this Court’s

unequivocal holding in Dick v. New York Life Insurance

Company, 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed. 2d 935 (1959).

In that federal diversity action, the jury determined that

the insured had met his death accidentally, and did not take

his own life, making the insurer liable to petitioner, as bene-

ficiary under the policies, for double indemnity payments.

Motions for directed verdict and judgment notwithstanding

the verdict filed by the insurance company were denied by

the trial judge. The Court of Appeals reversed, and dis-

missed the complaint, asserting that it was unable to believe

that the decedent, an experienced hunter, could have possi-

bly shot himself by accident, first by one barrel and then

the other; therefore the question of whether the death was

an accident was not a question »f fact for the jury, and

should not have been submitted. ,

Summanizing the evidence. all of which was circum-

stantial, this Court held that accidental discharge of the

gun on another occasion had been testified to by one of

petitioner’s witnesses, together with facts tending to show

suicide had not been contemplated by the insured, supported

the verdict, which must be reinstated. The error of the

Court of Appeals was described in the following manner:

“In our view, the Court of Appeals improperly re-

versed the judgment of the District Court. It com-

mitted its basic error in resolving a factual dispute

in favor of respondent that the shotgun would not

fire uniess someone or something pulled the trig-

gers. Petitioner’s evidence on this score could sup-

port a jury conclusion that the gun might have

fired accidentally from other causes.

“After all the evidence was in, the district judge,

who was intimately concerned the trial and

who has a “first hand knowledge of the applicable

state principles, believed the case should go to the

jury.

Dick v. New York Life Insurance Company, 359

U.S. at pp. 445-446.

In both the Dick decision and the case at bar, the evi-

dence, circumstantial in nature owing to the unwitnessed

deaths, conyinced a federal district court, and a duly con-

stituted jury; however, in the instant case, this conviction

was also shared by four members of the bench of the Court

of Appeals jor the Fifth Circuit. There appears no way in

which the opinion of the majority of the Court of Appeals

herein can be reconciled with the Dick case, and, it is sub-

mitted, reversible error is present in the appellate court’s

failure to adhere to the jurisprudence of this Court.

The impropriety of reversals of jury findings in cases

involving recovery under the Federal Employers’ Liability

Act, 45 U.S.C. § 51 et seq., has claimed this Court’s atten-

tion on three recent occasions, Basham v. Pennsylvania Rail-

road Company, 83 S. Ct. 965 (1963); Harrison v. Missouri

Pacific Railread Co., 83 S. Ct. 690 (1963); Gallick v. Balti-

more & Ohio Railroad Co., 369 U.S. 848, 83-S.Ct. 659, 8 L.Ed.

2d 8 (1963). In all of these decisions, it was found that the

invasion of the jury’s province of fact finding was unwar-

ranted. In the Gallick case, petitioner sustained injury re-

sulting from a bite of an insect allegedly attracted to a

fetid pool allowed to remain near the work site by respon-

dent, The Court of Appeals for the state of Ohio found the

evidence insufficient with respect to the causal connection

between the railroad’s negligence and the insect bite and

overturned petitioner’s jury verdict. This holding was re-

versed ,by this Court, relying on the rule of Tennant v.

Peoria & P. U. R. Co., 321 U. S. 20, 64 S.Ct. 409, 88 L. Ed.

520 (1944), that appellate courts should not search the

record in an attempt to find conflicts in the evidence, and

thereafter take the case from the jury; moreover, the Court

of Appeals’ finding that direct evidence was needed con-

cerning the origin of the offending insect in-the pool was

erroneous. 3

The same Tennant v. Peoria rule* ig the basis® of this

Court’s reversal of the Fifth Circuit Court of Appeals judg-

ment in Sentilles v. Inter-Caribbean Shippg Corporation,

361 U.S. 107, 80 S.Ct. 173, 4 L.Ed. ie wee in which

the appellate court had used an incorrect standard in assess-

ing the medical evidence bearing on the question of whether

¢ The applicability of Tennant v. Peoria to cases other than those arising

under the Federal Employer's Liability Act is demonstrated by cita-

tion of this case as authority for the amount of evidence needed to

present a jury question in a suit under the Clayion Act, cited below,

Continental Co. v. Union Carbide, 370 U. S. 690. 82 S.Ct. 1404, 8 LEd.

2d 777 (1962).

* This principle is cited with approval by the Court of Appeals for the

» Fifth Circ’.: in Great American Insurance Company v. Cutrer, 296

F.2d 79 (5th Cir. 1962)

petitioner’s accident reactivated or aggravated a previously

' existing laient tubercular condition, in an action brought

under the Jones Act, 46 U.S.C. Sec. 688.

In Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines,

Ltd., 369 U.S. 355, 358-359, 82 S.Ct. 780, 8 L.Ed. 2d 284

(1962), this Court clearly delineated the jury’s functiow as

distinguished frofm that of the appellate court as follows:

: \ ‘

“We might agree with the Court*of Appeals had

the questions of fact been "left to us. But neither

~ we nor the Court of Appeals can redetermine facts

found by the jury any more than a District Court

can predetermine them. The Seventh Amendment

says that ‘No fact tried by a jury, shall be other-

wise reexamined in any Court of the United States,

than according to the rules of common law.’ .

By virtue of the weil established line of jurisprudence’

denying the Court of Appeals the power which it exercised

herein, as set forth in Atlantic and Gulf Stevedores, supra,

it is petitioner’s contention the decision herein should not

be permitted to stand, and certiorari should be granted to

* Decisions holding that facts found by a jury cannot be reweighed are

these: Regers v. Missouri Pacific R. Co. 352 U.S. 500, 77 S.Ct. 443,

i L.Ed. 2d 493 (1957); Ellis v. Union Pac. R. Co.. 329 U.S. 649, 67

S.Ct. 598, 91 L.Ed. 572 (1947); Lavendar v. Kurn, 327 U.S. 645, 66

S.Ct. 740, 90 LEd. 916 (1546); Eastman Kodak Company of New

York v. Southern Photo Material Company, 273 U.S. 359, 47 S.Ct.

400, 7 L.Ed. 684 (1927); Panama R. Company v. Bosse, 249 U.S. 359,

39 S.Ct. 211, 63 L.Ed. 466 (1919) - Jefferson v. Taiyo Katun, K. K. 310

F.2d 582 (Sth Cir. 1962); State Farm Mutual Automobile Insurance

Co. v. Canzoneri, 297 F.2d 369 (5th Cir. 1961): Johnson v. Hill, 274

F.2d 110 (8th Cir. 1960); Readnaur v. Commercial Standard Insurance

Company, 253 F.2d 907 (10th Cir. 1948): Greyhound Corporation v.

Dewey, 240 F.2d 899 (5 Cir. 1957); Gemeral Accident Fire & Life As-

surance Corp. v. Zapel, 231 F.2d 917 (5th Cir. 1956).

assure the continued vitality of the jury system as provided

for in the Seventh Amendmert.

Il. THE COURT OF APPEALS FOR THE FIFTH CIR-

CUIT ERRED IN FINDING PETITIONER'S EVI-

DENCE WAS INSUFFICIENT TO JUSTIFY SUB-

MISSION OF THE CASE TO THE JURY

The opinion of the Court of Appeals reveals that it held

on the first appeal there was a complete absence of any evi-

cence of defendant’s negligence (Appendix “A,” p. 27), and

that “The second appeal does not require a reconsideration of

the merits.” (Appendix “A,” p. 31). With respect to the evi-

dence offered by petitioner in the District Court, pursuant

te the mandate of the Court of Appeals, it was held that

* the evidence contained in the depositions, “. . . lacked pro-

bative force because it was incompetent, not because it was

indirect or circumstantial evidence.” (Appendix “A,” p. 33).

With respect to the accident analyst’s report, the Court ob-

served: “It is of doubtful admissibility because it comes close

to taking over the jurv’s function of deciding ultimate facts.

At best the report is merely cumulative.” (Appendix “A,”

p. 33).

It is petitioner’s position that the Court erroneously

held that it was required to abide by its origina! decision

s “if

that there was total absence of probative facts." and further,

that the evidence presented by petitioner in response to the

mandate, presented a submissibie case according to the de-

cisions of this Court and other Courts of Appeal, including

those of the Fifth Circuit.

The rule with respect to the determination of the pres-

ence of a jury question has been defined by this Court in

Tiller v. Atlantic Coast Line R. Co., 18 U.S, 54, 67-68, 63

S.Ct. 444, 87 L.Ed..610 (1943), as follows:

Many years ago this Court said of the problems of

negligence, ‘We see no reason, so long as the jury

system is the law of the land, and the jury is made

the tribunal to decide disputed questions of fact,

why it should not decide such questions as these as

well as others.’ Jones v. East Tennessee, etc., R.

Co., 128 U.S. 443, 445, 9 S.Ct. 118, 32 L.Ed. 478.

TIn regard to the possibility of the Court of Appeals’ first decision con-

stituting the law of the case, preventing an appellate court ordi-

narily from reviewing the correctness and arriving at a contrary

conclusion on the question of whether the same body of evidence

is sufficient to permit jury submission, Lincoln National Life Insar.

ance Co. v, Roosth, 306 F.2d 110, 113 (5th Cir, 1962), Judge Rives’

dissenting opinion points out relative to the Reosth case:

“In that case the first decision bad reversed a judgment nov.

and remanded the case for a new trial. Upon the second appeal

we affirm the judgment entered upon the jury's verdict on

new trial. Our added reluctance to depart from the law of the

case was, therefore, not inconsistent with the mandate of the

Seventh Amendment. There is such inconsistency in the present

case, and the constitutional mandate should prevail. In addition,

I have emphasized the word “ordinarily” in the quotation from

Roosth. The present case seems to me not an ‘ordinary’ one,

not even a close’ case, but one where the circumstantial evidence

very clearly requires a submission of the issues for the jury's

determination.” (Appendix “A,” p, 41).

Examples of reconsideration and reversals of former holdings Cochran

v. M & M Transp. Co, 110 F.2d. 519 (ist Cir. 1940), and Im Re Allied

Electric Products, Inc. 194 FP. Supp. 26 (D. C. N. J. 1961)

16 ‘

Or as we have put it on another occasion, ‘Where

the facts are in dispute, and the evidence in rela-

tion to them is that ffom which fair-minded men

may draw different inferences,’ the case should

go to the jury.’”

A more recent statement of the rule appears in Con-

tinental Co. v. Union Carbide, 370 U.S. 690, 700-701, 82

S.Ct. 1404, 8 L.Ed. 2d 777, (1962), involving a suit by peti-

tioner under § 4 of the Clayton Act, 15 U.S.C. § 15:

“Undoubtedly all of the evidence during this period

does not point in one direction and different infer-

ences might reasonably be drawn from it. There

was, however, sufficient evidence to go to the jury

which ‘weighs the contradictory evidence and in-

ferences’ and draws ‘the ultimate conclusions as

to the facts,’ Tennant v. Peoria & P. U. R. Co., 321

U.S. 29, 35.”

Schulz v. Pennsylvania Railroad Company, 350 U. S.

523, 76 S.Ct. 608, 100 L.Ed. 668 (1956), illustrates the op-

*To the same effect: Baker v. Texas & Pacific Railway Co. 359 U.S.

227, 79 S.Ct. 664, 3 L.Ed. 2d 756 (1959); Davis v. Virginia Railway

Co., 361 U.S. 354. 80 S.Ct. 387, 4 L.Ed. 2d 366 (1960); Berry v. United

States, 312 U.S. 450. 61 S.Ct. 637, 85 L.Ed. 945 (1941); Texas & Pacific

Railway Company v. Harvey, 228 U.S. 319, 33 S.Ct. 518, 57 L.Ed. 852

(1913); Kreigh v, Westinghouse Co., 214 U.S. 249, 29 S.Ct. 619, 53

LEd. 984 (1909); Gardner v. Michigan Central Railroad, 15) U.5.

349, 14 S.Ct. 140, 37 L.Ed. 1107 (1893); MeQueen v. Navajo Freight

Lines, Inc. 293 F.2d 590 (8th Cir. 1961); Dickerson v, Shepard Warner

Elevator Co., 287 F.2d 255 (6th Cir. 1961); Central Truck Lines, Inc.,

v. Lott, 249 F.2d 722 (5th Cir. 1957); William v. National Surety Cor-

poration, 257 F.2d 771 (5th Cir. 1958); Greyhound Corporation v.

Dewey, 240 F.2d 889 (5th Cir. 1957); Western Production Company

v. Yarbrough, 234 F.2d 889 (5th Cir. 1956); Roundiree v. Post, 184 F. 2d

340 (5th Cir. 1943); James, Sufficiency of the Evidence and Jury

Control ‘Devices Available Before Verdict, 47 Va. L.Rev. 218 (1961).

eration of this rule in a case depending wholly on circum-

stantial evidence. Petitioner sued for the wrongful death

of her husband who had been employed by respondent as

a tug fireman. He was last seen at 1:25 a.m., walking in

the direction of a tug, and several weeks later his body was

discovered in the water near an adjacent pier; he had

drowned, snd there were no’ witnesses who could testify as

to the attendant facts. It was shown that the decedent had

to take care of four tugs by himgelf, and was obliged to

step from one boat to another with no illumination except

his flashlight. The District Court ordered the jury to re-

turn a verdict for defendant since the only things that had

been established was an accidental death and some evidence

of negligence, but “not a shred ef evidence connecting the

two.” The Court of Appeals affirmed, with the comment

that while the evidence was “perhaps at most only doubt-

fully sufficient to present a jury question as to the defend-

ant’s breach of duty.” it failed to show “where the accident

occurred, or “that it was proximately caused by any de-

fault on the part of the defendant.” This Court granted

certiorari and reversed for these reasons:

“In this case petitioner is entitled to recover if her

husband’s death resulted ‘in whole or in part’ from

defendant's negligence. Fair-minded men could cer-

tainly find from the foregoing facts that defendant

was negligent in requiring Schulz to work on these

dark, icy and undermanned boats. And reasonable

men could also find from the discovery of Schulz’s

half-robed body with a flashlight gripped in his

hand that he slipped from an unlighted tug as he

groped about in the darkness attempting to per-

form) his duties. But the courts below teok this

Nes

bead

case from the jury because of a possibility that

Schulz might have falien on a particular spot where

there happened to be no ice, or that he might have

fallen from the ‘one boat that was partially illumi-

nated by shore lights. Doubtless the jury could

have so found (had the court allowed it to perform

its function) but it would/not have been compelled

to draw such inferences. For ‘The very essence of

its function is to select from among conflicting in-

ferences and conclusions that which it considers

most reasonable. Fact*finding does not require

mathematical certainty. Jurors are supposed to

reach their conclusions on the basis of common

sense, common understanding and fair beliefs,

grounded on evidence consisting of direct state-

ments by witnesses or procf of circumstances

from which inferences can be fairly drawn.’”

Schulz v. Pennsylvama Railroad Company, 350 US.

526.

The evidence in the instant case is likewise circum-

stantial, but this in no way lessens its probative value.’ !t

~was Judge Rives view, expressed in his dissenting opinion

herein, that after a review of the facts reflected in the State-

——_ $$ —— —

omega \. afissouri Pacific K. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 LEd.

2¢ 493 (1956): Holmes v. Goldsmith, 147 U.S. 150, 3 S.Ct. 288, 37

L.Ed. 118 (1892); The RobertEdwards, 6 Wheat, 187 5 L.Ed. 238 (1821);

Sitta v. American Steel and Wire Div. of U.S. Steel Corp., 254 F.2d

12 (6th Cir.“1958): Korel v. United, 246 F.2d 425 (4th Cir. 1957);

Gearhardt v. American Reinforced Paper Co., 244 F.2d 920 )7th Cir.

1957): Pritehard v. Nelson, 228 F.2d 878 (2nd Cir. 1955); Williams v.

Reading Co., 175 P.2d 32 (3rd Cir. 1949): Pruitt v. Hardware Dealers

Mat. Fire Inc., 112 F. 2d 140 (5th Cir. 1940); Sears Roebuck v. Peter-

son, 76 F2d 243 8th Cir. 1935): National Biseult Co. v. Litzky, 2

P.2d 939 (6th Cir. 1927): Penn. Co. v. Zahner Metal Sash & Door Co.,

273 Pec. 993 (6th Cir. 1921).

ment, infra, pp. 3-8 that the case should have been sub-

mitted to the jury, for these reasons:

“This is true because the circumstantial evidence

was overwhelming that Byrd Mercer was ki!!cd by

some hit-and-run driver. Flight is evidence of guilt

even in a criminal case, albeit the circumstances

may be such as to make it weak evidence. Vick v.

United States, 5 Cir., 1954, 216 F.2d 228, 233; see

ong Sun and James Wah Toy v. United States,

"U.S. October Term 1962, No. 36, decided Jan. 14,

1963, m/s, footnote 10. In civil cases of this type,

the rule has been wel] expressed as follows: ‘Every

legitiraate inference will be drawn against a hit- -

and-run driver, and an inference of an admission

of negligence has been drawn against such a driver.’

61 C.J.S. p. 212, Motor Vehicles, § 51i (4).”

Appendix “A,” p. 36.

“Petitioner submits fat the Ceurt of Appeals, on the

first appeal of this case erred :a disregarding petitioner’s

evidence, since it was admissible and of significant probative

force. In the alternative, even if the evidence introduced

at the trial must be ignored, the depositions and exhibits

furnished in response to the mandate of the Fifth Circuit

presented a question of fact that should have been resolved

by the jurv in accordance with the principles stated in the

foregoing cases.

On the second apneai. it was held that the evidence

presented was incompetent, which, petitioner urges, was

erroneous. Statements contained in the depositions to the

effect that the witnesses heard the rim of an Oldsmobile

was found near the body of the decedent, for which a sum

of money was paid, as well as testimony regarding reports

that the evidence gathered during the examination of de

fendant’s car had been destroyed for a price paid did not

violate the ' Qearany rule. Such statements were admissible

for the fact that they were made, as explained in 6 Wigmore,

Evidence, Sec. 1766, p. 180 (1940) :

“The classes of utterances thus exempt (from the

hearsay rule) may be grouped under three heads:

“3. Utterances used circumstantially as giving rise

to indirect inferences, but not as assertions to prove

the matter asserted.’'’ ~

An example of the operation of this rule, is found in

Scholle v. Cuban Venezuelan Oil Voting Trust, 2 Cir., 285

F.2d 318 (2d Cir. 1960), in which statements made to

plaintiff that certain individuals offered to lend him shares

as collatera! for a loan were designated competent evidence

which had been erroneously excluded, as shown by the fol-

lowing portion of the opinion:

“Since the statements were relevant, they should’ ~

have been admitted unless barred by some exclu-

sionary rule. The court below excluded the evi-

dence as hearsay, and no other reason for exclusion

has been suggested. But the hearsay rule does not

bar admission of the statements used circumstan-

tially, since, when so used the primary focus of in-

quiry is whatever inferences can be drawn from the

10 See, Atkens v. United States, 282 F.2d 53 (10th Cir. 1960); United States

v. Gavagan, 280 F.2d 319 (5th Cir. 1960); Note, 46 Iowa L. Rev. 210,

215 (1961); Note 40 Minn L. Rev. 455 (1956); Note, 5 Okla. L. Rev.

270, 273 (1952).

fact the words were spoken and not the truth of

what was said.”

Scholle v. Cuban Venezuelan O1l Voting Trust, supra,

at p. 321.

It is petitioner’s position that these depositions were

another link between Paris Theriot and the death of Byrd

Mercer; as such, they were admissible and competent evi-

dence from which the jury could draw reasonable inferences.

Moreover, the photographs of defendant’s car, together with

the statements of the investigating officers concerning its

appearance, and the substances taken from it, as wel! as

facts regarding the accident scene, were highly relevant,

and presented facts upon which reasonable minds could

differ, in accordance with the test for a jury question enun-

ciated above.

With respect to the report of Mr. Ralph Snyder, it is

petitioner’s contention that this expert’s opinions are ad-

missible and do not deprive the jury of its function of find-

ing ultimate facts, as held by the Court of Appeals for the

Fifth Circuit, Appendix “A,” p. 33. On the contrary, this

Court has held such testimony proper in Eastern Trans-

portation Lines v. Hope, 95 U. S. 297, 24 L.Ed. 477 (1897),

in whieh it was explained:

“It is not an objection, as is assumed, that he is

asked a question involving the point to be decided

by the jury. As an expert, he could properly aid

the jury by such evidence, although it would not

be competent to be given by an ordinary witness.”

Eastern Transportation Lines v. Hope, 95 U.S. at p.

\ J

298. To the same effect are these decisions: Unton Insur-

ance Company of Philadelphia v. Smith, 124 U. S. 8 S.Ct.

544, 31 L.Ed. 505 (1888; Texas and Pacific Railway Com-

pany v. Watson, 190 U.S. 287, 23 S.Ct. 681, 47 L.Ed. 1059

(1903); Carlson v. Chisholri-Moore Hoist Corp., 281 F.2d

766 (2nd Cir. 1960).; Fequer v. United States, 302 F.2d

214 (8th Cir. 1962); Nordmeyer v. Sanzone, 314 F.2d 202

(6th Cir. 1963); Kennelley v. Travelers Insprance Company,

273 F.2d 479 (5th Cir. 1960) ; Peoples Gas Company of Ken-

tucky v. Fitzgerald, 188 F.2d 198 (6th Cir. 1951).

| Such a restrictive view of the admissibility of evidence

4s not in harmony with the pertinent authorities or the

liberal policy of Rule 43(a) of the Federal Rules of Civil

Procedure. An examination of this evidence unquestionably

leads to the conclusion that facts are in dispute, and con-

flicting inferences could be drawn from proper evidence;

hence, there can be no justification for the appellate court’s

withholding the case from the jury

CONCLUSION

In the case at bar, the Court of Appeals for the Fifth

Circuit, on the first appeal, reversed a jury verdict; on the

second appeal, the same court refused to allow the case to

be submitted to the jury. It would seem that a clearer ex-

ample of “judicial erosion” of the “essential guarantee of

the Seventh Amendment,” described by Mr. Justice

Black, in his dissenting opinion, with whom Mr. Justice

Douglas and Mr. Justice Murphy concurred, dissenting, in

Galloway v. United States, 319 U. S. 372, 63 S.Ct. 1233, 87

L.Ed. 1546 (1942), could not be imagined. No better expres-

sion of the far reaching effect of this process could be cited

than the following portion of Mr. Justice Black’s, opinion:

“The call for the true application of the Seventh

Amendment is not to words, but to the spirit of

honest desire to see that constitutional right pre

served. Either the judge or jury must decide facts

and, to the extent that we take this responsibility,

we lessen the jury function. . . . I shall continue to

believe that in all other cases a judge should, in

obedience to the command of the Seventh Amend-

ment, not interfere with the jury’s function. Since

this is a matter of high constitutional importance,

appellate courts should be alert to insure the pres-

ervation of this constitutional right even though

each case necessarily turns on its peculiar circum-

stances.” Galloway v. United States, 319 U. S. at

p. 407.

It is respectfully submitted that this Honorable Court

grant this petition for a writ of certiorari.

Respectfully submitted,

H. ALVA BRUMFIELD,

SYLVIA ROBERTS

205 American Bank Building

Baton Rouge, Louisiana

Attorneys fer Mrs. Wanda

Mercer, Petitioner

PROOF OF SERVICE

I, H. Alva Brumfield, attorney for petitioner, and a

member of the Bar of the Supreme Court of the United

States, hereby certify that on this day I served copies of

the foregoing Petition for writ of Certiorari on Mr. Stanley

E. Loeb, counse! for respondent by mailing a copy thereof,

postage prepaid, addressed to his office at 318 Richards

Building, New Orleans, Louisiana.

Dated this .... . . day of August, 1963.

H. ALVA BRUMFIELD

APPENDIX “A”

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 19068

MRS. WANDA MERCER,

Appellant,

versus

PARIS THERIOT,

Appellee.

- Appeal from the United States District Court for ~

Eastern District of Louisiana

(March 14, 1963)

Before TUTTLE, Chief Judge, HUTCHESON, RIVES.

CAMERON, JONES, BROWN, WISDOM, GEWIN, and

BELL, En Banc. "

WISDOM, Circuit Judge: In the early hours of the

morning of December 19, 1955, Willie B. Mercer’s body was

\ 26

found face down on the side of Highway 1 on Grand Isle,

Louisiana. The coroner’s certificate shows that he died about

7:30 p.m. December 18. Tire marks leading to the body ia-

dicated that Mercer was run over while he was on the shoulder

of the road. Around 7:30 p.m:«on December 18 Paris Theriot,

the defendant, had left Fisherman's Bar on Grand Isle, tak-

ing Highway 1 to return to his home in Golden Meadow. The

chronology and the fact that he had been drinking in Fisher-

man’s Bar since one o'clock pointed to Theriot. In addition,

the investigating officers recalled that Theriot had run over

and killed a pedestrian in each of two accidents twenty or

twenty-five vears ago’ The ‘police investigation disclosed

that the right front fender of Theriot’s automobile was dented

and the rim of the right headlight missing. There was also

a large dent on the hood of the car. Theriot gave two differ-

ent explanations for the damage to his car: he said that e

had run into a cow and he said that a four by six piece of

lumber had dented the hood when he ran into a lumber

truck. A deputy sheriff found a blue ‘mark on the hood:

Mercer had been wearing blue denim overalls. Another deputy

found “hair-like substances” underneath the car,-a towel

bearing reddish stains, and a white powdery substance on

the car that appeared to be soap powder from a recent car-

washing. The officer took scrapings of the blue spot, the

hair-like substances, and the white powder and placed these

in envelopes. The envelopes, the towel, and certain other

articles were brought to the office of the Sheriff of Jefferson

Parish and placed in the “evidence locker.” This evidence

disappeared before the trial and before any of it could be

analyzed.

The decedent’s wife brought a wrongful death action

* against Theriot resulting in a jury verdict in her favor for

$25,000. On appeal, this Court, Judge Hutcheson presiding

and writing the opinion for the Court, unanimously derided

that the judgment should be reversed with directions to enter

a verdict for the defendant. Theriot v. Mercer, 5 Cir., 1959,

262 F.2d 754; certiorari denied, 360 U.S. 914 (1959). The

Court pointed out that highly prejudicial testimory, which

Ney should not have been admitted, and inflammatory ial tactics

of the plaintiff's attorney had the effect of denying the de-

fendant a fair trial.' The Court rested its decision on insuf-

ficiency of the evidence to support the verdict: there was a

“complete absence of any evidence, circumstantial or ‘other-

wise, that Theriot’s car struck the deceased or that The ‘iot

was in anywise negligent.” 262 F.2d at 759. Nevertheless,

the Court felt that the plaintiff should be given an oppor-

tunity to better her presentation of the case by producing,

additional evidence—if she could—to justify a new trial.

The mandate therefore directed the district court .

a . to enter a judgment for the defendant unless

— —_

“In the light of the efrors above referred to, if the evidence in the Case

had been ample té support the verdict and the verdict and judgment,

but for the manner and way in which the cuse was tried, could stand,

the fudgment would have to be reversed for the errors which, domi-

noting the trial, deprived the defendant of his day in court and cuused

his conviction, on rumor an@ hearsay, not of negligent fault but of

bribery and corruption.” (262 P. 2d 754, 758)

“We, therefore, agree with the appellee’s statement on page 6 of her

brief that, although the defendant denied making a pay-off or giving

any political contribution to the sheriff in the sheriff's race that was

going on at that time (and nobody gave testimony to the contrary),

the jury nevertheless convicted Theriot of making such a pay-off

Indeed it was the admission of this wholly inadmissible and highly

prejudicial hearsay testimony, the introduction of which should have

caused a mistrial, which changed the cause from a suit for damages

into an inguisition into fraud and wrong doing in the sheriff's office.

a matter which, in the state of the evidence, had nothing to do with

the case and could have had no effect on it except the unlawful! one

of depriving the defendant of a fair trial on the charge of negligence

made but not proven.” (262 F.2d at 757)

: 28

plaintiff, within a time and under condition to be

fixed by the district judge, makes a satisfactory

showing that on another trial evidence of sufficient

probative force to justify submission of the cause

to the jury will be offered, in which event the judg-

ment shall be for a new trial.” Theriot v. Mercer,

262 F.2d 754, 761.

In accordance with the mandate, the trial court notified

the plaintiff that judgment would he entered for the defen-

dant unless she téndered sufficient evidence to justify sub-

mission of the cause to the jury. The plaintiff then filed a

“motion for a new trial” and submitted as supporting evi-

dence a report and certain depositions from police officers.

The report was a statement from a safety engineer and acci-

dent analyst that. in his opinion, the photographs and medi-

cal reports demonstrated that the damage to Theriot’s car

was caused bv its impact with Mercer. The depositions showed

some skullduggerv in the sheriff's office with re to the

missing evidence and indicated also that some of t Ee

had heard that Theriot had purchased the missing headlight

rim from someone who had found it at the scene of the acci-

dent. The district court denied the motion for a new trial.

| “Tee evidencé,” a minute entry states, “while persuasive,

would be inadmissible in a new trial.” Leaning over back-

wards tobe fair, the Court granted a rehearing. On rehear-

ing, the district judge stated from the bench that there was

no question in his mind “that there was a denial of justice

in this case” and no question in his “mind either that Paris

Theriot killed this man,” but he felt compelled to deny the

motion on the ground that the evidence tendered was not

competent, and that the plaintiff had not met the conditions

Were

for a new trial required by the mandate.? The plaintiff now

appeals from this denial of the motion for a new trial.

On this second appeal the panel to which the case was

assigned on its own motion invoked a hearing en banc, The

Court en banc affirms “the action below and dismisses the

appeal.

If the order now appealed from had indeed been an order

denying a “motion for a new trial” as the plaintiff termed

it, the order would be unappealable. Soble v. Diatz, D.C.

Cir., 1951, 189 F.2d 26; Bass v. B. & O. Terminal Co.,

7 Cir., 1944, 142 F. 2d 779, cert. den’d 323 U.S. 775. But

the motion is not the motion for a new trial contemplated

in Fed. R. Civ. P. 59. Such a motion “serve[s] the function

2 The district court stated:

“(T) Fifth Circuit ruled that there was not sufficient evidence to sup-

port the verdict. And that unless the Plaintiff was able to, on his

motion for a new trial, to advance additional evidence which would

make out a case for the Jury, the verdict for the Defendant should

\\ be granted. And after reviewing the new evidence which the Plain-

tiff provided, I felt that while the evidence was persuasive and it

showed skulduggery in this case, that the sheriff's locker had been

rifled and the evidence which was taken from Paris Theriot’s car

was destroyed so it couldn't be produced in his criminal! case or civil

case involving this death, there was still no direct evidence. There

was just talk among the deputies who were concerned with obtaining

the evidence and who, unfortunately, were unable to get the evi-

dence when they went to the locker to get it in order to bring it to

the laboratory to have it examined. [ felt that the evidence, as pro

duced under the application for new trial, was not competent evi-

dence. In other words, it would have violated the hearsay rule if ad-

mitted, and that is the basis on which I denied the application for

a new trial.

“It is my view the Fifth Circuit did say that as tried originally there

was not sufficient evidence. There is no doubt that it said that unless

additional substantial evidence was presented on application for new

trial, the verdict should be for the Defendant. This was the basis of

my ruling.”

‘

of allowing a party to seek to have the trial court correct

errors, both of fact and law, that [occur] in the trial of the

action.” 6 Moore’s Federal Practice 59.03 (1961). An order

for a hew trial reopens the issues of an action for a new trial

on the merits, in whole or in part, before an appeal on the

merits. Here, however, the plaintiff’s motion served a differ-

ent function. It was filed in direct response to the invitation

in this Court’s mandate that the plaintiff present new evi-

dence. If the plaintiff had made “a satisfactory showing that

on another trial evidence of sufficient probative force to

justify submission of the cause to the jury [would] be

offered,” the plaintiff would have been entitled to a “judg-

ment for a new trial.” Denial of the motion was a final de-

cision by the district court that the plaintiff had failed to

meet the terms of the mandate. The Court therefore holds

that in the circumstances of this case the denial of the motion

was an appealable order.

Il.

The argumegt is made that since the district court en-

tered judgment in compliance with the mandate on the former

appeal, the judgment is not appealable. The contention is,

that when judgment is entered after a new trial there is no

question of jurisdiction to entertain a subsequent appeal;

but when there has been no new trial, as in this case, the

judgment entered is that of the appellate court itself and

there is simply nothing from which to appeal. This rule has

been consistently followed in this circuit. See Davis v. United

States, 5 Cir., 1957, 244 F. 2d 309; Amalgamated Assn, etc.

v. Southern Bus Lines, Inc., 5 Cir., 1953, 201 F. 2d 53; Sea-

graves v. Wallace, —, —, — F. 2d—, at 163.

But the appellant is not appealing from a decree that

is in effect the decree of the court issuing the mandate. The

mandate left open the question of the sufficiency of the ad-

ditional evidence to support a new trial; the order therefore

adjudicated a subsequent issue not determined by the judg-

ment which was-the basis for the mandate. The appellant

contends that the district court misconstrued the mandate

and was guilty of an abuse of judicial discretion in deciding

the issue created by the mandate. An appeal lies, therefore,

to review the action of the district court to determine whe-

ther it gave effect to the mandate. Jn re Sandford Fork &

Tool Co., 160 U. S. 247, 16 S. Ct. 291, 40 L. Ed. 414; Metcalf

v. City of Watertown, 1895, 68 Fed. 859; Mercoid Corp. v.

Minneapolis-Honeywell Regulator Co., 1944, 142 F. 2d 549,

cert. den'd 320 U. S. 661, 64 S. Ct. 268, 88 L. Ed. 376.

Il.

The second appeal does not require a reconsideration of

the merits. The narrow questions before the Court en banc

are whether the district court properly construed the man-

date and whether the district court abused its discretion in

holding that the plaintiff failed to meet the terms of the

mandate, that is, failed to make a satisfactory showing that

the additional eyidence would justify submission of the case

to the ae ee it is unnecessary to consider the

applicati f the “law of the case doctrine.” See Lincoln

National ‘Life Insurance Company v. Roosth, 5 Cir., 1962,

— F. — 2d.

A. This Court directed that a new trial be granted upon

plaintiff's showing evidence-of “sufficient probative force

to justify submission of the cause to the jury.” Instead, the

appellant argues, the district judge adopted a different, more

stringent requirement. He required that the evidence be

“additional” and “direct.”

We hold that the district judge properly construed the

mandate. The mandate is meaningless unless it refers to

“additional” evidence, for the former opinion holds that the

evidence in the record was insufficient to support a verdict

and judgment for the plaintiff. It is true that the district

judge referred to the lack of new “direct” evidence but the

basis for his holding was that the evidence offered was hear-

say and incompetent, not that it w. indirect and circum-

sta ,al.

The appellant argues also that a reading of the Court's

first opinion shows the chief ground for reversal to have

been counsel's inflammatory trial tactics. To overcome this,

counsel argues, it is necessary only to have a new trial which,

he assures us, can be had in an atmosphere free from all

overtones of passion and prejudice. This proposed solution

0 ‘ersimplifies the problem. In its original opinion the Court

severely condemned the txjal tactics of the plaintiff's counsel

and disapproval of the trial judge’s admitting certain testi-

mony that was irrelevant and prejudicial, but the court

squarely held that the evidence was insufficient/to support

the verdict. The mandate looked to new probative evidence

sufficient to justify a new trial, not to a new trial on counsel's

promise to avoid improper tactics; otherwise, the Court would

simply have remanded the case for trial.

B. Coming now to the sufficiency of the additional evi-

dence to justify a new trial, we find ourselves in agreement

with the district judge.

In support of his motion for a new trial the defendant

offered ten depositions, seven from witnesses who had tes-

tified at the trial. Most of this “evidence” related to the

missing headhght rim. The depositions show that up and

down the bayou there were people who knew people who

knew that there was a going price for the missing headlight

rim. There were conflicting rumors that Prudhomme had the

run, or Verdon had the rim, or Guidry had the rim,.or Nolte

Theriot had the rim. and that the defendant had purchased

it. But Prudhomme testified that he did not have the rim;

someone had told him that Guidry had it and was holding

it for $10,000. Guidry said he had heard that Theriot’s son

had the rm. Verdon denied having found the rim and denied

/ that anybody told him that anyone had found the rim. Nolte

. Theriot said that he had had nothing to do With the rim.

Gilbert Duet testified that a deputy sheriff “just passing

through” had told him that he had heard that the rim had

been found but he did not sav who had found it./ The deposi-

tions contain testimony of no higher degree of reliability re-

lating to a “report” of a pay-off, presumably by Theriot, to

some person (unknown) who destroyed the evidence in the

Sheriff’s “evidence locker.” In short, the additional evidence

was hearsay of the rankest sort. It lacked probative force

because it was incompetent, not because it was indirect or

circumstantial evidence.

The accident analyst’s report adds little support to the

plaintiff's cause. It is of doubtful admissibility because it

comes close to taking over the jury’s function of deciding

ultimate facts. At best the report is merely cumulative.

The district judge correctly interpreted the mandate and

correctly ruled that the additional evidence was of insuffici-

ent probative value to justify a new trial. The judgment is

( AFFIRMED.

341

RIVES, Circuit Judge, Dissenting:

In my opinion, the most practical and effective safeguard

of liberty and justice is the right of trial by jury. In the

words of Patrick Henry, “Trial by jury is the best appendage

of freedom.”' I recognize that there are many eminent law-

yers and judges who do not share that view, and that the

right of a jury is subjected daily to every form of at-

tack, direct and indirect. Such persistent and constant war-

fare makes it all the more necessary for the defenders of

that right to bear in mind that, “Eternal vigilance is the

price of liberty.”

Whatever may be our differences of opinion as to the

intrinsic merits or. ‘demerits of trial by jury, there can be

no dissent from the proposition that we are each and all

bound by the plain language of the Seventh Amendment,

and that language bears repeating:

“In Suits at Common law, where the »alue in

controversy shall exceed twenty doliars, the right

of triai by jury shall be preserved, and no fact tried

by a jury, shall be otherwise re-examined in any

Court of the United States, than acco ding to the

rules of the common law.”

With the utmost respect for and deference to the views

of my brother judges, it is my duty to express my own con-

sidered judgment that this Court’s decision both on the

original appeal’ and on this appeal is in direct contravention

of the mandate of the Seventh Amendment.

13 Elliotts Debates 324.

2 Theriot v. Mercer, 5 Cir., 1959, 262 F. 2d 754.

A thorough reading and study of the evidence on the

original trial leave me with a clear understanding and ap-

proval of the jury’s verdict for the plaintiff. I can well ap-

preciate the remark of the leafned and experienced trial

judge, Honorable J. Skelly Wright, made when he denied the

defendant’s motion for judgment notwithstanding the verdict:

“No one who sat through this trial and heard the witnesses

could reasonably come to any conclusion except the one the ?

jury came to.” }

This Court’s epinion to the contrary on first appeal did

not ahs a Tak for in denying the plaintiff’s

later filed motion for new trial,* he said: “There isn’t any

question in my mind that there was a denjal of justice in this

case. There isn’t any question in my mind either that Paris

Theriot killed this man.”

We deal here with a sorry mess where the evidence

which might have established the defendant’s guilt or in-

nocence with certainty has been destroyed or irretrievably

lost as the result of criminal misconduct on the part of some-

one. The remaining circumstantial evidence might not sus-

tain a criminal prosecution and conviction of the defendant,

but it is, I submitf”amply sufficient to support a jury’s ver-

dict yor the plaintiff in a civil action for damages.

The issues presented to the jury on the first trial, and

found in favor of the plaintiff, were thus stated in the court's

charge.

’Though immaterial for present purposes, I do not agree with the ma-

jority statement that, “If the order now appealed from had indeed

been an order denying a ‘motion for a new tnial,’ as the plaintiff

termed it, the order would be unappealable.” As one of the decisions to

the contrary, I note that we reversed an order denying a motion {tor

new trial in Whiteman v. Petrie, § Cir. 1955, 220 F. 2d 914

“The issue here is very simple: Did the Defendant.

Paris Theriot, kill Byrd Mercer? And, if so, was he

guilty of negligence in so doing, which proximately

caused that death? That is the sole issue here, whe-

ther the Defendant killed Mercer, and if he did, was

the death a result of negligence proximately caused

by the Neferant Paris Theriot.” (R. 1, p. 282.)*

In judging the sufficiency of the evidence to justify or

support a verdict for the plaintiff, those issues can be nar-

rowed to offe; that is, was there substantial evidence from

which the jury could reasonably conclude that the defendant,

Paris Theriot, killed Byrd Mercer. That is true because the

circumstantial evidence was overwhelming that Byrd Mercer

was killed by some hit-and-run driver. Flight is evidence of

guilt even in a criminal case, albeit the circumstances may

be such as to make it weak evidence. Vick v. United States,

5 Cir., 1954, 216 F. 2d 228, 233; see Wong Sun and James

Wah Toy v. United States, U.S. October Term 1962, No. 36,

decided Jan. 14, 1963, m/s, footnote 10. In civil cases of this

type, the rule has been well expressed as follows: “Every

legitimate inference wiil be drawn against a hit-and-run

driver, and an inference of an admission of negligence has

been drawn against such a driver.” 61 C.J.S. p. 212, Motor

Vehicles, $511 (4).

That the jury could reasonably conclude that a prepond-

erance of the evidence proved that the defendant Paris

Theriot killed Byrd Mercer is shown, I submit, by the fol-

lowing catalogue of the evidence. According to the death

certificate Byrd Mercer died on Sunday evening, December

18, 1955 at 7:39 p.m. (R. 1, p. 28.) His body was found-on

#1 refer to the record on first trial as R. 1.

the ‘island, Grand Isle, on the right side of the road going

teward the bridge leading to the mainland (R. 1, p. 37). The

body was two to three feet off the edge of the black top (R.

1, p. 45). Tire marks near his body ran off the road for

quite a way, and his body was right next to the tire marks

(R. 1, p. 85). An autopsy revealed evidences of a violent

blow. “ ‘Fractured dislocation of atlantooccipital joint with

traumatic contusion of spina] cord; comminuted fracture of

left tibia and fibula; partial separation of lambdoid suture

of skull; rupture of spleen, liver, and both renal arteries;

lacerations of scalp, face, right thigh, right hand and left

leg.’” (R. 1, pp. 28, 29.)

The road was the only highway leading from Grand Isle

to Golden Meadow, the home of the defendant, Paris Theriot

(R. 1, p. 61). Therict had spent that Sunday afternoon at

“Fisherman’s Bar” on Grand Isle from about 1:00 or 2:09

P. M. to about 7:30 or 7:45 P.M., when he had driven toward

Golden Meadow over this same highway (R 1, pp. 55, 151).

During that period Therict estimated that “I drank between

four and five drinks, something like that” of Scotch whiskey

(R. 1, p. 55). The bartender’s estimate of Theriot’s drinks

was: “To the best of my knowledge, I would say around eight

or ten.” (R. 1, p. 152.) That was scaled down from a state-

ment in which he said that he had served Theriot “ten or

fifteen Scotch and waters” (R. 1, p. 157).

At the time that Mercer was hit and killed, few people

were traveling that highway.’ Theriot admitted that between

8 “Well, there was, on a Sunday like that, the tourists, but usually they

leave early—I mean in the afternoon, so at that time, during the

night, there’s not too many people, but there was a few people on and

off during the afternoon, the people at the bar coming in and out”

(R. 1, p 156.)

Fisherman’s Bar and the location where Mercer's body was

found he passed only one car, a truck (R. 1, pp. 180, 185).

Another explanation for the fact that Mercer’s body was not

found until 6:30 A.M. on December 19th (R. 1, p. 28) is that

the weather was rainy and foggy (R. 1. pp. 171, 184).

Suspicion fejl on Theriot as soon as Mercer’s body was

found (R. 1, p. 87), and the officers quickly located Theriot’s

automobile, a 1955 or 1956 model Oldsmobile (R. 1, p. 88).

It bore unmistakable evidence of a recent accident, a blow

te the right headlight and right front of the hood extending

back to the windshield. On the cream or white colored hood

was some blue coloring; “it had an appearance that it could

have been done by clothing, since it was porouslike” (R. 1,

pp. 108, 230). Mercer was wearing blue coveraljs when struck

(R. 1, pp. 103). The rim of the headlight was missing (R. 1,

p. 102). A medium size bath towel with red stains on it which

appeared to be blood (R. 1, p. 116) was found concealed be-

tween the seat and the seat cover on the driver's side of the

front seat (R. 1, pp. 141, 146). On the chasis underneath the

car on the right front side were found hair particles or what

looked like"hair (R. 1, pp. 40, 46, 93, 122, 140, 150).*

When confronted by the officers with the evidence that

his automobile had Seen involved in a recent accident, Theriot

readily admitted that that was true, and fixed the time of

the accident as noon or 12:15 on the same Sunday on which

Mercer was killed (R. 1. pp. 72, 73) and the place as six or

seven miles up the bayou from Golden Meadow (R. 1, 73).

He said that he had tried to pass a truck in front of him and

As has been repeatedly said, verification of these findings became im-

possible when the samples taken by the officers disappeared from

the files.

“I hit the back of the truck with my right side of the car’

(R. 1, p. 73). In Theriot’s own language: “I just told you that

I was coming, that I was going up the bayou, and | was

looking aside when | noticed the truck in front. I tried to

pass him cn the side, and when | tried to pass him he pulled

a little bit on the left, and I hit him right in the back, the

piece underneath of the truck, the body of the truck—it is

a 2 or 3x10. or 3x1? sticking out, two pieces like that (indi-

cating with hands), and vou've got the body of your truck

right on that, and I hit the back part with the top of my

headlight. in front. I put my brakes on, and when | saw it,

I put the brakes on and | slid on the road and | go off of the

road, and I came back slowly, and | just make it. I came back

slowly on top, on the road there, and it was gone, | guess,

off, and J] looked at my car and | saw that it was not too

much, and I looked in the back over there and | saw a piece

of wood about that long, 25 or 30 inches (indicating with

hands) long. and maybe a 6x6 or 6x8, and I threw it on the

side of the road, and I turned back and I went right straight

to Grand Isle. That’s exactly the way that happened.” (R.

1, p. 75) See also R. 1, pp. 211. 162, 96. Theriot further testi-

fied: “The truck didn’t stop—he kept on going. I couldn't

check up on it.”” (R. 1, p. 76.) It seems to me that the proha-

bility or improbability of the truthfulness of that expiana-

tion presented a question for the jury

That 1s especially true in the light of the testimony of

Trooper Folse of the Louisiana State Police:

“Q. Isn't it also true that the car tracks of the ve-

hizle. the vehicle tracks that you saw there

did not careen back to the right and get back

on the highway’

“A. According to the point where Mr. Theriot

brought us, the car, if it swerved over to the

left, did not come back to the right any time

after it left the highway, if those are the marks.

“Q. In fact, whatever vehicle was in that place

where you saw, it had to be pulled out, didn’t

it?

“A. 1 would say that if it was soggy and wet, it

had to be pulled out.

“Q. You say if it was soggy and wet? Was it?

“A. It was wet.” (R. 1, p. 226.)

To Deputy Sheriffs Miliet and Guidry, the defendant.

Theriot gave an entirely. different explanation of the recent

accident to his automobile, namely that he had hit a cow

(R. 1, pp. 117 and 1388).

The defendant’, Theriot testified that nothing had been

done to his car between the time of the accident on Sunday

and of its inspection on Monday (R. 1, p. 66). However, the

officers found the car covered with a white substance which

appeared to be a film of soap left after a washing (R. 1, pp.

109. 116). Y

Effective December 31, after the accident on December

18, the dofendant Theriot sold his business to his brother

(R. 1, p. 51).

The circumstances are so numerous that some may have

been unintentionally omitted. Those which I have recited,

with references to record pages, seem to me ample to re-

quire the submission of this case to the jury.

In Lincoln National Life Insurance Co. v. Roosth, 5 Cir.,

1962, 306 F. 2d 110, 113, we held that, “when the issue re-

solves itself, as it does so clearly here, into question of

whether the same body of evir ence is enough to permit a

jury submission, neither a sub quent, second, or third, panel

of this Court, nor the whole Court sitting en banc, should

ordinarily undertake to review the correctness of tne first

decision or, doing so, arrive at a contrary conclusion.” (Em-

phasis supplied.) In that case the first decision had reversed

a judgment n.o.v. and remanded the case for a new trial.

Upon the second appeal we affirmed the judgment entered

upon the jury’s verdict on new tria!. Our added reluctance

in that case to depart from the law of the case was, there-

fore, not inconsistent with the mandate of the Seventh

Amendment. There is such an inconsistency in the present

case, and the constitutional mandate should prevail. In ad-

dition, I have emphasized the word “ordinarily” in the quo-

tation from Roosth. The present case seems to me not an

“ordinary” one, not even a “close” case, but one wnere the

circumstantial evidence very clearly requires-a submission

of the issues for the jury’s determination.

» Assuming, however, that Roosth would require us to

affirm the judgment of the district court in the absence of

additional evidence, surely, with circumstantial evidence al-

ready of such weight, very little additional evidence would

be needed to meet the requirement of our mandate; that is,

that the evidence as a whole be of “sufficient probative force

to justify submission of the cause to the jury.” I think that

the additional evidence was sufficient to justify a new trial.

It 1s true that most of the proffered additional testi-

mony was rank hearsay developed in a fruitless effort to

trace the lost items of evidence and particularly the rim off

the right headlight of the defendant Theriot’s Oldsmobile.

However, the deposition of a witnese not examined on the

first trial, Benny Verdon, discloses that he was among the

first to reach the body of the deceased shortly after day-

break (p. 21, Verdon’s Deposition), and furnishes positive

evidence that Mercer was struck and run over by an auto-

mobile :

“Q.

“A

“A.

A copy of the report of the safety engineer and accident

analyst that, in his opinion, the photographs and medical

You just saw the tire marks that ran right

off on the shoulder and right on his body and

proceed on down the road?

That’s right.

There was not any question about him being

run ever by an automobile?

Oh, yes, he was run over by an automobile.

The evidence showed that?

You could tell it.,

It looked like he was hit in the back and run

right over?

Yes, sir.

And the mark of-the“tire of the car that did

it was plainly visible.on his shoulder there?

”

Yes, sir.” (p. 29. Verdon’s Deposition.)

‘

reports demonstrated that the damage to Theriot’s car was

caused by its impact_with Mercer is attached as Appendix A

to this dissenting opinion. On the first trial, the district

court had refused to let the law officer witnesses testify as

to thei? opinion of whether the type of indentation on the

car was made by a soft or a hard object, on the ground that

such testimony was “too speculative” (R. 1, p. 44) or that

the witness was not qualified as an expert (R. 1, p. 110, see

also R. 1, pp. 90-91). The proffered testimony of the safety

engineer and accident analyst was therefore not cumulative.

Coming from an expert, that testimony, or most of it, was

admissible.

“A large class of cases, embracing statements

as to the probability or the possibility of an event,

the capacity or tendency ofan act or a machine, the

cause or the effect of a fact, may fairly be grouped

together, because the reason why the Opinion rule

is urged against them is in general that the thing

to which the witness testifies is not anything which

he has observed, but is a quantity which lies in esti-

mate only and is the result of a balancing of con-

crete data.

“This is no sufficient reason for excluding such

statements from qualified witnesses; because it

must almost always be impossible for a witness to

reproduce in words absolutely all the detailed data

which enter into his estimate, and there can be no

danger in receiving such an estimate from him. All

that can be said of the rulings is that probably some

of them, in the final result of the litigation in hand,

have done less actual harm to justice than others

have done.”

VII Wigmore on Evidence, 3rd ed., §1976, p.-121.

To repeat, if anv evidence were needed to weight the

scales in favor of sufficiency to justify submission of the

issues to the jury, such evidence need be very slight. In my

opinion, the deposition of Benny Verdon and the testimony

of the safety engineer and accident analyst are enough.

{1 would accord the plaintiff what I believe to be her

constitutional right to a trial by jury, and therefore re-

spectfully dissent.

APPENDIX A

ACCIDENP ANALYSIS LABORATORY

Eight-Eleven North Virginia

Oklahoma City 6, Oklahoma

May 16, 1958

Ralph F. Snyder

* 63

Phone CEntral 2-1830

Post Office Box 8855

Mr. H. Alva Brumfield

Attorney at Law

205 American Bank Building

Baton Rouge, Louisiana

Re: Mercer vs. Theriot

Dear..Mr. Brumfield:

1 have made a very careful study and analysis of this

case, based on the physical evidence as shown in the photo-

graphs of the damaged Oldsmobile automobile, the post mor-

tem report showing the injuries to the deceased and the

photograph’s taken at the scene of the~accident before the

deceased was removed.

As I understand this case, the main issue is whether or

not the damage to the Olds. automobile was caused by

collision with the rear of a flat bed truck, or hitting the

pedestrian.

A very minute examination of the damage to the Olds.

discloses the following facts: 3

1. The initial blow or force which caused the downward

bend in the right front headlamp, came from the front and

slightly to the right. Due to the top overhang of the head-

lamp rim, the top portion of the headlamp received most of

the blow. This caused the headiamp assembly to tilt upward

and backward, vet there is no visible (sic) dents or damage

to the black plate rim around the headlamp and also the lens.

2. The two inward dents in the right side of the fender

located above the right front wheel were caused by the blow

or force coming from the front and not from any side blow.

3. The damage io the hood and fender locz‘ted on the

top right side and back toward the windshield, were caused

by a blow coming from above, and an object large enough to

cover the damaged area. The indentation in the hood was

enough to bend up the corner of the hood approx. 14 inch.

4. While there appears to be cdlored streaks extending

along the top of the fender from the damaged area back-

wards, there is no indication of scratches or indentations be-

tween the front and rear damaged areas.

5. An examination of the ridge of the right front

bumper where it bends to the rear shows that this edge came

into contact with some object which cleaned or wiped off

the road grime and dirt. This is very evident when the photos

are examined under a high power magnifying lens.

It is my understanding that the defendant claims that

the car was damaged when he started around a flat bed truck

and as he started around, the truck started to make a left

turn or to swing to its left and the right front fender struck

the left rear supporting joint of the truck. And that the

blow was of enough force for a piece of wood (3” x 6” x 30’)

(approximate) to be knocked off the truck (I believe it was

supposed to have been laying loose on the bed of the truck

and not a portion of the truck bed or support) and that it

was this piece of wood which came down on the rear of the

hood and fender to cause the damage in that area.

I can find so mention made regarding the finding of the

chromium headlamp rim. The type and extent of damage to

this rim would be one of the most important bits of evidence.

as it would clearly show the fact of the hardness of the ob-

ject hit. The contact damage against the wood or metal of the

truck bed wouid be entirely different than the damage made

by striking a human ov an animal.

ANALYSIS AND CONCLUSIONS: All of the physical

evidence relative to the damage to the Olds. indicates that

for this damage to have been caused by collision with the rear

of a truck as described by the defendant would not be possible.

1. While it is possible for the damage to the fender

just behind the headlamp to be caused by the car running

into the joist on the truck, the amount of force necessary

to bend the fender to the extent shown in the photos and

also cause the fender to bend on the side area above the

front wheel, the striking force against the truck joist by

the headlamp rim would extend through the light chromium

rim would also bend the back plate. The back plate shows

no bends. It would also break the headlamp glass. The glass

is not broken.

2. The blue streaks extending back along the top of

the fender and also found in the area of the dented area

at the rear of the hood could only get there if the truck had

scraped the top of the fender by the fender going on under-

/ neath the truck to left of the joist. The fender top shows

no scraping or denting, just a discoloration. This could not

be possible if the fender went under the truck bed. The height

of all truck beds (even the large trailer units) are too low to

permit the front of an automobile tu go underneath without

bending and scraping. On most trucks the height is 2 to 3

inches lower.

3. If the front right fender hit the truck joist and slid

under, then there would be damage to the right side of the

fender caused by furthe: contact with the joist, which is

approx. 6 in, in height and extends below she truck bed for

that distance. 5

4. The damaged area at the rear of the hood extends

from the metal ridge which extends from the front orna-

ment back to the edge of the hood, and also severa! inches

into the top of the fender. This damage could not have been

caused by the initial impact with the front of the fender

striking the truck (the front of the hood shows no impact

damage), nor could it have been caused by the piece of wood,

as described hy the defendant, being knocked from the truck,

_ going up into the air and coming down ‘on the hood and

fender. In the first place the impact force would not be of

enough weight and would not have enough force to bend the

hood and fender to the depth, width, and extent as shown in

the photographs.

5. The “cleaned’ area along the ridge of the front

bumper could be explained as being caused by contact with

the wheel fiap or even the left rear wheel of the truck as

the car came underneath-the bed. Again, this would not be

possible as the bumper would have to penetrate at least a

foot or so underneath the truck bed for the bumper to contact

the wheel and this would leave damage to the top of the

fender, which is not present.

6. The physical damage to this car could not have been

caused by collision with the rear of a truck such as described

by the defendant.

In my opinion, this damage was caused by striking the

pedestrian,

1. The “cleaned” area on the edge of the right fron‘

bumper was caused when the bumper struck the man’s left

leg. His tibia and fibula were fractured and if,he was walking

with his back to the car this would be the first striking point

2. The damage to the headlamp rim and fender was

caused when the car struc, this man in the back. His post

mortem report “shows a ruptured spleen, renal arteries, etc.,

whi ould be the area struck by the headlamp and fender.

3. The area of a at the rear of the hood was

caused '»y the head and shoulders of the main striking as

his hody was flipped upward ang backward. It would require

the weight and force of an adult to bend the hood and fender

to the width and depth if (sic) wes bent.

4. None of the photographs are clear enough nor taken

close enough for me to determine the type of discoloration

left along the toy of the fender and hood. From the descrip-

tion of the investigating officers’ report, they described it as

being “blue in color and of a porous texture, like made from

a cloth.” Such a discoloration couid not be made by contact

with the truck but could be from contact with the clothe: of

the deceased.

ait

5. Mention is made of finding what appeared to be

“human hairs” caught in the steering arm underneath the

car. | do not give anv weight to the fact that these would

be hairs from the deceased, as there is no evidence that the

car passed over his body. The body shows no tire marks and

if the body was hit, thrown ap and backward, striking at the

back of the hood and then off the car, the front of the car

would not have passed over bis body unless the driver backed

over the body or turned around and drove over the body.

This is most unlikely.

6. Other factors which are difficuit to understand if

the truck was hit by this car is why, with this amount of

damage, would the defendant drive off without getting the

truck driver's name and the license number for either trying

te collect from the truck’s insurance carrier or his owr for

repairs. Also, no mention was made of bringing in the piece

of wood for evidence, nor if it was also blue in color. Where

diu the headlamp rim go?

In making this analysis I have to be as unbiased as pos-

sible in reaching my conclusions. However, the physica! epi-

dence isso clearly definite in proof that the damage to the

Olds. automobile could not have been made by contact with

rear of a truck as described by the defendant, it leaves no

recourse but to find that the damage could have been caused

by striking a pedestrian and that it is most likely that this is

the car which struck the deceased.

Very truly yours,

(Signed) RALPH SNYDER

Ralph H. Snyder

Safety Engineer & Accident

Analyst.

RHS:ms

Encls:

13 photos

BROWN, Circuit Judge, Dissenting:

The question for review is whether, on the proceedings

pursuant to our remand, the evidence of the total record was

sufficient to raise a jury question. This is so because it

was implicit in our remand that the District Judge was to

consider not only whatever additional showing was made,

but to consider it in the light of and as a part of the total!

record. If the evidence was sufficient to raise a jury ques-

tion, then it was incumbent on the District Judge to grant a

new trial. We did not mean to accord to the District Judge

any discertion in determining that legal question. Whiteman

v. Pitrie, 5 Cir., 1955, 220 F.2d 914; Kirby Lumber Cor-

poration v. Laird, 5 Cir. 1956, 231 F.2d 812, 816. For all of

the reasons so ably set forth by Judge Rives, the evidence

was more than ample to compel a jury trial as a matter of

law. Because of the unique nataure of our remand, we are

not on this appeal now faced with the Roosth problem or

the desirability (or necessity) of modifying it.

GEWIN, Circuit Judge, DISSENTING:

Believing that there is sufficient evidence to require

a submission of the factual] issues in this case to a jury for

decision, I join in the dissent of Judge Rives.

BELL, Circuit Judge, DISSENTING:

I join in the dissent of Judge Rives with the following

additional statement. My view in this case, as in Lincoln

National Life Insurance Company v. Rooeth, 5 Cir., 1962,

306 F.2d 110, is based on the sufficiency of the evidence. |

feel that the evidence, at least on the second hearing of

this case was sufficient to make a jury issue. I felt that the

evidence was insufficient in Lincoln National. The losing

party there, as must be implicit here, suffered the misfor-

tune of being caught up in tife law of the case doctrine. But

here that doctrine should play no part as there was sufficient

additional evidence over what was presented on the first

trial to take the case tu the jury. *

APPENDIX “B”

\ a

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

October Term, 1961

? 7

No. 19,068

a >

D. C. Docket No. 6072 Civil -

MRS. WANDA MERCER,

Appellant,

versus

PARIS THERIOT,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE ZASTERN DISTRICT OF LOUISIANA.

Before: Tuttle, Chief Judge, Hutcheson, Rives. Cameron,

Jones, Brown, Wisdom, Gewin and Bell, Circuit Judges.

JUDGEMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Eastern

District of Louisiana, and was taken under submission by

the Court en banc upon tie record and briefs on file;

- 54

ON CONSIDERATION WHEREOF, it is now here or-

dered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

affirtacu ;

“Rives, Brown, Gewin and Bell, Circuit

Judges, dissent.” ee,

March 14, 1963

Issued as Mandate:

APPENDIX “C”

Minute Entry

Wright J.

Dec. 12, 1960

MRS. WANDA MERCER No. 6072

v CIVIL ACTION

PARIS THERIOT

This case came on for hearing on a former day on mo-

tion of plaintiff for a new trial. The court, having heard the

urgument of counsel and studied the briefs submitted in

support thereof, is now ready to rule.

IT IS ORDERED that the motion of plaintiff for a new

trial be, and the same is hereby, DENIED.

REASONS

This court han carefully stadied the additional evidence

submitted in support of the motion for néw trial. This evi-

dence, while persuasive, would be inadmissible-in a new trial

under the hearsay mule.

APPENDIX “D”

IN. THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

MRS. WANDA MERCER CIVIL ACTION

versus NUMBER 6072

PARIS THERIOT

MOTION OF PLAINTIFF FOR RFHEARING OF

PLAINTIFF'S MOTION FOR NEW TRIAL

PREVIOUSLY DENIED ON 12-12-60.

EXCERPT

APPEARANCES: rd

smc

H. ALVA BRUMFIELD, Esq.

205 American Bank Bldg.

Baton Rouge, Louisiana

Attorney for Plaintiff.

STANLEY E. LOEB, Esq.

LOEB & LIVAUDAIS

Richards Building,

New Orleans, Louisiana

Attorney for Defendant.

(The above entitled and numbered matter.came up for

hearing on this, the 4th day of January, 1961, in the Court-

room, United States Post Office Building, New Orleans, Lou-

isiana; THE HONORABLE J. SKELLY WRIGHT, District

Judge, presiding.)

APPENDIX D

PROCEEDINGS

THE COURT: We will now take up the matter in Civil

Action No. 6072.

(4.-yument by Mr. Brumfield.)

THE COURT: There isn’t any question in my mind that

_ there was a denial of justice in this case. There isn’t any

“question in my mind either that Paris Theriot killed this

man. But, I will hear from the other side.

(Argument by Mr. Loeb.)

THE COURT: I will have another look at this matter

but my impression is, as stated on the ruling for application

for a new trial, that the Fifth Circuit ruled that there was

not sufficient evidence to support the verdict. And that un-

less the Plaintiff was able to, on his own motion for a new

trial, to advance additional evidence which would be sub-

stantial in nature and which would make out a case for the

Jury, the verdict for-the Defendant should be granted. And

after reviewing the new evidence which the Plaintiff pro-

vided, I felt that while the evidence was persuasive and it

showed skulduggery iff this case, that the sheriff’s locker

had been rifled and the evidence which was taken from Paris

Theriot’s car was destroyed so it couldn’t be produced in his

criminal case or civil case involving this death, there was

still no direct evidence. There was just talk among the depu-

ties who were concerned with obtaining t'. evidence and

who, unfortunately, were unable to get the evidence when

they went to the locker to get it in order to bring it to the

laboratory to have it examined. I felt that the evidence, as

produced under the application for a new trial, was not com-

petent evidence. {in other words, it would have violated the

hearsay rule if admitted, and that is the basis on which I

denied the application for a new trial.

It is my view the Fifth Circuit did say that as tried

originally there was not sufficient evidence. There is no

doubt that it said that unless additional, substantial evi-

dence was presented on application for a new trial, the ver-

cict should be for the Defendant. That was the basis of my

ruling, but I am willing to have another look at it because

of the feelings that you have presented in this case. I do

believe that I am going to be required to reaffirm the ruling

that I pieviously made~I will mark the matter submitted.

;

Court stands at regéss.

(Whereupon, Court recessed.) |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.