# Petition for Writ of Certiorari — Mercer v. Theriot

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1964
- **Citation:** 377 U.S. 152

## Text

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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

-
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x

or

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

20

13

11

16

15

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)

16

18

13

‘ en he

n

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)

13
18

18
16
13

15

99

9

18

v

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)

18

20

18

16

16

22

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
ae
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.

bo

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

\

4

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

5

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

7

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,”

8

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

»

9

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.

10

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

11

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-

12

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)

13

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.
s

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).

14

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

15

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:

\
SJ

“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).

17

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

18

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).

~

\

Pe

19

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

20

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).

21

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

\ J

\
.

22

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-

23

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

24
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

25
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

*

27
$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

id

— —_

“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

29

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.

I,

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.”

‘

30

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

"y

31

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

52

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-

33

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.

35

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

36

“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.

37

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

40

“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.

41

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

42

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.)

43

‘

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.”

44

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-

45

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.

AS
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-
.

a

al

46

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.

47

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

48

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

49

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

50

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

51
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.

52
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. *

is

43

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.

55
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.)

56
APPENDIX D
PROCEEDINGS

THE COURT: We will now take up the matter in Civil

Action No. 6072.
A
(4.-yument by Mr. Brumfield.)

as

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

57

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.) |

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0477%3A2. Public record. Not legal advice.