Petition — Knight v. South Central Bell Telephone Co.

28-1032 88858

In the

Sunreme Court of the Anited States

OCTOBER TERM, 1975

LOUISE KNIGHT, PATRICIA KNIGHT, wife of

HARRISON L. KNIGHT, IR.,

Petitioner

versus

SOUTH CENTRAL BELL TELEPHONE COMPANY,

Respondent

versus

“HARRISON L. KNIGHT, IR., and PATRICIA

KNIGHT,

Petitioner

JOAN STEVENS,

Petitioner

versus

SOUTH CENTRAL BELL TELEPHONE COMPANY,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN J. CUMMINGS, III

200 Alison House

416 Gravier Street

New Orleans, Louisiana

— — — 11

A B Letter Service, loc., 327 Chartres St., Ne Orleans, La.(504)581-5555

INDEX

Page No

Citations to Opinions Below. . . . . . . . . . . . . 2

r 2

r ͥ 2

6— —— ö — 3

eee —ͤ—— — 3-6

Reasons for Grant ing the Writ. ...... ...... .... .. 6-31

Conclusion... — — 32

Zr 32

ii

TABLE OF CONTENTS

Law Review, Texts and Statutes

Page No

be ae at 26

OR BETA, Bi, Bai — . 26

ees, Teh Tie, -=- 26

a Oe 26

Federal Rules of Civil Procedure, Rule 52... .. .... 18

Federal Rules of Civil Procedure, Rule 39. . . 16

Federal Rules of Evidence, Rule 608... .. . . . ... 27

Holtzof, Federal Procedure, Vol. 3. .. 16

Louisiana Civil Code Article 2315. . . .. . . .. . . . 16

Cases

Allen v. Large, 239 S. W. 2d 225 (Ky., 1951) .ssssssssssessseee 14

American Cas. Co. v. Lennox, 169 So.2d 707,

. EL eas Ea ee 26

Biggs, v. Toone, 244 S. . 2d 443 (Ky., 1981). 14

Chopin v. Levy, 125 So. 142 (La. 1929). . . 6

Cases (Continued)

Page No.

Churchill v. Texas Pacific R. R., 154 La. 726, 92 So. 314. 6

Commercial Credit Corp. v. Pepper, 187 F. 2d 71

—.. . itciaiins.tenidieoonssentin 15

Daniels v. Central Truckway System, 253 S. W. 2d 1

—. ͤ — DO 14

Davis v. Bankston, 192 So. 2d 614 La. App.

ee e — 2. 27

Daull v. N. O. Rwy. & Light Co., 147 La. 1012,

eh MN — ͤ— stele 6

Fort Worth & Denver Rwy. Co. v. Roach, .

„ — 15

Gasoline Products v. Champlin Co., 283 U.S. 494,

51 Sup. Ct. 513, 75 L.Ed. 1188 (1931). . . 16

Gibbs v. Tomlinson, 362 F. 2d 394, (5 Cir., 1966). 19

Gorman v. Duke, 217 So. 2d 503 (La., 1963). 26

Hopkins v. Coen, 431 F.2d 1055 (6 Cir., 1970). . . 13

Houston Coca-Cola Bottling Co. v. Kelly,

III aicsinescvctvcccesnscizccnnrmesionnees 15

Hutton v. Norfolk & Western R. R. Co.,

„ 15

iv

Cases (Continued)

Page No

Kosh v. Baltimore & O.R. Co., 28 F.2d 872

S. 15

Lansburg & Bros. Inc. v. Clark, 75 U.S. App. Dist.

Cr. 399, 127 F.2d 332 (0 13

Lintz v. Metropolitan Life Ins. Co., 428 F.2d 36

eee MS 19, 25

Martin v. Payton, 20 F. R. D. 200. . ... . . ... . . . 14

Malone's Ex's v. Chesapeake & O. Rwy., Co.,

249 Ky. 832, 61 S. . 2d 876 (1933) . 14

Pugh v. Luft City Excursion Co., 177 F. 2d 399

Fa. % . 8 13

Reeves v. U.S., 445 F. 2d 1303 (5 Cir., 1971). .. 17,18,25

Roller v. Cormier, 192 So. 2d 568 (La.App.)

3 Cit., 19GG.....cccccccccccrcrccerccecsscecssscocssocsosssoooososcooecses 26, 27

Smith v. Southern Nat’l. Life Ins. Co., 134 So.2d

Se, RR ee 26, 27

U.S. v. Gypsum Co., 333 U.S. 364, 68 S.Ct. 523,

arne 19

Vidrine v. Kansas City Southern R. R., 466 F. 2d 1217

s. „„ 15

*

Cases (Cont inued)

Page No

Wall v. Van Meter, 311 Ky. 198, 223 S. W. 2d,

734, 20 A. L. R. 2d 272 (1949)... . 14

Whiteman v. Pitrie, 220 F.2d 914 (5 Cir., 1955). 15

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

LOUISE KNIGHT, PATRICIA KNIGHT, wife of

HARRISON L. KNIGHT, IR.,

Petitioner

SOUTH CENTRAL BELL TELEPHONE COMPANY,

Respondent

HARRISON L. KNIGHT, JR., and PATRICIA KNIGHT,

Petitioner

JOAN STEVENS,

Petitioner

versus

SOUTH CENTRAL BELL TELEPHONE COMPANY,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals

for the Fifth Circuit entered in the above case on August

19, 1975 and the denial by the said Court of the petition

for rehearing on September 24, 1975.

2

CITATION TO OPINIONS BELOW

The judgment of the United States District Court for

the Eastern District of Louisiana, New Orleans Division, is

reproduced in the Appendix. The opinions of the United

States Court of Appeals for the Fifth Circuit are reproduced

in the Appendix and are reported at F. 2d.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on August 19,1975. A

timely Petition for Rehearing was filed and rehearing was

denied on September 24, 1975. The jurisdiction of this

Court was invoked under 28 U.S.C. 1254(1). The juris-

diction of the District Court was invoked under the diversi-

ty jurisdiction of the United States District Courts.

QUESTIONS PRESENTED

1. Is not the award of damages to one innocent guest

passenger and not another innocent guest passenger

materially inconsistent and/or incongruous and

should not this verdict be set aside?

Il. When the decision of a jury finding contributory

negligence is so unsupported by the evidence as to

indicate that the jury was motivated by other

factors should not the verdict be set aside and a

new trial granted?

III. Is not the testimony of an agent of the defendant

relative to his attempts to have a traffic citation

“fixed” admissable evidence?

3

IV. Does not the Fifth Circuit procedure which

denies an appellant the right to oral argument

deny that appellant’s Constitutional right to the

due process of the law?

STATUTES INVOLVED

Louisiana Civil Code Article 2315.

STATEMENT OF THE CASE

On May 15,1973, Patricia Knight, wife of Harrison L.

Knight, was the operator of a Volkswagen automobile in

the City of Covington, traveling along Jahncke Boulevard,

with two passengers, Mrs. Louise Mae Knight and Mrs.

Joan Stevens. While traveling on Jahncke Boulevard, the

Volkswagen automobile stopped at a four-way stop sign on

Jahncke Boulevard at 19th Street. Behind her at that stop

sign was a truck owned by the respondent, South Central

Bell Telephone Company, and was operated by its agent and

employee, Mr. Bruce Cleland. After stopping, Patricia

Knight continued on Jahncke Boulevard, and upon reaching

the corner of Jahncke Boulevard and 19th Street, she

slowed, and signalled to make a left turn. Prior to making

the left turn, and while her automobile was still in the

right lane of traffic (Tr. 182), not having crossed the center

line, she was struck from the rear by a truck owned and

operated by the respondent, South Central Bell Telephone

Company (Tr. 156, 182). Prior to impact, Mr. Cleland had

looked away from the direction of travel at a man to his

left who was raking leaves (Tr. 425, 426).

After Mr. Cleland looked away from the direction of

travel, he hit the rear end of the Knight Volkswagen. Mrs.

4

Stevens, one of the guest passengers, was seated in the right

front seat. Upon impact, her head hit the Volkswagen

front windshield with such an impact as to knock the glass

out (Tr. 155, 156). Mrs. Stevens, as a result of this injury

to her head, suffered a loss of balance due to the severe

trauma to her middle ear (Tr. 158). She experienced black-

outs and periods of unconsciousness (Tr. 158), for which

she sought medical attention and for which she was treated.

he sustained injuries as a direct result of the impact of the

truck owned by South Central Bell Telephone Company

and operated by Mr. Bruce Cleland (Tr. 157). Also in the

automobile with Mrs. Joan Stevens was Mrs. Louise Mae

Knight, referred to as Louise Knight and Mae Knight at

various parts of the proceedings. Mrs. Louise Mae Knight

was seated in the rear of the Volkswagen at a distance of

less than three feet from the point of impact. As a direct

result of the impact, Louise Mae Knight was caused to suf-

fer from osteoarthritis (Tr. 272). Her physician testified

that he had seen her forty-five times im the last eighteen

months (Tr. 284) and has been treating her for pain related

to the accident. She had done work as a seamstress, but

since this accident has been unable to perform that or any

other type of work (Tr. 131).

The driver of the automobile, Patricia Knight, was not

to escape this accident without severe injury. As is evidenc-

ed by the special interrogatories to the jury, it was the

decision of the jury that the injuries to Patricia Knight were

directly related to the accident and furthermore, the negli-

gence of South Central Bell Telephone Company was the

proximate cause of these injuries (Tr. 525). At the trial

the injuries to Patricia Knight were described as injuries

to the right arm (Tr. 183), right elbow (Tr. 183), coupled

with injuries to the neck and physical pain (Tr. 192), plus

extreme sensitivity to cold (Tr. 207). As a part of her

5

treatment to her neck, she was instructed by Dr. Caillouet,

one of many treating physicians, to wear a plastic cervical

collar for a period of three months (Tr. 188). Eventually,

Dr. Donald Richardson would operate on her elbow

(Tr. 199) and move the ulnar nerve out of the ulnar groove

(Tr. 363) in an effort to treat her for complaints of heavi-

ness and sensitivity. This operation would leave a scar

(Tr. 202) of which Mrs. Knight is still conscious.

Mrs. Knight, as stated, has experienced heaviness of

the arm and a loss of feeling in the little finger and ring

finger of the right hand. Prior to the accident she had

successfully operated a beauty shop, but due to the heavi-

ness and nuinbness, was required to close down the shop

(Tr. 194).

On August 15, 1973, Louise Knight and Patricia

Knight filed suit against South Central Bell Telephone Co.

in the United States District Court for the Eastern District

of Louisiana, which case bore Docket No. 73-2165. On

May 9, 1974, Mrs. Joan Stevens filed suit against the same

defendant in the same court, which litigation bore Docket

No. 74-1271. After these cases were transferred and conso-

lidated, trial was held on Monday, December 9, 1974, and

Tuesday, December 10, 1974, before a jury presided over

by the Honorable Jack M. Gordon, Judge.

After a trial of the merits, the jury returned their

verdict, which indicated: first, that they found that the

defendant, South Central Bell Telephone Company, was

negligent. Secondly, that the negligence of South Central

Bell Telephone Company was the proximate cause of any

injuries and damages to Mrs. Patricia Knight, Mrs. Louise

Mae Knight, but not to Mrs. Joan Stevens; and thirdly,

6

that Mrs. Patricia Knight was contributorily negligent

(Tr. 525).

A motion for new trial was timely filed in the United

States District Court for the Eastern District of Louisiana

and was denied. Plaintiffs then sought their judicial redress

through an appeal to the United States Court of Appeals

for the Fifth Circuit. This case was placed on the summary

docket and the petitioners were left without any opportun-

ity for oral argument. The decision of the District Court

was affirmed on August 19, 1975 with the rehearing denied

on September 24, 1975. Petitioners now seek their final

appeal to remedy the incongruous verdict.

REASONS FOR GRANTING THE WRIT

The law of the State of Louisiana, as exemplified in

the decision of Chopin v. Levy, 125 So. 142 (La., 1929),

per Janvier, Judge, is that a guest passenger cannot be de-

prived of her right to recover. In the Chopin case, supra,

Judge Janiver, wrote:

Since Mrs. Chopin was a guest passenger in the

Dela Vergne car, and had nothing to do with the

operation, and had no authority over its driver, she

cannot, as a matter of law, by the negligence of

DelaVergne, be deprived of her right to recover

from Levy, unless the circumstances were such

that she could be charged with independent negli-

gence on her own part. Accord: Churchill v. Texas

Pacific R.R. Co., 154 La. 726, 92 So. 314, and

Daull v. N.O. Rwy. & Light Co., 147 La. 1012,

86 So. 477.

7

In the Daull decision, there was injected the possibility that

a guest passenger may not be able to recover if there was an

acquiescence on his part in the reckless driving of another,

but that is easily discounted in the cas presently before the

Court, as there was no evidence presented at the trial of

any contributory negligence on the part of Joan Stevens or

Louise Mae Knight. Yet, because of some other motivation,

the jury awarded damages to Louise Knight, a guest passen-

ger in the rear seat of the Volkswagen, and not to Joan

Stevens, in the front seat. Dr. Newman testified concerning

the injuries she received as a direct result of the accident

(Tr. 291):

Q. Now, in the course of your practice, Doctor,

did you have occasion to examine Mrs. Joan

Stevens?

A. I did.

Q. And did you treat her as a result of this acci-

dent?

A. Yes.

Q. Would you review for the jury your initial

visit, examination, course of treatment, and

you may refer to your notes.

A. Okay, I first saw Mrs. Stevens May 17, 1973.

She had been seen in my absence by my asso-

ciate on the 16th—on the day of the accident.

Apparently, Dr. Caillouet got X-rays on the

patient at the time, which I think I have copies

of. Yes, I do. There were skull X-rays and

cervical spine X-rays which were both con-

sidered to be within normal limits. Dr.Caillou-

et referred the patient to me the next day.

I’m not positive what medication, if any, he

gave her at the time, but any any rate, I saw

her on the next day, which was the 17th, also

through the emergency room.

I did a complete examination of the patient,

at which time I did a complete neurological

examination of the patient and found it to be

essentially negative, but the patient was comp-

plaining of rather severe headaches. Shall |

go on?

ves, I wish you would. It might facilitate the

test imony.

We gave her non-narcotic type pain reliever -

as well as anti-nausca compound both intra-

muscularly, which is by hypodermic needle.

I saw the patient again on May 29th which was

twelve days later and she was still complaining

of headaches and dizziness and she apparently

was bruised at the time, though at the time of

the automobile- but, there was no blue splot-

ches apparently on her body, but she was

tender at this time. At this time, on the 29th,

she complained of back pain. The remainder

of the history was not very contributory.

Again, a physical examination was essentially

negative, and on examining her now, a straight

leg raising test was positive and at least thirty

degrees bilaterally, and she complained of some

9

neck pain at the time. So it was apparent to

me that maybe she did have a lumbrosacral

strain at the time, as well as some strain of her

neck, and she was given muscle relaxants and

referred to a physical therapist and was seen

again on June 5, 1973, and she complained, at

that time, mostly of backaches, and was given

a valium which was a muscle relaxant and

tranquilizer combination and she was also

given an anti-inflamatory agent.

. When did you next see her,sir?

Okay. One week later, on June 12th, she had a

history of having passed out or having had a

single episode, at that time, and she was re-

ferred to Dr. Donald Richardson, who was a

neurosurgeon, for a work-up, and I saw her

again on July 3rd, at which time her sump-

tomology was better and she was told to con-

tinue with Dr. Richardson’s regime and to see

me in about a month’s time.

When you saw Her on July 3rd, were her symp-

toms any better?

Ves, they seemed to be better.

Would you review that note.

I'm sorry, had not. She had not gotten much

And that’s why you sent her to Dr. Richard-

son?

4

10

A. That’s correct.

Q.

The jury also heard from Mrs. Stevens relative to the im-

pact of her head with the windshield. At page 155 of the

By the symptoms, you're referring to her head-

aches?

Her headaches, her neck pain and what have

you. I thought that her back was probably

slight better, cut her headaches and dizziness

and neck pain had not gotten better.

. What was she complaining about?

She was complaining of burning in her neck and

back, and even though I don’t state it, but

headaches and dizziness again, and she was

given some anti-inflamatory agent and told to

continue to see Dr. Richardson on schedule.

She was last seen, according to this, on August

6, 1973. I don’t know if that’s the last time I

saw her, or if she came back since the report.”

transcript, she was asked:

Q.

I see, did you hit the windshield very hard?

A. Well, I knocked it out of the rim that it’s in.

* * * K X EE

Q. Did you experience pain anywhere else?

> © > 8

©

11

Muscles, all over my back.

* * „ „ KK *

I see, did you seek medical attention after the

accident?

Yes.

Would you tell the jury the name of the doctor

to which you went to visit?

Dr. Caillouet.

Did he examine you?

Yes.

How many times did you see Dr. Caillouet?

Two.

Who then did you see?

Dr. Newman.

What complaints did you make to Dr.Newman?

Headaches and my back was hurting.

Did Dr. Newman treat you?

Yes.

In what way? In which manner did -

12

A. He sent me to the Bogalusa Health Center for

physical therapy. —

Mrs. Stevens, in her testimony, indicated the extreme

amount of physical pain which she endured. She testified

(Tr. 153):

Q. I see. What parts of your body do you say

were injured in this accident?

My head.

Anything else?

I had some back strain.

e - >

Q. Has that cleared up?

A

Ves.

2

Alright. When did you first experience back

pain following this accident?

A. Well, I was in the bed for five days with every

muscle in my back in knots.

The testimony was urcontroverted that Mrs. Joan

Stevens was thrown against the front windshield of the

Volkswagen and that she struck her head, experiencing

severe headaches, dizziness and blackouts, which she had

not experienced prior to the accident. It is therefore ap-

parent that for some personal reason, the jury did not make

an award to Mrs. Joan. Stevens and that their decision was

not based on the evidence presented to them during the

course of the two days of trial. Mrs. Joan Stevens

14

13

i. e., that to Joan Stevens, requires review. As stated in Holt-

has sought a new trial in conformity with the Federal Rules zof, Federal Procedure, Vol.3, Sec. 1304:

of Civil Procedure and cites as her authority Hopkins v.

Coen, 431 F.2d 1055 6 Cir., 1970:

If issues are framed for the jury and the issue as to

which a new trial is required is separate from all

By general rule, the granting of a new trial is a

matter purely within the discretion of the trial

court and it will not be reviewed. See Pugh v.

Luft City Excursion Co., 177 F.2d 399, 6 Cir.

1910.

other issues, and the error requiring a new trial

does not affect the determination of any other

issue, the scope of the new trial may be limited to

the single issue.

An important and well-reasoned decision in this area is

Martin v. Payton, 20 F.R.D. 200, wherein the Court, quoting

from the case of Smith v. Weber, 282 S.W.2d 346, Ky., stated:

However, where verdicts in the same cases are in-

consistent on their faces, indicating that the jury

was either in a state of confusion or abused its

power, a motion to alter or to amend the judgment

for a new trial, or for relief from the judgment, if

timely made, is not discretionary.

As in Lansburg & Bros., Inc. v. Clark, 75 U.S. App.,

Dist. Ct. 399, 127 F.2d 331, at page 333, 1942:

Were this court able to divine that one of the

judgments in these consolidated cases was intelli-

gently rendered by the jury, we should remand

only the ambiguous one for retrial.

Following the language of Circuit Judge Celebreeze in

the Hopkins v. Coen case, supra, an award to Louise Knight

and not to Joan Stevens, two people who received injuries

in the same accident, indicates that the jury was either in

a state of confusion, or abused its power. The remedy

which plaintiffs-appellants seek is a new trial at least on the

issues of damages to Joan Stevens, as petitioners submit that

the issues are separable and only that inconsistent award,

Where a verdict is materially inconsistent or in-

congruous, it should, as a rule, be set aside and a

new trial granted. This is upon the idea that the

verdict is contrary to the evidence and the law for

which a new trial is authorized by C.R. 59.01

(6), which is like Sec. 340(6) of the Civil Code of

Practice. Malone’s Ex’s v. Chesapeake & P. Rwy.

Co., 249 Ky. 832, 61 S.W. 2d 876. In returning

such a verdict, the jury has not accepted and ap-

plied the law as contained in the instruction.

Daniels v. Central Truckaway System, Ky., 253

S. W. 2d l. Upon this ground, we have reversed

judgments, resting upon verdicts like the one at

bar where the jury found the defendant liable in

damages but limited the award to medical exp-

penses. Wall v. Van Meter, 311 Ky. 198, 223

S.W. 2d 734, 20 A.L.R. 2d 272 Allen v. Large,

239 S.W. 2d 225; Biggs v. Toone, Ky. 244 S.W.

2d 443. (Emphasis ours)

15

The court further continued that in conformity with

Kosh v. Baltimore & O.R. Co., 6 Cir., 29 F.2d 872, and

Hutton v. Norfolk and Western R.R. Co., 6 Cir., 28 F.2d

874, “where damage awards are grossly inadequate the mat-

ter of a new trial addresses itself to the judicial discretion of

the court”. It is upon that discretion which the plaintiffs-

appellants call in this appeal.

The United States Court of Appeal for the Fifth Cir-

cuit, has not been silent on this area, and made its pronoun-

cement clearly on point in Vidrine v. Kansas City Sou. R.R.,

466 F.2d 717, 5 Cir., 1972, wherein the court stated at page

1221:

Though the Supreme Court has never clearly so

held, the Fifth Circuit is now firmly committed

to the doctrine stated in Whiteman v. Pitrie, 5

Cir., 1955, 220 F.2d 914, 919:

A simple restatement of the condition of

this court is as follows: In reviewing a

motion for new trial based on the ground

of the inadequacy or the excessiveness of

the verdict, as well as one based on the

grounds that the verdict is against the

weight of the evidence, the rule applies that

* * * an abuse of discretion is an exception

to the rule that the granting or refusing of a

new trial is not assignable as error. Com-

mercial Credit Corp. v. Pepper, supra, 187

F.2d 771; Houston Coca-Cola Bottling Co.

v. Kelly, 5 Cir., 131 F.2d 627, 628; Fort

Worth & Denver Rwy. Co. v. Roach,

5 Cir., 219 F.2d 351.

16

Rule 59(a), Federal Rules of Civil Procedure, per-

mits the granting of a new trial to all or any of

the parties on all or any part of the issues. It is,

however, well settled that a new trial on part of

the issues ‘may not properly be resorted to unless

it clearly appears that the issue to be retried is so

distinct and separable from the others that a trial

of it alone may be had without injustice; Gasoline

Products v. Champlin Co., 9131, 283 U.S. 494,

500 Sup. Ct. 513, 75 L.Ed. 1188.

One guest passenger cannot be denied the right to re-

cover, while another guest passenger is granted that right.

Secondly, the court must grant a new trial where the verdict

is inconsistent. Clearly, any consideration as to the damages

to be awarded is to be considered only after a thorough con-

sideration of the pain and suffering, embarrassment and

humiliation of each respective plaintiff, all in accord with the

paramount concept of Louisiana substantive tort law, that

Every act whatever of man that causes damages to another

obliges him by whose fault it happened to repair it“. LCC

2315.

Joan Stevens was an innocent guest passenger. She con-

tributed in no way to her injuries, and she received severe

damages as a result of a blow to the head. In spite of this

uncontroverted testimony, the jury totally disregarded Joan

Stevens and, therefore, a new trial is required, pursuant to

the Federal Rules of Civil Procedure.

In spite of the overwhelming evidence to the contrary,

the Fifth Circuit dismissed the claim of Joan Stevens by

stating:

17

Concluding, however, that there existed no causal

relationship between the accident and the injuries

allegedly sustained by the second guest passenger,

the jury declined to award her damages . After a

careful review of the record we cannot conclude

that the jury findings are unsupported by compe-

tent evidence.

In this statement it is obvious that the Court failed to

review the record nor properly analyzed the weight of evi-

dence presented and, therefore, a new trial is required to

remedy this injustice.

If a jury verdict is inconsistent or incongruous on its

face,it may be set aside. Similarly, the petitioners would

suggest that where the verdict is not in conformity with the

overriding weight of evidence, it should be set aside and a

new trial granted. The principle that a reviewing court will

not review a finding of fact of a case is well established. Equ-

ally well established is that this rule does not apply to facts

found under an erroneous view of controlling legal principles.

Further, Federal Courts have stated that a finding of fact is

clearly erroneous if it is without substantial evidence to sup-

port it,or if the district court misapprehended the affect of

the evidence. In Reeves v. U.S., 445 F.2d 1301, the Court

applied this rule when it found that there was no evidence to

support the lower court’s finding that the physician in ques-

tion was not negligent in his treatment of the plaintiff's

child. In the present case, we have shown that there is in-

sufficient evidence to support the finding of contributory

negligence on the part of Mrs. Patricia Knight by the error

18

made by the court in refusing to allow the truck driver's

testimony into evidence. We contend that due to this lack of

substantial evidence, this case falls within the stated excep-

tion of the clear erroneous rule of the Federal Rules of Evi-

dence, Rule 52:

Rule 52.

FINDINGS BY THE COURT

(a) Effect. In all actions tried upon the facts with-

out a jury or with an advisory jury, the court shall

find the facts specially and state separately its con-

clusions of law thereon, and judgment shall be en-

tered pursuant to Rule 58; and in granting or re-

fusing interlocutory injunctions the court shall

similarly set forth the findings of fact and conclu-

sions of law which constitute the grounds of its ac-

tion. Requests for findings are not necessary for

purposes of review. Findings of fact shall not be

set aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court

to judge of the credibility of the witnesses. The

findings of a master, to the extent that that the

court adopts them, shall be considered as the find-

ings of the court. If an opinion or memorandum

of decision is filed, it will be sufficient if the find-

ings of fact and conclusions of law appear therein.

Findings of fact and conclusions of law are un-

necessary on decisions of motions under Rules 12

or 56 or any other motion except as provided in

Rule 41(b).

In the decision of Reeves v. L. S., supra, the court, while

directing its attention to a Rule 52 advisory jury, wrote:

19

A review of the lower court’s finding is, of course,

governed by Federal Rule of Civil Procedure 52(a),

and this court cannot set aside those finding unless

they are clearly erroneous. A trial court’s findings

of fact is clearly erroneous if it is without substan-

tial evidence to support it, or the district court mis-

apprehended the affect of the evidence. Lintz v.

Metropolitan Life Ins. Co., 428 F.2d 36, 39, 5

Cir., 1970; Gibbs v. Tomlinson, 362 F.2d 394,

297, 5 Cir., 1966. Likewise, a finding of the dis-

trict court is clearly erroneous in ‘when although

there is evidence to support it, the reviewing court

on the entire evidence is left with a definite and

firm conviction that a mistake has been commit-

ted’. U.S. v. Gypsum Co., 33 U.S. 364, 395, 68

Sup. Ct. 525, 92 L.Ed. 746, 1948. This court,

having steeled itself into the task of reviewing all

of the evidence introduced in both trials which was

considered by the lower court in reaching its

determination, is left with a definite and firm con-

viction that a mistake indeed has been committed.

(emphasis ours)

Similarly, it is the position of the petitioners that on a re-

view of all of the evidence presented to the trial court, the

court can be left with nothing short of a firm and definite

conviction that a mistake indeed has been committed. There

was no evidence presented at the trial of this matter which

would indicate any contributory negligence on the part of

Patricia Knight. The verdict was inconsistent with the evi-

dence presented and was apparently motivated by some other

concern.

Mr. Cleland, the driver of the truck, testified from an

accident report made shortly after the accident:

20

Q. ls that your signature that appears at the bot-

tom of that report?

A. That's my signature.

What's the date on that report?

May 16, 1973.

Will you read the report to the jury?

ae, ee

I was driving down South Jahncke Avenue. I

stopped at a four-way stop sign on 19th Ave-

nue. I left the stop driving South. I glanced

to the left at a man working close to the

road. I looked back into the road and a car

was stopped in the road just past 18th Ave-

nue. I hit my brakes, then I hit the car. |

got out of my truck and checked on the occu-

pants of the other vehicle and I called the

police.

Q. And your signature appears below that?

A. Right. (Tr. 434)

He stated that prior to the accident, he saw the vehicle

stopped in the road in front of him. Mr. Dewey, an em-

ployee of South Central Bell Telephone Company, who

seemed to have happened upon the accident, testified at

Tr. 445:

Q. Did you talk to Mr. Cleland at the scene of

the accident as to what caused the accident?

21

Yes.

Q. And what did he tell you?

A. He told me that he just didn’t see the vehicle

stop.

Mrs. Joan Stevens, Mrs. Patricia Knight and Mrs. Louise

Mae Knight all testified that they were moving down Jahncke

Boulevard and, at a point coming to 18th Street, Mrs. Patricia

Knight signaled for a left turn, put her arm out indicating

that she was slowing down, and then she was hit from the

rear by a truck driven by Bruce Cleland. There is no testi-

mony in the record which indicates that Mrs. Patricia Knight

in any way contributed to the accident, but merely that she

prepared to make a left turn off Jahncke Boulevard onto

18th Street.

Mr. Cleland testified:

Q. All right. Now, would you relate to the court

and the jury what happened as you approach-

ed 18th Avenue?

A. Well, I took off from the stop sign and than

as I drove down the road, I looked at the car

ahead of me and then I saw someone on the

left over here, so I glanced over that way to

notice what was going on, you know, and

then when I glanced back, the car in front of

me was stopped. (Tr. 404405)

Mrs. Patricia Knight testified (Tr. 182):

Q. Which lane were you in?

A.

Mrs.

22

In the right-hand.

Was any part of your vehicle on the other side

of the center line?

No sir.

Louise Mae Knight confirmed that the car was in

the proper lane of traffic and was not backing but attempt-

ing to make a left turn when she testified:

Q.

Q.

A.

How far from that intersection did the acci-

dent occur?

would say about two, three car lengths.

I see. Had Mrs. Knight slowed her vehicle?

She was slowing, but she hadn’t stopped (12)

nor hadn’t turned.

Did you notice any indication that she in-

tended to turn left?

Yes sir.

Tell the jury what you saw?

Well, she had her hand out to the left and she

had her flicker lights on turning to the--was

turned to the left.

By ‘“‘flicker light“, what do you mean?

That was her turning lights, you know, to go

©

>

> - P ¢

in-

The indicator?

Uh-huh.

And was it blinking?

Yes sir.

Was it clicking?

Yes, it was.

kk KR KK

I see. Now, the vehicle that you were in, to

you knowledge prior to the collision, did it

ever (13) leave the right-hand lane of traffic?

No, it didn’t.

Did it ever cross the center line?

It knocked it further over to the right about

three lengths down.

When it was struck, it was in the right-hand

lane?

Yes, sir, it was.

And it was on the right side of the center

line?

Yes, sir.

24

Corresponding testimony was given by Mrs. Joan

Stevens (Tr. 154).

At numerous points during the trial, counsel for defen-

dant questioned witnesses about the position of the Knight

automobile. These witnesses testified that at the point at

which the vehicle came to rest, it could not have turned the

corner at 18th Street, it was in fact beyond the intersection.

Naturally, the Volkswagen was pushed beyond the point of

impact because here a large truck going 25 miles per hour hit

a slow-moving Volkswagen. Each petitioner, in her turn,

testified of the impact of the collision and of the force with

which the car was pushed forward.

Mrs. Patricia Knight testified:

Q. Where did the Volkswagen come to rest fol-

lowing the accident?

A. I can't be absolutely sure about the distance,

but we (sic) were past the turnoff to 18th

Avenue, this intersection that I was going to

turn at. (Tr. 186)

Mrs. Joan Stevens testified:

Q. Where did the Volkswagen come to rest after

the accident, if you know?

A. Past the intersection (Tr. 156)

Mrs. Knight, as has already been discussed, was tempor-

arily unconscious after the accident.

From all of the testimony presented at trial, it is ap-

25

parent that Bruce Cleland looked away from his direction of

travel while traveling at a speed of 25 miles per hour and rear-

ended the Knight automobile. There is no evidence of any

contributory negligence on the part of Patricia Knight.

The jury, during the course of this trial heard consis-

tent statements from Mrs. Joan Stevens, Mrs. Patricia Knight,

Mrs. Louise Mae Knight and Mr. Bruce Cleland which indi-

cated that the Knight automobile was either slowing or stop-

ped in the right lane of traffic preparing to make a left turn

from Jahncke Boulevard onto 18th Street, and that Mr.

Bruce Cleland, the operator of a truck driving down Jahncke

Boulevard at approximately twenty-five miles per hour, look-

ed to his left, away from the direction of travel, and then did

not see Mrs. Knight and smashed into the rear end of the

Knight Volkswagen, causing the injuries made the basis of

this suit.

The jury did not hear any testimony which would in-

dicate that Mrs. Patricia Knight in any way contributed to

this accident. A decision by the jury which found contribu-

tory negligence on the part of Mrs. Patricia Knight, absent

any substantial evidence to that effect, would seem to satis-

fy the doctrine earlier enunciated in Reeves v. U.S., supra,

and Lintz v. Metropolitan Life Ins. Co., supra, both decisions

of the United States Court of Appeal for the Fifth Circuit,

wherein that court wrote:

A trial court’s findings of fact is clearly erroneous

if it is without substantial evidence to support it...

Wherefore, the finding of contributory negligence on

the part of Mrs. Patricia Knight by the jury was in error, and

a new trial should be granted.

26

III.

The District Court committed error in failing to allow

the testimony of the truck driver, Bruce Cleland, regarding

his fixing of the traffic violation to be heard by the jury.

In accordance with the decision of Gorman v. Duke, 217 So.

2d 503 (La., 1963), the Fourth Circuit Court of Appeal, per

Judge Johnson, reversed the decision of the lower court.

Speaking for a unanimous court, he quoted from Judge Hall

in Smith v. Southern National Life Ins. Co., 134 So.2d 337

(La., 1961):

However, it has come to the attention of the courts

of other states on numerous occasions, and almost

without exception, those courts have held that the

plea of guilty be the accused in a criminal prosecu-

tion is admissable against him in the subsequent

civil action arising out of the same offense as his

. deliberate declaration or admission against interest.

See 20 An Jur. at 545, Berbo, Evidence, Sec. 648;

See also, 318 C.J.S., at 1070, Berbo, Evidence,

Sec. 300(b); See also: A comprehensive annota-

tion covering the whole subject matter together

with an exhausting collection of authorities in 81

A. L. R. 2d 1287-1319 . . . This case is cited with ap-

proval in Roller v. Cormier, La. App., 129 20 2d

568; Davis v. Bankston, La. App., 192 So.2d 614;

American Casualty Co. v. Lennox, La. App., 169

So. 2d 707.

A similar result was reached by the Third Circuit Court

of Appeal for the State of Louisiana in the above cited case

of Roller v. Cormier, supra, in which a unanimous court,

speaking through Judge Fruge’, at 572 of this decision, while

addressing itself to the defendant, Cormier, wrote:

27

With benefit of counsel, Cormier entered a plea of

guilty to the indictment and was sentenced to two

years at hard labor. In these circumstances a plea

of guilty in a criminal prosecution is admissable in

a civil action concerning the same facts, and in

competent evidence, though it is not conclusive on

the issue to be decided. Smith v. Southern Nation-

al Life Ins. Co., 130 So. 2d 337 (La., 1961).

The Third Circuit, per Judge Tate, also confirmed this

admissability in its decision of Davis v. Bankston, 192 So.2d

614 (La., 1966), decided the same day as Roller v. Cormier,

supra, in which Justice Tate saw the admission as one against

interest and therefore admissable.

Admittedly, in the case before the bar, is a verdict

which indicates that the jury found Bruce Cleland negligent,

but counsel for the petitioner was unable to question Mr.

Cleland relative to the fixing of the ticket, which testimony

would have carried certain weight as to his credibility and

which certainly would have eliminated any consideration of

contributory negligence on the part of Patricia Knight.

Bruce Cleland offered testimony that could have indi-

cated contributory negligence on the part of Patricia Knight.

His credibility was, therefore, in question. He had attempted

to have a ticket “fixed”. This propensity for attempted il-

legal activity is a proper matter for inquiry. Had this infor-

mation been presented to the jury, his credibility would

have been effected, the jury may not have believed him and

the inferences to contributory negligence may have been ex-

pediently dismissed by the jury.

The Federal Rules of Evidence have not been silent on

this position. Rule 608, paragraph b, states:

Specific instances of conduct. Specific instances of

conduct of a witness, for the purpose of attacking

or supporting his credibility, other than convic-

tion of crime as provided in Rule 609, may not be

proved by extrinsic evidence. They may, however,

if probative of truthfulness or untruthfulness and

not remote in time, be inquired into on cross

examination of the witness himself or on cross-

examination of a witness who testified to his

character for truthfulness or untruthfulness.

The Advisory Committee’s note at subdivision (b), para-

graph (2):

Particular instances of conduct, though not the

subject of criminal conviction, may be inquired

into on cross-examination of the principal witness

himself or of a witness who testified concerning

his character for truthfulness. Effective cross-

examination demands that some allowance be

made for going into matters of this kind, but the

possibilities of abuse are substantial. Consequent-

ly, safeguards are erected in the form of specific

requirements that the instances inquired into be

probative of truthfulness or its opposite and not

remote in time. Also, the overriding protection of

Rule 403 requires tuat probative value not be out-

weighted by danger of unfair prejudice, confusion

of issues, or misleading the jury, and that of Rule

611 bars harassment and undue embarrassment.

From these Rules and accompanying note we are able

to see that the attempts by Mr. Cleland to have the ticket

“fixed” was an area into which counsel for petitioner should

have been permitted. It was relevant and bore important

29

weight as to the credibility of the driver on other points

about which he would testify. It was important to the plain-

tiffs that the jury know that Mr. Cleland had fixed the ticket.

The failure by the court to allow this testimony before the

jury was a reversible error.

Mr. Cleland, was questioned by the judge, outside the

hearing of the jury. He testified as to his attempts to have

the citation “fixed”. The court did not allow the testimony

before the jury. The Court stated as its reasons:

THE COURT:

Gentlemen, under these circumstances, it seems

that the Court’s decision has been made simpler,

in that it now appears that rather than having a

guilty plea in the normal sense, we merely have the

fixing of a ticket, so to speak.

MR. CUMMINGS:

Judge, I want the Court to know that until just

THE COURT:

I understand that. Obviously, the witness just

clarified it just now. On the basis of this, I think

I'll have to sustain the motion. For this and the

other reasons I have indicated, it is obvious that it

is all the more untrustworthy. I don’t think the

action would be used against him under the cir-

cumstances and would even be more like actions of

an officer.

All right, get the jury. (Tr. 422-423)

30

Counsel for the plaintiff had sought to introduce this

line of testimony, but was prohibited from doing so. This

resulted in an injustice to the plaintiffs; the court erred in

failing to allow plaintiffs to examine the driver relative to his

“fixing” of the traffic violations.

Eventually, the verdict reached indicated that the jury

would accept the theory pronounced by counsel for the

defendant, Mr. Combe, and not that developed by the evi-

dence and supported by the testimony of each plaintiff and

Mr. Cleland.

Mr. Combe, in his closing remarks, would suggest how

the accident occurred, wherein he would state:

Unless Patricia Knight was in the process of passing

the intersection, at which point she immediately

stops trying to decide what to do, back up, turn

around, or go completely around the block

(Tr. 465).

This theory was totally unsupported by the evidence

and, had the jury known of the guilty plea of Mr. Cleland,

his credibility would have suffered. It was this decision by

the Court which is reversible error and for which the petit-

ioners are entitled to a new trial.

The Fifth Circuit Court of Appeal without reasons or

support held that this proposition was “without merit”. The

Supreme Court must grant writs.

IV.

Petitioners submit that the Fifth Circuit procedure of

31

placing certain cases on the “Summary Calendar” denies to

those litigants the right to the due process of the law, a Fifth

Amendment guarantee. As this Court stated in Federal Com-

munications Commission v. W.J.R., The Goodwill Station,

69 S.Ct. 1097, there was no right to oral argument as the

appellant was not left without judicial remedy. However, in

the case presently before the Court, the petitioners are left

without any remedy, save this Court’s action. The petition-

ers have had a trial, and have not been granted any oral

argument, or proper access to the Appellate Courts since

that trial. The right to oral argument is an inherent part of

the appeal process. It has become dogmatic in our law that

parties be treated equally before the law. The Fifth Circuit

procedure is in obvious conflict with that philosophy. Can it

be proper that one appellant will be granted the right to oral

argument while another litigant is denied the right to orally

explain his case and thereby highlight the particular points of

review? The oral argument affords to the litigants an oppor-

tunity to answer questions from the Bench and fully explain

and amplify his position.

The procedure of the Fifth Circuit Court of Appeal

denies to litigants equality before the law and equal access

to the due process of the law.

This Court has held that oral arguments are essential to

a fair hearing, Londoner v. Denver, 210 U.S. 373, 28 S.Ct.

708, 52 L.Ed. 1103. Petitioners would suggest that oral

argument is essential in this case and request this Court

grant Writs of Certiorari to the United States Circuit Court

of Appeal for the Fifth Circuit.

32

CONCLUSION

The decisions rendered in the instant case are incon-

sistent with the overwhelming weight of evidence presented

at trial. The petitioners have sought judicial redress but it has

been denied to them and it is now to this Court which petiti-

ioners must apply for justice.

Thus, it is submitted that this matter is now meriting

this Court’s attention and one proper for the issuance of a

Writ of Certiorari to the United States Court of Appeals for

the Fifth Circuit.

Respectfully submitted,

JOHN J. CUMMINGS, III

200 Alison House

416 Gravier Street

New Orleans,Louisiana 70130

Attorney for Petitioners

CERTIFICATE

I certify that a copy of the foregoing Petition for Cer-

tiorari and accompanying brief has been served on opposing

counsel of record, John Combe of Jones, Walker, Waechter,

Poitevent, Carrere & Denegre, 28th Floor, Louisiana &

Southern Life Bldg., 225 Baronne Street, New Orleans,

Louisiana, by depositing same in the U. S. Mail, postage pre-

paid, this 29th day of January, 1976.

JOHN J. CUMMINGS, III

33

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

FILED: December 12, 1974

Civil Action No. 74-1272, Section “I”

LOUISE KNIGHT, ET AL

versus

SOUTH CENTRAL BELL TELEPHONE COMPANY

JUDGMENT

Considering the verdict of the jury herein; and,

Considering the Judgment of the Court as to t ve third-

party complaint;

And further considering the direction of the Court as

the entry of judgment; accordingly,

IT IS ORDERED, ADJUDGED AND DECREED that

there be judgment in favor of defendant, South Central Bell

Telephone Company, against plaintiff, Joan Stevens, dismiss-

ing said plaintiff's suit, with costs.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the third-party demand of South Central

Bell Telephone Company against Patricia A. Knight and H.L.

Knight, Jr., be, and the same is hereby, dismissed as moot.

Dated at New Orleans, Louisiana, this 12th day of

December, 1974.

15

34

/s/ Nelson B. Jones

NELSON B. JONES, Clerk

APPROVED AS TO FORM:

/s/ Jack M. Gordon

UNITED STATES DISTRICT JUDGE

E *

John J. Cummings, III, Esq.

John C. Combe, Jr., Esq.

35

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

75-1631

(Summary Calendar*)

LOUISE KNIGHT, PATRICIA KNIGHT, wife of

HARRISON KNIGHT, JR.

Plaintiffs-Appellants,

versus

SOUTH CENTRAL BELL TELEPHONE COMPANY,

Defendant-Third Party

Plaintiff Appellee-

Appellant,

versus

HARRISON L. KNIGHT,JR., and PATRICIA KNIGHT,

Third Party Defendants

Appellees,

*e KEKE * *

JOAN STEVENS,

Plaintiff-Appellant,

versus

SOUTH CENTRAL BELL TELEPHONE COMPANY,

Defendant-Appellee.

Appeals from the United States District Court for the

Eastern District of Louisiana

(August 19, 1975)

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

Rule 18, 5 Cx. , Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et als., 5 Cir., 1970, 431 F.2d 409,

Part 1.

36

PER CURIAM:

The three appellants in this diversity action sought re-

covery for personal injuries allegedly sustained when the

automobile in which they were traveling was struck in the

rear by a truck driven by an agent of defendant. The jury

returned a verdict in favor of one of the appellants, a guest

passenger. Concluding, however, that there existed no causal

relationship between the accident and the injuries allegedly

sustained by the second guest passenger, the jury declined to

award her damages. The third appellant, the driver of the

automobile, was also denied recovery, the jury having found

her contributorily negligent.

Appellants here urge that the award of damages to only

one of the two guest passengers is inconsistent, and that

there was insufficient evidence to sustain the jury finding of

contributory n gence on the driver's part. After a careful

review of the record, we cannot conclude that the jury find-

ings are unsupported by competent evidence.

In light of the jury finding that the agent of the defen-

dant was negligent, appellants further contention that the

trial court erred in excluding testimony relative to the

driver's attempts to have a traffic citation “‘fixed”’ is without

merit.

For these reasons the judgment of the trial court is

AFFIRMED.

37

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 75-1631

LOUISE KNIGHT, PATRICIA KNIGHT, wife of

HARRISON L. KNIGHT, IR.,

Plaintiffs-Appellants,

versus

SOUTH CENTRAL BELL TELEPHONE COMPANY,

Defendant-Third Party Plain -

tiff-Appellee-Appellant,

versus

HARRISON L. KNIGHT, JR., and PATRICIA KNIGHT,

Third Party Defendants

Appellees.

kk KK KK *

JOAN STEVENS,

plaintiff-Appellant.

versus

SOUTH CENTRAL BELL TELEPHONE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING

(September 24, 1975)

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

the above entitled and numbered cause be and the same is

hereby DENIED.