Record and brief — Clark v. Payne

UOIN8d

81-5 74

ALLAANBE!

Office Supreme Court, U.S,

I LED

SEP 16 1981

RL. STEVAS,

K

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

FRED G. CLARK, Father of

Michael Ray Clark, Deceased

Petitioners

versus

SHIRLEY D. PAYNE,

Respondent

Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MICHAEL R. EUBANKS

Eubanks, Temple & Hudson

P.O. Box 696

Purvis, Mississippi 39475

Telephone 601-794-8003

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

1. Was the Petitioner denied his fundamental rights of due

process of law as guaranteed by the Fifth Amendment in that

the jury in the District Court below was erroneously instructed

as to the applicable law in Mississinpi under the doctrine

adhered to by Erie Railroad Co. v. Tompkins 304 U. S. 64

(1938), concerning the legal reasonable standard of duty ofa

driver executing a turn across an oncoming lane of a public

throughfare into a private driveway?

2. Was the Petitioner denied his fundamental rights of due

process of law as guaranteed by the Fifth Amendment because

of the adverse and biased affect of opposing counsel, Harry R.

Allen's name being proffered for the position of United States

Circuit Judge for the Fifth Circuit which fact was known in the

inner judicial circles of the Fifth Circuit, but unknown to the

Petitioner or his counsel at the time of hearing and judgment of

the Fifth Circuit Court of Appeals?

TABLE OF CONTENTS

Page

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Appendix

A - Opinion of the Court of Appeals---------+---++-+++ 13

B - Order of Court of Appeals Denying Petition for

Rehearing, dated June 18, 1981 -.--.----...020000 «++ 14

C - Order of the District Court Denying a New hen

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D - we aph excerpted from record, 16

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E - Jury Instruction P-24 ...............cccsorseseorsrseeses 17

AUTHORITIES CITED

Cases Cited

Boothe v. Holmes, 339 F2d.

GO GPUs CUE ws cccccceccsccces

Cobb v. Williams, 90 So. 2d

17, 228 Miss 807 (1956).............

Erie Railroad Co. v. Tompkins,

SOO WB. GO CIFIED . cc cccccccccccss

Harris v. McCuiston, 64 So. 2d

602, 217 Miss 601 (1953)............

United States Constitution Cited:

PD ccceccsccncescdee

Statutes Cited:

2B USC. BIZS4O(1) . 2. ccc ccccvcees

S$ 63-3-707 Mississippi

Code Annotated (1972).............

§ 11-7-15 Mississippi

Code Annotated Ph572) od ataea eee eka

Rules Cited:

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Gases . 3,8

IN THE

SUPREME COURT OF THE UNTIED STATES

OCTOBER TERM, 1981

No.

FRED G. CLARK, Father of

Michael Ray Clark, Deceased

Petitioner

versus

SHIRLEY D. PAYNE,

Respondent

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

Petitioner prays that a writ of certiorari issue to review

the judgment herein of the United States Court of Appeals for

the Fifth Circuit entered in the above entitled case on May 21,

1981, rehearing denied on June 18, 1981.

OPINIONS BELOW

The opinion of the Court of Appeals affirming a judgment

for the Defendant, Shirley D. Payne and denying Petition for

Rehearing were not reported, but for the convenience of this

Court are reproduced in appendices A and B respectively of this

2

Petition. The order issued by the District Court for the

Southern District of Mississippi denying a new trial was not re-

ported, but is set forth in Appendix C of this Petition.

JURISDICTION

The judgment of the United States Court of Appeals for

the Fifth Circuit was entered in May 21, 1981, petition for

rehearing denied on June 18, 1981, and copies thereof are

appended to this petition in appendices A and B. The Juris-

diction of this Court is invoked under 28 U.S.C. Sec-

tion 1254 (1).

QUESTIONS PRESENTED

1. Was the Petitioner denied his fundamental rights of due

process of law as guaranteed by the Fifth Amendment in that

the jury in the District Court below was erroneously instructed

as to the applicable law in Mississippi under the doctrine

adhered to by Erie Railroad Co. v. Tompkins 304 U. S. 64

(1938), concerning the legal reasonable standard of duty ofa

driver executing a turn across an oncoming lane of a public

throughfare into a private driveway?

2. Was the Petitioner denied his fundamental rights of due

process of law as guaranteed by the Fifth Amendment because

of the adverse and biased affect of opposing counsel, Harry R.

Allen’s name being proffered for the position of United States

Circuit Judge for the Fifth Circuit which fact was known in the

inner judicial circles of the Fifth Circuit, but unknown to the

Petitioner or his counsel at the time of hearing and judgment of

the Fifth Circuit Court of Appeals?

3

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT V

No person shall be . . . deprived of life, liberty or property,

without due process of law. . .

STATUTES INVOLVED

Pertinent Mississippi statutory provisions are:

1. Section 63-3-707, Mississippi Code Annotated (1972):

No person shall turn a vehicle from a direct course upon a

highway unless and until such movement can be made with rea-

sonable safety and then only after giving a clearly audible signal

by sounding the horn if any pedestrian may be affected by such

movement or after giving an appropriate signal in the manner

provided in this article in the event any other vehicle may be

affected by such movement.

A signal of intention to turn right or left shall be given

continuously for a reasonable distance before turning.

No person shall stop or suddenly decrease the speed of a

vehicle without first giving an appropriate signal in the manner

provided in this article to the driver of any vehicle immediately

to the rear when there is opportunity to give such signal.

2. Section 11-7-15, Mississippi Code Annotated (1972):

In all actions hereafter breught for personal injuries, or

4

where such injuries have resulted in death, or for injury to pro-

perty, the fact that the person injured, or the owner of the pro-

perty may have been guilty of contributory negligence shall not

bar a recovery, but damages shall be diminished by the jury in

proportion to the amount of negligence attributable to the

person injured, or the owner of the property, or the person

having control over the property.

STATEMENT OF THE CASE

This suit was originally brought in the Southern District

Court of Mississippi with jurisdiction based upon the diversity

of citizenship of the litigants. The action was for the wrongful

death of the Petitioner’s nineteen year old son, Michael Ray

Clark. On May 23, 1978, Michael Ray Clark was returning to

his home in Slidell, Louisiana from his work in Pearl River

County, Mississippi. He was traveling on a major county road

on a motorcycle, proceeding in a Southerly direction. The

Defendant, Shirley D. Payne, who was driving an Oldsmobile

Station Wagon, attempted to execute a left turn on a road to

enter the driveway of her home. As the turn was attempted,

Mrs. Payne cut across the oncoming lane of traffic in which the

Petitioner’s son was traveling. He swerved to the outside

shoulder of the road, but nevertheless was struck by the station

wagon driven by the Defendant, and died some few moments

later on the scene.

The road upon which the two motorists traveled was a

paved, double-center lined, eighteen foot wide road. Before be

ginning to attempt her turn, Mrs. Payne had an unobstructed

view of all oncoming traffic traveling in the opposite lane for

at least 410 feet.

5

The impact occurred on the outside shoulder of the lane

of travel at a point where the Defendant's station wagon had

not reached her driveway. At the time of the impact the De-

fendant’s left front tire was located on the shoulder edge of

the pavement just before her driveway and the right reartire

was on the double centerline of the road at approximately a

forty-five degree angle. The Defendant was cutting the corner

of her driveway causing her to be in the oncoming lane for a

prolonged period of time and also crossing into the oncoming

lane at a point where the oncoming traffic could not see her re-

lation to the double line on her side of the small knoli in the

road. (See Appendix D). It was undisputed that Michael Ray

Clark died as a result of the collision with the station wagon.

The disputed issue presented for the jury at the District Court

below was the question of proximate casuation of the collision.

The Petitioner chargedthat the proximate cause or contributing

cause of the collision was the Defendant, Shirley D. Payne's

negligent operation of her vehicle. The Defendant's manner of

executing the turn was improper and totally inconsistent with

the applicable laws of Mississippi. She failed to position her car

properly before attempting the turn. This fact was apparent as

depicted in the enlarged photos taken shortly after the accident

by a state-patrol officer which photographs were displayed at

the trial. (See Appendix D). By failing to properly position

the automobile, failing to keep a proper lookout for oncoming

traffic before executing the turn, and by failure to use diligence

in clearing the oncoming lane of traffic, the Defendant was neg-

ligent. The Defendant’s station wagon cut the corner of her

driveway and placed those in the oncoming lane in a position of

unreasonalbe danger and thus violated her due care.

In her testimony given before the District Court, the Defen-

6

dant, Mrs. Payne, admitted that she was not keeping a proper

lookout for oncoming vehicles in the Southerly lane as she was

attempting the turn into her drivev. Mrs. Payne’s testimony

indicated that her attentions were diverted to members of her

family which were standing in the yard surrounding her home

and to a horse located in a field behind the home. Her testi-

mony, as well as the photographs displayed at the trial, indi-

cated that she had not properly positioned her car for the turn.

Having positioned herself in the oncoming lane in such a manner

she was not observing “reasonable safety,” as required by

S 63-3-707 Mississippi Code Annotated (1972).

Testimony was presented on behalf of the Defendant, Mrs.

Payne, attempting to indicate that the decedent was speeding.

The Defendant also attempted to present circumstances, to im-

ply speed, such as how fast the motorcycle could possibly

travel as measured by the spccdometer, the damages sustained

by the station wagon and the position of the Petitioner's son

just before the crash. However, no one saw the bike before

impact and there was no objective witness who could testify

as to the speed of the bike.

A jury-trial ended with a verdict for the Defendant, Shirley

D. Payne. The District Judge in the Southern District of Miss-

issippi refused to grant a requested jury instruction on the

applicable Mississipp' law and the resulting jur; instructions

clearly biased the law in the Defendant’s favor. A proper mo-

tion for a new trial was denied and because the Petitioner and

his family felt that the Judge had not properly instructed the

jury under the applicable Mississippi Law and that a properly

instructed jury, basing its verdict on the applicable law and evi-

dence would not have found for the Defendant, an appeal was

7

taken to the Court of Appeals.

The jury instruction appearing in Appendix E, infra, ten-

dered by the Petitioner, set forth the existing legal standard of

ordinary care of a driver turning across an oncoming lane of a

public throughfare. The standard is derived from pertinent

Mississippi case law which would apply equally to the Federal

Court systems under the Erie doctrine. The District Court

Judge refused to properly instruct the jury, allowing only a

general instruction of the ordinary standard of care without

reference to the legal standard of ordinary care of one executing

a turn across an oncoming lane of traffic.

On Appeal the Fifth Circuit summarily affirmed the de-

cision below and refused Petitioner’s motion for rehearing. On

May 21, 1981, at the time the case was heard and a decision was

rendered by the Fifth Circuit Panel, the name of opposing coun-

sel, Harry R. Allen, had been offered for the position of United

States Circuit Judge for the Fifth Circuit. This fact was known

by Mr. Allen and the Circuit Court community at the time of

the oral arguments and consideration of this case. The argu-

ments were heard on May 21, 1981, said case appearing last

upon the docket. On that same day the Court entered an order

affirming the District Court’s decision pursuant to the Fifth

Circuit’s Local Rule 21. On June 18, 1981, the same panel of

Judges denied Petitioner's Petition for rehearing. The nomina-

tion however was unknown to Petitioner or his counsel at the

time of the original hearing before the Fifth Circuit or at the

time of petitioning for rehearing.

The proffering of counsel to sit on the same bench before

which he is arguing obviously placed the opposing counsel at a

decided disadvantage. For everyone but :.¢ opposing counsel

to know this fact further hamstrung the ability of opposing

counsel to adequately protect the right of his client. The

Court's disposing of Petitioner’s argument in an immediate sum-

mary order revealed evidence that judicious censideration was

not given in this case.

REASON FOR GRANTING THE WRIT

Certiorari should be granted to review the holding of the

Court below so that the Petitioner may receive those rights and

benefits of due process guaranteed to all who bring their

grievances before the judicial system of the Federal Courts.

The Petitioner was denied that right of due process when the

District Judge refused to instruct the jury properly. The Fifth

Circuit’s affirmance of the District Court’s refusal departs from

and is in conflict with the law as it exists in the state court of

last resort in Mississippi. The Petitioner was again denied that

right of due process when the decision of the Court of Appeals

was rendered under circumstances which +ffected their ob-

jective consideration of the Petitioner’s claim. The claim on its

merits was not considered at a fair hearing at the trial or on

appeal, thereby violating Petitioner's Fifth Amendments rights.

In refusing Petitioner’s jury instruction number P-24

(Appendix E) or some variation thereof, the jury of the District

Court below was erroneously instructed as to the applicable

Mississippi law, and thus the Petitioner was deprived of the due

process rights guaranteed by the Fifth Amendment. Under the

Erie Doctrine, the Petitioner, though appearing in the Federal

9

Court system, was legally entitled to the same rights ana bene-

fits of the substantive law of Mississippi's Court system. Erie v.

Tompkins 304 U. S. 64 (1938).

In Mississippi, in addition to the statutory command of

Mississippi Code Annotated Section 63-3-707 (1972), a number

of cases have been decided which have established the legal

standard of care or duty to which a motorist is held to when

executing a turn across oncoming traffic. The standard, though

a reasonable ordinary one, has evolved for the particular circum-

stances which are faced by a motorist, such as the Defendant in

this case, who is turning across a lane which is utilized by on-

coming traffic. The reasonable ordinary duty under this set of

circumstances has been determined by the Mississippi Supreme

Court to require that the turning party must first and foremost

position his vehicle properly before turning and then that the

turning party must keep a lookout ahead at all times and wait

for a clear opportunity for any oncoming vehicle to pass. In

addition, the Court has stated that the oncoming vehicle has

the right to assume that the turning party will comply with

these duties. Harris v. McCuiston 64 So. 2d 602, 217 Miss 601

(1953); Cobb v. Williams 90 So. 2d 17, 228 Miss 807 (1956).

In order to fully understand the standard of care that the

Defendant should have observed, it was necessary that the jury

be properly instructed so that they could properly determine

the issue of proximate or contributory causation of the collision.

Without being properly instructed on the standard of care for

both the Petitioner and the Defendant, it was impossible for

the jury to apply the law of comparative negligence which

Mississippi follows. See: Section 11-7-15, Mississippi Code

Annotated, (1972). Instead the instructions, taken as a whole

10

were erroneous and as such did not require of the Defendant to

exercise due care in negotiating her left turn. In failing to state

the proper standard the instructions placed the emphasis pri-

marily upon the duty of the Petitioner's son to observe due care,

while not not requiring a reasonable standard of safety by the

Detendant. Thus, the verdict of the jury was based upon crron-

cous standards without due regards to the law of comparative

negligence.

The Petitioner was entitled to instructions which properly

and fully stated the applicable state law. The law that is

followed by the Federal Courts, as the Fifth Circuit has ia the

past recognized, is as follows, ‘‘where a state-created right is to

be enforced; the state must be looked to for the substance of

the instructions . . . if [a] requested instruction in accord with

party’s contention is consistent with the evidence in the case,

it must be grauteJ unless the subject matter has been adequatcly

covered in the charge . . .” Boothe v. Holmes 399 ¥ 2d. 495,

500 (Sth Cir. 1968), (emphasis added).

As previously stated, the Mississippi legislature has effected

law that requires the motorist to proceed with a turn of a

vehicle only when, ‘such movement can be made with reason-

able safety . . .” $ 63-3-707 Mississippi Code Annotated (1972).

This is required in addition o an appropriate signal. The Missis-

sippi courts, as also previously stated, have augmented the

statute with case law and there has evolved a standard of “rea-

sonable safety” with regards to turns made across the lanes of

oncoming traffic. See: Harris »y McCuiston 64 So. 2d 602,

217 Miss 601 (1953); Cobb 1. Williams 90 So. 2d 17, 229 Miss

807 (1956). The jury, not being tully aware of this standard,

could not fairly determine the issue of proximate causation.

11

N being properly directed in its deliberations, the jury was

rr 4ed so that they did not have a proper understanding of the

' sues and their duties. They could not rightly determine that

.c Defendant was exercising reasonable safety so as to totally

«ee her from liablitiy for an act which placed her, as well as the

Petitioner’s deceased son in peril. Without the instruction no

charge was presented to show that the Defendant had a duty to

continue to look ur the oncoming lane and to exercise great

care when she put another in a needless position of peril,

especially where, if we follow her defense, she claimed that

her view was limited by the curve and knoll at her driveway

which made observation difficult. The most important duties

of the Defendant were never known by the jury. Further, the

tenor of the charge as a whole was to place the burden of avoid-

ing the collision on the shoulders of the decedent, regardless

of the Defendant’s self-confessed failure to keep a proper look-

out. Had the jury been properly instructed on the duties of

the Defendant with respect to her failure to properly position

her car, to continue to look for vehicles in the oncoming lane

and of the oncoming traffic’s right to assume the turning car

would comply with these duties it would have had to agree that

the Defendant was negligent and that her negligence was at

least a contributory cause of the death of Michael Ray Clark.

As previously stated, in the past the Fifth Circuit in auto-

mobile accident cases has held that the instructions given to a

jury deliberating in a federal court must properly and fully in-

clude state law applicable to a case. Furthermore, the court

has held that refusal of specified requests for such instructions

is reversible error requiring a new trial. Boothe v. Holmes 399 F

i2

2d 495, 500 (Sth Cir. 1968). Yet in 1981 this law is not

adhered to as precedent for the Fifth Circuit when they stand

in judgment of one of their potential peers. This, the Petitioner

believes, results in a denial of the due process which has been

guaranteed to each and every citizen who enters the Federal

judicial system. Even if the bias resulted as an unconscious

affect, it nonetheless acts as a deterent to citizens to use the

Federal court system and taints those decisions which have been

rendered in the past.

CONCLUSION

For the reasons aforesaid, it is respectfully prayed that a

writ of Certiorari be granted to review the judgment of the

United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

Mel ©, Efe

Michael R. Eubanks

Michael R. Eubanks, Attorney

Eubanks, Temple & Hudson

P. O. Box 696

Purvis, Mississippi 39475

13

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT A

NO. 80-3634

FRED G. CLARK, Father of

Michael Ray Clark, Deceased,

Plaintiff-Appellant,

versus

SHIRLEY D. PAYNE,

Defendant-Appellee.

oo

Appeal from the United States District Court

for the Southern District of

Mississippi

( May 21, 1981 )

Before CHARLES CLARK, TATE and WILLIAMS,

Circuit Judges, 1

/

PER CURIAM: AFFIRMED. See Local Rule 21.

“/ See N.L.R.B. v. Amalgamated Clothing Workers

of America, 1970, 430 F.2d 966.

14

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Unit A

NO. 80-3634

FRED G. CLARK, Father of

Michael Ray Clark, Deceased,

Plaintiff-Appellant,

versus

SHIRLEY D. PAYNE,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of

Mississippi

ON PETITION FOR REHEARING

( June 18, 1981 )

Before CHARLES CLARK, TATE and WILLIAMS, Circui

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearin

filed in the above entitled and numbered cause

be and the same is hereby denied.

s/ J. S. Williams

UNITED STATES

DISTRICT JUDGE

15

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

FRED G. CLARK, Father of )

MICHAEL RAY CLARK, DECEASED )

PLAINTIFF)

YCIVIL ACTION

SHIRLEY D. PAYNE ‘a H79-0046 (R)

)

DEFENDANT _—+—dD

ORDER OVERRULING MOTION FOR NEW TRIAL

Came on this day the parties in the above

styled and numbered cause on the motion of

the Plaintiff for a new trial, and the Court

having heard and considered argument of

counsel, brief and being duly advised in the

premises, finds that the Plaintiff's Motion

for New Trial is not well taken and should

therefore be overruled; it is therefore,

ORDERED AND ADJUDGED that Plaintiff's Motion

for New Trial is hereby overruled.

ORDERED AND ADJUDGED this the 9th

day of July, 1980.

s/ Dan M. Russell, Jr.

UNITED STATES

DISTRICT JUDGE

(1 XIONAdd‘S

Oy]

17

APPENDIX E

FRED G. CLARK, FATHER OF )

MICHAEL RAY CLARK, DECEASED )

PLAINTIFF ) CIVIL ACTION

)

) NO. H79-0046 (R)

SHIRLEY D. PAYNE )

DEFENDANT

JURY INSTRUCTION NO. P-24

You are instructed that Shirley Payne

in driving her vehicle on a public road,

intending to turn left across the oncoming

lane into her driveway, must exercise

care that she does not turn into the path

of a vehicle coming toward her and she must

take a proper position and must signal her

intentions in the manner required by law

and unless Mrs. Payne had sufficient time

in which to turn to the left across the

lane of oncoming traffic, she must wait for

a clear opportunity and then proceed safely

and that the oncoming traffic had the right

to assume that Mrs. Payne would so and

this right to so assume continued until

they knew or, in the exercise of ordinary

care, should have known otherwise.

If you find from the preponderance of

the evidence that Mrs. Payne failed

to meet this standard of care for

Michael Ray Clark under the facts and

circumstances in this case, which

failure, if any, was the proximate

cause or proximate contributing cause

of the accident, then you are to find

for the Plaintiff, Fred Clark, as father

and as the representative of the Clark

family.

CERTIFICATE

I hereby certify that | have this day served three true and

correct copies of the above and foregoing Petition for Writ of

Certiorari upon Harry R. Allen, Esquire, Post Office Box 1601,

Hatticsburg, Mississippi 39401, attorney of record for the

Respondents, by placing the same in an envelope addressed to

him at said address and placing the same in United Statesmail,

postage prepaid. | further certify that all parties required to

be served have been served.

>.

Dated this . day of September, A.D., 1981.

Wht @ Ede

Counsel for Petitioner