Brief of Respondent in Opposition to Petition for Certiorari — Bryan v. Nevada

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Office Supreme Court, U.S.

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SUPRE«: ‘E COURT. va let iec tt

high ramets ; SUN 14 196.

. INTHE

SUPREME E COURT OF THE UNITED

OCTOBER TERM—-1964 —

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MASSACHUSETTS BONDING & INSURANCE

; CORP AMY,

y _" Petitioner,

& | | sees . .

MRS. MARIA .

CONSUELO GARCIA DODART DE-

BRAM, Individually and for and on Behalf of Her Minor

Daughter, Maria Andrea’ Dodart,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO GRANT:

ING CERTIORARI TO THE UNITED STATES CIRCUIT

. COURT OF APPEALS FOR THE FIFTH CIRCUIT

| RAYMOND H. KIERR,

chaass National Bank of Commerce Bldg.,

eee New Orleans 12, Louisiana,

et ; . Attorney for Respondents.

Of Counsel: “aa | 7

FRED S. BOWES, __. :

700 Second Street,

Gretna,. Louisiana, and

. NICHOLAS MASTERS,

509 Cigali Bldg., ae

New Orleans 12, Louisiana

Montgomery & 4 :

‘The Brief Specialists’, 430 Chartres St., N. O

| |

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U

HN F. DAVIS, CLERK.

. f.. INDEX.

ie oes Page

INTRODUCTION © rik i ca

REASONS FOR DENY ING CERTIORARI a

concLusion’®. .-.° *. Bre ee

CERTIFICATE of , 8.

CITATIONS.

Kedstiogee v. Associated. Transport, Inc., 282 F. ;

(2d) 179 (2d Cir.) ~ 6

béwiie & Bowler v. Western ‘Well Works, Inc., 261.

U. S. 387, 393, 43 S. Ct. 422, 423, 67 L. Ed. 712 3

Lavender v. Kurn, et al., 66 S. Ct: 740, 327 U. S. 645, a

90 L. Ed. 916. ; 5

National Labor Relations Board v. Puteheeng S. S.

Co., 340 U. S. 498, 71 S. Ct. 4538, 456, 95 L.

Ed. 479 vs | 6

Rice v. Sioux City Memorial Park Cemetery, 75 S. Ct.

614, 619, 620, 349 U.S. 70,90.L. Ed. 897 = =§_

‘Rule Lgarng ase Court Rules, 28 U. S. C. A.

| (Pocket Part) : a

to

“IN THE

SUPREME iat OF THE:UNITED STATES _

OCTOBER TERM—1961

No. 982

MASSACHUSETTS: BONDING & INSURANCE "

COMPANY, }

Postitenee |

_ versus

MRS. MARIA .CONSUELO GARCIA DODART DE-

BRAM, Individually and for and on Behalf of ger Minor

Daughter, Maria Andrea Dodart,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO GRANT-

ING CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS. FOR THE FIFTH CIRCUIT.

‘May. It Please the Court:

INTRODUCTION.

preeee - Defendant-appellant, idiciniteasitite Bonding & In-

surance Company, has petitioned this Court to grant cer-

tiorari to review the judgment of the Fifth Circuit Court

of Appeals, which affirms the judgment of the District

2

Court for the Eastern District of Louisiana, entered after

a jury verdict awarding damages to passengers in the car

which was involved in an accident with a car, the opera-

tion of which was insured by petitioner.

aor = The matters which petitioner seeks ‘to have re-

viewed are the same as those. urged in and rejected: by

the district Court and the Court of Appeals. There is

no complaint that the proper state law was not applied by

‘these courts. Essentially, petitioner’s contentions resolve

themselves to the one point, that the evidence was insuf-

ficient to sustain the verdict. |

"REASONS FOR DENYING CERTIORARI.

ae L pe

Petitioner Has Failed: to Show a Valid Basis for

_ Granting Certiorari Under Rule 19, Supreme Court

Rules, 28 U. S. C. A, as Applied by This Court.

This is simply a suit for damages which resulted

. in a favorable verdict for the: plaintiffs. The sufficiency

of plaintiffs’ showing of negligence on the part of the

driver of the car insyred by defendant was questioned

durittg the trial by motionmsfor a directed verdict, which

was denied. A motion for judgment notw ithstanding the

verdict and alternatively for a new trial based on the

same contention was refused. The same plea was re-..

_+ jected by the Court of Appeals (Fifth Cireuit) in a per -

curiam decision, which applies two well-established legal .

principles. These are: that it is notthe province of the

~

3

appellate court to détermine whether the jury could have

drawn different inferences or ‘conclusions from the evi-

dence presented or to decide what a court without a jury

might have found; and, that an appellate court must con-

strue the _evidence most favorable to’ the ‘appellees and

give full effect’ to, every legitimate inference therefrom

~ and every reasonable conclusion based ee

The policy of this Court in its consideration of

applications for writs of certiorari, under Rule 19 of the

present rules of the Supreme Court, and under former.

- Rule 38, par. 5 (38 U. 8.-C. A.-67, 68), has been well

expressed by Chief Justice Taft, speaking for a unani-

. mous court, in La & Bowler v. Western Well Works,

“ Ine., 261 U. S. 387, 393, 43 S. Ct. 422, 423, 67 L. Ed. 712

. (quoted with approval in Rice ‘v. Sioux City Memorial

Park Cemetery, 75 S. Ct.. 614, 619, 620, 349 U. S. 70, 90

L. Ed. 897 Ve

“* © * the answer is that it is very important

that we be consistent in not granting the writ

of certiorari except in cases involving principles

_ the settlement of which is of importance to the’

lie, as ‘distinguished from that of the et ok

‘in cases where there is a real and embarrassing

conflict of opinion and authority between the Cir-

G cuit Courts of Appeals.”

. Here there is no public question involved; no enunciation

of legal principles which may have far-reaching effects

in. present and future litigation. This is a case of impor-

tance only to the parties involved, in that the plaintiffs

by virtue of the results are compensated by petitioner

for injuries —

Il.

There Was. Ample Evidence Sufficjent to Show

Negligence on the Part of the Driver of the Vehicle

The record shows: that Williams, the driver of the

‘insured car, was.on an urgent mission for- his employer

(R. p. 131); that this car was more than’ 500 feet from |

the BeBram car (the one in which plaintiffs were pas-

sengers) when he could have seen this car with its front

in the traffic lane next to the neutral ground of a four- _

lane highway /R. pp. 182-183); that. he had warning: of

ah unusual situation by the blinking lights of the DeBram

car (R. pp. 224-229) ; that he continued on in this lane of

traffic next to the neutral ground (R. pp. 176-179); that

although there was ample opportunity, he failed to take

available steps to-avoid the accident (R. p. 135); and that

he steadfastly refused. to pin himself down to a fixed

a

* point as to when he saw.or could have seen the DeBram

car (R. pp. 147, 148, 150). There was testimony of dis-

interested witnesses, physical facts, maps and photo- .

graphs supporting the DeBram version of -the accident,

which the jury chose-to accept: .The testimony of the wit-

nesses for plaintiff and defendant was in conflict. Fur

thermore, Williams’ lack of credibility was clearly demon-

trated by his evasive testimony and by the fact that his ©

version of how. the accident happened as given in a writ-

: ten statement on the day after the accident did not coin-

cide with his testimony A deposition and on the trial.

The Court of Appeais, after a careful consideration

of all of the evidence as contained in the record, con-

cluded that there was sufficient evidence ‘of Williams’

negligence to warrant a submission of the case to the jury. .

ig

5 . am

This Court in Lavevder v. Kurn, et al., 66 S. Ct.

740, 327 U. S. 645, 90 L. Ed. 916, dealing with the prob-

lem of “sufficiency of evidence,” outlines the function of

an appellate court where there is conflicting probative-

evidence which can er. a finding either way. The

Court said: - ps eas

“* * * But such evidence has becomé irrelevant

upon appeal, there being a reasonable basis in the |”

record for inferring that the hook struck Haney.

The jury having made that inference, the respond-

ents were not free to relitigate the. factual dispute

- in a reviewing court. Under these circumstances

it would be an undue ifvasion of the jury’s his-

toric function for an pellate court to-weigh the

conflicting evide , judge the credibility of wit-

nesses and arrive m4 a conclusion opposite from the

one reached by the jury. (citations) * ° ¢,

“lt is no answer to say that the jury’s verdict in-

volved speculation and conjecture. Whenever facts ; .

ag in dispute or the evidence is-such that fair-

minded men may draw different inferences, a _

measure of speculation and conjecture is required

om the part of those whose duty it is to settle the

' dispute by choosing what seems to them to be the

most reasonable inference. Only when there is a

complete absence of probative facts to support the

conclusion reached does a reversible error appear.

But where, as here, there is an evidentiary basis

for the jury’s verdict, the jury is free to discard .

or disbelieve whatever facts are inconsistent with

its conclusion. And the appellate court’s function th

' is exhaysted when that evidentiary basis becomes. _

- 6 ;

— cy aye . os e

- apparent, it being immaterial that ie court. might

draw a contrary inference or feel that another’ con-

clusion i is more ressonahie. * eens “ete Oe

Under what clearly seems to be the firmly estab- *

lished policy of this ¢ Court, no reasonablé basis has. been

pointed out by petitioner to warrant a review of the find-.

ings -of* the Court of) Appeals. Prior decisions appear to

‘ support the rule |that this Court will not review the find-

ings of that court in matters involving weight or suffi-

ciency of the evidence. In National Labor Relations -

Board v. Pittsburgh S. S. Co., 340 U. S. 498, 71 S. Ct.

453, 456, 95 L. Ed. 479, it is expressed as follows:

. “This is not the place to review a conflict of evi-

‘dence nor to reverse a Court of Appeals because

- were we in its place we would find the record tilt-

ing one way rather than’ the other, though fair-

minded judges could ‘find it tilting either way. It |

is not for us to invite review by this Court of de-

_ cisions turning solely on evaluation of testimony

where on a conscientious consideration of the entire

record a Court of Appeals under the new dispen- -

sation finds the Board’s order unsubstantiated. In

such situations wé should ‘adhere to the usual] rule

of non-interference where conclusions of Circuit

Courts of: Appeals depend on appreciation ‘of cir-

cumstances which admit of different interpreta-

tions.’ Federal Trade Comm’n v. American Tobacco

‘Co., 274 U. S. 543, 544, 47 S. Ct. 663, 71 L. Ed.

1198. ° | ee

>”

Feshtcner has quited. ct, ticigth tiem Us ene of

Harshberger v. Associated Transport, Inc., 282 F. (2d).

+

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< nae . ;

179 (2d Cir.). Factually and legally this case has noth-

ing in common with- the present case. Primarily, t

rights of guest passengers were not inyolved as isthe case”

here. Furthermore, it’ appears that in, the Harsh¥erger .

case~plaintiff’s intestate or driver was alone in’ his car

when killed in the accident. Plaintiff was not able to

produce any direct evidence to substantiate his assump-

tions or theory as to how the accident happened, or to con- -

tradict the overwhelming evidence presented by defend- °

ant. including the testimony. of defendant’s driver, who.

lived. That case is not controlling here. |

;, CONCLUSION. :

’ Jt is urged that petitioner has failed to- ‘present to '

this Court a factual or’ legal situation which :calls for

the exercise of its reviewing jurisdiction. It is suggested

that certiorari should not be granted.

All of which is respectfully submitted.

, Respectfully submitted,

‘

RAYMOND H. KIERR,

' National Bank of Commerce Bldg.,

New Orleans 12, Louisiana,

vo Attorney for Respondents.

. Of Counsel: |

FRED S. BOWES, . . +

700 Second Street, .

Gretna, Louisiana, and

NICHOLAS ‘MASTERS, i oP ve

509 Cigali Bldg.. eng

New Orlea... 12, Louisiana. AA

8

ae CERTIFICATE.

The undersigned attorney for respondents certifies

“that a copy of this reply brief has been served on counsel

for petitioner, Messrs. W. Ford.Reese and Henry B. Also-.

brook, Jr., 847 National Bank of Commerce Building,

New Orleans 12, Louisiana, by olacing same in the United ©

States mail, postage pepe, on June _:_.-, 1962.

+ ome wn =~ = eee

| RAYMOND H.KIERR . |