Brief in Opposition to Petition for Writ of Certiorari — Melquist v. Illinois

‘ ; Office-Supreme Court, U.S.

FILED

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APR ]_ 1463

| JOHN F. DAVIS, CLERK

Ix Tue ,

Supreme Court of the United States

Ocrosper Term, 1962 =.

No. \se

Wittiam H. Jerrerson,

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Petitioner,

Vv.

Taryo Kaiun K.K., et AL.,

- € Re spondent,

Os

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BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

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Wituasm C. Harvis

Frank G. Harmon

1600 Esperson Bldg.

Houston 2, Texas

Attorneys for Re spowde wt

Of Counsel:

Baker, Botrs, SHEPHERD & CoaTEs

BORG PRINTING COMPANY OF TEXAS, HOUSTON, TEXAS

INDEX

(Questions Presented

Statement of the IE ich a catia ea ann

Reasons why the Petition should net be granted ooo... nS

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TABLE OF AUTHORIT{ES

Cases

Alaska Steamship Company v. Petterson, 347 ELS. 3960...

A‘lantic & Gulf Stevedores v. Ellerman Lines, 360 US) 355,

Comstock v. Group of Institutional Investores, 335 COS) 211,

BOE sacntnlannnrsadaciaasGauaiccasskoniennamnseinaiawemimbnnssaiee naan henpcoaiiclatighsi

Corn Products Ret. Co. vo CER, 350 TUS. 46. 91. mikes

General.Pictures Co. vo Eleetrie Co. S04 4S. 175, 178.00...

Mahnich v. Southern Steamship Company, 321 U.S. 96........

Maynard v. Durham, & S-R. Co., 365 UlS. 160...

Michalie v. Cleveland Tankers, Ine. 564 US 325000.

NLRB vy. Waterman SS Co. 809 TLS. 206, 20s

Rovers. v. Missouri Pace. fr. bee Ge. | Weer ee

Ryan Stevedore Co., Ine. v. Pan- Atlantic Steamship Corp.,

350 US. 124, 135, ie csnkasraaicivnicns dente iosnaaniteadanaicsadlbssceabsconinanceie

Screws v. United States 3 ) U.S ORs Bers kbaceccciccvinecceaxenkin

United States v. Dickinson, 331 ge | iy +. RRA? On Carer

Virlited States v. Johnston, 268 US, 220, 220. eeeseeeeeneenes

Constitution

waits diene Ne Ne

Miscellaneous

Robertson & Kirkham, Jurisdiction of the Supreme Court of

the United States ( Wolfson & Karli! Ed, 1991) $353

Pacis

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Supreme Court of the United States

Ocroper Trem, 1962 a ere,

No. SO6

oe

Wittum H, Jerrerson, .

5 7 Petition v,

v.

Taiyo Karun KK. er AL,

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. _ Respondent.

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BRIEF IN OPPOSITION TO. PETITION

FOR CERTIORARI ¢

“ QUESTIONS PRESENTED

1. Will the ‘protection of the Seventh Amendment be

denied to tespondent :

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2. Will the Supreme Couct redetermine facts found by

a jury?

o Will the Supreme Court redetermine facets toni by,

a jury and concurred in by the District C ourt and the Court

of Appeals?

. - STATEMENT OF THE CASE

Tie petitioner, a longshoreman by profession, was in

jured on, board re spondent Vessel. After recovering eam

pensation under the federal Longstioremen® and Harbor-

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workers’ ‘Compensation Act, the petitioner instituted’ suit

against the vessel alleging various acts of negligence and

unseaworthiness. However, during the trial the petitioner

expressly waived and abandoned any contention of neg-

ligence and any contention with regard to the vessel's duty

to furnish a safe place to work (Tr. 213, 306-307). The

petitioner also insisted that consideration of the issue of

seaworthiness be" limited to one particular piece of dunhage

board (Tr. 244-: 245, 248)'. .

« The petitioner had elected: trial hy: jury (Tr. 366). The

jury, under a charge fashioned at the instance of the peti-

jouer, (Tr. 248) found that there was no unseaworthiness

(Tr. 345). The District Court entered judgwent for re-

spondent, holding that the issue was properly submitted

to the jury (Tr. 355-357). The Court of Appeals affirmed,

holding that the disputed faets were preperly left to: the

Jury to resgive ¢Petition, page S8a-da). The petitioner

nevertheless seeks a writ of certiorari. ‘

REASONS WHY THE PETITION

‘ SHOULD NOT BE GRANTED

Trial by jury was selected by the petitiqner. The jury,

under a charge by the court unchallenged as to the law (and,

in fact, demanded by th» petitioner) found for the respond-

ent on the only theory o¢ liability presented. ‘

-The District dourt entered judgment for respondent on

the, jury’s verdict.

The Court of Appeals for the Fifth Circuit, after review-

ing the evidence, affirmed the judgment for respondent,

-honoring the jury's verdict as required by the Seveath

Amendment. Specifically, the Court of Appeals relied uy» Ne

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‘The court will note that the petitioner has Ranged his theory

in his petition, He now wants the whole “floor” considered

(Petition, page 2), even thongh he admits that the testimony

with regard to the “floor” was in eonfliet. ( Petition, page 2

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of fact

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Atlantic & Gulf Stevedores vo Ellerman Lines, 369 ULS

Soo, 308-399, whieh held that neither the Supreme Court

“nor the Court of Appeals can redetermine facts found by’

the jury... .” Furthermore, the Court of Appeals had no

difficulty in reconciling the answers to the special interroga-

tories made by the jury.

However, without even citing the Elle ‘rman Lines ease

_or feally discussing the basis of the Court of Appeals deei-

“sion, the petitioner seeks certiorari on the theory that the .

Supreme Court should disregard the jury's verdict’ and

find facts as a matter of law. F on this Vovel proposition

he cites two cases, neither of. which has any application,

In Mahnich v. Southern Steamship Company; 321 US

96, a federal judge; sitting m admiralty, found .as a fact

that a defective rope had been provided to a seaman, but

nevertheless entered judgment for the ship. The basis for

dleeision, approved by the Court-of Appeals, was dictum

in gan early Supreme Court case to the effect that a ship

Was not unseaworthy when some appliances were sea-

worthy, Certiorari was granted. The Court specifically

noted that “a finding of seaworthiness j ig usually a finding

* and not reviewable in the Supreme Court, but,

since the courts below had made a conelusion of law, review

was proper, $2] U.S. at 98, 99, The court went on to

overrule the dictum in the eartier case — which Was recog

nized to be an anomaly. Screws v gl nited State s, 385 U.S.

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91, 112. | are

It is vital to note that in Mahnich the Supreme Court:

did not do what the petitioner claims. The Court cid not

make any de nxovo finding of fact. The judgment of the

courts below was reversed on the basis of the fact found

by the Distriet Judge — that the rope was defective.

Similarly, the alaska Steamship Company v, Petterson,

347 U.S. 396, was a per curiam deeitsion based on an apreal

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in admiralty. The Supreme Court did not make Any find-

ings of fact. All the Court did was to uphold the legal .

standard inyolved below, 2

~ The instant case is clearly not Within the purview of>the

above decisions. First, the trier of tact, four? the dunnage

~ board in question not to be defective. Second, neithér court

below made a conclusion of law, other than the well estab-

lished doctrine that disputed issues of fact are to be

resolved by the jury. Third, the instant case was a trial

by jury on thé civil side of the Federal Court's docket, not

on the admiralty side. :

While the granting ef certiorar® Is, of course, discre-

tionary, past decisions have indicated that the Court ordi-

narily refuses to review evidence and to discuss specific

findings of fact. Eug.. United States ve Johnston, 268 U.S.

» 2270: Gre ue ral Prtures Cove kK leelgic C'o., 304 U.S. 175,

TS: NLP KR v. Witterman SS Co, 309 U.S. 206, 208. A eor-

a ix the “two court’ dgetrine, which militates strongly

24)

against reviewing evidence when findings of facet have been

concurred in hy the two courts below, Kw. . Corn Products

Ret. Co, v, CTR, 850 Uas. 46, 51; Comstock yo Group of

Tustutional Investors, 83835 US, 211, 214; United States v.

Dickinson, B31 US. 745, 751. Robertson & Kirkham, Juris-

diction of the Supreme Court of the United States (Wolfson

aul Kurland Ed, 1951) » 833. In fact, when the Supreme

( ‘court does review evidence, it is in the situation where the

lower court bas taken the case away from the jury for

judicral determination, See, e.g. Maynard ve Durham, &

S.R. Co... 865 ULS. 160; Michalic v. Clareland Tankers, Ine.

364 US. 325: Roaers ve Missouri Pac. R.Co., 352 > (SS. 500,

The effect of the Court's opinions in those cases was to

Virliente — not to derowate from — the Jury's verdict.

Vetitioner’s case presents the exact opposite situation.

All he wants is an appellate fact finding, inconsistent with

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the jury's, that this particular piece of lumber was un-

seaworthy? To achieve that result, petitoner would have

this Court undermine’ the many decisigns, cited above, re-

qaired to uphold the integrity of the jury's verdict against

Judges’ efforts tagsubstitute their view of the Way the jury

should have found the facts. Even the portions of the record

-eseleeted by the petitioner for comment denionstrate a con-

flict in the testimony which could only be resolved hy -the

jury.’ . '

Thus, even if the Supreme Court should decide to review

the evidence in this specific ease and to review the findings

of fact concurred in by a jury, a district judge, and three:

‘appellate judges, the Court would be bound by the Seventh

Amendment to uphold the findings of the jury. As stated

in Atlantic and Gulf Steredores v. Elle rina Lines, supra,

. Whene there is a view of the case that makes the

jury’s answers to speefal interrogatories consistent,

they must be resolved that way. For a search of ong

possible view of the case which will make the jury's

findings inconsiffent results in a collision with the

Seventh Amendfuent.” 369 UUs. at S64.

Petitioner's appeal to the appellate courts to save bin

from an adverse verdiet after trial by jury Gi risk so care.

fully explained to the longshoreman by Mr. Justice Black,

to

Apparently the petitioner considers the jury's verdict as being

conclusive on whether the board ac ‘tually broke. Tlowever, if the

evidence is th be reviewed Sn the jury's verdict that the board

Was seaworthy, it is only fair that thesevidenee be reviewed on

the issues answered favorably to the petitioner

Respondent will not burden the Court with a icamthe disetission

of the evidence or with speculation as.to which theory persuaded

the jury. At this stage.he fact-that the evidence Satistied the

jury, the trial judge, ard the appellate court should) be eon:

elusive. But, for-example.*the jury may have believed that no

dunnage board was éver, intended to support the weight of a

man and a bale of cotton and that petitioner should have done

his “entting” on a barrelhead (See Petition, p. 4

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joined by the Chief Justice and Justices Douglas and Clark

in Ryan Stevedore Co., Inc. y. Pan-At'antic Steamship

Corp. 350 U.S. 124, 135, HO) should be futile. The protec-

tion incident to the institution of trial by jury, as guaran-

tecd by the Seventh Amendment, is afforded equally to the

parties in a law suit, plaintiff or defendant. The respondent

has’ been vindicated by a jury whose verdict has been sus-

tained by a District Court and a Court of Appeals. The

matter should now be at an end. 3

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CONCLUSION

For the foregoing reasons this petition for a writ of

certiorari should net be granted,

Respectfully submitted

eee eee PU SCC E ECO E COST CCC OCCC OCT Cee eee ee ee Tere ee eee

Frank’ G. Harmon

53 CERTIFICATE OF SERVICE

This is to certify that on the ........ day of Mareh, 1965,

a true and cerreet copy of this Brief in Opposition was

served on Messrs. Mandell & Wright, 707 South Coast

Building, Houston 2. Toxas, by placing same in the United

States mails, properly addressed, postage prepaid, cert!-

fied mail: .