# Brief in Opposition to Petition for Writ of Certiorari — Melquist v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0856%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 372 U.S. 967 ## Text ‘ ; Office-Supreme Court, U.S. FILED . APR ]_ 1463 | JOHN F. DAVIS, CLERK Ix Tue , Supreme Court of the United States Ocrosper Term, 1962 =. No. \se Wittiam H. Jerrerson, ~ _ Petitioner, Vv. Taryo Kaiun K.K., et AL., - € Re spondent, Os ——— —e —_——— BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI -——— — — a —-—-- — — 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 SINE ccsncectnamacriirenensvicien iS escsuiebow . coehedananten canine 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 as : », Ix Tue 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, ‘ 7% . _ Respondent. ~ a BRIEF IN OPPOSITION TO. PETITION FOR CERTIORARI ¢ “ QUESTIONS PRESENTED 1. Will the ‘protection of the Seventh Amendment be denied to tespondent : . 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- ’ P » ; . _ 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 —- -—— -- 1 ‘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 ° ’ - ~ of fact 3 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. 4 ‘ 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 ~) ” - = . ’ SL | . . | 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 © n ; ; % 5) - 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 ~ . ‘ % 6 , c 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 - 3 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: . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0856%3A4. Public record. Not legal advice.