Petition for Writ of Certiorari — Worthington Corp. v. Lease Management, Inc.

Office-Supreme Court, US. |

oH FILED:

' Tan at % : e :

7 eer, U.S FEB 8 1968

W997 [sont F DAVIS. CLERK

+ IN THE

Supreme Court of the United States

OcToBER TERM, 1965

WORTHINGTON CoRPORATION, Petitioner «¢

v.

LEASE MANAGEMENT, INC.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RonaLp A. JACKS

815 Connecticut Ave., N. W.

Washington, D. C.

Rosins, Davis & Lyons

400 Rand Tower .

Minneapolis, Minn.

Counsel for Petitioner

LAURENCE D. SMITH,

ScHmipt, SmitH, How.Lett & HALLIDAY

Michigan Trust Building

Grand Rapids, Michigan

Of Counsel

Press oF Byron S. ADAMS, WASHINGTON, D. C.

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CITATIONS

CAsEs:

Graver Tank and Mfg. Co. v. Linde ‘Air Products Co,

ee a. Ee SD ks wk ba dawn avehibicstexces

oer? ‘3 Board of Bar Examwuers, 353 U.S. 232

ES 5065350 anda ea cad eeGananes cee ieee

ar vy. Atlantic Coast Line R. Co., 290 U.S. 322

En 6c 6a bse rcabecskactaines beceedGnnnsees

Thompson vy. Louisville, 362 U.S. 199 (1960) ........

United States v. Johnston, 268 U.S. 220 (1925) ......

United States v. U. S. Gypsum Co., 333 U.S. 364 (1948)

IN THE

| Supreme prensa United States

OcTOBER M, 1965

No.

WORTHINGTON CORPORATION, Petitioner =<)

7

v. +

LEASE MANAGEMENT, INC.

~

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Worthington Corporation prays that a writ of certio-

rari issue to review a judgment of the United States

Court of Appeals for the Sixth Circuit entered in the

above-captioned case on October 9, 1965. -

OPINIONS BELOW

The opinion of the Court of Appeals (App., <

pp. la-12a) is reported at 352 F.2d 24. The judgmen

entered upon the jury verdict is not reported.

2

JURISDICTION

The judgment of the Court of Appeals was entered

on October 9, 1965. A timely petition for rehearing

was filed on October 28, 1965, and denied on November

_ 10, 1965. The jurisdiction of this Court is invoked ~

under 28 U.S.C. § 1254(1).

QUESTION PRESENTED 7 if

Ne Whether the Court of Appeals’ holding that the trial

court improperly withheld the issue of contributory

negligence from the jury, is so devoid of support in

the record that it constitutes a denial of due process.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Con-

stitution provides a pertinent part that:

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

or property, without due process of law....

STATEMENT .

This is a diversity action for property damage aris-

ing out of an explosion which occurred in Vestaburg,

Michigan, on November 24, 1959. Petitioner is a manu-

facturer of electrical generators; respondent, operator

of a natural gas field located near the scene of the loss.

In June, 1958, petitioner contracted with Wolverine

Electric Cooperative to install a new generator in its

Vestaburg plant. Petitioner was to bear. the risk of

loss until final acceptance and payment. At the time

of the loss, the generator had been installed, but the

contract was not completed (R. 94a)? On that date, -

~16¢R as used herein refers to the Appellant’s Appendix

printed and filed in the Court of Appeals.

v

3

the Cooperative’ s plant engineer, Mr. Wood, noticed the

new generator was losing power (R. 40a), switched

from natural gas to fuel oil and drove to respondent’s

nearby plant to determine what was wrong. Respond-

ent’s supervisory employee, Mr. Lewis, determined

nothing was wrong at the field so the two men drove

back to the Cooperative’s plant to check the line at that

location.

Upon arrival, Wood and Lewis first removed ‘and

cleaned a gas regulator located on the three-inch part

of the line near the generator (R. 57a). Lewis then

suggested they ‘‘blow out’’ the thrée-inch line before

replacing the regulator (R. 58a). Wood went to.a

‘gas house’’ 60 feet away, quickly opened and shut a

flow valve while Lewis remained standing next to the

opening in the line (R. 51a). Wood opened the flow

valve a second time, but before he could close it, dirt

and gas blew through the opening, were sucked up into

the nearby generator air intake and exploded, killing

Lewis and substantially dam:ayring the generator.

Petitioner filed suit in federal court against respond-

ent’s predecessor in title on January 4, 1961 (R. 1a),

and amended its complaint to add Lease Management

on April 24, 1961. The amended complaint charged

that Lewis was negligent in conducting the operation

which gave rise to the loss (R. 6a-8a). After an initial

jury verdict for respondent, petitioner was granted a

new trial because of an error in the instructions (R.

20a-26a).?

At the close of the second trial, petitioner moved

inter alia for an order striking the defense of contri-

2In its opinion below, the Court of Appeals found the grant of

a new trial ‘‘well within’’ the first trial court’s discretion (App.,

infra, p. 1a).

>

’ 4

es

butory negligence from the answer and removing the

issue from the jury on the ground that: respondent

had failed to produce sufficient evidence (R. 121a-122a).

The trial court agreed that ‘‘under the proofs in this

case’’ it “‘would not be warranted in submitting the

_ issue‘of contributory negligence for a determination

_-by the jury’”’ (R. 123a).

The jury returned a verdict “for petitioper in the

sum of. $118,778.90. Respondent’s motion for a new

trial and reduction of verdict were denied (R. 179a),

whereupon it filed a timely notice of appeal to the

¢ United States Court of ™ for the Sixth Cireuit

(R. 2a).

On Qctober 9, 1965, the circuit court reversed the

_ entry of judgment by the trial court and remanded the —

- ease for a third trial on the ground that the District

Judge improperly withheld the issue of contributory

negligence from the jury (App., infra, p. 6a). Peti-

tioner filed a timely petition for rehearing which was

_ denied on November 10, 1965. (App., infra, p. 14a)

REASONS FOR GRANTING THE WRIT ,

We fully recognize that this Court will not ordinarily

grant certiorari to review findings of fact. Thus

parties should generally avoid burdening it with such

questions. But the instant case presents such 4n extra-

ordinary error by a United States Court of Appeals

that we are compelled to seek review on the grounds

that the holding below violates due process and’ calls

for the exercise of this Court’s supervisory power.

1. This Court has made it unmistakably clear that

any decision which is totally devoid of evidentiary sup-

port or based on no evidence at all violates the con-

' stitutional mandate of due process. Thompson v.

. edge)

5

. Louisville, 362 U.S. 199 (1960). The fact that Thomp-

son involved review of a criminal conviction: under

the Fourteenth Amendment, does not impair its appli-

cation to a civil proceeding in a federal court. The

proposition that a dispositive ruling must “ultimately

rest. on some support in the record is fundamental to

the very nature of the judicial process, whether exer-

cised in a civil or criminal proceeding. Cf. Sehware

v. Board of Bar Examiners, 353 U.S. 232 (1957).

The dispositive holding below was that the trial court

improperly withheld the issue of contributory negli-

gence from the jury. This decision was based on the

Court of Appeals’ finding that:

A careful review of this record convinces us that.

there was testimony from which the jury could

have found or inferred 1) that plaintiff Worthing-

ton was responsible for the design andylayout of

the generator which located its air intake near the

removable regulator; 2) that plaintiff knew, or

should have known, of the possibility that the regu-

lator might be removed in order to blow out the

line while the plant was operating, and 3) that

such location of the air intake of an acknowledged

dangerous instrumentality. was negligence which

contributed as a proximate cause of this explosion.

(App., mfra, p. 6a)

* The short answer to this statement is that there is

absolutely no basis in the record upon which the Sixth

Circuit could possibly find support for proposition

‘1,’ while ‘‘2’’ is the product of a clear mistal@,

Hence ‘‘3”’ loses its validity as a conclusion of law

since petitioner could not be negligent under any theory

without knowledge of a foreseeable danger and respon-

sibility for location of the vent in light of that knowl-

Q

_—

6

The only evidence in the record dealing with peti-

tioner’s responsibility for the plant layout and loca-

tion of the intake near the regulator is contained in

the following exchange between respondent’s counsel

and Mr. Wood the Cooperative’s plant engineer:

Q. Now, Mr. Wood, were you there during all

the time that this particular engine or any part

of it was being installed?

A. Yes. :

Q. Do you know by whom the lay-out plan was

designed or engineered ?

A. Yes.

Q. By whom was it designed or engineered ?

A. Well, it was the Zimmerman Engineering

Company, Grand Rapids. ;

Ph: And that is an architectural engineering

rm ?

A. Architectural Engineers. :

Q. Didn’t they work together in conjunction

“ 7 Worthington people?

. Yes.

(R. 67a)

Respondent did not establish:

—whether petitioner worked with the architects

before, after or during the installation of the

generator.

—whether petitioner was called in by the architects,

volunteered its services or was ordered to assist

by the Cooperative.

—whether petitioner had any responsibility for

the general location of the generator.

—whether petitioner had any responsibility for

the location of the air intake near the regulator.

ww

7

—whether the question of its proximity to the

regulator was ever discussed.

—whether it should have been discussed.

There is nothing to indicate that respondent was

precluded from calling a member of the architectural

firm located nearby. Nor is there anything to indicate

that respondent ever sought to cross-examine any of

petitioner’s employees on the issue. In short, there is

simply nothing in the record beyond the single word

‘*Yes’’ to describe the nature and extent of petitioner’s

‘relationship to the architects and its responsibility,

if any, for the location of the generator and its vent

near the regulator.

Similarly, the second finding, that dealing with fore-

seeability, is based on a clear mistake of fact, t.e., the

Sixth Circuit’s assumption that oF

Defendant’s testimony at trial tended to establish

that the regulator had previously been removed

several times to blow out the gas line, and that

plaintiff Worthington knew, or should have known,

of this possibility. (App., infra, p. 5a)

There is no evidence to show that the regulator in

question or any other regulator had been removed

previously for the purpose of blowing out aline. There

was testimony that’ a regulator had been removed for

cleaning previously (R. 96a) and that another portion

of the line had been blown out before (R. 65a). But

there was no evidence to link these two separate and

distinct acts. The record does not indicate whether

the regulator referred to in the above testimony was

the one in question or, more importantly, whether the

portion of the line leading to the generator or any

'

8

other portion was ‘‘blow# out’’ at the same time the

regulator was removed for cleaning.

The absence of any. connection between these two

events and the corresponding source of the court’s

error is so apparent it requires no further elaboration

except to note there was uncontradicted evidence that

the precise portion of the line in question—the three-

inch section containing the regulator and leading to the

generator—had never been ‘‘blown out’’ before the loss

(R. 55a). This testimony in no way conflicts with the

other evidence and thus should not have been disre-

garded by the Court of Appeals. Rather it was entirely

consistent.

If there were even a possibility of constructing a,

basis for either finding or inference, the decision below

might stand. But by any test of reasonableness, the

result cannot be squared with the record or the ele-

mental demands of due process.

2. The decision below also warrants review in the

interest of sound administration of justice in the

federal courts. The error of the Court of Appeals is

clear and substantial. It is not and should not be im-

mune from review merely because it involves a finding

of fact. This Court has long recognized an obligation

to exercise its supervisory powers to examine such

matters when ‘‘left with the definite and firm convic-

tion that a mistake has been committed.” United

States v. U. 8S. Gypsum Co., 333 U.S. 364, 395 (1948).

Even concurrent findings of fact below may be reviewed

in the presence of ‘‘a very obvious and exceptional

showing of error.’’ Graver Tank and Mfg. Co. v.

Linde Air Products Co., 336 U.S. 271, 275 (1949).

Thus the question is not one of power, but propriety.

We recognize and agree with the proposition that

ordinarily the Court will not grant certiorari to ‘‘re-

»

9

view evidence and discuss specific facts.’? United

States v. Johnston, 268 U.S. 220, 227 (1925). This

policy is appropriately based on a due regard for the

demands of the Court and orderly disposition of liti-

gation. But at the same time, we recognize that this

Court has on occasion taken appropriate opportunities

to remind the lower federal courts that gross errors

in dealing with the record will not be tolerated. E.g.,

Stringfellow v. Atlantic Coast Line R. Co., 290 U.S.

322 (1933).

The instant case is susceptible of such treatment.

Moreover, a full hearing is not required to make the

point since thé Court does not have to weigh any evi-

dence or make any new findings of fact. Both peti-

tioner’s right to due process and the sound administra-

tion of justice can be secured by the granting of certio-

rari, summary reversal and remand of the case to the

Court of Appeals with appropriate instructions.

CONCLUSION

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

Ronap A. Jacks

Rostns, Davis & Lyons

Counsel for Petitioner

LAURENCE D. Sura, |

Scumint, Smirn, Howtett & Hattmay

Of Counsel

February, 1966

la —

’ APPENDIX:

No. 15848 -

UNITED STATES COURT OF APPEALS

-FOR THE SIXTH CIROUIT

Worrmiaron Corporation, a Delaware Corporation,

P Plaintif-Appellee,

: v.

Lease ManacemeEnt, Inc., a Michigan corporation, |

Deféndant-A ppellant.

_Appgau from the District Court of the United States for

the Eastern District of Michigan, Northern

\ Division.

Decided October 9, 1965.

, re a

.Before: O’Suniivan, Pours and Epwarps, Circuit

Judges. — mea

Epwazps, Circuit Judge. This appeal is from a jury

‘. -yerdict and judgment for plaintiff in the amount of $118,-

177.90. [sic]! The suit, brought under federal diversity ju-

risdiction, arosey’dut of an explosion of a generator being

installed by Pot on the premises of Wolverine Electric

Cooperative. "The explosion wrecked the generator and

1 Defendant Lease Management also appeals from the

motion for new trial following an earlier trial of this

defendant secured a jury verdict. At the conclusion of

trial District Judge Picard (now deceased) granted plaintiff’s m

tion for a new trial on the ground that his charge has misstated

the doctrine of Respondeat [sic] superior under which plaintiff

sought to hold Lease Management for the negligence of its employee

Lewis. We have reviewed the charge.as given by Judge Picard and

his opinion on the motion and hold that his grant of the motion

for new trial was well within his judicial discretion. Rule 59,

Fed. R. Civ. P. We have dealt with this issue separately. so that —

the body of this opinion may deal principally with the issues of

the second trial.

Feo

2a

killed Lester Lewis, an employee of defendant. Plaintiff

claimed (and the jury verdict must be read as agreeing)

that defendant Lease Management, Inc.’s, negligence was a

proximate cause of the explosion. Defendant Lease

Management, Ific., appeals claiming, among other things,

that plaintiff was contributorily negligent and that the

trial Judge committed reversible error by not submitting

this issue to the jury.

Wolverine Electric Cooperative is an electric power-

producing cooperative which operates a plant at Vestaburg,

Michigan. In 1959 it decided to expand its electric power

output by installation of a sixth generator ‘and signed a con-

tract with plaintiff Worthington Corporation for purchase

and installation of the generator. Worthington started

performance of the contract (which placed risk of loss on it

until acceptance and payment) and as of November 24, 1959,

was still working on the geherator, although it was installed

and in operation.

The generator was designed to use two types of fuel—

natural gas and diesel oil. Wolverine had a contract with a

near-by oil and gas field, owned by Rock Oil & Gas Com-

pany, for the furnishing of natural gas at a rate more

economical to it: than diesel oil. The gas came from Rock

Oil’s Edmore field six miles away via a pipeline owned by

Wolverine. Rock Oil’s contract required it to furnish

gas ‘‘dry and free from solids and liquids.”

In 1958, after date.of Rock Oil’s contract with Wolverine,

Rock Oil contracted with defendant Lease Management,

Inc., to take over management, operatidn and maintenance

of its Edmore field. It appears that under Rock Oil’s ar-

rangement with Lease Management, Inc., defendant Lease

Management stepped into Rock Oil’s bnoes } in all respects

as far as this litigation is concerned, since Rock Oil was

dismissed on motion as a party defendant and no cere

is brought pertaining to that dismissal.

*

3a

On November 24, 1959, the chief operator of the Vesta-

burg plant for Wolverine, Mr. Myron Wood, noticed that

the new generator being installed@} plaintiff Worthington

was losing power. He switched the generator over from gas

to oil fuel and drove to the Edmore field to find out what

was wrong. Previously Rock Oil had told Wolverine’s

personnel to contact a Mr. Lewis at the field about any

problems, and Wood did so. Lester Lewis, originally a

Rock Oil employee, had been placed on defendant Lease

Management’s payroll when the latter took over the Edmore

operation. Lewis checked and determined there was no

trouble at the field, whereupon Wood drove back to the

Wolverine plant, followed by Lewis. |

At trial of this case, Wood testified that he and Lewis

decided to take the ‘‘regulator’’ off the gas pipeline at

a point located on the outside wall of the plant. The

regulator was located in close proximity to the air intake |

for the Worthington generator which was still in operation.

He testified that Lewis had brought a tool box with him

to the plant and that he and Lewis removed the regulator,

disassembled and cleaned it out, and reassembled it.

Wood also testified : z

—

“Q. (By Mr. 'Zelle) What was dake after the regu-

lator had been taken apart?

‘A. It was reassembled.

~ *Q. Who reassembled it?

‘*A, Mr. Lewis and I.

‘‘Q. What was done next?

‘¢A. We went out to blow out the line.

‘*Q. You went to blow out the line? D

‘A, That is right.’”’ _ , :

‘

In any event, Wood then went to a “gas house”? 60 feet

away where the /Mipeline meter and valves were located

while Lewis stood near the place where the regulator had