# Opposition Brief — Jamaica Time Petroleum, Inc. v. Federal Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0139%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1967 - **Citation:** 385 U.S. 1024 ## Text | nn Claes Ge ee | pn Pe ot US a JAN 3 1957 SUPREME COURT OF Tk THE UNTED STATES OCTOBER TERM, 1966 OF , No.832 ~ JAMAICA TIME PETROLEUM, ~— lS + Mh. Petitioner, Kansas City, Missouri 64106. Byron BRAINERD - i +830 First National Bank Building Scare a Wichita, Kansas 67202 Se RGN Se ato dae gee er oe Of Counsel: | c | cast ~ Morrison, HEcker, Cozap,& Morrison lees “ | Pe 3 Ae b. . : it is ‘very: important that we be consistent in not v= Wide at the writ of certiorari.except in cases involv- ‘ing principles the settlement. of which is of impor- ° tance to. the me, as a from that of the . parties, . . ; | » STATEMENT OF THE CASE | ' shares of stéck, nine hundred shares of which’ were owned .' by Rudolph R. Greenbaum and his wife (R. 53). Aside \from the Greenbaums there were only two other stockhold- ers’ (R. 53). This was still the situation .as of April. 12, 1962 (R. 53), the date of the destruction of the aircraft: _ in question, The Petitioner corporation was specifically formed to acquire and explore an oil and gas concession. -on the Island of Jamaica (R. 53, 79). This did not prove to be a successful operation (R. 53, 79) and the concessiori’ ... expired in 1963’ (R. 53,80). The loss to Petitioner was ~ One Hundred Thirty-Eight Thousand Dollars ($138,000. 00) .(R. 80) and was claimed as a loss in the amount of One Hundred. Thirty-Five Thousand Three Hundred Forty- and. 29/100 Dollars ($135,343.29) for’ income tax. purposes in 1963 (R. 81). ‘In the ,meantime, Mr. Green- _.. baum.and his wife had loaned the Petitioner corporation One Hundred Fifty-Three Thousand Dollars ($153,000.00) (R. 54). As of April 12; 1962, the date of the destruction _. of the aircraft, the book value net worth of the Petitioner was Five Thousand Dollars ($5,000.00) (R. 34, 81). | a.» 4 In the fall of 1961, Petitioner purchased a Lockheed — - Lodestar airplane (R. 47, )) which is not the ‘airplane . which is’ the subject of this litigation (R. 55). This air- plane was.used in Petitioner’s business and at least as of the time of trial was still owned _ and used by Petitioner (R.. 55). However, early’ in 1962, Petitioner, ‘through. Greenbaum, using money borrowed front his wife (R. 85), | purchased a second Lockheed Lodestar airplane (R. 49), . the aircraft with which we are concerried here and for : which Petitioner had no operational use | whatsoever (R. 55, 84). . Following’ the pirdhiie Greenbaum contacted an in- surance brokerage firm at Wichita and requested a One Hundred Thousand, Dollar ($100,000.00) insurance policy on this airplane (R. 63-70; 156), and represented the worth _ of the aircraft to be in that amount @. 157). Ordinarily Petitioher’s insurance affairs were handled by another cor- porate officer, Mr. Loux (R. 69), but this insurance ‘trans- ° * action was handled by Greenbauit personally (R. 69). It -was Greenbaum’s suggestion that a One Hundred Thou- _ sand Dollar ($100,000.00) policy be obtained (R. 70, 87, 157) and this was accomplished by a Mr. Hill of .the Wichita insurance firm through an aviation insurance man- agement company,: Associated Aviation Underwriters (R. 88), who placed the coverage with Defendant. According - to Associated Aviation Underwriters, Mr. Hill represented .the purchase. price as One Hundred Thousand Dollars - ($100,000.00) (R. 89, 90). The spare parts were triicked to Wichita (R. 61) and separately insured for Thirty Thou-’ sand P rages ($30,000.00) (R. 62). ‘The aircraft in question (the second Lockheed Sede: star): was purchased by Greenbaum with his wife’s — 7 money (R. 85) from Manufacturers Hanover Trust. in New York (R. 27, 56) through an aircraft broker, one Mr. Wilmer a: D. Crawford of Teterboro, New Jersey, whose deposition ' was read into evidence by Petitioner (R. 26-34). The air- ‘plane was never seen nor inspected by Greenbaum prior _- to purchase and its arrival in Wichita (R. 61). This air- - craft originally had been manufactured for the military (R. 27) and was at least twenty years old at the time of pur- chase by Greenbaum (R. 28). It “could be actually consid- ered in the nature of an antique. It was an outmoded air- plane and out of manufacture even to the point of spare. parts now being somewhat of a problem for the airplane since they are out of new manufacture” (R. 32). Nothing ' had been done to upgrade the pen since 1947 (R. 31) - and it was obsolete (R. 32). ‘The aircraft was offered for sale together with a : large quantity of spare parts (R. 31) as a package €R. 61) and the entire package was purchased by Greenbaum for Thir- _teen Thousand Five Hundred Dollars ‘($13,500.00 (R. 31, 61). Half of the purchase price should be allocated to the airplane and half to the spare parts (R. 31). According to - Mr. Bangiola, Greenbaum’s pilot, “at least seventy-five per- - cent” of the spare parts, including two remanufactured en-' on gines, were usable on-the first aircraft. (R.:92-93) purchased by Petitioner and which Petitioner was still using at the time of trial (R. 55), but Petitioner had no use for the second airplane itself (R. 55, 84). It was Greenbaum’s fur- ther testimony that the aircraft in question had “excellent guidance gear and electronics” (R. 55) which he expected - .. to install inhis first aircraft (R. 55-56) but it’ was his’ pilot’s testimony that such an exchange: would be.a “waste of money” (R. 94). It was the further testimony of the pilot that the spare parts acquired in the purchase were worth ° _" Twenty-Five Thousand ‘Dollars ($25,000.00) (R. 95) or Fourteen Thousand Dollars ($14,000.00) to Fifteen Thou- sand Dollars ($15,000.00) (R. 96). It was the pilot’s idea to a co se we 7 keep.the spare parts and sell the airplane (R. 96) . Spare ‘parts for Lockheed Lodestars were: difficult to obtain at that time (R. 93). Greenbaum denied that the aircraft - . was offered by Petitioner for’ sale‘ generally (R. 62) but he was contradicted in this by his pilot who stated that it was placed in the hands of a broker for re-sale at a price ‘of Twenty-Five Thousand Dollars ($25,000.00) and that this. _ was authorized by Greenbaum (R. 96), He was further contradicted in this by his answer under oath’ to Respond- ent’s: pre-trial interrogatories ‘wherein he had stated, “The “aircraft was offered for sale” (R. 63-65).—A period of time of one month elapsed between the arrival of the airplane | in Wichita from New Jersey and its destruction on the night of April. 12, 1962 (R, 96). During this period the aircraft ‘ was not used on company business and no removal of radio equipment was attempted (R. 96).. The airplane - ‘merely. remained parked in the general tie-down area. at the -” Wichita Municipal Airport near the Municipal terminal building (R. 96). Actual use of the airplane was never dis- . " cussed between Greenbaum and his — (R. 97). It was* just a matter of reselling it (R. 97). . hae j A day or two before the aircraft. was destroyed it was flown around the field for the first time since its arrival in Wichita (R. 96) and engine trouble developed (R. 97). It was landed and taken to a place in front of a hangar (R. . 97) in a very deserted and dark area of the field (R. 98) ’ where it was destroyed the following night (R.. 97). Greenbaum had been advised by the pilot as to the air- craft’s location (R. 97), a fact that Greenbaum could not “remember” at the. trial:(R. 72). On the night of the de- struction the pilot was called to the scene and upon seeing, . the. burning aircraft, so advised Greenbaum at his home by telephone who responded only by asking if anyone was hurt (R. 98). ° At no time on the night of the destruction oo Ce 7 or at any time later did Greenbaum visit the scene or view | the airplane (R. 61, 99). That the Respondent” odclucea sufficient ‘evidence of the deliberate destruction of the aircraft was conceded by Petitioner at page 8 of its Brief filed in the Court of Appeals, which concession is recognized and accepted in the opihion . of the Court of Appeals, Jamaica Time Petroleum, Inc. v..° Federal Insurance Company, 366 F.2d 156 (1966). The deliberate destruction’ was further confirmed by Captain ° Bevis of the Wichita Police Department (R. 112) and Eldon A. Means, a consulting chemist (R. 115). It was the testi- mony of one Rex Rudolph Conn (R. 115-154) that he was engaged by one George Poulos, a “loéal hoodlum” or “un- — > derworld character” (R. 105), in concert with one Eugene — McCroskey, an ex-convict (R. 106), and one James.Dolan, a known criminal (R. 106, 121); to destroy the airplane (R. 120). This they accomplished by lighting a fuse pro- truding from a satchel which they had placed under the airplane (R. 121-122, 127-128). Subsequently McCroskey - and Conn pleaded guilty to. the destruction “(R. 106) and . Poulos was convicted of the same in the District Court of Sedgwick County, Kansas, which conviction was affirmed by the Supreme Court of Kansas.. State v. Poulos, 196 Kan. 253, 411 P.2d 694 (1966), cert. denied 17 L.Ed.2d 64 (1966). -Respondent offered to prove by the witness Conn that George Poulos had been hired by Greenbaum to have the aircraft destroyed for a sum of Twenty-Five Thousand Dollars ($25,000.00) (R. 136) but was not permitted to do so by the District Court (R. 123-127 ). _ Petitioner’s assertion “Conn was paid $1, 000. 00 to tes- tify” is not supported by the record. The record. does re-. veal that during its investigation into the destruction, Re- ~ spondent offered to pay Conn’s mother the sum of One Thousand Dollars. ($1,000.00) in the event Conn would give - % i t . 8 any information he had, silos toa solution of the aectanes . tion of the aircraft (R. ‘117, 118); which ‘was eventually, f done (R. 118). "Thereafter Conn was ‘asked to relate’ his*~. ; information, to the Wichita police, which he did (R. 118) and only thereafter was he asked to testify (R. 119). As | late as forty-eight hours before Conn’s appearance as-4 wit- ness he was again advised by counsel that he was under no compulsion to testify (R. 153). That the District Judge found nothing improper with. respect to the payment of - . the money, in return for information is amply set forth in the, ‘record (R. 24-25, 127). In its opinion on this point the Court of Appeals states, 366 F.2d at 158: “The offer and ‘payment of the reward were not contingent either on the _ testimony of Conn in Court or on the outcome of any Bhs cies 7 aoe inafitientie sees fit to recognize ‘it the -. - of aix possible: attack upon the withess Conn ‘must. be limited . to (1). competency” under the Kansas. statutes, and (2) : credibility. « ° “The Kansas Supreme Court, in one of the.. criminal ; prosecutions which arose out of the destruction of’ this air- plane, State of Kansas. v. Poules, 196 Kan. 253, 411 P,2d 694 (1966),- cert. denied 17 L.Ed.2d 64. (1966), in quoting Ss ‘portion of and construing K.S.A. 60-407 stated: ~ except as otherwise provided by statute ( »): every | a | ae “This section’ is the keystone. of ‘the entire system of : - Rules of Evidence provided in Article 4 of the Code of Givil Procedure... It abolishes all pre-existing dis- qualifications and privileges of witnesses and wipes the © slate clean of all other exclusionary rules, leaving the - one requirement for the admissibility . of evidence, ee that of relevance. If.the. evidence’ is relevant to ae - @ issue being investigated, the jury is: permitted to re-_ : '_ ceive it, unless some other rule Daggers ‘or priv- ilege, as announced in ‘Article r other -statutes, causes the evidence to be excluded” (4 Vernon’s Kan- _ . Sas Code of Civ. Proc., pp. 198, 199.). Under this .sec- - tion, a witness is presumed to be competent to testify. His incompetency, therefore, -must bé challenged and the burden of establishing incompetency rests on the challenger. (4 Vernon’ a Kansas Code of Civ. Proc., : p. 269. | a Conn’ s credibility as a witness was for the jury to i 8 : 7 F ar as ace bad $e : “ : ~ oo ak elke: re Office-Supreme Court, Us oe ice ; ~e 2 2 Kl E, E D . a Saat Oe crhrib none et - PETITIONER'S REPLY BRIEF No, 832 JOHN E Davis, CLERK IN THE "SUPREME ‘COURT OF. THE UNITED STATES ‘October FRM, 1966. - (JAMAICA TIME PETROLEUM, ING., eas tie aa wane VS, © a a aos FEDERAL INSURANCE GOMPANY, « _ Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE “UNITED STATES COURT-OF APPEALS FOR THE’ TENTH CIRCUIT o _.PETITIONER'S piwik BRIEF “M. LEWIS LEHMAN By. PAUL: KALLMAN Be oly eee nee ene ‘4307 ‘Crenshaw. Boglevard Los Angeles, Calif, “90008 ASSOCIATE COUNSEL RALPH R. FRANK PAUL KALLMAN 9460 Wilshire Boulevard Suite 427 © ee e) Beverly Hills, California Attorneys for Petitioner. } Attorneys for Petitioner 0 | tH Meee Cag . pte ee Aw... SUBJECT INDEX Ae te ee _ RESPONDENT'S JURISDICTIONAL, ay ce ARGUMENT tee Ee game 3° TL, Reolonds FACTUAL - ee “9° “ARGUMENT =: ae IIL RESPONDENT'S LEGAL ( : ee ee ARGUMENT =| eee! “IV. CONCLUSION oe ee | TABLE OF AUTHORITIES CITED : es : | Cases. ‘ | Blackburn v, - Alabama, 361 VU: S, 199, oe aL. Ed, 24/243, 80 S, Ct.. nae ae _. Jamaica Time aaiebonal v. Pidaeat. Insurance Company, joe F. 2d 156. be 8° State ex rel Spillman v. | Ist Bank of. ae ; Dickerson, 114 Neb. 423, | Ne 207 N. W.: 674, 45.A, LR. ‘1418 2% be: F Constitution . _ United idles iniciitnatinn: Ape = : .14th Amendment . 3 AS AE oF | Rules e ) + Mee OR a “ale 19(2)0) ee Eee eae tk ae 2 Jeena e-:- 24 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0139%3A2. Public record. Not legal advice.