Brief in Opposition to Petition for a Writ of Certiorari — Domany v. Otis Elevator Co.

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| : MAY 20 1967

No. 1184

DAUSACLERK

Jatin In the

_- Sonpeemne Court of the Gnited States

Ocrosr noe 1966

MARY DOMANY and ANDREW DOMANY, | se

Petitioners,

Vs.

OTIS ELEVATOR COMPANY and

SEARS, ROEBUCK AND CO.,,

Respondents.

On Petition For A Writ of Certiorari To The .

_ United States Court Of Appeals For The .

Sixth. Circuit

BRIEF OF RESPONDENT SEARS, ROEBUCK AND co. ©

IN OPPOSITION TO PETITION :

FOR A WRIT OF CERTIORARI

— FE. Leasure

‘Parker M. Orr

1956 Union Commerce Building |

Cleveland, Ohio 44115

Attorneys for Respondent Sears -

Baker, Hosretier & Patterson,

Of Counsel

May 22, 1967.

CS SATEEN

The Scheffer Press, Inc.—ANdover 83-6850

that said petition.be denied. —

\

\ IN THE - ,

SUPREMY COURT OF THE UNITED STATES

* OcroszR, Term, 1966

No. 1184 ‘

- MARY: DOMANY and AN DREW DOMANY,

\ Petttioners,

\

\ * vs.

\ :

OTIS ELEVATOR COMPANY and

SEARS, ROEBUCK AND CO.,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Sixth Circuit

BRIEF OF RESPONDENT SEARS, ROEBUCK AND CO.

_ IN OPPOSITION TO PETITION

' FOR A WRIT OF CERTIORARI

Respondent Sears, Roebuck and @o. files this brief in

opposition to the petition for writ of certiorari and prays

ot See

QUESTIONS PRESENTED

The questions appearing under the heading “Questions

Presented” in the petition are misleading and ignore the

_ facts. Respondent therefore counter-states these ques-.

tions more accurately as follows: ©

‘lL, Did the Court. of Appeals properly order. a ‘new

' trial because the, trial court refused to submit the issue

of contributory negligence to/ the jury?

"2 Did the Court of Appeals act properly in laying

down guidelines to be observed at the retrial of this.

case with respect to the marriage issue?

: ‘STATEMENT OF THE CASE

Suits were filed by Mary Domany and Andrew Domany

against Sears, Roebuck and Co and Otis’ Elevator Com-

-pany. Their claims arise out of an injury to Mary

Domany. Andrew claimed that he was the husband of

Mary. Sears in its answer, denied the material allega-

tions. of the complaint including the marital status of

the plaintiffs and asserted the defense of contributory

negligence. _ : | |

On November 18, 1960, Mary Domany was on a de-

scending escalator in respondent’s store (R. 37-8). She

claimed that the escalator stopped quickly and caused her

to fall (R. 38, 68). The only other passenger on the —

escalator was a man about 65 years of age who was un-

affected by the stopping of the escalator and simply

walked away (R. 68-69, 423). Signs posted at the -ap-

proach to and on the: escalator cautioned passengers to —

hold the handrail (R. 689-690, 691-692, 869-87 1). Al-

though Mrs. Domany testified she did so (R. 38, 69), an

_ expert called in their behalf testified in response to’ a

question of petitioners’ counsel that he. rode the escalator .

a

holding on to. the handrail and was unaffected by its stop-

ping (R. 235). Witnesses for respondent Otis Elevator

Company corroborated this expert’s testimony -and one

of its witnesses testified that the escalator was designed

so that a person holding the handrail would overcome

any physical force applied ta the body by reason of the

stopping of the escalator (R. 873).

_Andrew Domany testified that Mary and he wére

married before a justice of the peace or a minister in

1957 in Angola, Indiana, but admitted he had previougly

been: married in Europe and had filed an action for -

divorce in Cleveland in 1953 against the European wife.

but no divorce was granted (R. 113, 114). There was no

evidence showing that the European marriage was ever

dissolved by divorce or otherwise terminated. .

J ‘ oe ee \ "

1 Oe ee ARGUMENT IN OPPOSITION TO

- a GRANTING THE WRIT .

| ies Contributory Negligence

. Se In an effort*to convince this Court to: review the

. ' decision of the Court of Appeals, petitioners argue that

\. its decision ordering . a new trial because of the trial

“eourt’s error in refusing to submit the issue of con-

- tributory ‘negligence to the jury denied petitioners the

right. to a jury trial granted by the. Constitution and thus

so far S eaagn from the accepted atid. usual course of

‘sprogeedings as{|to call for an exercise of this court’s

_ «power of — sopervision. The reasons advancéd. by peti-

_ tioners are frivolous, and the cases relied upon are

‘distinguishable or support respondent’s position - that the

petition should be denied. A cursory examination. of the

@ ©..° — petition makes it patently obvious that its essential thrust’

'. is not to demonstrate grounds for granting the writ in

a -. accordance with the criteria set. forth in Rule 19 of this _

- Court ‘but to reargue the case and to ask this Court to.

= | '- | review the evidence and the inferences ‘to: he drawn there-

from. This Court has_long held that a writ. Of certiorari

will not be granted for such purpose, General ‘Talking ;

. Pictures Corp. v. Western Eléctric Co.,-304 U. 8, 175, 58

S. Ct. 849, 82 L. Ed. 1273 (1937). |

oe Petitioners erroneously contend that because Mary

Domany testified she was holding’ the; rail; there was no —

issue of contributory negligence to submit to -the jury, ©

relying on Chesapéake & Ohio Ry. v. Martin, 283 U. S.

209, 51 S. Ct. 453, 75 L. Ed. 983 (1931). Their reliance

is misplaced for the decision of the Court of Appeals is

not contrary to this. Court’s. holding in’ Chesapeake.

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-

e—5—

_ There this’ Court held that the question’ of a witness’

credibility would not ptrmit a jury to disre d his

testimony when theré’ was nothing: in the record whith

reflected unfavorably upon such credibility or made such

testimony reasonably open to doubt. As has already been

demonstrated in this case there was evidence casting

doubt on Mary Domany’s testimony and therefore it was

proper for the jury to weigh this evidence. a

Petitioners’ cpntention that the Court of Appeals in

ordering that the issue of Mary Domany’s contributory

negligence be submitted, to the jury denied them their -

constitutional rights afforded by the Seventh Amendment

is patently frivolous. The key that unlocks the door to

the Seventh Amendment. is the re-examination of a fact

‘tried by a jury. Here the Court of Appeals did’ not. re-

examine any fact tried by a jury. The opposite is true.

It reversed, because a. fact issue had not been examined -

by the jury in the. first instance.* 7

Petitioners inappropriately cite and. place great reli-

ance upon Gibson v. Lockheed Aircraft.Service, Inc., 350

U. S. 356, 76 S. Ct. 366, 100 L. Ed. 395 (1956) as “con-

- vineing precedent” for their position. But: there, unlike

here, the question of contributory’ negligence was sub-

- mitted to the jury. The sole question in Gibson was the

.* Petitioners cite Atlantic & Gulf Stevedores, Ine. v.

_ Ellerman Lines, Ltd., 369 U. 8. 355, 82 8. Ct. 780, 7 L. Ed.

2d 798 (1956); Galloway v. United States, 319 U. S. 372,

63 S. Ct. 1077, 87 L: Ed. 1458 (1943); Fairmont Glass

Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S. Ct. 252,

. 17 L, Ed. 489 (1933) for the proposition that a reviewing

court may set aside a jury verdict only when there is a

_ error of law. In the case at bar the trial court committed

an error ‘of law in refusing to submit the issue of con-

tributory negligence to the jury. These cases, therefore,

are authority for the denial of the petition. -

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. Sufficiency of the court’s instruction on the subject. Hence

Gibson has no application -here.

‘Whether or not Mary Domany was holding the hand-

rail was clearly a fact question for the jury. This factual

element has been held to be properly consideréd in mea-

suring contributory negligence of plaintiffs who claim

they were caused to fall while on an escalator, Myers v.

Kaufmann Department Stores, Inc., 57 F. Supp. 577 (W.

‘D. Penn., 1944), aff’d 149 F. 2d 968 (CA 3, 1945) and _ |

. Submission of the issue was clearly. required under Ohio

-law. McMutrie v. Wheeling Traction Co., 107 Ohio St.:

. 107, 140 N. E. 636 (1923); Baldridge v. Wright Gas Co.,

-Inc., 154 Ohio St. 452, 96 N. E. 2d 300 (1951); Sypherd v.

» Haeckl’s Express, Inc., 341 F.2d 65, 69 (CA.6, 1965).*

The Marriage Issue _ :

In their struggle to create a Constitutional issue and

thereby obtain a review of- the evidence by this Court,

_ petitioners imaginatively claim that the Court of Appeals

Should have accorded full faith and credit to Andrew

Domany’s oral declaration of a 1957 ceremonial marriage

in Indiana. In- the first place, the Court of. Appeals did

not rest its reversal on the question of the marital status

of the petitioners but rather discussed this question, the

applicable presumptions. when an impediment to a second

* Nor would the submission of the issue of contributory

negligence’in this case require the jury to predicate one

inference upon another as petitioners.argue. Under Ohio.

law the establishment of a fact upon separate and parallel

inferences is in itself not an inference but a fact upon

which other inferences may be predicated..Hurt v. Rogers .

Transportation Company, 165 Ohio St. 329, 130 N. E. 2d

820 (1955); McDougall vy. Glenn Cartage Co., 160 Ohio

~ St. 522, 160 N. EB. 2d 266 (1959) and the Court of Appeals

properly so held.

"5

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marriage is shown and the burden of proving the dissolu-

tion thereof as a ‘guide to the parties and the court upon

a retrial of the case. The choice of abandoning or pur-

suing the claim that petitioners are married rests with

_ petitioners. If there was no impediment to the marriage

of .1957, petitioners may pursue the claim and should

have. no difficulty in. proving the dissolution of the first

. Marriage at the new trial.

Under the Constitution, Congress was: authorized to

prescribe the manner in which public acts and records of

sister states shall be proved in order to be given full faith .

and credit. Accordingly, Congress enacted Title 28 United

States Code, Section 1739, and prescribed that full faith

and credit shall be given non-judicial records upon proof

of an exemplified copy thereof. Petitioners offered no

_documentary evidence of the marriage but only the oral

testimony of Andrew Domany. Accordingly, plaintiff’s

proof did not even bring into play Article IV , Section 1,. .

of the United States Constitution. _

Moreover, the Court of Appeals accepted the testimony

of Andrew Domany concerning the 1957 Indiana cere-

-mony. However, the record ‘showed that Andrew Domany

“was previously married and there was no evidence of a.

termination of that marriage. Under the circumstances,

the Court of Appeals properly applied the Ohio law in

this diversity’ case when laying down the guidelines relat-

ing to the presumption that arises when a prior marriage

has been shown and the burden of proving that. such

marriage has been terminated. Ohio law clearly presumes

the continuance of a prior marriage ‘and places the burden

of proving the termination-thereof on the parties claiming

‘a valid second marriage. Industrial Commission of Ohio -

v. Dell, 104 Ohio St. 389, 135 N.E. 669 (1922). The eon-

tentjon.advanced in the petition filed in this Court that

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the decision of the Court of Appeals is in conflict with -

the Ohio cases cited by petitioners is without merit. The

cited cases are not in point; In Machransky v. Machran-

sky, 31 Ohio App. 482, 166 N.E. 2d .423 (1927), the issue’

‘of whether a first marriage would be presumed to have

-continued was not involved because the evidence showed

that such prior marriage had been dissolved. In Olijan v.

- Lublin, 38.Ohio L. Abs. 393, 50 N.E. 2d 264 (1943), aff’d

143 Ohio St. 417, 55 N.E. 2d 658 (1944), the court recog--

‘nized and acknowledged the Ohio rule but held it unneces-

sary to apply the rule because there had been no credible

evidence to establish the first marriage. |

. Obviously récognizing the-correctness of the Court of

Appeals enunciation of Ohio law, petitioners now contend :

that the Court of Appeals should not have applied Ohio

law but that the law of Indiana governs. This argument

was. neither raised in the trial court nor in the Court of

Appeals for the Sixth Circuit. Aside from the fact that

this Court has consistently held that it will not consider

an issue raised for the first: time in a petition for

certiorari,.McCullough v. Kammerer Corporation, 323

U. S. 327, 65 S. Ct. 297, 89 L. Ed. 273 (1945), the conten-

tion is without merit since on the issue of presumptions

and burden of proof the Court of Appeals properly ap-

plied Ohio law under Erie v. Tompkins, 304 U.S. 64, 58

_ S.Ct. 817, 82 L. Ed. 1188 (1938).*

' > * Petitioners cité Mazzolini v. Mazzolini, 168 Ohio St.

. 357, 155° N. E. 2d 206 (1958) for the proposition that the

validity of a marriage is to bé determined by the law of

the situs of the marriage. However, that decision does -

not concern itself with the question of what presumptions

apply or which party has the burden of proving the

validity of a second marriage when the record shows a

prior marriage. The other decisions of. this Court cited

by Petitioners to the same effect as Mazzolini are equally

inapplicable. | ;

* - CONCLUSION

For the foregoing reasons it. is respectfully ‘aie

that x no aimee exist for granting the petition.

Respectfully submitted,

Russet E. Leasure

Parker M. Orr Cae

1956 Union Commerce Building

Cleveland, Ohio 44115 -

Attorneys ‘for. Respondent Sears

Cc

Baker, Hostetter & PATTERSON, Of Counsel |

May 22, 1957