# Petition for Writ of Certiorari — National Molasses Co. v. Beebe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0530%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 388 U.S. 911 ## Text ey 1 eonetigaemet kST ROIY center Rel ped INDEX, Page OPINIONS OF THE Courts , 0 ere eiveneennes ae JURISDICTION ........ seecccscccescccccetecsivescecsoces 2 ConsTITUTIONAL Provisions ee EEPEE: POOR TPA Pe Questions PRESENTED... Ae Sede beouae peas Seem. lero 4 STATEMENT OF THE CASE .......... Lsedueais ieusgeweas 5 REASONS RELIED’ UPON FOR ALLOWANCE OF THE WRIT ...... 13 First Point. The District Court Lacked Jurisdiction ab ‘ “Initio in This RL Gvtactccask coe keccuweedaweres 13 Sensi Point. The Lower Court and the District Court Violated This Court’s Mandate to Apply ; the Law of - the Locus of the Alleged. Accident Which, in This Case, Is the Commonwealth * Pennnytvante, Which — They Failed to Do aN Vedheepeedanwasendeness 1S_ Third Point. There Is a Flagrant Decisional Conflict. Between the Circuits and Within the Third Circuit Regarding the Application of Substantive and Pro- -cedural Law to Cases Involving Similar Points of Law Demanding a Rectification by This Honorable Court So as to Provide a Uniformity of Application of These — Questions Which in the Interest of Justice Affect, Litigants on a National Scale. prammeerettTisiaeess | INDEX (Continued). APPENDIX: k ei be - Page> : ' Judgment of the U. S. District Court . . seks sovscesic 1A Order of the U.S. District Court ied pecnkbanen's Be of eee | Opinion of the U! ‘S$ District Court ot Se ececeesecegene 4A Opinion of the U, S.C. A03 ..eseeeeeee eseausevesss 16A . Order of the n6.¢ A. 3 Denying Petition for Rehearing 22A - Onder of U. S. C. A. 3! Staying Issuance of Mandate . _ BA ” | Judgment of U.S.C. A,3 - Ewe ener yeava desc oune_ ee Letter of Transmittal ...........sseeeeeeeee onnsepeei | 25A Requests for Admissions Under Rule % ;........ geeses | 26A__ Ss . eer * 7 | \ e Ose, / er a eer g CRT TABLE OF CASES CITED. Page Actastol v. National Savings & Trust ©, C.. Pm 1956, 244 i ) Rare Chesoenvecneleenbededrecsvaceseet 33 Andrews, appellant v. Smith, et ux., 324 Pa. 455 ....... 003 (27 *Atlantic Greyhound Corporation v. McDonald, Cc. C -A. North | Carolina 1942, 125 F. 2d 839... es pesceunasiutiuneds 32 Atlas Life Ins. Co. v. W. I,-Sotthern,.Inc., 306 U. S. 563, CODED * ccc snatSectitccieceveds Cinsennvsepesseutes 13 Berry v. U-S., 312 U.S. 450 0... 0.eee sete. jeneuevecheee 33 : _-Bisson v. John B. Kelly,-Inc., apint., 314 St Sear 25 - Bohner, aplnt. v. Eastern Express, Inc., 405. Pa. 463 .. veseeee | 23 _ Brown v. Fennell, 155 F. Stipp. 424 (D. C. Pa. 1957) ..:.... 15 Cadillac Motor Car Co. v. Johnson, 221 Fed. 801 ......:..... - 25 _ City of Indianapolis v. Chase ‘Nat. at of City of ~— York, ; «SOU Be WE assy aisdse whi temechswondepevecocdeeves 14 Clapp v. Sterns & Co. (D. C. N. y. 1964), 229 F. Supp. 305 13 Com. v.°Pierce, 138 Mass. 165, s.c., 52 Am. Rep. 264 ...... 27 Conway v. Philadelphia Gas Works Company; 336 Pa. n- 24 Cooper v. Reading R. R., 370 Pa. 192 ...... satetnnsveedes 21 Corabi v. Auto Racing, Inc., 264 F. 2d 784 (C.C. A. Pa. 1959) 15 Curtis v. A. Garcia y Cia, 272 F. 2d 235 (C. C. A. 3rd 1959) . 18 ’ , Cuthbert. v. Philadelphia, apint., 417 Pa. 610 2.0... .0:scs0000, 25 Dahlstrom v v, Shrum, Se PU EE add vexsddesuerncccence 27 . Dorofey, apint. v. Bethlehem Steel Co., 407 Pa. 288 .. citer? tae Doyle v. Atlantic, 357 Pa. 92 ....... eteeevetoucst an Ze Sik 24 Druding v. Philadelphia, 374 Pa. 202 .........0..ceeeseees 20 Dunn v. Atlantic Refining Company, apint., 391 Pa. 65 . 27 ‘Erie R. R. Co. v. Tompkins, 304 U. S. 64, 82 L. Ed. 1188, 58 : me ee Miaheeds ere Faulks, apint. v. Fischer, 349 Pa. 485.2... 0.6. ¢eccccoeees 29 Federoff v., Harrison Construction Company, 362 Pa. 181 . 25. Fowler v. Baker (D. C. Pa. 1940), 32 F, ~_— 783 (deeviee - ae Fritch v. Atlantic, 307 Pa. 71 ...0i.. cee eeeccccelecccece, As. Gliden Co. v. Zdanok, 370 U. S. 530, 8 L. Ed. 2d 671 (1962) 14. ~ ; a se : ~ TABLE OF CASES CITED (Continued). Green v. Independent Oil Co., 1964, 44 Pa. 477, 201 A. 2d OE. Uickevsnsekeun ch cone tedesesbvess sacsedesieveedd, 18" Griffith v..United Air Lines, Inc., 416 Pa. 1 so ccecoesseses 32 Guaranty Trust Co. of New York v. York, 326 U. S. 99, 65 oe a. | or whbewses 15, 17 Howard Johnson of Kingsport v. The City ‘of Kingsport (D. C. Tenn. 1963), 192 F.2d 211 ......0ceeececeeeees se ee. Irwin Sav. & Tr. Co. v. Penna. R. R: Co., applt,, 349 Pa. 278 16 Jackson v. Wilson. Corpdtation, 243 F. 2d MBpin sc esceeees 32 Julien v. Sarkes Tarzian, Inc., 352 F. 2d 845 (C. A. Ind. 1965) 15. Kane v. Federal Match Corporation, 5 Fed. Supp. 507. ...... 29 Kimble v. Mackintosh Hemphill a ae 16 Klaxqn Co. v. Stentor Electric Mfg. Co., 313 U. S. 487 ....15, 17 Kline v. Moyer, 1937, 325 Pa. 357, 191 Atl. 43 « eck 7, is . Kotal y. Goldberg, 375 ‘Pa: 297 ......0Bsccceruccsccsees 28 Kronk, aplnt. v. West-Penn Power Co., 422 Pa. 458° Kesteave. -ae Koelsch v. Phila. Co., 152 Pa. 355 ........ceceeueeeensess © 2 "Lebeck v. Jarvis et al., 250 F. 2d 285 .........eeeeeeecees 27 Lonzer v. Lehigh Valley R: R. Co., 196 Pa. 610 :....... epee 20 MacDoigall v. Penna. Power &. Light Co., 311 Pa. 387 .. ot ae - MacPherson v. Buick Motor Co., 217 N. Y. 382 ........... - £2 Maize, admr. apint. v. Atlantic Ref. Co., aplnt., 352 Pa. 51 ...24, 22 Mantin v. Broadcast Music, Inc., 244 F. 2d 204 (C..C. A. Cal. 1957) weeseceees SEs ASUAE SA LENWeKeebesiekenvevetes 15. Marrazzo v. Scranton Nehi Bottling Co., 422 Pa. 518 tankers sae McClaren, admrs. v. G. S: Robins, 349 Mo. 653......... ee ae McNello v. a B. Kelly, bare 283 F. 2d % (C.C. A. Pa. | ae Berar ei edhs sereeevadacee STATEMENT OF THE CASE. Plaintiff attempted to institute a diversity suit against Highland Tank and Manufacturing Company, hereinafter called ‘‘Highland’’, P. W.: Moyer, individually and as the surviving partner of F. M. & P. W. Moyer, hereinafter called ‘‘Moyer’’ and National Molasses Company, herein- after called ‘‘National’’ under the Pennsylvania Wrongful Death and Survival Acts (15a-20a). However, he neither _ averred nor proved diversity of citizenship. ' . Highland joined the Plaintiff ’s decedent’s employer, Eastern States Farmers Exchange, otherwise known as Agway, as a ‘Third-Party Defendant and N ational cross- claimed .against Eastern (36a). | Cities Initially cross-claims were filed by the Defendants, inter se, but were subsequently withdrawn without preju- dice (31a, 38a, 43a, 301a, 302a). - meat Se: As will be revealed by the Plaintiff’s Complaint (15a) (Respondent herein) after stating that he was the Adminis- __, trator of the Estate of Richard €. Kline, Deceased; he - , averred he resided at 302 West Holly Avenue, Pitman, New Jersey. He never averred that he was a citizen of the Stdte of New Jersey and never proved the same since he did not ae . appear at trial of the issue. The deceased and the surviving spouse and children were residents of the State of Penn. sylvania at the time the action was commenced and the Plaiptiff averred that National was a. Pennsylvania corpo- tion at the time suit was commenced. The Complaint was ‘amended concerning a liability question but no change in the averment was made regarding residence or, citizenship. . . Bee 2a, lt Defendant-Petitioner, National, in. its Answer (21a) raised the question inter alia of the Court’s jurisdiction over the person and the subject matter and specifically demanded proof at the trial of the issue of the allegation of diversity - and moreover, it never changed its position by stipulation, ‘ / / 6 Petition for a Writ of Certiorari formally or informally, consent, admission, waiver, estoppel, or conduct smce and under the law would not be permitted todoso.? —_., At the close of the ‘Plaintiff’s case, the trial Judge granted Highland’s and Moyer’s motions for directed ver- dicts under F. R. C. P. 50(b) but denied a similar motion by National (401a).. The trial resumed as to Plaintiff v. National and Na- tional v. Eastern and a jury returned a verdict against National in the sum of $306,975.00 under the Wrongful Death Act. and $72,000.00 under the Survival Act and a verdict in favor of National against Eastern in no mone- tary amount for such contribution as permitted by the law, later remitted to $300,000.00. _ There was no explanation as to how, why, or under what circumstances the $300,000 ‘figure was arrived at nor - it was to be allocated between the Plaintiff’s two sepa- — a an ties se of damage in the case at bar, especially where the evidence on future loss of wages was speculative, 302a . | and ‘303a. Moreover, both principal and interest must be completely dissipated or exhausted within decedent’s life -expectancy, O’Connor v. United States, 269 F. 2d 578, at 584. Viewing Plaintiff-Respondent ’s évidence from the posture of verdict winner, these facts were iceman which _.. give him every reasonable inference: Highland has been in the business of fabricating - storage tanks since 1946. - In 1955 it fabricated a molasses storage tank for Eastern for use at Eastern’s York, Penn- § 2. Several years after’ the litigation commenced and after the bn Statute of Limitations had run on_both causes of action, Respondent- laintiff abortively attempted to get a stipulation in his Pre Trial ‘i concerning diversity of citizenship by alleging that the plain- tiff-Respondent was a citizen and resident of New Jersey, but no defendant agreed to the request made, including the Petitioner herein, _ and no ruling was made on the subject by the District Court. Peti- tidner retained its original position of demanding proof of diversity of citizenship set forth in its original Answer which it did not need to amend and ignored the request in its Pre Trial Memo. - business. “ : | Petition for a Writ of Certiorari i sylyania premises. It had manufactured approximately _ forty to fifty similar molasses storage tanks for Eastern. (Luckenbill 89a, 156a). , SLA ide ea ee Eastern, which was the employer of the Plaintiff’s - decedent at the time pertinent to this litigation, was at. the time in the business of selling molasses and mixing it” with various types of grains to be used by farmers for animal and poultry food (196a, 197a, 198a). Eastern had — .a separate division which supervised the construction and - installation of its many storage, tanks {408a, 404a) at their various lotatiqns aswell as‘ the handling of many. other facets of its diverse business. It had chemists. and engi- neers to conduct experiments in connection with its busi- ness and for consultation concerning the design, installa- tion and cledning of tanks storing the molasses used in its - The ‘particular tank involved in this litigation which was located at the York Service Center was installed in. coneréte under the floor of one of its buildings. A metal _ Plate ‘in the floor-had to be removed to gain access to the tank. The tank was approximately five and one-half feet in diameter and twenty-four feet long; it had an eighteen - Inch opening at the top, a two inch venting pipe and one or two three inch pipes (97a, 98a, 99a, 100a).. It also had a removable filter screen (187a, 188a, 199a) which could ‘be removed from the outside for cleaning purposes. . The over- © all design for the tank was submitted to Highland, made by | Kastern’s engineers and chemists (403a, 405a) and con- structed by Highland to meet these specifications (404a, 4052). Highland had built approximately thirty to forty other similar tanks for Eastern each according to specifi- cations supplied by Eastern (403a, 405a). No accident such as the instant one occurred as the result of the storage of molasses or cleaning of tanks at these other locations. © In 1957 the York Center ‘tank was cleaned for the first | time. Eastern had informed its employees of the normal, | _ safe procedure to be followed in ¢leaning the tank. The 8 + Petition’ for a Writ of Certiorari padi on cleaning the tank were to. adopt the following _ procedures: 1. Remove the cighteen inch covering. the evening before the cleaning; i 2. Fill the tank with water and then pump it out; 3. Put a safety rope around the man entering the tank; and - 4, Place a fan at the opening to blow air into the tank. - | This eressbine was virtually’ identical with the pro- ‘cedure recommended by Plaintiff’s alleged expert, Mr. Bradley, who also stated he would use this procedure even if the tank had a self-contained venting system (313a, 316a, ' 317a). It was also developed by fireman Halpin that be- cause the tank was below the floor level it was mandatory for anyone entering the tank to use a self-contained oxygen mask such as a Chemox readily © available on the open * market. @ When this tank was cleaned. i in 1957 some of the sug- gested procedures were followed without any unusual re- sult, as a matter of fact the man cleaning the tank, Mr. Holtzapple, remained in the tank for three fo four hours with no ill effects whatsoever (229a, 181a). At the time in question the same product in relatively the same amount’ was in the tank as on the day of the fatal occurrence to. Mr. Kline. Moreover, in 1957 the tank was aired over night, '. a fan was blowing air into it, the pump was on and the slush _ of the residue was being agitated and pumped out, whereas ~ on August 16, 1960, when Messrs. Holtzapple and Kline "were injured and the latter died, the safety procedures aforesaid were not utilized (235a, 236a). | : It transpired that before Mr. Luckenbill, Manager of Kastern’s York operation went on vacation in August of 1960 he gave his fellow supervisor, Mr. Chinault, vague verbal general instryctions that the tank would have to ‘be Petition for a Writ of Certiorari . ao ‘cleaned (101a, 102a). No specific time was fixed for. the '. commencement of the operation, There .is a definite con- tradiction which is irreconcilable between Messrs. Chinault and Holtzapple concerning whether the cover of the eighteen inch opening, which Plaintiff’s counsel. and expert has designated as a manhole cover, was taken off the night be- fore the so-called cleaning .operation was to commence : (234a, 181a) or on. the morning when it was supposed to ‘begin (195a, 196a). It is undisputed, however, in the Plain- tiff’s evidence that Mr. Holtzapple testified that on the morning when they were to begin to clean the tank at about 7 A. M., one hour before the normal 8 A. M. start, a bolt securing the. cover to the opening which was unscrewed - accidentally fell in the tank or was knocked in by the oa garden hose used to fill the tank with water before: it was to be pumped out (221a, 222a). Nothing had to be done to retrieve this small bolt. However, Mr. Chinault, East- erm’s supervisor, erroneously decided that the bolt would ' damage the expensive pumping machinery and ordered Mr. _ Holtzapple, a man five feet five or six inches and about one hundred fifty pounds, to go into the tank to retrieve the bolt (188a, 199a, 235a). Mr. Holtzapple was consciously concerned because he detected a strong odor which smelled like sulphur rather than molasses. He waited for approxi- mately fifteen minutes before deciding to enter the tank (230a, 234a, 235a). He was afraid of the danger involved .and that he might lose his life (239a). Notwithstanding - this fact he was ordered to enter the tank by-his supervisor, Mr. Chinault (235a, 230a, 231a). Mr. Holtzapple procured a wooden ladder from somewhere on the premises (222a) and entered the tank without any of the safety precautions : being used (231a, 232a). iio, “eat While he was in the tank someone suggested using the blower on the feed truck located at the platform nearby to blow fresh air into the tank but-this was not done at this time but utilized subsequently (232a). Mr. Holtzapple was _ j \ \ \ 10 : i Petition for a Wr of Certiorart on his hands and knees. groping in the residue of the molasses for the bolt with his face about eighteen inches _ from the bottom of the tank, -After some time he felt faint ‘and attempted to come up the ladder and out of the tank. For: some unaccountable fashion he became wedged and could not get out or be pulled out! ‘by his" supervisors, Messrs. Stiffler and Chinault (177a, 178a). Plaintiff’s decedent, Mr. Kline, a trainee of Eastern for some six weeks, and a graduate of Penn State Univer- sity and not assigned to the operation with which Messrs. Chinault and Holtzapple. were engaged, came on the scene _ and became aware of the situation of Mr. Holtzapple-in the tank (178a, 179a; 202a). It is unclear whether Mr. Holtz- apple was conscious or unconscious while in the tank. He was conscious when fireman Halpin entered the tank: twenty or more minutes later because he was haere: and holler- ing for help (223a). After the Plaintiff’s decedent, Mr. Kine; was on the. scene he was. either sent or went voluntarily a distance of one hundred twenty-five yards for some rope (191a, 418a). He ran this distance and returned with a rope. Stanley May, another employee, tried to help Mr. Holtzapple and. Mr. Kline by entering the tank with an ammonia mask but after feeling uncomfortable he came out (192a). Mr. Kline entered the tank in some undetermined fashion since the ladder had been removed after Mr. Holtzapple entered the tank. Within a matter of seconds he lost consciousness and was later found by a fireman lying face down i in the mo- __ lasses. The fire iste was called and arrived ten minutes later. The fireman found Mr. Holtzapple lying on his back vomiting and hollering for assistance, and Mr. Kline un- conscious with his face partially covered by molasses. There was no rope in the tank until’a fireman brought one down and used it to secure around each man as he was re- - moved. Holtzapple after a period of convalescence re: : covered completely. Kline was dead within moments after Petition fora Writ of Certiorari . 11 he entered the tank: The Death Certificate listed the cause of death as diffuse hemorrhagic pneumonitis from noxious fumes (Halpin 159a, 168a),.- —— Sa pe Following this fatal accident the tank was cleaned by -. an independent septic tank cleaning company which ster- ilized its instruments and siphoned off the material in question without anyone entering the tank and no one from Kastern has entered the tahk to clean it since 1960. It is — - undisputed that there is no need to do so-as the tank works properly by merely. removing and cleaning the. screen from the outside. Moreover, there has never been any proof of contamination by the failure. to clean and there has been no.change in the maintenance or design of the - tank either before or after the accident. Apart from the - fact that the tank can be cleaned efficiently and properly from the outside by siphoning the material off (Luckenbill 89a, 156a).. ay hie .-.,° Following the time of the filing of post-trial Motions ~ by National to vacate and set aside the judgments in favot ' of the Plaintiff under the Wrongful Death and: Survival Acts and in favor of Respondents Highland and Moyer and © from the refusal to grant a similar Motion by National at - . the end of the Plaintiff’s case and at the end of the case - in chief, the matter was briefed and orally. argued follow- . ing. which the Learned District Court, J udge dismissed all .of National’s Motions except as to excessiveness in which he requiréd the remittitur aforesaid! | ie _- Following rendition of the judgment and dismissal of | the Appeal, National took a timely appeal to the United States Court of Appeals for the Third Circuit which was briefed and orally argued and resulted in affirmance of the judgment of the District Court upon the Opinion. of the Court of ‘Appeals set-forth infra p. 16A. ea Following this; your Petitioner filed 'a Petition for Re-. hearing in which it set forth not only its original grounds for Appeal. but additional ones. and raised a question -con- cerning the jurisdiction of the Court which had never been | 4 12 Petition for a Writ of Certiorari _ inquired into by the Court of Appeals or the District Court ..covered in the Pretrial Conference or other conference. Despite the fact that the Plaintiff has the burden to conelu-. theretofore even though such question. :was. raised in the Petitioner’s Answer. The matter was never discussed or - sively establish jurisdiction and the Court should inquire into it sua sponte and that jurisdiction cannot be atquired nor created. by waiver. or estoppel, the Court of Appeals for the Third Circuit in violation of the Constitution, the Statu- tory laws of the United States and this Court’s rulings did ' _. not even grant your Petitioner a rehearing on*the question raised at this level i in its Petition. 7 present Petition was then filed, susesremnnetpenmantnendl Oo Petition for a Writ of Certiorari ~ = 13. _ REASONS RELIED UPON FOR ALLOWANCE aii OF THE WRIT. | | | First Point. . sree _ The District Court Lacked Jurisdiction ab Initio. It is the duty of a federal court to determine ‘a ques- tion of its jurisdiction sua sponte though not raised by either party. Atlas Life Ins. Co. v. W. I. Southern, Inc., - 306 U.S. 563 (1939). : es In the instant case,. the plaintiff, who neyer testified, | - merely averred in his Complaint that he was a resident but not that he was a citizen. of New J ersey. Moreover, when the Complaint was -amended four years-later no change or attempt was made to indicate or claim that the plaintiff was a citizen or domiciled in New Jersey which is ‘ mandatory to obtain jurisdiction in a federal court. ‘While artifically created diversity h4s been tolerated in federal courts, its semblance. must be“averred and proved. Here there was merely an abortive attempt to artifically create diversity in order to confer jurisdiction on the federal court for reasons best known to the plain- tiff, however the jurisdictional issue is fatally defective because of the lack of proper averment and proof, both: « of which are crucial and essential and cannot-be inferred. The_averment of residence is not the equivalent of an averment of citisenship for the purpose of jurisdiction in * ‘the United States Courts. Texaco-City Service Pipeline Company v. Aetna Casualty and Surety Co. (8 C. C.- A, . 1960), 283 F. 2d 144,145. “See also Tadbury v. Dairyman’s Co-op Assn., 110 F. Supp. 738 (D. C. Pa. 1954) ; Fowler v. Baker (D. C+Pa. 1940), 32 F. Supp. 783; Clapp v. Sterns & Co. (D. C. N. Y. 1964), 229 F. Supp. 305. ’ . The plaintiff has the burden to show that the feder. district court has jurisdiction which he hak unquestionably os ' 14, Cae Petition for a Writ of Certiorari ' failed to do in this case. pr lee System, Ine. v. Morgan, 224 F. Supp. 957 (D. C. Pa. 1963); Samuel Silvers v. Maryland Casualty Co., 239 F. 2d 865 (3 C. C. A. 1956). The Court of Appeals for the Third Circuit held that the question of jurisdiction can be raised at any time and that it cannot ‘be conferred by waiver or estoppel. Samuel Silvers v. Maryland Casualty Co., supra. See also McShan v. Sherill, 283 F. 2d 462 at 464 (9 C. C. A. 1960). Juris- diction may ‘not be conferred by consent and lack of juris- diction of the subject matter cannot be waived by the - parties or ignored by the court. Pacific Nat. Ins. Co. v. Transport Ins. Co., 341 F. 2d 514 (1965), cert. denied, 381 U. S. 912, 85 Supreme Ct. 1536, 14 L. Ed. 2d 434. : Jurisdiction of the federal court under the Constitu- tion and the laws of the Unitéd States must be disclosed on the face of the Complaint. This was not done in this case. See Howard Johnson of Kingsport v. The City of Kingsport (D. C. Tenn. 1963), 192 F. 2d 211.. The rule is SO stringent that the United States Courts are ‘required to raise all questions of jurisdiction on their own Motions should the parties fail to do so,’ and applies with equal force to the lesser question of the presence or absence of jurisdictional amounts in what otherwise would be diversity cases. Mission Insurance Co. v. Brown, 207 F. Supp. 18 (1962); Park Horn v. Adlib Associates Inc., 345 F. 2d - ~ 173 (1965). , - The policy of the Statute covering jurisdiction in the United States District Court in diversity of . citizenship ' cases, in accordance with the provisions of the United States Vonstitution, calls for strictissimi juris. See Judi- cial Code 24(1), 28 U. S. C. A. ‘1331, et seq.; Thomson v. Gaskill, 315 U. S. 442; Gliden Co. v. Zdanok, 370 U. 8. 530, 8 L. Ed. 2d 671 (1962) ; Republic. of Iraq v. First Nat. Bk. of Chicago, 382 U. S. 982 (1965), 15 L. Ed. 2d 556; City of | ay “Indianapolis v. Chase Nat. Bk. of City of New York, 314 U.S. 63. . y '- Tt is to be‘noted that the cases interpreting the issue of jurisdiction hold that ‘‘Residence’’ and ‘‘citizenship’’ are o~ be eek dan di. Petition for a Writ of Certiorari 15 not the same thing for the purpose of federal diversity _ jurisdiction. Mantin v. Broadcast Music, Inc., 244. F. 2d 204 (C. C. A. Cal. 1957). Cf. Brown v. Fennell, 155 F. Supp. 424 (D. C. Pa. 1957). However, ‘‘citizenship’’ and ‘‘domicile’’ are synonymous... Pemberton v. Colonna, 189 F. Supp. 430, aff’d 290 F. 2d 220 (D. C. Pa. 1960). _ The perplexing problem as to when diversity must be ' determined has been resolved by judicial fiat. Cases -hold that the time’when diversity is determined is the date when suit is begun: Julien v. Sarkes Tarzian, Inc., 352 F. 2d 845 (C. A. Ind. 1965); Corabi v. Auto Racing, Inc., 264 F. 2d _ 184 (C. C. A. Pa. 1959) ; McNello v. John B. K ely} Tne., 283 — _ F.2d 96 (C. C. A. Pa. 1960). ’ | . ee Oe Second Point. The Lower Court and the District Court Violated This: - Court’s Mandate to Apply the Law of the Locus of. the Alleged Accident Which,.in This Case, Is the Common- wealth of Pennsylvania, Which They Failed to Do. The decision of the court below affirming the judgment — of the District Court violates the mandate of this court in Erie R. R. Co. v. Tompkins, 304-U. S. 64; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 and Guaranty Trust Co. of New York v. York, 326 U. S. 99 because on every crucial issue of substantive law the District Court and the court below arbitrarily refused to apply the law of Penn- sylvania which would have exonerated the Petitioner from _ liability to the Respondent and creatéd a species of liability unknown in the Commonwealth of Pennsylvania and/or at common law. The violation of the substantive law was not only decisional law but-statutory law as well. See Wrongful - Death Act of Pennsylva ia, the Survival Act and the Statu- tory Construction Act. Wrongful Death Act, April 15, ‘ 1851 P. L. 669 Sec. 19 as amended 12 P. 8. 1601, Act of. April 26, 1855 P. L. 309, See. 1, 12 P. g. 1602, June 7, 1911 P. L. 678 Sec. 1, and April 1, 1937. P. L. 196 Sees. 1, 2, 20, 22, y 16 «CO Petition for D aad rit of Certiorart 23, 35, 36, 45. Survival Act of Pa. 1949, April 18, P. L.. 512, Article VI, Sees. 601-603, 20 P. S. 320, 603. Pennsyl- vania Statutory Construction Act, May 28, ers P. L. 1019, Sections 551 and 592. We respectfully suggest that an sian of this record will e&tablish that the Courts below have not applied — the Pennsylvania decisions in reaching their judgments. ° Negligence of itself does not create liability. Back of the negligent act or failure to act must be sought and found a duty to the person injured, the observance of which would have averted or avoided the injury: See Kimble v. Mackintosh Hemphill Go., 359 Pa. 461 at 472. Where, in the pronouncements by the appellate courts of Pennsylvania, do we find such a duty as was imposed upon National in this case to warn concerning certain properties of its product under certain circumstances of which it was completely unaware? It has been stated in a number of ways, but where, in this case is the orbit of duty devolving upon National to warn that by no stretch of the imagination could it possibly foresee the bizarre, careless, negligent and wanton actions of Eastern and its employees which were solely productive of the end result of the harm? This is not the foreseeable harm which is contemplated by the Pennsylvania decisions. See 494a-495a. : In Irwin Sav. € Tr. Co. v. Penna. R. R. Co., applt., 349 Pa. 278 at 284, Mr. Justice Drew, quoting from Pass. Ry. Co. v. Trich, ila Pa. 390, 399 said: oa . To impose such a standard of care as re- quires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared.’’ | An examination of this record ition and after the fatal occurrence and an ‘examination, we respectfully suggest, of alf of the decisions extant i in this entire country does not dis- A Rea Ree A ag i. no Wy ‘Petition for a Writ of Certiorari rn close any fatal occurrence similar to the instant one. If this conclusion is correct, in half a century of the storage of bil- lions of gallons of molasses, how can it be said that National could foresee such an. eventuality as took place herein? Ergo, if National could not in its experience have possibly foreseen the contingencies which, in combination with one another, produced the end result herein, then it must be ex-— onerated from liability under the Pennsylvania law which we know must be applied in accordance with the mandate in Erie R. R. Co. v. Tompkins, 304 U. 8. 64, 82 L. Ed. 1188, 58. S. Ct. 817 (1938) ; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487; Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65'S. Ct. 1464 (1945). The Learned Court below very cogently recognized this in its Opinion (infra at Page 4) that if Eastern had ap- preciated the nature and extent of the danger, any warning _by National would have been superfluous and National’s | failure to warn would not even‘have been a causa sine qua non. . Cf. Green v. Independent Oil Co., 1964, 414 Pa. 477, 201 A. 2d 207; Kline v. Moyer, 1937, 325 Pa. 357, 191 Atl. 43. See testimony of Prebluda, 497a, et seq,, Stiffler, 401a, et seq.; Hastern Service Center Manual .P 25-737a, which the Court below overlooked. « : The Court below then goes on to say ‘‘But there is no evidence here that Eastern had such actual knowledge”’. With this statement we must humbly and respectfully: take sharp issue. We'challenge the propriety of this statement for the reason that the record conclusively reveals that Eastern had qualified chemists-and engineers in its employ _ and, in fact, the decedent, as his high school, and university records printed in the appendix indicates, was a competent - certified agricultural chemist. See Bradley, Cross.332 and 333a; See 19a printed in plaintiff’s appendix at'77b. The expert produced by the respondent, Mr. Bradley, stated unéquivocally that it was common knowledge even to uncertified farmers that pdm sti from the storage of molasses. Therefore, Eastern did have such knowledge. 18 °° _— Petition for a Writ of Certiorari Moreover, thé record indicates that they were “conducting experiments for the fermentation of molasses to produce --COz. “Thus, National’s alleged failure to give its customer, ps Eastern, which Was more expert than it, a warning which the Pennsylvania law does: not require in non-dangerous chattels, instrumentalities or substances, would be a futile act. Neither the law nor equity has ever required in Penn- sylvania the doing of a useless act. Williams, et ux., aplnts. v. Barbaretta, et ux., 359 Pa. 488 and the cases’ therein. In fact, in this case, the record will graphically reveal that the jury in its perplexity asked for another or supple- mentary charge by the Trial Court in order to equate the expertise of National and Eastern as suppliers. See 728a to-730a re jury’s question and court’s supplemental charge. After the additional charge the jury found that Eastern © was gyilty of negligence which was the proximate cause of the accident. Since the Trial Court had never in its original or supplementary charges instructed the jury on the sub- ject of concurrent causes it cannot be reasonably inferred by this Court or the Courts below that the jury’s finding of guilt on the part of Eastern was on any other basis than _ your petitioner suggests. Otherwise this Court, as did the Court below, indulges in speculation as to what went | through the minds of the jury which this Court below has previously frowned upon in Curtis v. A. Garcia y Cia, 272 F. 2d 235 (C. C. A. 3rd 1959). The affirmance of the decision below cannot rest upon Green v. Independent Oil Co. or Kline. v. Moyer, supra. We note with some degree of satisfaction that the Learned -Court below at pages 4 and 5 of its Opinion sug- gests that National’s failure to give its customer, Eastern, its superior knowledge could constitute one of the legally responsible causes of the accident and that Eastern’s failure to discover the danger, if any, on its own and provide safeguards. may also have been such negligence as would-be a basis for‘imposing contribution on Eastern. We a wad ‘ask iad should this: decision be Linnea ea eM ET ee ee eto er Petition for a Writ of Certiorari = = =—-19 to rest upon what can only in the English language be ‘ speculations or possibilities? ’ : ». «- «No one has ever said that these facts are the jury’s con- clusions and without interrogating them, how can it be said that these were the foundations of the jury’s conclusions without asking the individual ‘members of the panel? ‘ - We respectfully suggest that we cannot find a distine- -. tion between the instant situation and that envisioned by the Court below in Wilson v. American Chain and Cable Company, 364 F. 2d 558 (1966) and Rodriguez v. Bruns- wick Corp., 364.F. 2d 282 (1966), where the Court reversed because of faulty instructions re.intervening and super- seding cause which the Trial Court in this case refused to even charge on. br Not only was the negligence of Eastern herein an inter- _ vening and superseding cause but the jury was left ‘with no guideposts on the subject of either concurrent negligence or intervening and’ superseding cause when the Learned Trial Court specifically refused to charge on the subjects. This deprived National of due process and a true jury trial. _ As we pointed out previously, there must be evidence direct’ or circumstantial upon which logically the fact’ finder’s .conclusion must be based. This means that the evidence. presented by the plaintiff must be such that by | reasoning from it without resort to prejudice or guess- work, the jury could reach the conclusion sought’ by the | plaintiff. While it is true that the plaintiff did not have to prove with mathematical exactness that the accident . could only have been caused in one manner to the exclusion of all other possibilities; he must eliminate those other causes, if any, as were fairly suggested by the evidence. Marrazzo v. Scranton Nehi Bottling Co., 422 Pa. 518. _ Phe Death Certificate, P14-735a, does not list Kline’s cause of death as COz. Moreover his fellow employees, exposed to the same conditions, did not die or suffer serious injuries and neither Holtzapple nor May ever testified that they were overcome by COz nor were there medical or hospital records offered to establish this. 20 Petition for a Writ of Certiorart — Had this mandate of the Pennsylvania Supreme Court been followed. in the determination of this issue, the case could never have been submitted to the jury because of the variety of possible and probable causes deducible from the competent evidence. These include, but are not limited to, construction and location of Eastern’s tank, lack of proper ‘ equipment, supervision. and instructions, ete. — We. fail to see\any requirement that National warn in this case particularly when the deposition of its Vice- President, Mr. Joseph Cohen, introduced in the record by the plaintiff indicates a complete lack of knowledge on National’s part as to any dangerous propensities on the — part of its product or any need for cleaning the storage tanks at any time in any particular way that would involve a situation such as did give rise to the fatality in this case. In Pennsylvania there is no distinction, as the Courts below believe, between actual knowledge and constructive notice in assessing liability and an examination of the Charge of the Court below readily discloses this. .705a. The same standard must be applied to Eastern.: _ No one has satisfactorily explained why the décedent could violate the orders of his superior and enter the tank knowing the danger involved where there was no necessity to do so, without accepting the hazard, Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610. See testimony of Stiffler. If the law of Pennsylvania is applied with regard to contributory negligence or assumption of risk as stated in Dorofey, aplnt. v. Bethlehem Steel Co., 407 Pa. 288; Drud-_ . ing v. Philadelphia, 374 Pa. 202; Middleton, aplnt. v. Glenn, 393. Pa. 360; and Kronk, aplnt. v. West Penn Power Co., 422 Pa. 458, the plaintiff cannot recover. To try to excul- pate him from his obvious contributory negligence and assumption of risk under the doctrine of a rescue mission will bear close scrutiny. In any rescue mission there must be imminent danger and an opportunity for the rescuer to escape unharmed. Neither of these facts are present. in - this case. The Trial Court and the Court below errone-— _ Petition for a Writ.of Certiorari — 21 ously applied the rescue deckine. See Cooper v. Reading R. R., 370 Pa. 192; Valente v. Lindner, 340 Pa. 508. We respectfully suggest that in order to fasten liability on National in this case, a new species of liability has been created, without precedent, unknown .at the common law and presently unknown under the statutory or de- cisional law of the Commonwealth of Pennsylvania. We cannot find anything but generalities which have been used to submit the liability of Natf®nal-to the j jury or thereafter to support its verdict. is We are not dealing with a dangerous substaned or - dan- gerous instrumentality i in this ¢ase oh the subject of mo- lasses which is not a manufactured product but which was merely imported and distributed by National, without change in form or substance or without adding anything. ‘In Maize, admr. aplnt. v. Atlantic Ref. Co., aplnt., 352- Pa. 51 at rage 06, the Supreme Court of Pennsylvania stated: ‘‘This court has laid down the rule that. anyone who is _responsible for the existence of any dangerous instru- mentality or substance with which persons are likely to come im contact must ‘impose a measure of. con trol that is adequate to the protection of human eat from it.’’ (Emphasis supplied. ) f The court in Maicze,, supra, cited with approval Mac- | Dougall v. Penna. Power & Light Co., 311 Pa. 387, and. Koelsch v. Phila. Co., 152 Pa. 355. -In the latter case there . were injuries resulting from the explosion of ngtural gas. and in the former, injuries from contact with a fuse box. See also McClaren, admrs. v. G. 8. Robins, 349-Mo. 653, wherein a plaintiff suffered injuries by being overconie by fumes from the use of -carbon tetrachloride. | In Maize the court further commented that while no ; absolute standard of duty in dealing with such agencies - ean be prescribed, it is safe to say in general ternis that every reasonable precaution suggested by experience and ‘the known dangers of the subject ont to be taken. 22 Petition for a Writ of Certiorari This record reveals that the plaintiff has failed to prove . by competent evidence that National had any reason to even suspect by its experience that a hazard existed as to human beings cleaning tanks when no such situation had ever come to its attention, directly or indirectly. How could it be ex- pected to safeguard against a contingency about which it had no knowledge.and could not have known by constructive notice as its only experience, as this record reveals, was that ‘there was no need to clean the storage tanks and certainly’ not by a human being entering it under the circumstances. _ How then can a duty be imposed on. N, tional to warn or - forewarn of something of which it was not cognizant? It - _ -could not have become aware through customary methods - employed by itself or others in the trade or by text books, publications, trade journals or other media open to it. The | _ reason National never had an injury or fatality was because it was not guilty like Eastern i in the storage of its product. | In Pennsylvania the law is clear and unequivocal that where you have a dangerous substance you must label and warn. No such imposition has been placed on the substance molasses. Contact with molasses is not dangerous. We know there is a duty to warn concerning the dan- gers inherent or lurking’ in high tension wires, dyn- mite, gasoline, wild beasts and things of that nature. , | ‘In Maize v. Atlantic Ref. Co., supra, it was held ‘‘The power of the court, to mould or amend verdicts of juries is established by repeated decisions; Iven’s Appeal, 33 Pa. St., 237; Haycock v. Greup, 57 Td. 438 ; Byrne v. Grossman, 65 Id. 310; Smith v. Meldien, 107 . Id. 348.. It was contended, however, that this power is \ confined to corrections made at the time the verdict is rendered. This is not the law.” : ‘And the eourt inquired rhetorically: ‘‘Must the court be forever chained to an error merely because the sun has — down upon it?’ : Petition- Lead a Writ of Certiorari oe ae In this connection may we state. parenthetically that the Supreme Court of Pennsylvania held in Bohner, aplnt.: v. Eastern Express, Inc., 405 Pa. 463 at.471 that no'verdict ‘ entered contrary to the weight of the competent evidence can stand no matter how many trials must be granted to effectuate the ends of justice. In Smullin, applnt. v. Harenski, 106 Pa. Super. 453, it | _ was stated: '.**Where the intention of the jury is. plain} the. court may mold the verdict into form — to the re- quirements of the law.’’ It would indeed take a Solomon in this case to‘ascer- tain apon what basis the jury reached its verdict in favor | _ of the plaintiffs against National and in favor of National against Eastern in the light of the original and supplemen- ~ tal charges. -This is particularly true when you consider that the jury never even had a. rudimentary charge on the subject of concurrent negligence or intervening and super- seding cause and therefore presumably, without being cog- nizant of the legal implications of these factors, could not have taken them into consideration. Ergo, how can the Court below, and we respectfully state this, say that the jury dispensed in its second verdict with the principles. of intervening and superseding cause and adopted concurrent - causes to justify its findings when the jury, untrained in the law and uninstructed by the court, had not the slighttet are idea of the principles involved. If a jury cannot speculate upon issues to reach its ver- dict, how, then, we respectfully inquire, can a, trial jurist or an appellate court justify speculation on its part? The jury found Eastern an expert. , The Supreme Court of Piessiiteeniis has held that natural gas and oil constitute dangerous products or in- strumentalities. See Moidel v. Peoples Natural Gas Com- -pany, 397 Pa, 121; Pryor v. Chambersburg Oil & Gas Co., 24 - Petition for a Writ of Certiorari 376 Pa. 521; Waschak v. Moffat, 379 Pa. 441; Meddock v. National Transit Company, 105 Pa. Super. 553; Conway v. Philadelphia Gas Works Company, 336 Pa. 11. Even in these cases the Court has used the following language: In Meddock v. National Arona iia ti supra, the. court said: : eo “The burden was upon vlaintiff Qa show negligence. : . The mere fact that oil was escaping did met ereate a prima — — 08 the a areal court held: 336 Pa. 11. “While a gas ‘company is under a duty to exercise the © highest degree of care oe the product to its customers, there can be no recovery in a case of this ‘character unless there is clearly established some act of tiegligence on its part which results in injury’ to plaintiff. .This is the rule.of our We and has often . been -repeated.”’ = we In. Waschgk v. Moffat, supra, the: following language was used: . On the contrary, since ‘the emission of gas was. not caused by any act of defendants and arose merelysfrom the normal customary ise of their land without neglix._ _gence, recklessness or ultrahazardous conduct it was wholly unintentional, and no liability : may — be - imposed on: defendants. Doyle v. Atlantio, 357 Pa. 92 holds that i in making Sdliveston of gasoline, Atlantic was justified i in assuming and acting. ~ ~ upon the assumption that the facilities provided for the . storage of the gasoline were’safe and nonhazardous. ' In Fritch v. Atlantic, 307 Pa. 71, the deliverer of. gaso- line is under no duty to inspeet the storage facilities of the >. vendee. These principles should apply here and eomyete National. afd ae ee ee eet OL ee Petition for a Writ of @ertiorart . - 25 So, even with dangerous subjects negligence has to be proven by a breach of a,duity which is non-existent here.“ The only exception to the rule in Pennsylvania involves blasting operations as exemplified by Federoff v. Harrison. - Construction Company, 362 Pa. 181. _ - ere _ In'Cadillac Motor Car Co. v. Johnson, 221 Fed. 801 it was stated that common usage of the business is a test of ‘ negligence but not a conclusive test. Where, in this record, | has there been any departure from the customary conduct | ,of the business in which National or its competitors was engaged and where js the evidence that any other supplier - of molasses warned or was compelled to warn its customers? Moreover, what trade journal, text book, or other authority suggests this procedure? —~ © It was held in Bissen v. John B. K elly, Inc., aplnt; 314. Pa. 99, ‘‘The defendant breached a duty imposed by law; not a duty superimposed by contract.” | a We most respectfully. challenge anyone to reveal statu- tory or decisional law imposing a duty on National which it breached in this case. The liability of National herein can- not be predicated upon the purpose for which its product was sold to Eastern. National had no duty and certainly no control; as the evidence reveals; over the manner in which its otherwise pure product was stored and the yeason for so ‘e« doing. To ‘have imposed a duty on it to this effect when - ¢. astern was in exclusive control of the premises and the product ‘would be both unconscionable and -unreasonable. . Mr. Justice Cardozo recognized this in the ancient case of MacPherson. v. Buick Motor Co., 217 N. Y. 382. nae The respondent in this case failed to prove his cause of | action against National and the case should not have been : submitted to the jury. | ay In Cuthbert v. Philadelphia, aplnt., 417 Pa. 610 at 614 the court stated: a oe | ‘Nevertheless, it remains a principle so fundamental _ 48 to require no authority that the mere existence of’ negligencé and the occurrence of injury are insufficient 26. Petition for a Writ of Certiorari. to impose liability upon anyone. There remains to be proved the vitally important link of causation: Flagiello v. Crilly, 409 Pa. 389, 187 A. 2d 289 (1963): Harrison v. Pittsburgh, 353 Pa. 22, 44 A. 2d 273 (1945) ; Philadelphia & R. R. Co. v. Spearen, 47 Pa. 300 (1864); Drill v. Genetti, 200 Pa. Superior Ct. 471, 190 A. 2d 185 (1963) ; and, Hillelson v. Renner, 183 Pa. Superior Ct. 148, 130 A. 2d 212 (1957). And plaintiff has the burden of proving this link, that the defend- “ant? s negligence was the proximate cause of his injury: ‘Cushey v. Plunkard, 413 Pa. 116, 196 A. 2d 295 (1964) ; Loeb v. Allegheny County, 394 Pa. 433, 147 A. 2d 336 (1959) ; or of proving evidence from which a reasonable inference arises, that the defendant’s. negligence was the proximate cause of the injury: Zilka v., Sanctis’ Construction, Inc., 409 Pa. 396, 186 A. 2d 897 (1962). On the other bend, it is not necessary that plaintiff - prove with mathematical exactness that the accident could only have been caused in one manner to the exclusion of all other possibilities (Finney v. G. C. Murphy Co., 406° Pa. 555, 178 A. 2d 719 (1962), but fairly suggested by the{fevidence: Lescznski v. Pitts- burgh Rys.-Co., 409 Pa. 102, 185 A. 2d 538 (1962); -Foley v. Pittsburgh-Des Moines Co., 363-Pa. 1,:68 As 2d 517 (1949) ; Stauffer v. Railway Tere Agency, Inc., 355 Pa. 24, 47 A. 2d 817 (1946); Cohen v. Penn Fruit Co., 192 Pa. Superior Ct. 244, 159 A. 2d 558 (1960). ‘And it is the duty of the trial court to determine whether or not this requirement has been met im the ; | first mstance before the issue can be submitted to the >? jury: Idlette v. Tracey, supra.’ (Emphasis supplied.) In Palsgraf v. Long Island Railroad, 248 N. Y. 339, 162 _N. E. 99 (1928) Mr. Justice Cardozo said: . “The risk reasonably to be perceived defines the duty to be obeyed, and isk imports relation ;. It is risk to ; . In United States v. 363 Cases More or Less Mountain. Valley Mineral Water, D: C. Arkansas 1956, 143 F. Supp. _, 219, it was held, while it is better practice for a directed verdict ‘to be in-writing an oral statement of the grounds _ for the motion is sufficient. Moreover, even a motion .for judgment as of non-suit which was made in accordance with North Carolina practice was treated as a motion for a di- rected verdict at the conclusion of the evidence. Atlantic Greyhound Corporation v. McDonald, C. C. A. North Caro- lina 1942, 125 F. 2d 839. When you consider that a motion for new trial is. in- dependent of a motion for judgment notwithstanding the verdict and is governed by different principles, you wonder why National is not entitled to a new trial regardless of how stringently Rule 50(b) is interpreted in this case. See Jack- son. v. Wilson Corporation, 243 F. 2d 212. See 54a. It is respectfully suggested that if this Honorable Court will examine the circumstances of this case and apply the rule laid down in Woods v. National Life and Accident In- ‘surance Co., C. A. Pa. 1965, 347 F. 2d 760, and Sano »v. Pennsylvania R. R. Co., 282 F. 2d 936; 938 C. A. 3rd 1960 where, by analogy, the court permitted the substitution of a motion other than under 50(b) to have the same. effect, therefore, why should National be penalized in this case when it fulfilled the requirements of the rule. See Myra — Foundation v. U. S., 267 F. 2d 612 and Murphy letter to J udge Luongo, 809a. ; - Petition for a Writ of Certiorari 33 It is puzzling why such emphasis is placed upon the niceties of making and renewing motions under 50(b) in the " light “of Ackerholt v. National Savings & Trust Co.,.C. A. 1956, 244 F. 2d 760 which permits a directed verdict upon . the opening statement of counsel. It was held in Meyonberg v. Pa. R. Co., C. C. A. New Jersey 1947, 165 F. 2d 50, that a motion for non-suit and judgment of non-suit would be treated as a motion for a di- rected verdict and judgment entered upon a directed verdict _ respectively in accordance with sub-division (a) of Rule 50. It cannot be too strongly emphasized in this case that after National renewed its motion for a directed verdict at - the conclusion of its case against the plaintiff, which ‘the court below informed the jury was a separate and distinct trial from the action ‘by National over against Eastern, it — . did not introduce any evidence and therefore did not waive its right to have the renewal of its motion decided. It was ~ not until the plaintiff introduced rebuttal evidence, which is not within the contemplation of this rule, that National abortively attempted to offer sur rebuttal. — Rule 50(b), which does not even require the motion to be in writing, was adopted for the purpose of speeding liti- gation, advising the court and opposing counsel of the issues involved and preventing unnecessary retrials. It merely renders unnecessary a request for the reservation of a - question of law or a formal reservation and in addition it adds nothing of substance to the rights of litigants hereto- . fore existing through‘g more cumbersome procedure.”’ Montgomery Ward v. Dundgn, 311 U.S. 250; Berry v. U. 8., 312 U. S. 450. SCttCté«‘ Petition for a.Writ of Certiorart CONCLUSION. | Wuererorg, itis respectfully submitted this case merits the judgment of this Court and it is further respectfully suggested. that unless this judgment is reversed the Consti- tutional provisions referred to herein may be ignored with \ impunity and there will be erosion of the mandates of this q \.. Court and the highest Appellate Tribunals of the various . states to say nothing of the confusion and chaos resulting . from a lack of uniformity. | 7~ Respectfully submitted, | Josepu J. Murpuy, - : | Vincent C. VELDORALE, © - Tomas Byrneg, JR., © . Marx D. Atspacn, - . cs May aoe te Counsel for Petitioner. \ ; Se en ae v Appendix. JUDGMENT OF THE U.S. DISTRICT COURT. Before Luonao, J.:. — '* Anp Now, to wit: November 19th, 1965, in accordance with the Verdict, it is. : : OrpereD that Judgment be and is hereby entered in favor of ‘Plaintiff, David B. Beebe, Administrator of the Estate of Richard C. Kline, Deceased, and against the De- fendant National Molasses Company, on Plaintiff’s -Claim under the Pennsylvania Wrongful Death Act in the sum: of Three Hundred Six Thousand Nine Hundred Seventy- Five and 00/100 ($306,975.00) Dollars,-and on Plaintiff’s Claim under the Pennsylvania Survival Act in the sum of Seventy Two Thousand Two Hundred and 00/100 ($72,- 200.00) Dollars, together with costs, and it is : Furruer Orperep that Judgment be and is hereby en- ‘tered in favor of National Molasses Company and against Eastern States Farmers Exchange for contribution as al- lowed by law, and foal By agreethent of the parties,.the cross-claims of High- land Tank and Manufacturing Company, Paul W. Moyer, - individually and as the surviving partner of F. M. and P..W. Moyer, and National Molasses“Company, against each other, be and the same are hereby marked Withdrawn, The Court having granted the motions of Highland . Tank and Manufacturing Company and Paul W. Moyer, Individually and as the surviving partner of F. M. and P. W. Moyer, for directed verdicts under Rule 60, it is (1A) i 24 * - Judgment of U.S. District Court - Orperep that Judgment be and ‘is hereby entered in _ ‘iin of Highland Tank‘and Manufaeturing Company and — Paul W. Moyer, Individually and as the Surviving partner of F. M. and P. W. Moyer, and against the Plaintiff, David B. Beebe, Administrator of the Estate of Richard c. ‘Kline, Decsaged, and it is 3 Vieadanis Orperep that the Cross-Claim of ‘Highland Tank and Manufacturing Company against Eastern States . Farmers Exchange and the Third-Party. Action of -Paul ; -* W. Moyer, Individually and as the surviving partner of F. M: and P. W. Moyer, against Eastern States. Farmers ' Exchange, be and the same are heveby Dismissed. a gi By THE COURT:. “Amttsr: , 2 _fs/ P. J. amen . . Deputy Clerk. * Order of U.S. District Court 3A , ORDER OF THE U. 8. DISTRICT COURT. ‘Anp Now, this 17th day of June, 1966, upon considera- tion of the Motions of National Molasses Company, it is 1; The Motion to Set Aside Directed. Verdict in Favor ' of Highland Tank & Manufacturing Company and P. W. Moyer, individually and as the surviving partner of F. M. . & P.. W. Moyer, is Dentzp; _ 2. The Motion for J udgment N. O. V. is Denmp; and | 8. The Motion for New Trial is Deyrep, provided plain- . tiff shall, within thirty (30) days. from the date hereof, file a remittitur.of the amounts of the awards in excess of . $300,750. Upon failure to file such remittitur within the - time specified, the Motion for New Trial is Granren, limited to damages only. ~ . SS ALFRED . Luonco, J. 4A - Opinion of U.S. District Court OPINION OF THE U. S. DISTRICT COURT. Luonéo, ry e June 17, 1966. Plaintiff’s. decedent lost his life while attempting to extricate a fellow employee from an underground molasses. tank. The fellow employee had collapsed in the tank while preparing to clean it. Contending that decedent’s death. was the result of the negligence of others, plaintiff brought this action under the Pennsylvania Wrongful Death and the Survival Acts. He joined as defendants the National - Molasses Company (National) which had supplied the molasses, the residue of which necessitated the cleaning opération; Highland Tank & Manufacturing Company (Highland), the maker -.of the tank in which the molasses had been stored; and P. W. Moyer, individually and as the surviving partner of F. M. & P. W. Moyer (Moyer), who had installed the tank some years before. ‘ Decedent’s ’ employer, Eastern States. Farmers Exchange (Eastern) was joined as a third-party defendant. In addition, the | original defendants’ filed cross-claims against each other °, seeking indemnity and/or contribution in the event that plaintiff secured a verdict against one or another of them. At the conclusion of the plaintiff’s caseé all the original defendants moved under Rule 50 for directed verdicts in their favor. Prior to the court’s announcemerit of its rulings.on those motions, all three defendants withdrew of record the cross-claims against each other. The court “then granted the Rule 50 motions of Highland and Moyer but denied National’s. The jury subsequently returned a verdict in. favor of plaintiff and against National assessing the damages in the Wrongful Death action at $306,975 and the damages. in the Survival action at $72,200.. The jury also-found in fayor of National in the third-party proceed- ing against Eastern. Judgment has beer entered in ac- cordance with the verdicts, Before me now are several post trial motions. r . ary eae A a nmr bh pte et ss hilar cite Opinion of U.S. District Court BA I. Derenpant Nationau’s Motion to Set Asiwe Directep Verpicts in Favor or H1GHLAND AND Moyer. It is quite apparent that the Federal Rules of Civil Procedure ‘‘. . . contain no provision under which a de- fendant can recover judgment against a co-defendant ex- cept by way of a cross-claim filed pursuant to” Rule . 13(g), . . .’’ Ragland v. Swindell Dressler Corp., 186 F. Supp. 769, 770 (W. D. Pa. 1960) ; Broadway & Ninety- Sixth St. Realty Corp. v. Loew’s, Inc., 23 F. R. D. 9, 11-12 (S. D. Ny Y. 1958). Since National withdrew its ecross- claims against its co-defendants Moyer and ‘Highland, it ‘lost whatever standing. it may have had to challenge the rulings directing verdicts in their favor. Its belated ex- planation that the agreement of the defendants to with- draw the cross-claims was merely to remove surplusage --has no support in fact! or in law. | “4 _ The motion of National to set aside the directed verdicts in. favor of Highland and Moyer will be denied. II. Mortons or Derenpanr Nationa ror JUDGMENT | ‘. N. O. Voanv/or New Tru. "A. Motion for Judgment N. O. V. . At the outset, plaintiff argues that any motion for judgment n.o.v. is precluded by National’s failure to comply with Rule 50(a) of the Rules of Civil Procedure in that it did not move at the close of all the evidence for a directed verdict in its favor. The point is well taken. It is apparent from the trial record that although National moved for a directed verdict at the close of the plaintiff’s. ease and again at the end of its own principal case, it failed to renew ‘its motion again even though plaintiff offered - additional evidence in rebuttal and National itself offered evidence in surrebuttal. / 1. Counsel for Moyer and for Highland categorically refuted - that as the reason for the withdrawal of the cross claims. , . 6A . Opinion of U.S. District Court “The failure of the defendant to move for a directed. verdict against the plaintiff . . . at the close of: all the evidence foreclosed its right to raise... . any issue as to the sufficiency of the evidence and also its right to move for judgment notwithstanding the - verdict... . This Court and others have uniformly Keld that the introduction of evidence after the denial of a motion for directed verdict constitutes a waiver of the error, if any, in the denial unless the motion “Ys renewed at the close of all the evidence.’’ Gebhardt ° v.Wilson Freight Forwarding Co., 348 F. 2d 129, 132 (3d Cir. 1965). (Emphasis supplied.) See Brandon . v. Yale & Towne Mfg. Co., 220 F. Supp. 855 (KE. D. Pa. 1963), aff’d per curiam, 342 F. 2d 519 (3d Cir. 1965).? ' Although the mbtion for judgment n.o.v. must and will be - denied-because of this procedural deficiency, nevertheless I have. considered National’s motion for judgment n.o.v.: and have concluded that it would, in any event, be denied on the merits. The Gane are these: , Sometime in the-early morning of August 16, 1960, plaintiff’s decedent, Richard C. Kline, reported to work at the Eastern States Farmers Exchange in York, Penn- _sylvania, where he had been employed as a management trainee for approximately two months. At the time of his — arrival, preparations were already underway to clean an underground molasses storage tank situated on the prem- ises. The cleaning operation had hardly beguri when a fellow. employee of Kline’s, one Wayne . Holtzapple, _ dropped a bolt into the tank. ' Fearing that the loose object .2. In its. brief National suggests that by submitting a point for binding- instructions it satisfied its burden under Rule 50(a). “[T]he defendant would ‘have us attribute to . . . its point for charge . . the effect and import of a motion for a directed verdict under Fed. R. Civ. P, 50(a). This we cannot-do. When a rule is so lucid in its Janguage and emphatic in its conditions, it is beyond our power to relax its strictness without violating the. Seventh Amendment.” Brandon v. Yale & Towne Mfg. Co., supra, a 861. o~ Opinion of U.S. District Court 7A might somehow become lodged in a filter pump attached to the tank, Holtzapple descended into the tank to retrieve it. Shortly after his. entry he collapsed. Seeing Holtz- apple’s predicament, Kline ran to another part of the premises, obtained a rope, returned with it and descended into the tank to attempt to remove Holtzapple. Almost immediately after descending into the tank, Kline col- lapsed. ; negligence as would provide a proper basis for imposing on — Eastern an obligation of coftribution that was enforceable in National’s third-party proceeding against it. Cf. Duck- worth v. Ford Motor Co., 3d Cir., 1963, 320 F. 2d 130. We find no error in the court? S handling of this aspect of the case. ) ’ Several additional. cutiiilane tian been advanced con- cerning the proof and the amount of damages. The jury returned a verdict against National in the amount of $306,975 on the Wrongful Death claim: and $72,200 on the __—Survival claim, an aggregate award of $379,175. On motion for a new trial, the court found this verdict excessive and ordered a new trial unless the plaintiff should file ‘‘a remit- titur of the amounts in excess of $300,750 . [to] be ap- portioned to the Wrongful Death and Survival actions in © the same proportions as the amounts awarded by the jury’s verdict bear to the whole’’. Such.a remittitur was filed and the: awards now stand reduced accordingly. . The appellant’s principal point in this connection seems to be that the-prospective future earnings of the deceased ‘were improperly conjectural because neither actuarial - 20A Opinion of USCA. 3 testimony nor any ‘table of life expectancy was introduced _in evidence. However, ‘there was evidence. that the dece-.. dent’s grandfathers died at the ages of 75 and 72, and his” grandmothers at 72 and 68. There also was evidence of the decedent’s ‘sound health and clean and wholesome living until the mishap in suit terminated his very promising life ‘ at age 21. There also was clear and informative evidence of his past and prospective earnings. This was sufficient for a jury determination of damages.. Cf. Benson v. Altoona é L. VE. Ry., 1910, 228 Pa. 290, 77 Atl. 492. After con- sidering this evidence and the amount of the verdict the - court directed remittitur as set out above. It was the court’s view that the total sum awarded substantially exceeded the present value of the lifetime net earnings tgat could ration- ally ‘be predicted for the decedent. We ¢annot say either | that the evidence was insufficient to support the reduced. award or that it required the court to permit the original verdict to stand. Cf. Russell v. ‘Monongahela Ry., 3d Cir., 1958, 262. F. 2d 349. ‘It is also urged on this appeal that the siiinithaldibaad _ of the remittitur between the Wrongful: Death claim and ' .the Survival claim was arbitrary: However, it is admitted ' that the decedent: died almost immediately .and without pain or oumtoring, Almost all of both awards represented the jury ’s estimate of the present worth of probable life- ~ time net earnings after the subtraction of probablé expen- ditures for personal maintenance, and the relative amounts awarded on Wrongful Death and Survival claims repre- sented the jury’s judgment of the decedent’s likely alloca- tion of that total between support for dependents and ac- cumulations, if he had lived.. The court concluded that some $80,000 of the total awards could not be justified by the evidence upon which an estimate of future net earnings had to be made. At the same time, the court respected the jury’s allocation of anticipated overall net earnings between family, tite and accumulations = voquamg that the =. adn - no claim against either of these _ preserved for review, National has no standing now to Opinion of USCA. 3 feo epee 21a $80,000 reduction of the total award based upon veiiiniiien future earnings be allocated ‘between Wrongful Death and. _- Survival awards in‘ the same proportion as the original _. jury awards on these claims bore to each other. This was. logical and * proper and merits appellate sancfion. - Finally, National has asked us to consider whether the ‘ trial court’s action in dismissing the plaintiff’s action as "against two other parties involved in the construction and installation of the tank was correct. But the plaintiff, the claimant against those partiés in the original action, has not appealed their dismissal. And, though the record shows that National at one time cross-claimed against these co- defendants, the record also shows that all cross-claims among the defendants were voluntarily dismissed. Since d,-defendants has been challenge their dismissal, * The appellant also complains of other alleged errors in trial rulings. We have examined all of. these conten- tions. and find no reversible error. * The judgment will be affirmed. P 224 Order of U.S.C.A. 3 Denying Rehearing ORDER OF THE UNITED STATES COURT OF AP- PEALS FOR THE THIRD CIRCUIT DENYING PETITION FOR REHEARING. oe ie . Present: Sraney, Chief Judge; and Biees, McLavexuin; ‘Katopner, Hastie, Smita, FreepMan and Szrrz, Circuit Judges. . ¥ 7 The petition for rehearing filed by Nationat Mouasses Company, Appellant in the above entitled case having been ‘submitted to the judges who participated i in the decision of - this court and to all the other. available circuit judges’ of the circuit in regular active service, and no judge who con- curred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active 3 . service not having voted for rehearing by the court in bane, . the petition for rehearing is denied. “By THE COURT, /s/ Waraiane H. Hasem, ? Judge.. Date: March 27, 1967. , » . NaN Bia ne amin Gee ieee hates a= ? lasagna ips NAG these et: aN AAs Wee ers Dated: April 18, 1967. a - . : » - was ee ee ee : ; agp ae eth a ; j Order of U.S.C.A. 3 Staying Mandate. + 23A 3 : . ¢ ORDER OF THE “UNITED STATES COURT OF AP. PEALS FOR THE THIRD CIRCUIT STAYING IS- SUANCE ‘OF MANDATE. ares ) Pursuant to Rule 36(2) of this Couit, it; is ohou > 3) . that issuance of the mandate in‘ the above ca be, and it 4/ is mereny stayed until May 1, 1967. ‘acim H. Hisrr, — Ctrcutt Judge. - " 248° Judgment of US.C.A.3 JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. Present : Brass, Hastie and Szrrz, Circuit Judges. _ This cause came on to be heard on ‘the record from . the United States District Court for. the Easterif District of Pennsylvania and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court that the judgment.of the said Dis- trict Court, filed November 19, 1965, as reduced by judg- ~ ment filed June ¥ 1966, be, and the same is hereby affirmed, with costs. ° ated ATTEST : THomas F, Quixy, February 24, 1967. ne Letter of Transmittal * 25A - “f LETTER OF TRANSMITTAL. ' Decuert, Prick & RxHoaps Sixteenth Floor, Three Penn Center Plaza ‘Philadelphia, Pa. 19102 | heels: = March 15, 1965 | _ Edward C. German, Esquire 1507 Packard Building _ Philadelphia, Penna. 19102 : ; a ae Peter P. Liebert, 3rd, Esq. — 1320 Packard Building ny Philadelphia, Penna. 19102 Joseph J. Murphy, Esquire e ‘Suite 1525 aa ~ Two Penn Center Plaza ~~. oo Philadelphia, Penna. 19102 ~- .« OP hee ». Highland Tank d Mfg. Co, et ah. Gefitlemen | I enclose herewith Plaintiff’s Requests for Admissions directed to Highland Tank and Manufacturing Company, National Molasses Company and F. M. Moyer and P. W. Moyer. I also enclose two copies of Plaintiff’s Second Amended Pre-Trial Memorandum. The —. of these ee are ed filed of record. Very truly yours, Gaten J. Waits, JR. | Galen J. White, Jr. ATW :jto . Enclosures | C3 Richard J. van Roden, maguire 264 - . Requests for Admissions IN THE - ; es. UNITED STATES DISTRICT COURT | For THE HastTeRN Distaicr OF PENNSYLVANIA. . Civ, Aeron No. 30080. DAVID B. BEEBE, fener OF THE ee oF RICHARD C. KLINE, Derceasep, d v. HIGHLAN D TANK AND MANUFACTURING COM- . PANY, AND F. M. MOYER anp P. W. MOYER, Inprvmvatiy np as’ - _ Co-PARTNERS Trapinc anD Doine Business AS F. M. | AND ‘P. W. MOYER, AND | | NATIONAL MOLASSES COMPANY, v. EASTERN STATES FARMERS EXCHANGE. REQUESTS FOR ADMISSIONS UNDER RULE 36. Plaintiff, Davi B. Bezsz, Administrator of the Estate of Richard C, Kline, Deceased, requests that defendants Highland Tank and Manufacturing Company, National Molasses Company and F. M. Moyer and P. W. Moyer, individually and as co-partners trading and doing business . as F. M. and P. W. Moyer, within ten (10) days of the . - service of these..requests make the following admissions : Requests for Admissions 278 1. That. on the date of the institution of this suit de- . fendant Highland Tank and Manufacturing Company was ~ a corporation incorporated under the laws of the Common- "wealth of Pennsylvania and had its principal place of busi- ness at Stoystown, Somerset County, Pennsylvania, ‘and © not in New Jersey.. ? 2. That on the date of the institution of this suit de- fendant National Molasses Company was a corporation in- corporated under the laws ‘of the Commonwealth of. Penn- sylvania, and had its principal place of business at Oreland, Montgomery County, Pennsylvania, and not in New Jersey. 3. That on the date of the institation of this suit de- . fendant F’. M. Moyer and P. W.. Moyer were adult individ- uals residing in York, York County, Pennsylvania, and were co-partners trading and doing business as F. M. and P. W. Moyer with their principal place of business in York, — York County, Pennsylvania, and. not in New Jersey. Gorpon W. GERBER, -Gordon W. Gerber, 1600 Three Penn Center ‘i Philadelphia, Penna. 19102, _ Attorney for Plaintiff. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0530%3A1. Public record. Not legal advice.