Motion to Dismiss or Affirm — Ratcliff v. Bruce

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INTHE 8; Crepe

SUPREME COURT OF-THE UNITED STATES

OCTOBER TERM 1968 |

;

* ELIJAH WHITE RATOLIFF, |

. anes ain & Petitioner *

e 2 ‘ oF :

_E. IVAN BRUCE AND TRUMAN BLOCKER, JR,

, A set Respondents

,MOTION TO DISMISS OR AFFIRM -

McLeop, ER, Powe. & ADPEL

Atto at Law

808 y & Smith Professional Bldg.

. 200 University Blvd. yy

Galveston, Texas 77550

Crawrorp C. MArrin ; ; \

Attorney General of Texas so >

Nota WHITE .

First Assistant Attorney General

: J.0.Dave ~. .! | )

= Assistant Attorney General x

i. P. O. Drawér.R

Capitol Station

Austin, Texas 78711

Attorneys for Respondents

. | ‘ . : >

INDEX

Page

STATEMENT OF THE CASE ...:................. ae |

Se 3k ERK. a a 2

ite Ree 2

STATUTES INVOLWED ........ o.oo vcn cc ccccccs. ee. 3

_ ARGUMENT ........ cena SPS add h va tua eee Men

| EE So otc es eg ae ee 5

SERVICE ............. es wal cublaasey day acess 6

APPENDIX ....... af Se a ri SAN EE ae 7

CITATIONS

Clough v. Worsham, 74 S.W: 850 .......... la 3

French v. Hopkins, 124 U.S. 624 ................:..... 4

Gibson v, Mississippi, 162 U.S. 565 eae Lae were 4

Iowa Cent. R. Co. v. Iowa; 160 U.S. 389 sédbatre ottee .. 4

Lerner v. Casey, 857 U.S. 468 ..................:.... os

Ratcliff v. Bruce, 423.S.W.2d 614 Cn Regt Ry Oc. 4 ae 2

Speiser v. Randall, 357 U.S. 513 ...... Rp Ne cdl 5

State v. Morgan, 170 S.W.2d 652 ...........0.. 20.22... 3

Tumlinson v. Brownsville, 178 S.W.2d 546 Pep SE eS 3

Wood v. Brady, ior di Mca Ko. 5

Statutes: |

. ARTICLE 2 REVISED CIVIL STATUTES %

TEXAS RULES OF CIVIL PROCEDURE

gM Oe a aes AP eee aa oes 7

Ue ee cera oe, . Bt age a

a)

NO. 353

xe IN THE foot 7 a

SUPREME COURT OF THE UNITED STATES

..-. OCTOBER TERM 198 = 8 ©

- ELIJAH WHITE RATCLIFFE,

- Petitioner

rigs 3 Pie = :

E. IVAN BRUCE AND — BLOCKER, JR..,

: Respondents .

‘MOTION TO DISMISS OR AFFIRM

TO THE’ HONORABLE SUPREME COURT OF —

‘THE UNITED STATES: - :

‘Respondents, E. Ivan Bruce and Truman Blocker,

Jr., pursuant to Rule 16 of the Revised Rules of the

Supreme. Court. of the, United States, moves that the

case be dismissed on the ground that the case does not

present a substantial Federal question, and in the al-

ternative, the Respondents, E. Ivan Bruce and Truman

Blocker, Jr., moves that thé: judgment and decree of

the Court of Civil Appeal for the Fourteenth Supreme __—-

“Judicial District of Texas be affirmed on the ground

that the questions are so unsubstantial as not to war-

rant futher argument. . A

STATEMENT OF THE. CASE |

_ ‘This action is a malpractice suit which was instituted —

by Petitioner, Elijah White Ratcliff, for damages

against E; Ivan Bruce and Truman Blocker, Jr., Re-

spondents, for allegedly treating Petitioner at the Uni-

versity of Texas Medical Branch at Galveston, Texas,.

without hisconsent:. < ; ce,

<x, The facts of this case are stated in the opinion of the

Court of Civil Appeals for the Fourteenth Supreme

Judicial District of Texas, which opinion is set forth ©

in Petitioner’s .Appendix B, at pp. 45-52, and is re-—

_ ported at 423 S.W.2d 614. | a |

OPINIONS BELOW |

This suit was filed in the 56th Judicial District Court

of Galveston County, Texas. Motion for ‘Summary |

_ Judgment was duly filed and presented on behalf of

_ Aespondent, Dr. Truman Blocker, Jr., and this motion

_ Was sustained. The case was tried on its merits, insofar

as the Respondent Dr. E. Ivan Bruce was concerned,

before ¢ jury, and the jury found that Petitioner, Eli-

jah White Ratcliff, was not treated without his con-

sent. The Court of Civil Appeals for the Fourteenth

Supreme Judicial District. of Texas, on J anuary 17,

1968, affirmed the judgment of the trial court. The

Supreme Court of Texas, on: May 15, 1968, refused |

Petitioner’s (Elijah White Ratcliff ’s) Application for

Writ of Error (no reversible error). On June 5, 1968,

Petitioners Motion for Rehearing of Application for —

Writ of Error was overruled by the Supreme Court of

sake JURISDICTION welt

It is asserted by Respondents that the Petition for

_. Writ of Certiorari fails to comply with Rule 23(f) of

- . the: Supreme Court of the-United ‘States, in that the

Petition does not specify the stage in the proceedings

in the Court of first instance and in the Appellate .

. Court or Courts, at which, and the manner in which, -

the; Federal questions sought to be reviewed were .

, ans Bias . ‘

eka

: a Wee cae oo

raised ; the method of raising them; and the way they -

were passed on by the Court. "

' ., In the alternative, it is questioned by. Respondents

that any substantial Federal question is presented for

adjudication by the Supreme Court of the United .

States. te 3

Petitioner brought a malpractice suit in the 56th

Judicial District Court of Galveston County, Texas,

against Respondents, Dr. E. Ivan Bruce and Dr. Tru-

man Blocker, Jr., Executive Director of the Univer-

sity of Texas Medical Branch at Galveston, Texas, al-

_ leging that Petitioner had been treated without. his

consent and sought to recover damages in the amount

-of $660,000.00. suche ReneS oan

Respondent Dr. Truman Blocker, J r., filed a motion *

for summary judgment which motion was sustained by

the trial court. The State Court correctly held-that un-

der Texas law, -Dr. Truman Blocker, Jr., the director :

of the University of Texas Medical Branch in Galves-

ton, Texas, was not liable under respondeat superior

* for the aets‘or ommissions of subordinates. The Court.

of ‘Civil Appeals cited as authority State v. Morgan -

.. (Tex.Com:App.), 140 Tex. 620, 170 S.W.2d 652 (1933) :

‘Tumlinson v. City of Brownsville, 178 -S.W.2d 546. -

. (Tex.Civ.App. 1944, err. ref.) ; Clough v. Worsham,

74.8.W. 350 (Tex.Civ.App. 1903, err. ref.). The case

' was tried on its merits before a jury, insofar as Dr. E.

Ivan Brucé, is concerned, on the question of whether

Dr. E. Ivan Bruce gave psychiatric treatment to Pe-

titioner without his consent. The jury found that Peti-

tioner had consented to.such treatment and the record

abundantly supports the jury’s findings. |

Petitioner appealed the judgment of the Trial Court

to the Court. of Civil Appeals for the Fourteenth Su- .

| preme Judicial District of Texas. The Court of Civil

missed or the judgment of the Court of Civil Appeals

for the Fourteenth Supreme Judicial District of Texas

Courts did the Petitioner. raise any Federal questions, _

_ either by his pleadings, by a request to charge and.ex- —

ceptions, by assignment of error, or in any other man-

ment of the Court of Civil Appeals for the Fourteenth

Supreme Judicial District of Texas affirmed. 7

"State Courts were procedural and evidentiary matters -

jure and the Texas Courts ._

alleged ee

: /

Mississippi, 162 U.S. 565; Wood v. Brady, 150 U.8. . mc

18. The cases are also equally clear that the construe- ss

tion ‘of state laws are the exclusive responsibility of

| state courts. Speiser v. Randall, 357 U.S. 513; Lerner

vu. Casey, 357 U.S. 468; Applying the foregoing prin-

ciples to the instant case, the Respondents respectfully

submit that there is.no substantial Federal question /—

The issues dealt with by the Court of Civil-Appeals -

for the Fourteenth Supreme Judici District of Texas —

_ and the Supreme Gourt of Texas dealt with procedur.

and evidentiary matters, and no constitutional ques-_

tions were. raised, or passed on by ‘the Texas Courts. ..

a | CON CLUSION

“We réspectfully submit that the Petitioner did not -

_7 “present a substantial Federal question and that this.

sis: Petition for Writ of Certiorari should be dismissed or

the judgment and decree of the Court of Civil Appeals

for the Fourteenth Supreme Judicial District of Texas

should be affirmed. eae REE age os ieee:

__ Respectfully submitted, _ |

- McLeop, ‘ ER, PowEL & APPEL re ,

Attorneys at Law See eases

808 Sealy & Smith Professional Bldg. .

are 200 University Blvd. ig .

| Galveston, Texas 77550

Ba eee : | Crawrorp C: Martyn Cis

Attorney General of Texas"

.-. Nota Warre 2 ete gees

First Assistant Attorney General

Mimi:

Executive Assistant

=

+

s Ry ed

J.0.Dive :

° se Assi tant Attorney General

Jomn Hai

Assistant Attorney General ‘

P.O.DrawerrR ~ =”

A - Capitol Station —

Austin, Texas 78711

Attorneys for Respondents |

€

SERVICE

I, A. J. Carubbi, Jr., Assistant Attorney General of

Texas, am a member of the Bar of the Supreme Court

of the United States, and I do hereby certify that a

copy of the foregoing Motion has been forwarded by

United States Mail, First Class, postage pre-paid to

Petitioner’s Attorney, Mr. Elijah White. Ratcliff, P.

Q. Box 391, Livingston, Texas 77351. Fae

~

at Se Cee A. J. Canvest, Jr. |

Assistant Attorney General of Texas

j .

APPENDIX

ane State Statutes _ x

Art, 2134. Revised Civil Statutes of Texas, 1925. a

“The following pérsons shall be disqualified to serve

@8 jurors in any particular case: its ae:

“1. Any witness in thevease, .” ans see

~* 49. Any person inférested, directly or indirectly, in —

the subject matterof the suit. , |

“of 469 Any person related by consanguinity or affinity.

_Within the third degree to either of the parties to the

coasts o milvin taal

“4. Any person who has a bias or prejudice in fa-

‘__ . Vor of or against either of the parties. isis .

‘5, Any person who has sat asa petit juror in a .

former trial of the same, or ‘of another case, involving

the same questions of fact.’ be ?

Texas Rules of Civil Procedure

le Rule 234 aia ah es

“When the parties have made or declined to: make

their peremptory challenges, they shall deliver their

lists. to the clerk. The clerk shall, if the case be in the

district court, call off the first twelve names. on the

lists that have not been erased; and if the ease be in

‘the county court, he shall call off the first six names'on” _

the lists that have not been erased; those whose names

_ are called shall be the jury. 3 We set ee

. aes

. . -

“The bre for appellant should contin in Ue order

6

**(a) A short, wail statement of the nature of the

ease without argunient. A resume of the pleadings or

evidence is seldom necessary and should be avoided.

“(b) A statement of the points upon’ which the ap- y

- peal is predicated, separately numbered in short form f

and without argument, and germane té one or more’

assignments of error when assigninents arg required.

Such points will be sufficient if they direct the atten- —

tion of the court to the error relied upon and they \

should ordinarily be so concisely stated that they may \

‘appear, separately numbered, on a single page of the

brief. Assignments of error need not be copied in the -

brief, and may. be cited by reference only.

‘*(e) A brief of the argument, presenting separatély

or grouped, if germane, the points relied upon for re-

“versal, the argument to include (i) a fair, condensed

statement of the facts pertinent to such points, with

reference to the pages in the record where the same

- may be found; and (ii) such discussion of the facts

and the authorities relied upon as may be requisite to

maintain the point at issue. If complaint is made of. .

any charge given or refused, such charge shall be set

out in full. If complaint is made of the improper ad-

mission or rejection of evidence, the full su

such evidence so admitted or rejected shall be

_. with reference to the pages of the record w

sae may be found. Repetition or proixity of eae

eee ante tein