# Motion to Dismiss or Affirm — Ratcliff v. Bruce

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0008%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss or Affirm
- **Published:** January 1, 1969
- **Citation:** 396 U.S. 937

## Text

;
aad *
‘ . ‘
‘
" .
4 ° .
‘a. ie
ad ,
s
.
.
*
‘
. > .
. ° °
, © ; :
.
.
‘ oF say.
° » ‘
‘ re
> .
, -
s ‘
*
. .
4 . ° ae ° . *
’ *
*-
. .
‘ as & .
. “ . a
. .
. e al .

} o |. Sune. “a
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0008%3A3. Public record. Not legal advice.