# Petition for Writ of Certiorari — Mobil Oil Corp. v. Hughes

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1519%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1970
- **Citation:** 398 U.S. 950

## Text

APR 21 1970

se ] 453 JOHN F. DAVIS, CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

MOBIL OIL CORPORATION,
Petitioner,
VS.

MARY KATHERINE HUGHES, ET VIR,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Jack T. AKIN
P. O. Box 633
Midland, Texas 79701
Max N. OsBoRN
P. O. Box 913
Midland, Texas 79701
Irnsy L. DyER
P. O. Box 913
Midland, Texas 79701
Attorneys for Petitioner
Of Counsel:
Turrin, SmirH, Dyer, Harpe & HARMAN
P. O. Box 913
Midland, Texas 79701

aoe

L, Mawpmenaty, Inc., 926 Cherry Street, Kansas City, Mo. 64106, HArrison 1-8080

BLEED THROUGH POOR COPY

INDEX
Opinion of the Court Below 2
Grounds on Which Jurisdiction Is Invoked .................... 2
Questions Presented 2
Statutes and Constitutional Amendment Involved ...... 3
Statement 3-8
Reasons for Granting the Writ 8-13

1. The action of the trial court constituted an in-
vasion of the province of the jury contrary to
the Seventh Amendment of the United States
Constitution 8-10
2. The decision of the Court of Appeals is not in
accord with the applicable decisions of the Su-

preme Court of Texas 10-12

3. The questions here presented have great im-
portance and far-reaching effect 12-13

4. The decision of the trial court and Court of
Appeals was clearly erroneous 13
Conciusion 14
Certificate 15

Appendix A—Opinion by the United States Court of
Appeals, Fifth Circuit A1-A6

Appendix B—Judgment of the United States Court of
Appeals, Fifth Circuit A7
Appendix C—Order Denying Rehearing A8

Index to Authorities
CASES

Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S.

355, 7 L. Ed. 2d 798, 82 S. Ct. 780 12

Biggers v. Continental Bus System, 303 S.W. 2d 359
(Tex. S. Ct., 1957) 11

Boeing Company v. Shipman, 411 F. 2d 365 (5th Cir,

bad INDEX

1969) 9, 10
Box v. Swindle, 306 F. 2d 882 (5th Cir., 1962) 2. 3
Burcham v. J. P. Stevens & Co., 209 F. 2d 35 (4th

Cir., 1953) aie i
Byrd v. Blue Ridge Rural Electric Cooperative, 356

_US. 525, 2 L. Ed. 2d 953, 78 S. Ct. 893 10, 12
Erie Railroad Company v. Tompkins, 304 U.S. 64, 82

L. Ed. 1188, 58 S. Ct. 817 12
Gibson v. Phillips Petroleum Company, 352 U.S. 874,

1 L. Ed. 2d 77, 77S. Ct. 16 10, 12
Greyhound Company v. Dewey, 240 F. 2d 899 (5th Cir.,

1957) 13
Griffith v. Hudspeth, 378 S.W. 2d 163 (Tex Civ App.,

1964, no writ history) 9
Mitchell v. Ellis, 374 S.W. 2d 333 (Tex. Civ. App., 1963,

_ writ ref.) 11
Myers v. Gulf Coast Minerals Management Corp., 361

S.W. 2d 193 (Tex. S. Ct., 1962) 11
Penney, J. C., Company v. Oberpillar, 141 Tex. 128, 170

S.W. 2d 607 (Tex. S. Ct., 1943) ll
Placencia v. Western Union Telegraph Company, 141

Tex. 247, 172 S.W. 2d 86 (Tex. S. Ct., 1943) 0... ll
Simler v. Conner, 372 U.S. 221, 9 L. Ed. 2d 691, 83 S.

Ct. 609 10
Skelly Oil Company v. Archer, 334 S.W. 2d 855 (Tex.

Civ. App., 1960) ll

Southwest Dairy Products Company v. DeF rates, 132
Tex. 56, 125 S.W. 2d 282 (Tex. Comm. App., 1939) 11

Standard Oil Company v. Anderson, 212 US. 215, 53
L. Ed. 480, 29 S. Ct. 252 (1909) 12

Swafford v. Atlantic Coast Line Railroad Co., 350 US.
807, 100 L. Ed. 725, 76 S. Ct. 80 10

we eer 6s Fa tes reAarar 7 eres

INDEX

Thomas v. Travelers Insurance Company, 423 S.W. 2d
359 (‘Tex. Civ. App., 1967, writ ref.)
Wichita Royalty Co. v. City Nat. Bank, 306 U.S. 103,
83 L. Ed. 515, 59 S. Ct. 420
Wilkerson v. McCarthy, 336 U.S. 53, 93 L, Ed. 497, 69
S. Ct. 413
Williams v. Carolina Life Insurance Co., 348 U.S. 802,
99 L. Ed. 633, 75 S. Ct. 30
Wood v. Mullins, 282 S.W. 2d 243 (Tex. Civ. App.,
1955, writ ref., n.r.e.)
Zalta v. Houston Transit Co., 384 S.W. 2d 914 (Tex.
Civ. App., 1964, no writ history)

CONSTITUTIONAL PROVISIONS AND STATUTES

Rules of Decision Act, 28 U.S.C., §1652
Seventh Amendment to the United States Constitu-
tion

TEXTS

Bagalay, Directed Verdicts and the Right to Trial by
Jury in Federal Courts, 42 Texas Law Review 1053
(1964)

Green, Protection of Jury Trial in Diversity Cases, 35
Texas Law Review 768 (1957)

Wright, Federal Courts, 371-372 (1963)

12

12

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

MOBIL OIL CORPORATION,
Petitioner,
Vs.
MARY KATHERINE HUGHES, ET VIR,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS _.
FOR THE FIFTH CIRCUIT

To THe HONORABLE CHIEF JUSTICE AND THE ASSOCIATE J US-
TICES OF THE SUPREME COURT OF THE UNITED STATES:

Petitioner, Mobil Oil Corporation, prays that a Writ of
Certiorari issue to review the opinion and judgment of the
United States Court of Appeals for the Fifth Circuit, en-
tered in the above entitled case on February 3, 1970, and
in which Petition for Rehearing was denied March 19, 1970.

2

Z,
OPINION OF THE COURT BELOW

The opinion of the United States Court of Appeals for
the Fifth Circuit (A. 226) printed in Appendix A hereto,
infra, page Al, is not as yet reported.

II.
JURISDICTION

The judgment of the United States Court of Appeals
for the Fifth Circuit was entered on February 3, 1970 (A.
227; Appendix B, infra, page A7). Rehtaring was denied
on March 19, 1970 (A. 228; Appendix C, infra, page A8),
The jurisdiction of this Court is invoked under 28 USCA,
Section 1254 (1).

III.
QUESTIONS PRESENTED

1. Whether the trial court erred in instructing the
jury that the driver of Petitioner’s vehicle was guilty of
negligence as a matter of law where the evidence was con-
flicting and whether the trial court and Court of Appeals
erred in holding that under the Seventh Amendment of
the Constitution of the United States, Petitioner, in a di-
versity of citizenship case, was not entitled to have the
jury consider and determine the fact issue concerning
whether the driver of its automobile was negligent in
keeping a proper lookout?

2. Whether a Court of Appeals may, in arriving at
a decision on a case, under its appellate jurisdiction by
virtue of diversity of citizenship of the parties, apply sub-
stantive law which is in direct conflict with the law of
the State from which the case was appealed as set forth
by the highest Court of the State?

BLEED THROUGH POOR COPY

IV.

STATUTES AND CONSTITUTIONAL AMENDMENT
INVOLVED

1. The Constitutional Amendment involved in this
case is the Seventh Amendment to the Constitution of the
United States which provides:

“In Suits at common law, where the value in con-
troversy shall exceed twenty dollars, the right of trial
by jury shall be preserved, and no fact tried by a jury
shall be otherwise reexamined in any Court of the
United States, than according to the rules of the com-

mon law.”

9. The statutory provision involved in this case is the
Rules of Decision Act, 28 U.S.C., Section 1652, which pro-
vides as follows:

“The laws of the several States except where the
Constitution or treaties of the United States or Acts of
Congress otherwise require or provide, shall be re-

as rules of decision in civil actions in the Courts
of the United States in cases where they apply.”

V.
STATEMENT

This diversity of citizenship case (A. 8) was filed in
the United States District Court for the Western District
of Texas, Pecos Division, as the result of an accident that
occurred when the vehicle being driven by Mrs. Hughes was
struck in the rear end while preparing to make a left turn
at an intersection in Andrews, Texas. The car which hit
the vehicle being driven by Mrs. Hughes was owned by
the Petitioner (referred to herein as “Mobil”) and being
driven at the time of the accident by Mobil’s Production
Foreman, Gilbert Jurenka, who was on his way to the

—

Andrews, Texas, Country Club to take a chest of ice toa
member of the Ladies’ Association of the Andrews Country
Club, who at the time were selling iced tea and lemonade
during a golf tournament. Mobil denied that Mr. Jurenk,
was in the course and scope of his employment at the time
of the accident and that he was guilty of negligence in
causing the accident (A. 14).

The trial court instructed the jury that Mr. Jurenka was
guilty of negligence as a matter of law in failing to keep
a proper lookout (A. 179). The trial court refused Petj.
tioner’s motion for instructed verdict (A. 192-195), and re
fused Petitioner’s motion for judgment non obstante vere.
dicto or, in the alternative, for a new trial (A. 204-212),
and entered judgment against the Petitioner on the jury
verdict (A. 213, 214). A prior judgment in this case was
reversed by the Court of Appeals in an opinion published
at 388 F. 2d 586.

Trial by Jury Issue

Only two witnesses, the Respondent Mary Katherine
Hughes, and Gilbert Jurenka, the drivers of the two vehi-
cles, testified to the actual circumstances and facts involved
in the happening of the accident between the two vehicles.

Mrs. Hughes testified that the accident occurred about
2:30 p.m. on Sunday afternoon, August 25, 1963 (A. 78).
She testified that she and five other girls were traveling
east on Broadway Street in her father’s 1963 Chevrolet
automobile (A. 79-80). She said that as she approached
the intersection of Broadway and Northeast Second Street
she knew she was going to turn left and about half a block
before where she was going to turn she put on her tum
signal and continued for a little bit on down the road and
then put her foot on the brake, and by the time she had

4

reached the intersection she had come to a complete stop
(A. 80-81). According to her testimony it was necessary
for her to stop to permit approaching traffic the opportu-
nity to clear the intersection before she turned (A. 81). She
estimated that she was stopped from 30 to 45 seconds be-
fore the impact (A. 81). Her father testified that the cost
of repairs to his vehicle was $70.00 to $80.00 (A. 119).

Mr. Jurenka testified that he was driving east on
Broadway at approximately 25 to 30 miles per hour, look-
ing straight ahead, and saw the signal for the left turn (A.
143-144, 161). It was his opinion that she had plenty of
time to turn before the approaching traffic reached the in-
tersection (A. 144, 146, 156, 166). At the time he saw her
turn lights come on he looked in the rear-view mirror and
looked over to his right to see if he could move into the
righthand lane (A. 144). When he looked back in front
of him Mrs. Hughes had stopped and he applied his brakes
and attempted to turn to the right but struck the rear end
of her vehicle (A. 145). Mr. Jurenka testified that from
the time he looked in his rear-view mirror and to the right
and back in front again, one to two seconds elapsed and
that during this period of time Mrs. Hughes had stopped her
car at the intersection (A. 156). He estimated that when
her signal light came on he was 60 to 80 feet behind the
Chevrolet and that when he looked in the rear-view mirror
and she applied her brakes and he looked back, he was
probably 30 feet behind her car (A. 156). He skidded
about three to six feet and did $92.00 worth of damage to
the Mobil vehicle (A. 156, 128, 143). It was Mr. Jurenka’s
testimony that from the time the signal light came on until
the accident occurred approximately four seconds elapsed
and that there was no way in the world that Mrs. Hughes
could have been stopped at the intersection 20 to 30 seconds
before the impact (A. 162). Mr. Jurenka testified, as did

Mrs. Hughes, that the brake signal, indicating an intention
to siop was not activated at the time the turn signal was
activated (A. 162, 81, 103).

According to Mrs. Hughes’ testimony, at no time did
she look in the rear-view mirror before coming to a com.
plete stop, but had she looked and seen a car behind her,
there would not have been anything to prevent her from
giving a signal of intention to stop at the same time she
gave a signal of intention to turn (A. 104).

In his charge to the jury the trial judge instructed the
jury that Mr. Jurenka was guilty of negligence as a matter
of law in failing to keep a proper lookout (A. 179, ¥(b)).
The Petitioner made timely objections to this instruction
by the court (A. 187, 188).

Scope of Employment Issue

Only two witnesses, Mr. Jurenka and Mrs. Webb, testi-
fied concerning Mr. Jurenka’s duties on the date of the
accident and the purpose of his trip when the accident o-
curred. Mr. Jurenka was a Production Foreman for Mobil
when the accident occurred on August 25, 1963 (A. 125, 126).
He and his assistant were normally off duty two days out
of every two weeks and normally they alternated working
every other weekend (A. 128, 129). Mr. Jurenka’s normal
working day was from 7:00 a.m. until 5:00 p.m. and on
weekends when he worked he normally took off Sunday
afternoon (A. 149-150, 130). When he was in town but not
on duty he was on call twenty-four hours a day (A. 130).

On August 25, 1963, a Sunday, he went to his office
about 7:00 a.m. and, after completing some paper work,
made several trips to an oil well located southwest of the
City of Andrews (A. 132, 133). After running some checks
at the well it was determined that it would be necessary
to pull the well (A. 133). By noon Mr. Jurenka had fin-

BLEED THROUGH POOR COPY

_————

ished his office and field work and went to the Country
Club, where his wife was working as a member of the
Ladies’ Association, to have lunch (A. 150-151). He testi-
fied, “Usually, we didn’t work in the afternoon unless
there was something specific to do” (A. 150). After lunch
Mr. Jurenka went home, since he didn’t have anything to
do at that particular time, and was only required to be “on
call” if needed (A. 151). While at home he pulled some
weeds in the back yard and turned off the water sprink-

lers (A. 138).

He then went back to the Country Club and advised
his wife that he was going to DA & S Well Service Office
(A. 138). At that time his wife asked him to pick up some
ice from an ice maker located at DA & S (A. 138, 152). He
then proceeded from the Country Club on the east side of
town to DA & S Well Service on the west side of town
(A. 152, 153). This was a distance of about twenty-five
blocks (A. 153). There was no one present in the office
of DA & S and Mr. Jurenka decided to wait until the next
morning to contact them, and then proceeded to the back
of the office where he loaded the ice chest and put it in the
back seat of his car (A. 142, 158). Concerning subsequent
events he testified:

“Q. Allright. When you left there, you were go-
ing, then, back to take the ice back by the Country
Club?

“A. Yes,sir.” (A. 142).

“ses

“Q From that time—from the time you got there
and found out there wasn’t anybody there that you
needed to see about the pulling unit, from that time
until 7:00 o’clock the next morning, did you do any-
thing for Mobil?

“A. No, sir.

“Q. Did you get any calls from anybody?

“A. No, sir.

7

—

“Q. All right. What did you do, then, after you
put this ice chest in the car?

“A. Istarted back east on Broadway.

“Q. Allright. And intending to go where?

“A. Back to the Country Club.” (A. 153-4),

see &

“Q. All right, sir. Now with regard to the trip
to the Country Club was there anything about tha
trip or anything that transpired or anything you did
with the rest of the day that was in connection with
your duties for Mobil Oil?

“A. No, sir.

“Q. Did you make that trip there for the sole pur-
pose and only purpose of taking the ice?

“A. That is right.” (A. 160).

Mr. Jurenka also testified that he had been instructed
not to use the company car for personal business prior to
the accident (A. 164).

Mrs. Webb testified that on August 25, 1963, she was
working as a member of the Ladies’ Association at the An-
drews Country Club selling sandwiches, tea and lemonade
(A. 166). She said that on that afternoon Mr. Jurenka
delivered to her at the fourteenth hole a chest of ice (A
167).

VI.
REASONS FOR GRANTING THE WRIT

1. The action of the trial court constituted an invasion
of the province of the jury contrary to the Seventh Amend-
ment of the United States Constitution.

As set forth in the Statement above, the testimony
of the two drivers was in great conflict as to how the ac-
cident happened. The Respondent Mrs. Hughes said she
had to stop at the intersection because of approaching

BLEED THROUGH POOR COPY

—

9

traffic (A. 81). Mr. Jurenka, the driver of the Mobil ve-
hicle, testified that in his opinion the Respondent had
plenty of time to turn despite the approach of other ve-
hicles (A. 144, 146, 155). The Respondent testified that
she had been stopped from thirty to forty-five seconds
when the accident occurred (A. 81). Mr. Jurenka testified
that she had been stopped one or two seconds (A. 156)
and not twenty or thirty seconds befcre the impact (A.
162). Despite this conflict in the evidence and the fact
that the credibility of each witness was in issue and the
fact that Mr. Jurenka had a duty to look to the rear to
ascertain whether his turn to the right could be made with
safety', the trial court refused to permit the jury to pass
upon whether or not the conduct of Mr. Jurenka on the issue
of lookout constituted negligence or not, but instead in-
structed that he was negligent as a matter of law (A. 179).

In 1969, the United States Court of Appeals, Fifth
Circuit, sitting en banc, stated that in diversity cases
Federal Courts apply a Federal rather than a State test to
determine the sufficiency of the evidence to create a jury
question and further, that it is the function of the jury as
the traditional finder of the facts, and not the Court, to
weigh conflicting evidence and inferences, and determine
the credibility of witnesses. Boeing Company v. Shipman,
411 F. 2d 365. But less than one year later that same
Court, in deciding this case, makes no mention of the
Federal test and affirms the action of the trial court,
citing only cases from Texas courts, none of which were
decided under nor are authoritative in the Federal Courts
where the dictates of the Seventh Amendment apply!

1. Griffith v. Hudspeth, 378 S.W. 2d 163 (Tex. Civ. App.,
1964, no writ history); Zalta v. Houston Transit Co., 384 S.W. 2d
914 (Tex. Civ. App., 1964, no writ history).

——ay

These facts certainly present a situation in which this
Honorable Court has on numerous occasions granted
Writs of Certiorari, thereby preventing the trial court or
appellate court from invading the province of the jury
and substituting its own conclusions for that of the jury upon
disputed facts. Byrd v. Blue Ridge Rural Electric Cooper.
tive, 356 U.S. 525, 2 L. Ed. 2d 953, 78 S. Ct. 893; Simler y,
Conner, 372 U.S. 221, 9 L. Ed. 2d 691, 83 S. Ct. 609. Where
the dictates of the Seventh Amendment have not been
followed, this Honorable Court has not hesitated to reverse
the lower court in negligence as well as other type cases,
Williams v. Carolina Life Insurance Co., 348 US. 802, 99
L. Ed. 633, 75 S. Ct. 30; Swafford v. Atlantic Coast Line
Railroad Co., 350 U.S. 807, 100 L. Ed. 725, 76 S. Ct. 80;
Gibson v. Phillips Petroleum Co., 352 U.S. 874, 1 L. Ed. 2d
77, 77 S. Ct. 16. See, also, Boeing Company v. Shipman,
411 F. 2d 365 (5th Cir., 1969), Footnote 19 at page 389,

10

2. The decision of the Court of Appeals is not in ac.
cord with the applicable decisions of the Supreme Court of
Texas.

This being a diversity of citizenship case from Texas,
the Court of Appeals, under the Erie doctrine, was ob-
ligated to apply Texas law in determining the question of
whether or not Mr. Jurenka was in the scope of his em-
ployment at the time of the accident. Under the Texas
law, for an act to be in the course and scope of a servant's
employment, it is necessary that:

(1). It be done within the scope of the general
authority of the servant,

(2). In the furtherance of the master’s business,
and

Riccn THROIIGH POOR COPY

—

11

(3). For the accomplishment of the object for
which the servant is employed. Mitchell v. Evlis, 374
S.W. 2d 333 (Tex. Civ. App., 1963, writ ref.”).

In the opinion on the first appeal Judge Griffin Bell,
writing for the Court and noting the status of Mr. Jurenka,
said:

“He was on call at the time of the accident * * *.”

388 F. 2d 586, 587.

Certainly any first-year law student knows that the
employee could not at the same time be both “on call” and
“on duty”. In Wood v. Mullins, 282 S.W. 2d 243 (Tex. Civ.
App., 1955, writ ref., n.r.e.), and Thomas v. Travelers In-
surance Company, 423 S.W. 2d 359 (Tex. Civ. App., 1967,
writ ref.), the Texas courts have had opportunity to pass
upon the status of an employee who was at the time of an
accident “on call” and in each instance held that during
such status the employee was not in the scope of his em-
ployment. The Wood case is directly in point and involves
an employee occupying the same status as that occupied
by Mr. Jurenka in this case. The Fifth Circuit chose to ig-
nore that decision and others by the Texas Supreme Court
to the effect that one performing a personal mission un-
related to his master’s business is not in the course and
scope of his employment. Southwest Dairy Products Com-
pany v. DeF rates, 132 Tex. 56, 125 S.W. 2d 282 (Tex. Comm.
App., 1939); Placencia v. Western Union Telegraph Com-
pany, 141 Tex. 247, 172 S.W. 2d 86 (Tex. S. Ct., 1943);
J. C. Penney Company v. Oberpillar, 141 Tex. 128, 170
S.W. 2d 607 (Tex. S. Ct., 1943). “The master’s respon-

2. The Texas Supreme Court having refused the application
for writ of error, the opinion has the same efect as a decision by
the highest court of the State. See Biggers v. Continental Bus
System, 303 S.W. 2d 359, 364 (Tex. S. Ct., 1957); Skelly Oil Com-
pany v. Archer, 334 S.W. 2d 855, 860 (Tex. Civ. App., 1960);
Myers vy. Gulf Coast Minerals Management Corp., 361 S.W. 2d
193, 196 (Tex. S. Ct., 1962).

a

12

sibility cannot be extended beyond the limits of the mas.
ter’s work. If the servant is doing his own work or that of
some other, the master is not answerable for his negligence
in the performance of it.” Standard Oil Company y, An.
derson, 212 US. 215, 221, 53 L. Ed. 480, 483, 29 S, Ct, 259
(1909).

Since the Court of Appeals did not follow the law of
Texas, a typical situation is presented in which this
Honorable Court has on a number of occasions granted
Writs of Certiorari. Erie Railroad Company v. Tompkins,
304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817; Wichita Royalty
Co. v. City Nat. Bank, 306 U.S. 103, 83 L. Ed. 515, 59s
Ct. 420; Gibson v. Phillips Petroleum Company, 352 US.
874, 1 L. Ed. 2d 77, 77S. Ct. 16.

3. The questions here presented have great importance
and far-reaching effect.

Not only in the State of Texas, but in all of the States
the Constitutional guaranty of right to trial by jury is
equally important to all parties involved in litigation in
a Federal Court. This Honorable Court on numerous oc-
casions has given full application to the provisions of the
Amendment. Wilkerson v. McCarthy, 336 U.S. 53, 93 L.
Ed. 497, 69 S. Ct. 413; Byrd v. Blue Ridge Rural Electric
Cooperative, 356 U.S. 525, 2 L. Ed. 2d 953, 78 S. Ct. 893;
Atlantic & Gulf Stevedores v. Ellerman Lines, 369 US.
355, 7 L. Ed. 2d 798, 82 S. Ct. 780. Many others have also
written on this Constitutional guaranty. Green, Protec-
tion of Jury Trial in Diversity Cases, 35 Texas Law Re
view 768 (1957); Wright, Federal Courts, 371-372 (1963);
Bagalay, Directed Verdicts and the Right to Trial by Jury
in Federal Courts, 42 Texas Law Review 1053 (1964).

Certainly if the facts in Gibson v. Phillips Petroleum
Company, supra, were such as to insure the right to trial

BLEED THROUGH POOR COPY

13

by jury in that negligence case, there should be no reason
to deny Mobil such a right in this case! No other case
has been found where the trial judge acting on his own,
and without motion from a party, has taken a fact issue
from the jury under disputed facts and instructed that the
conduct of one of the drivers constituted negligence as a
matter of law. With great numbers of accident cases pend-
ing in all Federal Courts, this Court should not condone
such procedures which violate Constitutional guaranties.

At least of equal importance to businesses throughout
the nation is the question of their liability for acts of em-
ployees driving company cars at times when they are not
performing specific tasks for the employer, but instead on
a mission of their own. There is no authority to support
the conclusion of Judge Godbold that an employer is still
responsible for the conduct of the employee even “while
between specific tasks” for his employer. This Honorable
Court should not leave standing such a decision which ex-
tends the respondeat superior doctrine to make a master
an insurer of the acts of its servants.

4, The decision of the trial court and Court of Appeals
was clearly erroneous.

The results reached in this case are contrary to those
reached in cases where a Federal test was applied. See
Box v. Swindle, 306 F. 2d 882 (5th Cir., 1962); Grey-
hound Company v. Dewey, 240 F. 2d 899 (5th Cir., 1957);
Burcham v. J. P. Stevens & Co., 209 F. 2d 35 (4th Cir.,
1953).

——y

14

CONCLUSION

The undisputed evidence having established that a
the time of the accident Mr. Jurenka was on a frolic of
his own, wholly unrelated to his employment with Mobil,
the trial court and Court of Appeals erred in holding
Mobil liable under the doctrine of respondeat superior.
Even if Mobil be responsible for the conduct of Mr. Jurenka
while going to the Country Club on Sunday afternoon, this
Petitioner was entitled to a jury determination on the is.
sue of negligence of the driver of its vehicle under the
guaranties of the Seventh Amendment and the case should
be remanded for a jury determination of that issue.

WHEREFORE, Petitioner prays that this Honorable
Court grant Petitioner’s Petition for Certiorari.

Respectfully submitted,

Jack T. AKIN

P. O. Box 633

Midland, Texas 79701
Max N. OsBorN

P. O. Box 913

Midland, Texas 79701
Irnsy L. DyvER

P. O. Box 913

, Texas 79701

~ vr

Attorneys for Petitioner

Of Counsel:
TurPIn, Smitu, Dyer, Harpre & HARMAN
P. O. Box 913
Midlana, Texas 79701

_—_

15

CERTIFICATE

I, Irby L. Dyer, one of the attorneys for Mobil Oil
Corporation, Petitioner herein, and a member of the Bar
of the Supreme Court of the United States, hereby certify
that on the 49” aay of April, 1970, I served a copy of the
foregoing Petition for Writ of Certiorari and attached Ap-
pendices on Mr. Warren Burnett, Burnett & Childs, at-
torneys for Respondents, by depositing the same in the
United States mail with first class postage prepaid, ad-
dressed to Mr. Burnett at his post office address, P. O.

Box 3707, Odessa, Texas, Ai)
Liat, ra hy, oS

Insy L. Dyer

Al

APPENDIX A
IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 27313

MARY KATHERINE HUGHES, ET VIR,
Plaintiffs-Appellees,

versus

MOBIL OIL CORPORATION,
Defendant-Appellant.

Appeal from the United States District Court for the
Western District of Texas

(February 3, 1970)

Before THORNBERRY, GODBOLD and MORGAN,
Circuit Judges.

GODBOLD, Circuit Judge: This is the second appear-
ance of this case in this court. In the first appearance’
we concluded that the issue of the scope of employment of
appellant’s employee Jurenka was a matter for the jury.
We are presented with neither change in circumstances nor
change in the governing law which might make it appropri-
ate for us to conclude that the law of the case should not

1. Socony Mobil Oil Company v. Taylor, 388 F.2d 586 (5th

Cir. 1967.)

———ay

apply and that we now should reach the opposite conclusion,
e.g., Lincoln National Life Insurance Company vy. Roosth,
306 F.2d 110 (5th Cir. 1962).

The intervening case of Thomas v. Travelers Insyy.
ance Company, 423 S.W. 2d 359 (Tex. Civ. App., 1967,
writ ref.) does not represent a change in the law.
lant’s difficulty is not one of changing law but of
ing facts, i.e., testimony of its own employee that he was
on duty on the Sunday in question. The duty encompassed
performing specific tasks as they arose. That he caused in-
jury while between specific tasks does not take him off duty.

Thomas concerned a tool pusher who was at home sub-
ject to call but off duty and free to carry on his own busi-
ness. Jurenka was a production foreman, appellant’s senior
man in his line in the geographical area, in charge of 300
to 400 oil wells, and either be or his assistant, or both, were
required to be on duty on Sunday. Both were described by
Jurenka as being on duty on this Sunday.

Our review of a claim that the verdict is excessive is
limited to instances of grave abuse of discretion where the
defendant has, as it has here, urged that issue on motion
for new trial and its motion has been denied. Rosiello v.
Sellman, 354 F.2d 219 (5th Cir. 1955). No abuse of discre-
tion by the trial judge appears in this case. Appellant's
related contention that appellee’s injuries and complaints
were as a matter of law not causally related to the ac-
cident approaches being frivolous. Appellee testified to
neck pain commencing on the day of the accident. She
was examined by a doctor the next day and admitted to
the hospital where for three weeks she was under treat-
ment which included traction, injections in the neck and
back, whirlpool baths and physiotherapy. The extent, if
any, to which a subsequent fall contributed to her difficulties
was for the jury.

A2

Btece >) THROUGH POOR COPY

—

A3

The trial court found Jurenka guilty of negligence as
a matter of law in failing to keep a proper lookout and
submitted proximate cause to the jury. Lookout usually
is a jury question, Griffith v. Hudspeth, 378 S.W. 2d 153
(Tex. Civ. App. 1964), see 2 Blashfield, Automobile Law
and Practice, § 104.3 (3rd ed. 1965), but the evidence may
be such that there is negligence as a matter of law. Erck
y, Zelios, 401 S.W. 2d 867 (Tex. Civ. App. 1966); Hoey v.
Solt, 236 S.W. 2d 244 (Tex. Civ. App. 1951).

The evidence in this case was that Jurenka was trav-
eling behind appellee’s car in the same (left) lane. He
observed appellee’s car signalling for a left turn to take
place at an intersection, knew there was traffic approach-
ing from the opposite direction, and thought there was time
for appellee’s car to make the left turn before the ap-
proaching traffic reached the intersection. Assuming that
appellee would turn ahead of the approaching traffic, and in
a situation where neither the action of appellee’s car, nor of
any other car, required him to do so, Jurenka, the trailing
driver, elected to “wheel out to the right” and, taking his
eyes from appellee’s car, looked in his rear view mirror
to see if the way was clear from him to turn into the
right lane. When he brought his vision back to what
was in front of him appellee’s car had stopped to await
passage of the on-coming traffic before making its turn.
Jurenka was too close to turn out or to avoid appellee’s
stopped car and struck it from the rear. He acknowledged
that if he had been watching appellee’s car he would have
stopped, let it negotiate its turn, and thus would not have
collided with it. Jurenka’s failure to keep a lookout was
negligence as a matter of law. Hoey v. Solt, supra. Au-
thorities urged by appellant are not to the contrary. In
LeMaster v. Fort Worth Transit Company, 138 Tex. 512,
160 S.W. 2d 224 (1942), there was evidence that although

ag

LeMaster ran into a bus when it suddenly stopped in front
of him, the bus gave no signal prior to stopping, and le
Master neither expected, nor had any reason to anti

a stop at that place. In Lovell v. Stanford, Tex,
......, 386 S.W. 2d 755 (1965), the driver of the lead car
testified that she realized she must stop for traffic ahead
of her on the freeway, and slowed for that purpose, signal.
ling by both hand and brake lights. Drivers of Cars No,
2 and 3 testified that they were watching Car No. 1 and
saw neither hand signal nor brake light. The driver of
No. 2 testified that he observed No. 1 slowing down,
glanced in his rear vision mirror for a fraction of
a second to see if he could turn into the lane to his
left and avoid Car No. 1, discovered that traffic in that
lane foreclosed this course of action, then looked back at
the car ahead of him which stopped so rapidly he was
unable to stop without hitting it. In the case before us the
testimony of what signal was given is without dispute.
Also Jurenka was, on his own testimony, not the victim
of an emergency presented by an unanticipated rapid stop
—he acknowledged he would not have struck appellee had
he been looking.”

The evidence was sufficient to raise an issue of ex-
cessive speed. Jurenka testified that he was approach-
ing the scene at 25 to 30 miles per hour, that at 30 miles
per hour he was traveling approximately 44 feet per sec-
ond, that when, after looking away, he returned his vision
to the scene in front of him he discovered he was within
30 feet of appellee’s stopped car. He applied his brakes
(and laid down short skid marks) and began to turn to

A4

2. Burt v. Anderson, 408 S.W. 2d 572 (Tex. Civ. App. gare

is not applicable. It concerned a freeway accident, in w

hour high speed traffic stopped suddenly when a vehicle stalled,
and a driver back in the line of traffic, faced with the chain reac-
tion situation in front of him, sought to go into the right lane.

eae eae aeean —-eeee 6am 426 6 456 & Se

| —1

AS

the right in order to avoid appellee’s car. But he was
unable to prevent the impact. We cannot say that under
these circumstances his speed was at that time, as a mat-
ter of law, not excessive.

The court did not err in refusing to let Jurenka tes-
tify that if appellee had given a signal to stop at the time
the signal to turn was given he (Jurenka) could have
stopped prior to the accident. Accepting that practical ex-
perience may prima facie qualify one not an expert to
express an opinion as to the distance within which an
automobile could have stopped, if he knows the relevant
conditions, 11 Blashfield, op. cit. supra, § 430.1, El Paso
Electric Co. v. Whitenack, 297 S.W. 258 (Tex. Civ. App.,
1927), aff'd 1 S.W. 2d 594 (1928), in this instance Jurenka
was not asked to express an opinion at all. The defense
sought to elicit from him an unqualified statement of what
he, as a participant, could or could not have accomplished.

AFFIRMED.

—— ay

APPENDIX B

United States Court of Appeals

FOR THE FIFTH CIRCUIT

October Term, 1969

No. 27313

D. C. Docket No. Civ. 68-65-MO
MARY KATHERINE HUGHES, ET VIR,
Plaintiffs-Appellees,
versus

MOBIL OIL CORPORATION,
Defendant-Appellant.

Appeal from the United States District Court for the
Western District of Texas.

Before THORNBERRY, GODBOLD and MORGAN,
Circuit Judges.

Judgment

This cause came on to be heard on the transcript of
the record from the United States District Court for the

Western District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment of
the said District Court in this cause be, and the same is
hereby, affirmed.

It is further ordered that defendant-appellant pay to
plaintiffs-appellees, the costs on appeal to be taxed by the
Clerk of this Court.

February 3, 1970
Issued as Mandate: March 30, 1970.

BLEED THROUGH POOR COPY

A7

APPENDIX C
IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 27313

MARY KATHERINE HUGHES, ET VIR,
Plaintiffs-Appellees,
versus

MOBIL OIL CORPORATION,
Defendant-Appellant.

Appeal from the United States District Court for the
Western District of Texas

On Petition for Rehearing and Petition
for Rehearing En Banc

(March 39, 1970)

Before THORNBERRY, GODBOLD and MORGAN,
Circuit Judges.

PER CURIAM: The Petition for Rehearing is DE-
NIED and no member of this panel nor Judge in regular
active service on the Court having requested that the
Court be polled on rehearing en banc, (Rule 35 Federal
Rules of Appellate Procedure; Local Fifth Circuit Rule 12)
the Petition for Rehearing En Banc is DENIED.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1519%3A1. Public record. Not legal advice.