Respondents Brief — Mobil Oil Corp. v. Hughes

TABLE OF CONTENTS

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II. Argument—

Argument and Authorities under First Question _ 2

Argument and Authorities under Second Question 4

Argument and Authorities under Third Question. 6

SE IIE -xocvsevsseasssssesusssosoenennnennsunnoesnsonianietavreennunntbbvenssoue 7

Certificate 8

Appendix—Opinion of the United States Court of Ap-

pecs for the FUG Circe annanesnevensvernveersenonseones Al

Table of Authorities

CasES

Biggers v. Continental Bus System, 303 S.W. 2d 359

(Tex. Sup. Ct. 1957) .. 4

Boeing Company v. Shipman, 411 F. 2d 365 (United

States Court of Appeals, 5th Cir. 1961) -..........0.0.......... 2,4

Hartford Accident & Indemnity Co. v. Bond, 199 S.W.

2d 293 (Tex. Civ. App. 1947, writ ref’d n.r.e.) ........ 6

Helene Curtis Industries, Inc. v. Pruitt, 385 F. 2d 841

(United States Court of Appeals, 5th Cir. 1967) ........ a

Hoey v. Solt, 236 S.W. 2d 244 (Tex. Civ. App. 1951

2 A 2,4

May Department Stores Co. v. Reynolds, 140 F. 2d 799

(United States Court of Appeals, 8th Cir. 1944, cert.

den. 317 U.S. 639, 87 L. ed. 515, 63 S.Ct. 31) —.......... 7

Shelton v. Standard Insurance Company, 389 S.W. 2d

290 (Tex. Sup. Ct. 1965) 5

Socony Mobil Oil Company v. G. C. Taylor and J. P.

Sharp, 388 F. 2d 586 (United States Court of Ap-

peals, 5th Cir. 1967) mi 6

Ir INDEX

Texas & Pacific Railway Company v. Prater, 183 F. 574

(United States Court of Appeals, 5th Cir. 1913, af-

firmed 229 U.S. 173, 57 L. ed. 1139, 33 S.Ct. 638) _

Thomas v. Travelers Insurance Company, 423 S.W. 24

359 (Tex. Civ. App. 1967, writ ref'd mre.) oO

Waggoner v. Clark, 446 S.W. 2d 737 (Tex. Civ. App.

1970) rev. ....... Tex.

Seed

STATUTES

28 US.C. Sec. 1912

Orner AUTHORITY

Texas Supreme Court Journal, Vol. 13, p. 270

——

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 1453

MOBIL OIL CORPORATION,

Petitioner,

vs.

MARY KATHERINE HUGHES, ET VIR,

Respondents.

Ow Wart or CERTIORARI TO THE UntTep STATES

Court or APPEALS For THE Firtx Crracurr

To tue Honoraste Cuter JusTICeE AND THE ASSOCIATE

Justices or THe Supreme Court or THe Untrep STATes:

Respondents, Mary Katherine Hughes, et vir, pray

that the issuance of a Writ of Certiorari heretofore sought

by Petitioner Mobil Oil Corporation be in all things de-

nied and that double costs and damages be awarded for

delay.

ay

2

I.

QUESTIONS PRESENTED

1. Whether any Constitutional right of Petitioner Mobi)

Oil Corporation was violated by the Trial Court in in.

structing the Jury that the driver of Petitioner’s ye.

hicle was negligent in failing to keep a lookout and the

Jury could decide if this negligence was a

cause of the accident with Respondents’ automobile.

2. Whether an employee such as Petitioner’s would be in

the scope of his employment under Texas law in the

circumstances shown by the evidence.

3. Whether Petitioner’s sole purpose, or major intent, in

seeking relief in this Court is to delay the payment

of the judgment against it.

II.

ARGUMENT

Argument and Authorities under First Question

The facts giving rise to the Trial Judge finding Peti-

tioner’s driver negligent as a matter of law in failing to

keep a proper lookout for Respondents’ automobile are

summarized in the Fifth Circuit’s opinion by Judge God-

bold."

Petitioner’s driver was obligated to the conduct of a

reasonably prudent man. That test in Texas on the trial

level can be decided as a matter of law when reasonable

men sitting as a jury would not have different opinions

concerning the results of the person’s conduct.? The Fed-

eral test seerns to be the same.*

1. Opinion attached hereto as Appendix. See page A3

2. Hoey v. Solt, 236 S.W. 2d 244 (Tex. Civ. App. 1951 no

writ) opinion by later to be Texas Supreme Court Justice Norvell.

(United — a an a, Y seat 385 a 841

tates Court of Appeals, 5t Pr. ; Boeing Company

¥, pees, 411 F. 2d 365 (United States Court of Appeals, 5th

~~ —_ - . ——_ -.. -— |. . eo ae ST. ee

3

Texas cases applying the reasonable man test, im-

pliedly if not explicitly, were cited by Judge Godbold to

affirm the Trial Court’s instruction claimed to be in error

by Petitioner.‘ In addition to these cases, the Supreme

Court of Texas in a five to four decision in which Motion

for Rehearing was denied April 29, 1970, has found that

cause may be a matter of law.’ In this most

current opinion, the lookout issue in an automobile acci-

dent was submitted to the jury who found the Defendant

driver negligent in his lookout. However, the jury found

the negligence was not a proximate cause of the accident.

The Trial Court disregarded the jury’s finding to the

proximate cause issue and entered judgment for the Plain-

tiff. The Texas Court of Appeals in reversing the Trial

Court was itself reversed.

In this recent Texas case the Defendant driver looked

away from his forward view and during the brief time

span involved, Plaintiff's automobile was stopped by a sig-

nal from a workman maneuvering a telephone pole over

the street being traveled. The stopping of the lead ve-

hicle was under unexpected circumstances and without

any prior warning signal. The foreseeability element in

proximate cause was decided as a matter of law in favor

of the Plaintiff. Facts of the case are very similar to Re-

spondents’ evidence:

It is undisputed that Waggoner had looked away to

locate house numbers prior to the collision; he testi-

fied that he “felt like” he could have stopped ‘in time

had he been watching the Clark vehicle and had seen

“any light or any indication it was going to stop.”*

4. Appendix pp. A3, A4.

m 5. “papery v. Clark, 446 S.W. 2d 737 (Tex. Civ. App. 1970),

6. The Texas Supreme Court Journal, Vol. 13, p. 270.

4

Although it is not mentioned in the Texas opinion, the

Appeal Court had to view the evidence in its mog

favorable light with conflicts in the evidence disregarded

in support of the jury’s finding that no proximate cause

for the accident existed from the negligent lookout.’ Com.

pared thereto, the Federal Court in its review should cop.

sider all of the evidence. And if the facts and inferences

point so strongly and overwhelmingly in favor of one

party that the Court believes reasonable men could not

arrive at a contrary verdict, then a verdict in law is proper!

The Texas case on a very narrow point heavily

weighted in favor of a fact issue existing found that it did

not exist. Is Respondents’ case weaker on judicial review?

Petitioner knows that the remedy it seeks does not

exist. That it never has. The law has been clear on

driver lookout in automobile accidents under the circum-

stances here proposed since at least 1951.°

Argument and Authorities under Second Question

Petitioner having first complained that it was not al-

lowed a jury trial on lookout next complains that it did

get a jury trial on its driver’s scope of employment. And

that is not all: Petitioner has had two different petit

juries, two different trial judges, and two different panels

of judges in the Federal Appeal Court find that its em-

ployee was in the scope of his employment when he

injured Respondent Mary Katherine Hughes. The second

trial jury saw fit to increase the damages by almost

twenty thousand dollars.

7. Biggers v. Continental Bus System, 303 S.W. 2d 359 (Tex.

Sup. Ct. 1957).

8. ‘Boeing Company, op. cit., 411 F.'2d 365 at page 374.

9. Hoey, op. cit., 236 S.W. 2d 244.

BLEED THROUGH POOR COPY

_

Petitioner continues to cite a workmen’s compensation

case to take its employee out of his scope of employment.’°

A more liberal view in favor of the workmen is given

issues in workmen’s compensation cases in Texas." Ina

“special mission” compensation case the liberal view prob-

ably extends beyond the horizon found in respondeat

ior causes, but the case quoted from below illus-

trates the boundary lines within which an employee wi'l

remain in the scope of his employment in Texas:

Under the decisions, we do not think the fact that

Bond was killed fifty miles from the lease where he

was employed to assist in drilling a well; that he was

not killed during the regular hours for which he was

employed to work as a roustabout; that he was paid by

the hour only for work done on the lease between mid-

night and 8:00 a. m.; that ordinarily Bond had no duties

to perform off the lease; that he was killed between

6:30 and 7:00 p. m. (his hours of employment being

between midnight and 8:00 a. m.) by a collision be-

tween his own car and that of a stranger on a public

street in Merkel either or all show conclusively, that

is, as a matter of law, that Bond was not acting with-

in the scope of his employment when he was killed.

5

* ¢ ¢

... we are of the opinion that if Bond left his home

on a special mission for his employer, that is, that he

started from his home to that of the driller’s to report

to him, in accord with the driller’s instructions, that he.

would not be able to work on the next tower and, after

having made such report, if he did, without departing

from the purpose of said trip, was killed while return-

ing to the point from which he started on such mis-

sion, while traveling on a direct route from the drill-

er’s home to his own, that it cannot be said, as a matter

v. Travelers Insurance Company, 423 S.W. 2d

10. Thomas v.

359 (Tex. Civ. App. 1967, writ ref’d n.r.e.).

11. Shelton v. Standard Insurance Company, 389 S.W. 2d

290 (Tex. Sup. Ct. 1965) at page 293.

: 6

of law, even if he had been fired while at the driller’,

home, that his mission had been completed and, as a

matter of law, that he was not then acting within the

course of his employment... . Here the jury had a

right to conclude that Bond was at the place he was in.

jured and subjected to the dangers of the street be.

cause of instructions of his superior to report to him

when he could not work and that such report was for

the benefit of his employer.'”

The rule for which Petitioner contends can be found

only in the children’s game of hide and seek. It ig the

“Kings X” rule. The rule works wonderfully well for a

participant who is about to be “it.”

Argument and Authorities under Third Question

Petitioner is one of the largest oil companies in the

world. It has 300 to 400 oil wells in the Andrews, Texas

area, the scene of the subject automobile accident. It can

afford to travel every avenue conceivable in legal juris-

prudence to get the answers it wants, just like it can afford

to spend millions of dollars to drill a hole in the earth to

get the oil it wants. The significance and relevance of

Petitioner’s wealth and power is that it can bide its time

and delay by continuous appeals, hoping that time will ex-

asperate to the point of capitulation those who would differ

with it. If Petitioner can pursue this policy with impunity,

the policy will work more often than it fails. In fact, the

policy of delay by appeal has already worked in this very

case: There were two young ladies injured in the automo-

bile accident in 1963," and one has long since settled her

case. Certainly, the burdens of a second trial and appeal

were factors working to expedite that settlement.

12. Hartford Accident & Indemnity Co. v. 198 S.W. 2d

293 (Tex. Civ. App. 1947, writ ref’d n.r.e.) at page

13. Mobil Oil Company v. G. C. Taylor and J. P.

one 586 (United States Court of Appeals, Sth Cir.

BLEED THROUGH POOR Cory

7

Respondents do not argue to deprive Petitioner of any

legal right, but rather contend for Respondents’ legal rights

in the way of double costs and damages as provided by the

Court’s rule in cases of delay.* Respondents move the

Court to award damages in the amount of ten per cent of

the judgment, since this appeal is clearly unjustified.”

Il.

CONCLUSION

Petitioner concludes that its employee was on a frolic

of his own at the time of the automobile accident. How-

ever, it is indeed Petitioner Mobil Oil Corporation who

amuses itself with playful activity. Having injured Re-

spondent Mary Katherine Hughes with its automobile,

Petitioner should not be allowed to further hurt Respondent

by dalliance.

WHEREFORE, Respondents pray Certiorari be denied

and double costs with ten per cent damages on the judg-

ment awarded.

Respectfully submitted,

Rosert E. HoBLit

P. O. Box 3707

Odessa, Texas 79760

Attorney for Respondents

:

»~

= Rosert E. Hos.ir

Of Counsel:

Burnett & CHILDS

P. O. Box 3707

Odessa, Texas 79760

14. 28 U.S.C.A. Sec. 1912.

15. Texas & Pacific Railway Company v. Prater, 183 F. 574

(United States Court of Appeals, 5th Cir. 1913, affirmed 229 U.S.

173, 57 L. ed. 1139, 33 S.Ct. 638); May Department Stores Co. Vv.

, 140 F. 2d 799 (United States Court of Appeals, 8th Cir.

cert. den. 317 U.S. 639, 87 L. ed. 515, 63 S.Ct. 31).

CERTIFICATE

I, Robert E. Hoblit, one of the attorneys for.

Katherine Hughes, et vir, Respondents herein, and a mam.

ber of the Bar of the Supreme Court of the United tate

hereby certify that on the 12 “day of May, 1970, Is :

a copy of the foregoing Brief in Response to Petition for _

Writ of Certiorari on Jack T. Akin, P. O. Box 633, Midland

Texas 79701, Max N. Osborn, P. O. Box 913,

Texas 79701, and Irby L. Dyer, P. O. Box 913, a

Texas 79701, Attorneys for Petitioners, by depeatag the ies

same in the United States mail with first class 6

prepaid, addressed to the said attorneys at their reper, :

above stated addresses. Rdhur se. |

Rosert E. Hostir

Al

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 appear-

ance’ we concluded that the issue of the scope of em-

ployment of appellant’s employee Jurenka was a mat-

ter for the jury. We are presented with neither change

in circumstances nor change in the governing law which

might make it appropriate for us to conclude that the law

of the case should not apply and that we now should reach

the opposite conclusion. e.g., Lincoln National Life In-

surance:‘Company v. Roosth, 306 F.2d 110 (5th Cir. 1962).

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

Cir. 1967.)

ay

The intervening case of Thomas v. Travelers Insyr.

ance Company, 423 S.W. 2d 359 (Tex. Civ. App., 1967

writ ref.) does not represent a change in the law. '

pellant’s difficulty is not one of changing law but of un.

changing facts, i.e., testimony of its own employee that he

was on duty on the Sunday in question. The duty en.

compassed performing specific tasks as they arose. That

he caused injury while between specific tasks does not

take him off duty.

Thomas concerned a tool pusher who was at home

subject to call but off duty and free to carry on his own

business. 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 he 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 discretion by the trial judge appears in this

case. Appellant’s related contention that appellee’s in-

juries and complaints were as a matter of law not causally

related to the accident approaches being frivolous. Ap-

pellee 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 treatment 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

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_"

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 v.

Zelios, 401 S.W. 2d 867 (Tex. Civ. App. i966); Hoey v. Solt,

936 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 approach-

ing traffic reached the intersection. Assuming that appel-

lee 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 for 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

LeMaster ran into a bus when it suddenly stopped in front

A4

of him, the bus gave no signal prior to stopping, and Le

Master neither expected, nor had any reason to anticipate,

a stop at that place. In Lovell v. Stanford, Tex

~~-eweeey 386 S.W. 2d 755 (1965), the driver of the lead car tes.

tified that she realized she must stop for traffic ahead of

her on the freeway, and slowed for that purpose, signalling

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 the

right in order to avoid appellee’s car. But he was unable

to prevent the impact. We cannot say that under these

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

is not It concerned a freeway accident, in

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

experience 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 ac-