Opposition Brief — Johnson v. Reed

Of Counsel:

No. 71:- 953

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In the .

rn Court of the United States

7 October Term 1971

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BETTY JOHNSON, a feme sole

D ,

BEtvaA REED, et vir,

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BRIEF IN OPPOSITION ie

Roya H. Brin, JR,

‘ 1200 One Main Place,

Dallas, Texas 75250 747-9211.

Counsel for Respondents,

\

STRASBURGER, PRice, KELTON,

MartTIN & UNIS, —-

Dallas, Texas 75250.

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Petitioner, |

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American Ry. Rxreess Co. v. feves, } “hay Sey

263 U.S. 19, 20-21 Rae Ray oe Aan cama caean tly Smee

Bass v. Dehner,- 103 F. 2d 28 . Bearer “4

Braman v. Wiley, 119 F. 2d 991 BP ae teal AES Me RE REEF te 4

| Connors v. U. S., 158. U.S. 408; 39 L. Kd. 1033 ene ction OM

. Duff v. Page, 249 F.2d 137; oars One ase ee

Fredrick v. U. S., 163 F. 2d 586, cert. den. aa

332 U.S. 775, 92 L. Ed. 360 220200... Pie eee eee 5

F. T.C. v. Minneapolis-Honeywel Regulator ( Co. "

344: U.S. 206, 97 L. Ed. 245 ssaeanesta Pe Oat

Hinkel v. Hampton, 388 F, od 141 Ve ek Cea ree 7

Johnson v. Reed, 464 S.W. 2d 689, er. ref. BOM ce Ee

Langley v. Turner’s Express, Inc., 375 F. 2d 296 eos ee |

Leniner v. Lieberstein, 279 F. 2d 385 .... sete assestdagernegivestes: Mg

Louisville & Nashville R, Co. v. Williams, by _

370 F. 24-839 (5th Cir.) ee ee wu. 8

-Rust Land, etc., Co. v. Jackson, | : .

— 250 U.S. 71, 63 L. Ed. 850 .. ceoetee teeter a

Smedra v. Stanek; 187 F- od 892 AeA ae Ee :

Spells v. U. S., 263 F. 2d 609, cert. denied, 360 U.S. 920. 8

«Strickland v. Perry, 244 F. 2d 24. | tee

Toledo Scale Co. v. Computing Scale Co., 261 ; By

U.S. 399, 67 L. Ed 719... cae

: Trautman v. Néw Rockford- Fessenclen Co-Op Tr [aes

Assn., 181 N.W. 2d 754 (1970). Pee | ee

Fc, . Other Dionne

82 A.L.R. 2d 1420... 1 a eR ee So ee

28 U.S.C.; § 2101 (c) EL ae Re

| Rule 21(1), BR.CP. es ee amen 3

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No. 71 - 953 a

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: 74 : ; : In ‘the | 7 :

- Supreme Court of f the United States

| _ Onaliee (Te Term 1971

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Betty JOHNSON, a feme sole ‘° :

aa Petitioner,

: + :

Respondents.

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-Betva REep, et vir .

BRIEF IN OPPOSITION

OPINION BELOW

The opinion on appeal of this. case is reported : as | Johnson

v. Reed, 464 S.W. 2d 689, er. ef. n.r.e.

0s guRispicrion’ a

This Court has no jurisdiction because the Petition for

‘Certiorari was not filed within the’ time prescribed by, 28

US.Cy§ aioe ban within 90 days after entry of

. the final judgment or ‘decree sought.to be reviewed. Cf.

Bolt Land etc., Co, be Jackson, 250: U.S. 71, 63 L. Ed. 850;

cig ae

stesinet remo reco

Toietc Soe On v. ( "plait Scale Co., 261 U.S. 399,

(climes , -

te. Side court jadgment for Respondents’ rendered by.

Se tate ona was afirmed by the Court of Civil Appeals,

™ ons te Sates mE verTuled by that.court, application ‘for

w—c 06 ator asad and motion for rehearing on the appli-

ter was soermoked Dy the Supreme Court of Texas on

-(™oer's. [27l_ the JoGgment thus becoming final in the

suite. smats ot Ormnber 6 1971. The ‘notice delivered to

Se@soercecns > soansel for Petitioner states that the Pe

Tour dr letters was presented and docketed on Jan-

aay 3S. 127 wal ower 9 days from October 6, 1971.

“te “Momint w lasze Certificate of No Mandate Pending

_ “ff [ertorat = isoted States Supreme Court” filed in

Se court cf Cir . Appeals after October 6, 1971, was point-

es atc Tucerspriste. and action thereon did not and

suc gut afet chs Smalty of the judgment, which was al-

“su axuhihhes bs the énal action of the Supreme Court

¢ Tees om Orta 4 22%. A copy of Answer of Appellees

= Mower a lssur Certificate of No Mandate is attached

Tere? as at aceemax: Cf. F.T.C.'v. Minneapolis-Honey-

: 208, 97 L. Ed. 245.

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‘hy

‘TED: Ge" luphast stete court has jurisdiction to review a

jensen 4s “Et Suate court /but refuses to do so, the

sme tums Sz che Site of the to, review. American

i — me 1. eyes. 263 2Us . 19, 20-21. That refusal by

Se Sucrse=e fooctcof Texas occurred with its refusal of the

~ .. Ze. “See. No extension of time has been sought or

. application for writ of error with the notation “no_-reversible

error,” on Juiy 14, 1971, becoming final when that court

overruléd-moti-n for rehearing on the application on Octo-

ber 6, 197i.

“It also appears that Petitioner has not brought up the

recofd of testimony and proceedings in the trial court at all,

although it is on file in the Court of Civil Appeals and

readily available. Moreover, Rule 21(1) requires petition

for certiorari to be served on opposing counset before it is

filed, and here copy of the getition was not served upon

counsel for Respondents until noon, January 26, 1972, al-

though it appears to have been presented and docketed on . |

January 25, 1972.

QUESTION PRESENTED __

_ Whether the Constitution of the United States’ requires

that a party plaintiff in a state court be allowed completely

unlimited voir dire examination of the jury panel, with no

discretion at all in the trial judge to exercise reasonable con-

STATEMENT OF THE CASE

ids bso eka eal eee bile em etd tet

a jury, which returned a verdict in favor of Respondents.

Judgment was entered accordingly by the district court,

affirmed by the Court of Civil Appeals, application for writ

‘ of error refysed by the Supreme Court of Texas, and motion

for rehearing on such application overruled. There is no

4

contention that the evidence did not support the findings -

for Respondents, and the only complaint is of claimed. im-

proper restriction of voir dire examination of the jury panel.

: A

~ ARGUMENT: |

The trial court acted within its permissible range of dis-

cretion in declining to allow Petitioner’s counsel to examine

- jurors in detail on voir dire as to possible connections with

the insurance industry through family, friends or associates,

after exhaustively examining them as to any possible con-

nections of their own with that industry. Further, Petitioner

has shown no probable harm from the lack of an even longer.

examination of ‘the jury panel as to such collateral connec-

tions with the insurance industry, especially since full exami-

nation was allowed as to any possible personal connections of >

the jurors theniselves with such industry. Similarly, the trial |

- court did nqt unduly or erroneously restrict Petitioner's |

counsel in examination of the jury panel in other respects

claimed and again no probable harm from such wee rulings

as to voir dire was shown.

Federal practice itself, like the state practice in’ Texas,

regards the course and extent of voir dire’ examination as

matters within the discretion of the. trial court. F.R.C P.

47(a); Bass v. Dehner 103 F. 2d 28; Braman v. Wiley, 119

F. 2d 991; Strickland v: Perry, 244 F. 2d 24; Lentner v.

_ Lieberstein, 279 F. 2d 385; ete.

FANE ES ABOARD AT eI? OS

This Court in: Connors v. U.S., 158 U.S. 408, 39 L. Ed.

1033, says of voir: dire: |

“That inquiry is conducted under the supervision of

the court, and a great deal must, of necessity, be left .

to its sound discretion. This is the rule in civil cases,

and the same rule must be applied in criminal cases.”

Fredrick v. U.S., 163 F. 2d 536, cert. den. 332 US. 775,

-92 L. Ed. 360, accordingly declares:

“Furthermore, considerable discretion lodged | in the

court as to questions that are to be asked\on voir dire.”

. Duff v. “Page, 249 F. 2d 137, dealing wit}plaintiff’s com-

plaint of exclusion fom voir dire of inquiry into ownership

of stocks or bonds in an insurance company, declares:

“We do not reach the merits of this specification, hie.

ever, unless there is reason to believe that the refusal

’ to ask this question on voir dire was prejudicial. Trial

court action, however erroneous it may be, is not ground

for reversal unless such action is inconsistent with sub- —

stantial justice. “6

Rule 61, F.R.C.P., was cited’ in this connection. The ‘court

assumed for purposes of discussion that the insurance ‘com-

pany named in the proposed question had an interest in -

the case and that one or more jurors may have been bond

holders or stock holders .of that company, but goes on to

say: i . :

“The jury was not told that American Casualty Co., or

any other insurance company, was involved. On voir

dire, the jurors gave assurances that none of -them had

previously heard of the case. If the jurors did not know

that this company was involved in the case, their pos-

6

_ sible ownership - of hind or stocks of that company

could not have influenced the verdict rendered. We

therefore hold tha failure to intertogate the jury in

the manner r d was not prejudicial. 2

was allowed, the Only restriction - -being to the extension of ——

such inquiry to relatives, 5, friends or neighbors of the panel

_who had ever been connected “in any way’ = the insur-

- ance industry. .

_ Langley v. Turner's Express, Inc., 375 F. 2d 296, in affirm-. -

ing judgment for defendants over complaint of the refusal of

__ the trial court to question the panel as ‘to whether they were

in any manner interested in any liability insurance com-

pany, declares: . °

“Although denial or impairment of the right to chal-

lenge peremptorily is reversible error without a show-’

ing of prejudice, Swain v. State of Alabama, 380 U.S.

' 202, 219, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965),

* reasonable restraint of questioning is not — absent a

showing of prejudice. Duff v. Page, 249 F. 2d 137, 139

* (9th Cir. 1957); Smedra v. Stanek’ 187 F. 2d 892, 895.

_ - (10th Cir. 1951); Fed. R. Civ. P. 61.

* * * * *

We must strike a balance between the probability of

danger to plaintiffs that someone sympathetic to in-

surance companies may remain on the jury and the

danger to defendant that the jury may award damages

without fault if aware that there is insurance coverage

to pay the verdict. We think the latter danger i is great-

er than is the former, iden”

* * * #* «& ;

The proper scope of questioning on voir dire is ordi-

-narily within the sound discretion of the district judge.

) :

7 ‘

Absent a showing of compelling necd to propound such

questions, we think the district judge clearly correct in

refusing them, Here there is no showing of prejudice

and no abuse of discretion. See Hebron v. Brown, 248 ~

F. 2d 798 (4th Cir. 1957); Smedra v. Stanek, 187 F. 2d

892, 895 (10th Cir. 1951);.31-Am. Jur. “Jury § 209, at -

_—178-(4958) ; 50 C.J.S. Juries § 274(c) (2), at 1046-1051

(1947). ”

The first quoted paragraph maies the vital distinction be-

tween the cases cited by Petitioner and Ge instant case.

In Hinkel v. , Mampten, 388 F. 2d 141, an ‘qubainihile colli-

sion case in which judgment for defendant. was affirmed,

complaint was made of the refusal of the trial court to ask.

‘on voir,dire requested questions which sought to probe

possible connection of jurors with insurance generally. The

court stated that “the issue is whether such questions must -

be given in every injury case regardless of the particular

Ce rr eee OO ee In an-

swer, it declared:

“The general rule is that the scope and extent of the.

ee ne Gen

. the trial court.”

. The opinion cites Smedra v. . ‘Stanek, 187 F. 2d 892, which

pointed out that there had been no showing that any juror

- knew that an insurance company had an interest in the

_ case or was defending it and said:

_ “Under these circumstances, it cannot be said that the

court’s refusal to examine a jury with respect to this

ee ee en ae mea &

reversal.”

“—

——

P } ae ee ae

The | ee in Hinkel v. Hampton goes on to say, “Other

circuits have also held that the matter is one of discretion.”

To that effect, it cites Louisville & Nashville R. Co. v.

- Williams, 370 F.2d 839 (5th Cir.) ; Langley v. Turner’s

Express, Inc., 375 F: 2d 296; and Lentner v. Lieberstein,

279 F. 2d 385. It then held that since the matter was one

properly in the 7 court’s discretion, “we conclude that

there was no error.’

: Even in a criminal case, it has been stated:

“The questions that should be asked upon a voir dire

examination is a matter of discretion; and that discre-

tion belongs to the trial court, not to us. Ours is the

duty only to examine the record to determine whether

that discretion has been abused.”

Spells v. U.S., 263 F. 2d 609, cert, denied 360 U.S. 920.

The good faith of Petitioner's counsel in seeking inquiry

of a possible pre judicial nature was for the trial court -to

judge, and that court may well have considered that Pe-

titioner’s real concern was not to seek a basis for exercising -

strikes because of fear of prejudice ‘but rather to conduct |

extended examination about insurance connections in order

to plant the idea of insurance in the minds of the jury ard

imply that Respondents were protected by insurance.

Petitioner does’ not contend that there was any abuse of

discretion but rather merely that the trial court’s rulings |

were unconstitutional. There has been no showing that be-

- cause of the: rulings complained of* Petitioner was forced to

take any objectionable juror, and there is nothing in the

record to indicate.that any juror who sat on the case was

Si DA Nag ed AR frsinns +5 SSR AER ATE 6 Won os one aR Bagel

9

ing: on motion for’ new trial, Petitioner was entitled to put .

collateral insurance connections.and show that they had such

connections in fact, if they did, and then that counsel had

strikes available and would have struck them. ‘No great —

expense would ‘have been involved, but that was not done.

There was no intentional exclusion of certain categories of

people from the jury list here, and certainly no showing of

intentional inclusion of persons with insurance connections.

- Petitioner’s counsel was allowed to examine the jury

question the panel. Moreover, the constitutional grounds

now urged were not raised in the trial court nor as points_

of error in the Brief of Appellant in the Court of Civil -

Appeals.

The Petition refers to the attempt of Petitioner’s

.

nk prejudiced, orglisqualified if any way. At the hear- -

the jurors on the stand and ask. them the questions as to .

. . panel here for over 40 printed pages (Jury Voir Dire, 2

“pp. 1-41), so that it certainly cannot be said with any -

_cogency that he was’ substantially denied the right to

v

counsel to inquire as to the standards, methods, and other

criteria used by one member of the panel “to approve or

reject applications .or claims made by prospective policy-

holders” of her insurance company employer. The prospec-

tive juror in question was Mrs. Slovak. However, Peti-

tioner fails to note that Mrs. Slovak did not sit on the

jury that tried the case, so that Petitioner could not -have. -

been harmed by any prejudice on her part which counsel

was prevented from discovering through further inquiry

40

as to her methods or standards in checking applications

for health insurance. Mrs. Slovak was an insurance under-

_writer for Union Bankers Life, stating, “I am an under-

writer, ‘underwrite health insurance.” J ury Voir Dire 23.

Contrary to Petitioner’s implications, she handled only ap-

_Plicafions for health insurance and had nothing to do with

claims, stating “I don’t handle claims.” Jury Voir Dire 25.

Mr. Delk did examine her as to her handling of applica- ©

tions at gréat length, from Jury Voir Dire 25, 1.8, through.

_ 26, 1.7, before the trial court indicated that he had gone into

the matter in sufficient depth. The detailed standards used

by Mrs. Slovak as an underwriter in processing applica: _.

tions for health insurance had no bearing on her qualifi-—

_ cations to sit'in a negligence case, and in any event she did

not sit.

Petitionter also complains of not being allowed to ask -

-Mrs. Slovak, “Would you want someone like yourself to

sit on a jury if’you were having a case like Mré. Johnson,

an automobile accident with injuries that she is claiming?”

However, Mr. Delk did ask that very question, and she

answered in the affirmative. The ue merely commented

thereafter that perhaps such question was going too far .

and 1 the court should not have asked it of a previous juror:

MR. DELK: All right, in those circumstances know-

ing all that, do you think that you could be unbiased

- in this case?

MRS. SLOVAK: Yes, sir, I i

MR. DELK: You do. Would you want someone like’

yourself to sit on.a jury if you were having a case like

Mo

\

Mrs. J ean an automdbile dockdent with i injuries that

she is claiming? ar ee :

MRS. SLOVAK: Yes.

MR. RIPPEY: Judge, I think that’s an improper

question. I think the test is-- ~~

THE COURT: Yes, the personal view of a juror at

best if the Court was guilty of asking that of this wit- . ~

ness, this last witness, I do not believe you can ask a

juror to put themselves in the place of that and da

you feel like you could give a fair, just and impartial

. trial to both sides in the case? _--

MRS. SLOVAK: Yes, I do.

THE COURT: All right, go ahead, you can‘ask the

next question. ” (Jury Voir Dire 24. ). .

Since counsel did ask this question and got an affirmative

answer, and since Mrs. Slovak did not sit on, the jury, there -

could be no possible error in this connection, much. less

reversible error. Petitioner’s counsel did not seek to ask

that question of any other juror thereafter. ,

With respect“ to asking jurors whether they would be

- prejudiced by the amount of measure of damages sought

by plaintiff, the annotation. at 82 A.L.R. 2d 1420 expresses

the conclusion that, “The cases here discussed’ have gener-

ally recognized the rule that thé trial: judge ordinarily has

a wide measure of discretion in «controlling the scope of

inquiry on voir dire and that the allowance or denial of a

particular inquiry constitutes reversible error only .where

that discussion was clearly abused. and prejudice resulted. :

_ There -is- no constitutional’ right to ask a jury panel ques-

tions which in effect would seek a commitment in advance

as to how the juror would react to particular evidence.

a ;

A

~~

a | { | ° aly . 12

‘A recent case as to voir ‘dire concerning such ‘natters —

- as measures of damages is Trautman v. New Rockford-Fes-

declares: ©

senden Co-op Tr. Assn., 181 N.W.'2d 754 ( 1970), In affirm-

ing judgment for defendants on the jury verdict, the sey

«

.

3

’

. “In the present case the plaintiffs wanted to determine

_* , the jurors’ reactions to the possibility of, returning a

verdict of $293,000, if damages were found to. that

extent. We feel that the tria\ judge properly exercised

his discretion when he sustained the defendants’ objec-

' tion to this question * * *, Rides tf =a oe

Questions to the prospective jurors concerning: the ..

possible dollar amount of any verdict are inappropriate

as they may tend to ‘influence the jury as to the size

of the verdict, and, may lead to the impaneling of a-

: ~~ is predisposed to finding a higher verdict ae

its it /sromise to return a verdict for the amount

. specified inthe question during the voir dire examina-

tion. thorn v. Long, 146 W.Va. 636, 122 S.E. 2d’

186 (1961); Paradossi v. Reinauer Bros. Oil: Co., Inc.,

53 .N.J. Super. 41, 146 A. 2d 515. (1958); Goldstein

v. Fendelman, 336.S.W. 2d 661 (Mo. 1960). It is well

within the trial court’s discretion to sustain objections

to such questions. Chambers v: Bradley County, 53»

Tenn.,App. 455, 384 S.W. 2d 43 (1964) .” e

_ The voir dire examination here must be viewed as a

-whole. Petitioner’s counsel examined the panel’ at length,

for some 40 pages, and was allowed considerable latitude

by the trial court. The limitations placed on him were within

~ that court’s sound discretion, and no showing of harm from

_ the rulings made has even been attempted. 7

ac * to the claim that the restrictions:on voir dire here

violate constitutional guarantees, certainly no cases to that

°

ec. Br eae

effect are cited ; ind again theve are ‘none. Cases merely

-holding that the C stitution guarantees the right of trial

by jury have no application here, where Petitioner was

afforded a trial. by jury and by a jury not one of whose’

members » has. been shown to. be biased or, unfair, and from

—_— no "classes were systematically, excluded.

Petitioner. has not shown, nor even sought to show, that —

any of the jurors who sat would have answered the inquiries

here involved by revealing that they, did have such unlikely

- prejudices, and did not even call them to the stand at the .

_ hearing on motion for new trial to attempt to do so..There »

is nothing to suggest that they probably were in fact

prejudiced against the measures of. damages sought by

_Petitioner, and no showing of probable harm.

é

, é.

CONCLUSION :

This case dobs’ not warrant assumption of ‘jurisdiction

&

_ by the Supreme Court of the United States on certiorari. It

.is merely a suit between private parties seeking. money.

.damages for personal injury in which the controverted

fact issues were decided against Petitioner and in favor of

\. Respondents after full hearing before a jury not shown in

\ any way to be less than completely fair and impartial.

* Thére are no novel or unusual points of law and no ques-

tions of public importance, and certainly the state court’s’-

opinion is. not in conflict with any cases of this Honorable

Court nor of the Courts of. Appeal upon any constitutional

’ — 14 . °

iaesGems. Ys utps ther tke Petition for Certiorari should

- B. -

‘ ‘Roval H. Bam, Je, ae

" 1200 One Main Place,

, Dallas, Texas.75250,

214-747-9211.

Counsel for Respondents.

< ¢ 7 :

~e_* & - “Ss.

aE sens, Ws

~— Sedo. ~~ + tee Fa s

_ Soxu = See 2. ettorney for Respondent and a.

Temoer! of =te.Sur of the Supreme pit of the United

=. emste crc: ther on the /”

sb, E sien tae’ sek aloes cs

Soet of Iemosecer. umor Petitioner by depositing same

Tun: Siete Post Ofice with first class postage

ened. Bicmesmef i Merk Delk. 4314 Republic National

Sens Fower Dulles Teres 75291, es vs record for

SeGiomer- |

‘ : ; Ror Tal : H. Brin, JR.,

Attorney-for Respondents.

a a eng

No. 17584

In the

Court of Civil Appeals

FIFTH SUPREME JUDICIAL DISTRICT

OF TEXAS AT DALLAS

~

Betty JOHNSON, ita ‘

Appellant,

‘ v. .

° _ Betva Reep, et vir

Appellees.

ANSWER OF APPELLEES TO MOTION |

TO ISSUE CERTIFICATE-OF NO MANDATE

_\ TO SAID HONORABLE.COURT:

In deference to the policy of the Cowt that answers

should be filed to all motions, ye make this reply to Appel:

lant’s Motion to Issue Certificate of No Mandate. However,

we are somewhat at a loss as to anything we can say that

will be of any assistance to the Court, since we do not under-

stand the purpose or significance of such. a certificate under

* the present circumstances. .

‘The Motion of Appellant refers to Rules 445 and 509,

T.R.C.P., and indeed the only situation in which we are

acquainted with the use of such a certificate is that described

in those Rules, but the circumstancés in which such rules

are applicable do not exist here. Rule 445 refers to cases

‘ A-2

‘which have been reversed and honda by a Court of Civil

Appeals and where no mandate has been taken ‘out within

one year after such judgment became final. Of course, the

- present case was not reversed and remanded by the Court

of Civil Appeals, but was rather affirmed. Moreover, far less —

than one year has passed since the .judgment of this case

became final by overruling of a motion for sanereing, of

application for writ of error.

Rule 509 also applies to a case that has been reversed

- and remanded, not to one that has been affirmed, and

again has reference to the failure to take out a mandate ©

within twelve months of the final action of the Supreme

Court. The motion here is dated one day after the final -

action of the Supreme Court. °

There is also some indication that Appellant considers

. that a certificate of no mandate would show that all state

_ remedies have been exhausted, but of course it would not do

so. ; ~

We can ity conclude that Appellant is confused as to

just what he wants from this Honorable Court, and that in

’ any case a certificate of no mandate is neither necessary

nor appropriate here.

Respectfully cuiuintitai

‘SSTRASBURGER, Price, KELTON,

Martin & UNis

- Royat H. Brin, Jr.

. 1200 One Main Place

Dallas, Texas 75250 .

Royal H. Brin, Jr.

Attorneys for Appellees

A copy hereof is being “furnished to Mark *Delk, 4314

Republic National Bank Tower, Dallas, Texas 75201, the

attorney of record for Appellant.