# Opposition Brief — Johnson v. Reed > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0450%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1972 - **Citation:** 405 U.S. 981 ## Text Of Counsel: No. 71:- 953 3 k ) ‘ e In the . rn Court of the United States 7 October Term 1971 . - is o—— 2 BETTY JOHNSON, a feme sole D , BEtvaA REED, et vir, \ 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. } ee ys Spa svoaew aves Petitioner, | Respondents. ‘ = ee = ¥ LS RCPS TH Omen men nena ta ; a iy ea . : ‘ ENGR ME RESON B55 Page ines te Fr POT u x s » “ oe a fot. sical a ee er fe / Argument ee RoE Lae ae fare i Conclusion sella rere ba atiaibeg ccde: EE SAREE Re DE DAE TO : 13 %e@< eo? . Py 3 £ « ’ a . na < P ; > hese _*, - * 2? e. + , ¥ ° ; b . . ° é S < . 4 } J Ca @ ° ‘ ° és ‘ ; € : ' a . 2 $ iis “ ' ‘List of Authorities Page 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 NO WE Bae anil as. . ae eet - a oe ‘ Tae a : Nd No. 71 - 953 a = : 74 : ; : In ‘the | 7 : - Supreme Court of f the United States | _ Onaliee (Te Term 1971 « ? ‘ ‘ eta ae ; x Betty JOHNSON, a feme sole ‘° : aa Petitioner, : + : Respondents. ‘Xe wal Vv. -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. ‘ fy ; f, ‘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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0450%3A2. Public record. Not legal advice.