Petition for Writ of Certiorari — Dugas v. Kansas City Southern Railway Co.

- - as FILE C OPY | = Ce De

P MAY 12 1973

es en JR..CLE

= —=

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

no__£2°7 1530

R. P. DUGAS, Petitioner

versus

THE KANSAS CITY SOUTHERN RAILWAY

COMPANY, ET AL, Respondents

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

For The Fifth Circuit

AND APPENDICES

W. JAMES KRONZER, JR.

500 Houston First Savings Bldg.

711 Fannin Street

Houston, Texas 77002

Attorney for Petitioner

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

Page

Cette TAI oo nano nce cec nce c see ccccenecssesesseess 2

EE OE TD oon cr ccwecccccsncsnsnsceseees 2

Questions Presented ............--.2eseeeeece cece eeeees 2

Statutory Provisions and Rules Involved ..............-- 3

eae ae omimwe eee mee eon eke nies +

eceee Ger Gs Ge THEE 2.53 n nc cc cwcccscccncsces 6

i i re entndesccnennonkhtmamineeees 17

ee ian casinse ah Rah ay maeeo aamdie 18

Appendix “A” (Opinion of the Court of Appeals) ......... 19

Appendix “B’ (Opinion of the Court of Appeals on Motion

EE ich chim kien eee aannne eka sec oene es 34

LIST OF AUTHORITIES

CASES Page

Arizona Eastern Rd. v. Bryan, 242 U.S. 621, 37 S.Ct. 241,

61 L.Ed. 532 (1916) aff’g per curiam Arizona Eastern Rd.

Co. v. Bryan, 157 Pac. 376, 381 (Sup. Ariz. 1916) ...... 9

Chesapeake & Ohio R.R. Co. v. Carnahan, 241 U.S. 241, 36

oR RO ee 7,8

Downie v. United States Lines, 359 F.2d 344, 347 (1966) 10,11

Grunenthal v. Long Island Railroad Company, 388 F.2d 480,

484 (2 Cir. 1968), rev'd on other grounds, 393 U.S. 156,

SUE, BE Te BRO AONE 6 onsen nsecccccens 7

Johnson v. Southern Pac., 196 U.S. 1, 25 S.Ct. 158, 49 L.Ed.

oe ree ae we emievierm anne c ces as 15

Librecht v. Bethlehem Steel Corp., 402 F.2d 585, 592 (1968) 10

New York Central Railroad Co. v. Winfield, 244 U.S. 147,

37 S.Ct. 594, 61 L.Ed. 1045 (1916) ..............2-.- 12

Rattigan v. New York Central R. Co., 291 F.2d 548 (2 Cir.

1961), cert. den. 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed.2d

Se ED cc ivcdewkeenSh ecw swaeesentenrer sterner te 14

Taylor v. Washington Terminal, 409 F.2d 145, 149 (1969) 10

eee

II

CASES Page

Seaboard Air Line Ry. v. Padgett. 236 U.S. 668. 35 S.Ct.

ee SEAS EER er ROE Pe 14

Sleeman v. Chesapeake & Ohio Railroad, 290 F. Supp. 817

(Mich. 1968), reversed on other grounds, 414 F.2d 305

(1968), on remand and subsequent appeal, 305 F. Supp.

BE CONS): SO Fe BOF CGN S) he ce i voces cacnavaces. 12

Washington & G.R. Co. v. Tobriner, 147 U.S. 571, 13 S.Ct.

ee, Se ee ee ND oath nce tuers seuss s eck ubesas 8,9

UNITED STATES STATUTES

Be es EE cbccebeacesennaegsduneWeskesesawKens 2

Oe ey ON 8h coc in awne bd ie cael edenceuseeuss 2,3, 13

FEDERAL RULES OF CIVIL PROCEDURE

PEG. cc closcuhacas KeAa ts ade area char te eenees nae 3, 16

IN THE

Supreme Court of the United Dtates

OCTOBER TERM, 1972

NO

R. P. DUGAS, Petitioner

versus

THE KANSAS CITY SOUTHERN RAILWAY

COMPANY, ET AL, Respondents

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

For The Fifth Circuit

AND APPENDICES

To The Honorable Supreme Court of The United States:

R. P. Dugas respectfully petitions the Court to grant a

Writ of Certiorari to review the Opinion and Judgment

of the United States Court of Appeals for the Fifth Cir-

cuit, and to thereafter reverse that Judgment and affirm

the Judgment of the trial Court.

2

OPINIONS BELOW

1) The District Court did not render an Opinion.

2) The Opinion of the Court of Appeals is not yet

reported, and it is therefore attached as Appendix

“—

3) The Opinion of the Court of Appeals on motion

for rehearing appears as Appendix “B.”

STATEMENT OF JURISDICTION

Petitioner seeks to review the Opinion and Judgment

of the Court of Appeals under date of February 2, 1973.

Petitioner’s motion for rehearing was overruled on March

27, 1973. (See Appendix “B”) Statutory jurisdiction is

conferred under Title 28 U.S.C.A. §1254.

QUESTIONS PRESENTED

1) Whether the inclusion of the phrases “loss of the

enjoyment of life” and “loss of vitality” in an oral charge

submitted in the trial of an injured railroad employee’s

cause constitutes “separate elements of damage for which

no recovery is permissible under the Federal Employers’

Liability Act.” 45 U.S.C.A. $51, et seq.

2) Whether the inclusion of such phrases constitutes

a dual or double submission with the phrases “mental pain

and anguish” and “physical impairment,” to which they

were respectively conjoined.

3) Whether in a Federal Employers’ Liability Act

case, the cause may be reversed and remanded for a new

trial on the issue of damages when the reversing Court

concludes only that the jury “could have been confused”

by the inclusion of such language in an oral charge. Rule

61, Federal Rules of Civil Procedure.

3

STATUTORY PROVISIONS AND RULES

INVOLVED

1) Under the first and second questions presented, $51

of Title 45 provides in pertinent part:

“Every common carrier by railroad while engaging

in commerce between any of the several States or

Territories, or between any of the States and Ter-

ritories, or between the District of Columbia and any

of the States or Territories, or between the District

of Columbia or any of the States or Territories and

any foreign nation or nations, shall be liable in dam-

ages to any person suffering injury while he is em-

ployed by such carrier in such commerce. . . .” (Em-

phasis added. )

2) Under the third question presented, the conclusion of

the Court of Appeals that the jury “could have been

confused,” thus requiring a reversal, invokes Rule 61,

Federal Rules of Civil Procedure, reading:

“HARMLESS ERROR”

“No error in either the admission or the exclusion

of evidence and no error or defect in any ruling or

order or in anything done or omitted by the court

or by any of the parties is ground for granting a new

trial or setting aside a verdict or for vacating, modi-

fying, or otherwise disturbing a Judgment or Order,

unless refusal to take such action appears to the court

inconsistent with substantial justice. The court at

every stage of the proceeding may disregard any

error or defect in the proceeding which does not

affect the substantial rights of the parties.” (Empha-

sis added. )

4

STATEMENT OF THE CASE

R. P. Dugas, a black man, was severely injured while

working in the scope of his employment for Respondent

railroad when a railroad boxcar door he and a co-worker

were trying to open fell upon him. Under a lengthy oral

charge, the jury found in his favor and determined that

his “damages” were in the amount of $200,000. No

contributory reduction or mitigation resulted.

On appeal to the United States Court of Appeals for the

Fifth Circuit, it was held that:

1) The liability determination of the jury must be

sustained;

2) That the award was not excessive; but

3) The cause should be reversed and remanded on

the question of “damages” alone, due to the

inclusion of certain phraseology “which could

have confused the jury as to the correct standards

it had a duty to apply” in ascertaining the

damages.

As stated, the Charge of the Court, which was “general”

and “oral,” and consumed some twenty-five pages of the

record, contains the following language with respect to

the damages instructions:

“Now should you find the railroad line liable

under some theory about which you have been

instructed concerning the specific acts of negligence

or the doctrine of res ipsa loquitur, you find for

the plaintiff, then it would be your duty to determine

the amount of damages which you find the plaintiff

is entitled to and in considering Mr. Dugas’ injuries

R)

and damages you are to consider the value of such

damages as would fully and fairly compensate the

plaintiff in dollars and cenis for such injuries sus-

tained on May 25th, 1970. In connection with the

answer to this question you will take into account

such of the following elements as you find have

been established by a preponderance of the evidence.

Such physical pain, mental anguish and loss of

enjoyment of life as the plaintiff has sustained from

the date of occurrence until the date of trial, such

physical pain and mental anguish and loss of enjoy-

ment of life as plaintiff may in reasonable prob-

ability sustain in the future beyond this date; such

loss of earning power, physical impairment and loss

of vitality as plaintiff has sustained from the date

of the occurrence until the date of the trial; such

loss of earning power, physical impairment and loss

of vitality as plaintiff will in reasonable probability

sustain in the future beyond this date. Also, such

reasonable medical expenses that the plaintiff will

in all medical probability sustain in the future be-

yond the date of the trial resulting from the occur-

rence in question on May 25th, 1970.” (Emphasis

added )

Similar descriptive language was included in at least one

other portion of the charge.

Respondent’s objections were:

“Your Honor, I have two other points that I do

think are probably rather serious along the lines

that Mr. Kronzer said, and I will put them in the

form of an objection, in the charge where the Court

charted that in the elements of damage recovery

could be had on mental anguish and for loss of

enjoyment of life and then recovery for physical

6

impairment and loss of vitality. I think really they

are one and the same, but the way the charge was

given it sounds like there are a total of four separate

elements of damage. Really mental anguish and loss

of enjoyment is one thing and I believe the proper

instruction on mental anguish, pain and suffering

and on the other hand, physical impairment and

those would be confusing and indicated additional

grounds for recover, that the law doesn’t provide

for.” (Emphasis added)

The Court of Appeals did not precisely hold that it

is improper to include the phraseology “loss of enjoyment

of life” and “loss of vitality” in the F.E.L.A. charge on

“damages,” but rather it held that when such claims are

made and included, they must be an “included element”

of the consequences of physical injury. Its final conclusion

was that the jury “could have (been) confused” by the

manner in which the District Court “included” the

phrases in its charge.

REASONS FOR GRANTING THE WRIT

1) Uniform application of the Federal Employers’

Liability Act does not admit of such attenuated sub-

tleties.

The Court of Appeals announced that it had found

no precedent for its holding. That is a true statement!

Nor did counsel for Respondent furnish any supporting

decisional law.

At the base of the Court’s conclusion that “The defend-

ant must pay damages, but * * * is entitled to have a

jury measure those damages according to clear, legally

correct, plainly enunciated standards, * * * (page 31)

7

is the mistaken belief that this Court so announced the

only damage “elements” in Chesapeake & Ohio R.R. Co.

v. Carnahan, 241 U.S. 241, 36 S.Ct. 594, 60 L.Ed. 979

(1916), and that the Carnahan “elements” have been

continuously applied as the outer limits in the “Numerous

reported cases [that] follow this decision and these stand-

ards.” (See page 11 of the Opinion) The Court even

indicates that Grunenthal v. Long Island Railroad Com-

pany, 388 F.2d 480, 484 (2 Cir. 1968), rev’d on other

grounds, 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309

(1968) supports this interpretation, a contention not

even counsel for Respondent has had the temerity to

suggest.

We respectfully suggest that Carnahan does not estab-

lish limiting “elements” and “plainly enunciated stand-

ards” for the determination of damages in a F.E.L.A.

case, and certainly it made no distinction between “includ-

ing” “loss of enjoyment of life” and “loss of vitality” in

the “mental anguish” and “physical impairment” elements,

respectively, and treating such matters as separate and

independent “elements” merely because the conjunction

“and” was inserted between the phrases.

Carnahan only involved the question of whether the

following instruction “involved a consideration of conse-

quences which might be essentially speculative and re-

mote”:

“The court instructs the jury that if they believe

from a preponderance of the evidence that the de-

fendant is liable to the plaintiff in this action, then

in assessing damages against the defendant. they

may take into consideration the pain and suffering

of the plaintiff, his mental anguish, the bodily injury

8

sustained by him, his pecuniary loss, his loss of

power and capacity for work and its effect upon his

future, not however, in excess of $35,000, as to

them may seem just and fair.”

To be more specific, the precise holding was:

“The comment of the court is accurate and we

can add nothing to it. The principle is established

that when the evidence in a case shows that there

will be future effects from an injury, an instruction

which justifies an inclusion of them in an award of

damages is not error. Washington & G. R. Co. v.

Harmon (Washington & G. R. Co. v. Tobriner),

147 U.S. 571, 37 L.ed. 284, 13 Sup. Ct. Rep. 557;

McDermott v. Severe, 202 U.S. 600, 50 L.ed. 1162,

26 Sup. Ct. Rep. 709.”

There is simply nothing in Carnahan, or any subsequent

decision citing it, that will lend support for the Court

of Appeals most illiberal holding.

We would request the Court to note the reference in

the Carnahan case to the earlier holding in Washington

& G. R. Co. v. Tobriner, 147 U.S. 571, 13 S.Ct. 557,

37 L.Ed. 284 (1893), in which the following instruction

was approved:

“If the jury finds for the plaintiff, they will find

for him such an amount of damages as will fully

compensate him for the suffering of mind and body

inflicted upon him by his injury, for the personal

inconvenience, the loss of time, and the expenses of

cure that naturally and proximately resulted from

the injury he suffered; and, if they find that the

injuries sustained by the plaintiff are permanent,

9

they will also find for him such damages as will fully

compensate him for the suffering of mind and body,

the personal inconvenience, and the loss of time

that he will suffer in the future. In determining this,

as to the future, they will consider plaintiff's bodily

vigor and age, as shown by the evidence adduced.”

(Emphasis added.)

True, Tobriner is not an F.E.L.A. case, but it was

cited with approval in the Carnahan case, as was the

earlier decision of the Court in Arizona Eastern Rd. v.

Byran, 242 U.S. 621, 37 S.Ct. 241, 61 L.Ed. 532 (1916),

affirming per curian Arizona Eastern Rd. Co. v. Bryan,

157 Pac. 376, 381 (Sup. Ariz. 1916), also a F.E.L.A.

case, and in which the Arizona Supreme Court said:

“The court instructed the jury that, if they found

for the plaintiff, they would find such “an amount

of damages as will fully compensate him for all

suffering of mind and body inflicted upon him by

his injury and for the personal inconvenience and

the loss of time and expense of care that naturally

and proximately resulted from the injury,” and ap-

plied the same rule in case they should find that the

plaintiff's injuries are permanent. Error is assigned

for the reasons that “personal inconvenience is not

an element of damages for which the appellee may

recover,” for either temporary or permanent injuries;

and without further explanatory instructions the

words “personal inconvenience” are too indefinite

and uncertain. Further objection is made to the

use of the words full compensation.” These objec-

tions to the instruction are fully answered in Wash-

ington & G. R. R. Co. v. Tobriner, 147 U.S. 571,

13 Sup. Ct. 557, 37 L.Ed. 284, where substantially

the same worded instruction was approved by that

court and properly so approved.” (Emphasis added. )

10

Manifestly, if “personal inconvenience” and “bodily

vigor” are not objectionable, then how can it be said

that “loss of enjoyment of life” and “loss of vitality” stand

on different grounds?

We submit it to be quite clear that Carnahan does not

impose limits on the “includable elements,” nor has it ever

been cited for that purpose. As previously indicated, the

Court of Appeals indicated it had found no cases in point,

but more accurately, it found no decisions supporting its

conclusion. The Court has not seen fit to mention the

clear pronouncements of the Court of Appeals of the Dis-

trict of Columbia in Taylor v. Washington Terminal Co.,

409 F.2d 145, 149 (1969) [Projecting the pain and suf-

fering, the anxiety, and the loss of enjoyment of life

* * *”] or the Second Circuit in Lebrecht v. Bethlehem

Steel Corp., 402 F.2d 585, 592 (1968) [“* * * the jury

is entitled to consider the effect of plaintiff’s injuries on

‘normal pursuits and pleasures of life’ (citing Grunen-

thal), * * *”], and, even more specifically, the language

of the Third Circuit in Downie v. United States Lines,

359 F.2d 344, 347 (1966), wherein the Court said:

“The injured seaman is also entitled to compensa-

tion, again based on life expectancy at the time of

injury, for the physical and mental effects of the in-

jury on his ability to engage in those activities which

normally contribute to the enjoyment of life, includ-

ing for, example, his avocations. Dagnello v. Long

Island Railroad Company, 289 F.2d 797 (2nd Cir.

1961). See Bassett v. Milwaukee, Northern Ry. Co.,

169 Wis. 152, 170 N.W. 944, 945 (Sup. Ct. Wis.

1919); Kasiski v. Central Jersey Power and Light

Co., 4 N.J. Misc. 130, 132 A. 201 (Sup. Ct. N.J.

1926); Annotations, 120 A.L.R. 535-543. The spe-

11

cific elements which may enter into an award of dam-

ages under this rule must necessarily depend upon

the proofs. There are no precise criteria by which

these elements may be evaluated but they are measur-

able to the same extent as pain, suffering and mental

anguish.” (Emphasis added.)

While the specific holding in the Downie case related to

the right to include the element of shortening of life ex-

pectancy in a Jones Act case, the treatment of the so-

called “elements of damage” by the Third Circuit is of

significance in the case at bar. In footnote 3 to the above

quotation, after observing that “The specific elements

which may enter into an award of damages under the rule

must necessarily depend upon the proofs,” the Third Cir-

cuit said:

“Examples of provable elements are: inability to

dance, bowl, swim or engage in similar recreational

activities; inability to perform customary household

chores; and inability to engage in the usual family

activities.” (359 F.2d at p. 347) (Emphasis added.)

Again, the Court of Appeals concluded:

“While we have found no federal case, and we

have cited none, on the subject of ‘loss of vitality,’

we are equally certain that this item is an included

element of the consequences of physical injury, not

separately to be measured independently of the basic

premise.” (See p. 28 of the Opinion, Appendix “A.”)

To the contrary, in Sleeman v. Chesapeake & Ohio Rail-

road, 290 F.Supp. 817 (Mich. 1968), reversed on other

grounds, 414 F.2d 305 (1968), on remand and subse-

quent appeal, 305 F.Supp. 33 (1969); 424 F.2d 547

an |

12

(1970). In awarding damages, the trial Court in that case

computed the value of “loss of physical power, vitality,

and enjoyment of life.”

The decision of the Court below is without precedent.

All the decisional law is to the contrary. The philosophy

and purpose of the Federal Employers’ Liability Act is

thwarted if such decisions as this are permitted to stand.

It was not doubted by the Court of Appeals, nor denied

by counsel for Respondents, that the proof fully and ad-

equately supports the “elements of damage” submitted for

the consideration of the jury, whether “loss of enjoyment”

and “loss of vitality” are “separate elements of damage”

or not.

In truth and in fact, the objections leveled against the

charge by counsel for Respondents were nothing more nor

less than the usual and customary “flyspeck” criticisms

seen in the State Court practice in Texas. The language

of this Court in New York Central Railroad Co. v. Win-

field, 244 U.S. 147, 37 S.Ct. 594, 61 L.Ed. 1045 (1916)

still commends itself as an acceptable rubric:

“Whether and in what circumstances railroad

companies engaged in interstate commerce shall be

required to compensate their employees in such

commerce for injuries sustained therein are matters

in which the Nation as a whole is interested and

there are weighty considerations why the controlling

law should be uniform and not change at every

state line * * * * It was largely in recognition of

this that the Employers’ Liability Act was enacted

by Congress * * * * A federal statute of this charac-

ter will supplant the numerous state statutes on the

subject so far as they relate to interstate commerce.

It will create uniformity throughout the Union, and

13

the legal status of such employers’ liability for per-

sonal injuries instead of being subject to numerous

rules will be fixed by one rule in all the states * * *”

(Ellipsis by the undersigned. )

The Court of Appeals gave an undue and overly restric-

tive interpretation to §51 of Title 45, United States

Code.

2) Strictly construing the language of the charge,

the phrases “loss of enjoyment” and “loss of vitality”

were included in the elements to which they related;

namely, “mental anguish” and “physical impair-

ment,” respectively.

Relating ourselves to what we believe the erroneous

premise of the Court that Carnahan and Grunenthal

permit the inclusion of the items within the framework

of the “established elements,” but condemns them when

they are not, we suggest the new rule is not even gram-

matically correct. The instruction reads:

“Such physical pain, mental anguish and loss of

enjoyment of life as the plaintiff has sustained from

the date of occurrence until the date of trial, such

physical pain and mental anguish and loss of enjoy-

ment of life as plaintiff may in reasonable probability

sustain in the future beyond this date, such loss

of earning power, physical impairment, and loss of

vitality as plaintiff has sustained from the date of

the occurrence until the date of the trial; such loss

of earning power, physical impairment, and loss of

vitality as plaintiff will in reasonable probability

sustain in the future beyond this date.” (Emphasis

by the Court.)

14

If the phrases were not properly conjoined with the ele-

ments to which they were supposed to be relevant, what

conceivable language could have been employed to make

the “new elements” properly embraced? We say none,

simply because they were correctly tied to pain and

anguish and physical impairment, respectively.

3) Under the F.E.L.A., all doubts should be re-

solved in favor of the injured employee to accomplish

the remedial purposes of the legislation.

In F.E.L.A. cases it has long been the law that

“Whether the instructions could have produced

misconception in the minds of the jury is not to be

ascertained by merely considering isolated statements,

but by taking into view all the instructions given and

the tendencies of the proof in the case to which they

could possibly be applied.”

Seaboard Air Line Ry. v. Padgett, 236 US. 668,

35 S.Ct. 668, 669 (1915)

As Judge Medina observed in Rattigan v. New York

Central R. Co., 291 F.2d 548 (2 Cir. 1961), cert. den.

368 U.S. 891, 82 S.Ct. 144, 7 L.Ed.2d 89 (1961),

“x * * the United States Supreme Court has told us in

various ways and on numerous occasions that in these

F.E.L.A. cases the railroad employee is to be given the

benefit of every doubt. * * * (citing numerous cases and

emphasis added).”

Has Dugas been given the benefit of any doubt? We

suggest this question must be answered in the negative!

On page 31 the Court says—as it must say in view of

the length of the charge and the attenuated casuistries of

15

the Court—that “they (the condemned phrases) were

couched in terms WHICH COULD HAVE CONFUSED

the jury as to correct standards it had a duty to apply

in this regard.”

From the inception of the F.E.L.A. this Court, and

every other Federal or State Court, have adhered to the

premise announced in Johnson v. Southern Pac., 196

US. 1, 25 S.Ct. 158, 49 L.Ed. 493 (1904) that,

“The history of the Employers’ Liability Act and

its remedial purpose impel to the conclusion that it

should be liberally construed as to the inclusion of

its beneficiaries in order to effect its remedial purpose

notwithstanding the fact that it is in derogation of

the common law.”

The “remedial purpose” is not served by a reversal in a

cause in which the Court has concluded no more than that

the jury “could have been confused,” and yet at the same

time has correctly held the quantum of damage not to be

“excessive.”

4) The holding of the Court of Civil Appeals is in

contravention of Rule 61, F.R.C.P., the “harmless

error” rule.

The Court of Appeals correctly determined and held

that the liability aspects of the verdict were supportable.

In fact, other than attacking the res ipsa loquitur instruc-

tion, Respondents leveled no attack against the underly-

ing evidence girding or supporting the verdict. The Court

of Appeals went further and decided, unnecessarily, that

the verdict was not “excessive.” In that connection, the

Court querulously observed:

16

“Since we have concluded that the case must be

remanded for a new trial on the issue of damages

alone, it ordinarily would not be necessary for us to

consider the assignment that the jury awarded ex-

cessive damages. Since, however, that is the very is-

sue which must be tried anew, we feel that we must

discuss that subject.” (See p. 31 of the Opinion, Ap-

pendix “A”, emphasis added)

Whereupon, the Court proceeded to review the evidence

and determine that the verdict was not excessive. How

this would aid a jury on a retrial escapes the undersigned!

We suggest that the Court of Appeals appears to be

expiating itself because of the incredible holding. It is

almost as though it wanted this Court to review the case.

At any rate, when the following factors are considered,

it is submitted that the “harmless error” rule should have

been applied:

1) The charge was oral and lengthy, and it is incon-

ceivable that the jury could have been misled.

2) The Court of Appeals determined that the dam-

ages were not excessive.

3) No complaint with respect to jury argument or

other impropriety was urged in the Court below.

4) The Court did no more than conclude that the

jury “could have been confused” by the inclusion

of such language in the oral and lengthy charge.

The mandate of Rule 61 is that no cause should be

reversed on mere possibilities, or unless the refusal to

reverse “appears to the Court inconsistent with substantial

justice.”

Patently, “substantial justice” has not been accorded

R. P. Dugas under this record.

17

CONCLUSION AND PRAYER

The undersigned is fully mindful of the burdens upon

this Court, and the reluctance it has to police the various

Circuits in all matters arising under the Federal Em-

ployers’ Liability Act or other federal rights legislation.

The present case, however, is not one having to do with

the sufficiency of the evidence, but with an undue re-

striction on the measure of damages recoverable under

§51 of Title 46, United States Code Annotated.

The Carnahan decision does not support the holding of

the Court of Appeals, nor does any other decision with

which we are familiar support the conclusion that the

jury “could have been confused” by the inclusion of the

objected-to language in the charge. Whereas no substan-

tial injustice will result by an affirmance, manifest in-

justice will result if this severely injured railroad em-

ployee is required to relitigate his damages and face yet

another appeal.

It is respectfully prayed that this Honorable Court grant

this writ of Certiorari to review the Opinion and Judg-

ment of the Court of Appeals, and for such other orders

as appear proper to the Court.

Respectfully submitted.

By: -

W. JAMES KRONZER, JR.

500 Houston First Savings Bldg.

711 Fannin Street

Houston, Texas 77002

18

CERTIFICATE

Three copies of the above and foregoing Petition for

Writ of Certiorari have been furnished to Messrs. Mehaffy,

Weber, Keith & Gonsoulin, 1400 San Jacinto Building,

Beaumont, Texas 77701.

W. JAMES KRONZER

19

APPENDIX “A”

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 72-2338

R. P. DUGAS,

Plaintiff-Appellee,

versus

THE KANSAS CITY SOUTHERN

RAILWAY LINES, ET AL,

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Texas

(February 2, 1973)

Before WISDOM, BELL and COLEMAN,

Circuit Judges.

COLEMAN, Circuit Judge: The appellant, R. P.

Dugas, was working for Kansas City Southern Railway

20

Company (KCS) as a car cleaner when a boxcar door

fell, shattering his left hip, fracturing his right pelvis,

and causing the loss of several pints of blood.

He brought suit under the Federal Employers’ Liability

Act, 45 U.S.C., $51. The jury awarded damages in the

sum of $200,000. The railroad appeals.

The judgment of the District Court will be affirmed

as to liability but reversed and remanded for a new trial

on the issue of damages.

Dugas alleged that there were imperfections in the

door which caused it to fall off and which could have

been discovered upon proper inspection by the railroad.

He also invoked the doctrine of res ipsa loquitur.

On appeal, the railroad asserts that (1) the doctrine

of res ipsa loquitur did not apply, (2) the trial court

erred in its instruction on damages, and (3) the verdict

is excessive.

Dugas’ primary job with the railroad was to clean

out boxcars in the KCS yard at Port Arthur, Texas.

After empty cars come into the yard, they are chan-

neled to the “cleaning track”. Crews of two or four

men open the boxcar doors, sweep out any debris, and

wash the interior with a high pressure hose. The usual

procedure is first to open the doors on all the cars to

be washed and then to begin the cleaning process. The

cars are not usually safety checked until they have been

cleaned.

On the morning of May 25, 1970, Dugas and his co-

worker, Willie Lockridge, had opened four or five cars

before reaching the boxcar which caused this litiga-

tion. They opened the door on one side of the car and

21

went around to the other side to open the other door.

Dugas testified that Lockridge pried the door open with

a small crowbar. Then they both pushed it open wider.

Dugas stated that when the door was about halfway

open it fell off the car and onto him.

Lockridge testified that if a side sill (a horizontal support

bar on the bottom of the car) had been broken, he would

have noticed it, and there was none broken. He also stated

that he and Dugas shoved the door hard against the door

stop and that it fell off only after it had hit the door stop.

Within five minutes of the accident, F. C. Arnold, Jr.,

a car foreman for the KCS with thirty-two years experi-

ence as a car repairman and car foreman, inspected the

boxcar. He inspected the car door roller tracks and did

not find any breaks or loose welds in them, nor did he

find any breaks of the side sills. He said that the car

cleaners would not have found anything wrong with the

door if they had inspected it. Mr. Arnold further testified

that if the opening door had been shoved hard against

the door stops, it could cause the door to bounce off its

tracks. He said that the boxcar in question “might have”

received a customary walking inspection when it first

entered the yard.

Subsequent to the accident, the car carried a load of

drums to the Texas Company Terminal and then was

sent to the KATY repair shop in Denison, Texas. M. E.

Wilkinson, a car repairman with KATY Railroad, testified

that the boxcar had several broken metal support braces

underneath the car, including a cracked side sill. He stated

that a broken side sill will cause vibrations when the car

is running. These vibrations may cause a spot weld on

the door’s lower track to break and drop down. Mr.

22

Wilkinson stated that such structural defects might have

caused the door to fall off. Neither Mr. Wilkinson’s testi-

mony nor the repair order card of the car showed any

defect in the top track of the car’s door.

J. H. Weis, a former car inspector for KCS who testified

for Dugas, stated under cross-examination that this par-

ticular type of boxcar was one where the doors are at-

tached to the top track and they did not slide on the

bottom rails. All of the weight of the door is on the top,

and the bottom is just a groove to guide the door when

it opens and closes. But Mr. Weis did say that if the

bottom track had dropped down, even slightly, then the

door might slide out from the top track.

RES IPSA LOQUITUR

The railroad contends, for several reasons, that the

doctrine of res ipsa loquitur was incorrectly applied in

this case.

Ordinarily, there are three prerequisites to the appli-

cation of the doctrine: (1) the accident must be of a

kind which ordinarily would not occur in the absence

of negligence on the part of someone; (2) the injury

must be caused by an agency or instrumentality within

the exclusive control of the defendant; and (3) the oc-

currence must not have been due to any voluntary action

on the part of the plaintiff, Furness, Withy & Company

v. Carter, 9 Cir., 1960, 281 F.2d 264; Atchison, T. &

S. F. Ry. Company v. Simmons, 10 Cir., 1946, 153 F.2d

206.

In Jesionowski v. Boston & Maine Railroad Company,

329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416 (1946), the

23

Supreme Court had occasion to consider the application

of res ipsa to FELA cases, particularly the “exclusive

control” features of that doctrine.

In that case a brakeman, while in the process of

switching cars, was killed when a car was derailed,

throwing him to his death. The Court of Appeals for

the First Circuit had held that res ipsa loquitur could

not be invoked in an extraordinary accident growing

out of a set of circumstances which included activity

of the injured person. Evidence on behalf of the railroad

was sufficient to authorize, but not compel, a jury finding

that the derailment was caused by the negligence of the

deceased in handling the switch. There was other evidence

from which a jury could have found that the derailment

was caused by a defect in a frog operated with a spring

mechanism. This was disputed by evidence to the effect

that the frog and switch were in good condition both

before and after the derailment.

Subsequent to a discussion of the general principles

applicable to the use of res ipsa, the Supreme Court held

that the rule as applied by the First Circuit

“* * * would bar juries from drawing an infer-

ence of negligence on account of unusual accidents

in all operations where the injured person had him-

self participated in the operations, even though it

was proved that his operations of the things under

his control did not cause the accident. This view-

point unduly restricts the power of juries to decide

questions of fact, and in this case the jury's right

to draw inferences from evidence and the sufficiency

of that evidence to support a verdict are Federal

questions. A conceptualistic interpretation of res ipsa

24

loquitur has never been used by this Court to reduce

the jury’s power to draw inferences from facts. Such

an interpretation unduly narrows the doctrine as

this Court has applied it.”

The judgment of the First Circuit was reversed.

The railroad argues that by opening the boxcar door

Dugas was at least in partial control of the instrumentality

whence came the injuries. thus defeating the application

of the res ipsa doctrine.

We are of the opinion that the teachings of Jesionow-

ski mandate the rejection of this argument.

Moreover. it is the settled law of this Circuit that res

ipsa loquitur is proper even though the plaintiff attempts

to prove exactly what happened, Texas & Pacific Rail-

way Company v. Buckles, 5 Cir., 1956, 232 F.2d 257,

cert. denied 351 U.S. 894; Kansas City Southern Railway

Company vy. Justice, 5 Cir., 1956. 232 F.2d 267. cert.

denied 352 U.S. 833.

Since the doctrine of res ipsa loquitur is a rule of evi-

dence it is not necessary that it be referred to in the

pleadings. Fassbinder v. Pennsylvania Railroad Company,

3 Cir.. 1963, 322 F.2d 859: Ramsouer v. Midland Valley

Railroad Company, 8 Cir., 1943, 135 F.2d 101.

As pointed out in Jesionowski, supra, the Act creates

federal rights protected by federal rather than state law,

Bailey v. Central Vermont Railroad, 319 U.S. 350. 63

S.Ct. 1062. 87 L.Ed. 1444: (1943).

The next attack is aimed at the trial instructions on res

ipsa.

25

Those instructions (which we have paragraphed for

clarity) were as follows:

“Further, the Court would instruct you that in

regard to the doctrine of res ipsa loquitur, the mere

fact that an accident happened, standing alone, does

not, unless otherwise expressly stated, permit the

jury to draw the inference that the accident was

caused by anyone’s negligence.

“However, there is an exception to this general

rule known as the doctrine of res ipsa loquitur.

“In addition to plaintiff’s specific charges of negli-

gence against the defendant, R. P. Dugas is also

relying here upon the doctrine of res ipsa loquitur,

which is a latin term meaning that the thing or

occurrence speaks for itself.

“Res ipsa loquitur means that the facts of the oc-

currence may warrant an inference of negligence,

not that they compel such an inference, but they

furnish evidence of negligence where direct evidence

may be lacking.

“But, it is evidence to be weighed, not nec-

essarily to be accepted as sufficient. which may call

for explanations or rebuttal, not necessarily that it

requires such explanation or rebuttal. When a thing

which causes injury which is under the control of

the defendant and an accident as such as in the

ordinary course of things does not occur if the one

being in control uses proper care, it affords reason-

able evidence in the absence of a reasonable ex-

planation that the injury arose from the defendant’s

want of care.

“Therefore. the Court would instruct you if you

find from a preponderance of the evidence that the

thing which caused the injury, which in this case

26

was the door which was under the control of the

defendant, and an accident as such as in the ordinary

course of things does not occur if the one being in

control uses proper care, and you further find from

a preponderance of the evidence that the door was

a contributing cause of the injury, then you will find

for the plaintiff under the doctrine of res ipsa loqui-

tur.”

The problem with the instruction is to be found in the

language of the last paragraph, wherein the trial court

told the jury that the door was under the control of the

defendant. rather than leaving that as an issue of fact for

the decision of the jury. The railroad says that this

amounted to a directed verdict for the plaintiff.

On its face, this is not an unreasonable contention.

It is not disputed that the door caused the injury. It

can hardly be disputed that this was such an accident

“as in the ordinary course of things does not occur with

the use of due care”. Then, at first glance, it would appear

that if the railroad as a matter of law was in control of

the door the circle was closed and the jury would have

no alternative but to find for the plaintiff.

We. however, do not find the matter to be quite so

simple.

Obviously, the railroad was in control of the boxcar

and it was being cleaned at railrod direction. Nobody con-

tends that Dugas had any control over its condition. We

see no evidence in the record that there was any defect

in the door itself. Any defective condition which may

have existed was in the car, affecting the stability of the

rails, roller tracks or other equipment by which the door

27

should have adhered to the car instead of falling off. We

think that reasonable men could not have disagreed that

these factors were indeed exclusively within the control

of the employer, not the employee.

Of controlling significance is the fact that when this

instruction was given, counsel for the railroad did not

construe its impact as he would now have us to construe

it, at the appellate level. He did not object to the in-

struction on the ground that it amounted to a directed

verdict. He objected to the giving of any res ipsa instruc-

tion at all, arguing before the jury retired, Rule 51, Fed-

eral Rules of Civil Procedure, that “res ipsa was not a

proper submission.” He did not call the attention of the

Court to the possibility that the terminology as to the

control of the door was incorrect or misleading or both.

We. therefore. decline in the circumstances of this case

to reverse on alleged error not presented to the trial court,

Dennis v. Central Steamship Corporation, 5 Cit. 1972,

453 F.2d 137, 141.

It follows that the judgment as to liability must be af-

firmed.

We now proceed to a consideration of another phase

of the instructions, dealing with the calculation of dam-

ages, to which the appellant did appropriately object, and

which, in our opinion, necessitates remand for a new trial

solely on the quantum of damages.

In Chesapeake & Ohio Railroad Company v. Carna-

han, 241 U.S. 241, 36 S.Ct. 594, 60 L.Ed. 979 (1916),

the Supreme Court approved an instruction which ad-

vised the jury in an FELA case for personal injuries that

in assessing damages it might take into consideration

28

“the pain and suffering of the plaintiff, his mental anguish,

the bodily injury sustained by him, his pecuniary loss,

his loss of power and capacity for work and its effect

upon his future”. Numerous reported cases follow this

decision and these standards.

We have already pointed out that the Act creates

federal rights protected by federal law and that as to the

propriety of jury instructions federal decisions are con-

trolling.

In Grunenthal v. Long Island Railroad Company, 2

Cir., 1968, 388 F.2d 480, 484, reversed on other

grounds, 393 U.S. 156. 89 S.Ct. 331, 21 L.Ed.2d 309

(1968), the Second Circuit held:

“The instructions to the jury properly allowed a

recovery for the loss of past earnings, the loss of

future earnings, pain and suffering and inconven-

ience including (emphasis added) ‘the effect of the

injuries upon the normal pursuits and pleasures of

life’.”

We think the foregoing language is significant; the ef-

fect of injuries upon the normal pursuits and pleasures of

life is an included item, not a separate one, that is, the

normal pursuits and pleasures of life are to be included

as a part of pain, suffering, and inconvenience. It is not a

factor to be separately measured as an independent ground

for damages.

While we have found no federal case, and we have been

cited none, on the subject of “loss of vitality” we are

equally certain that this item is an included element of

the consequences of physical injury, not separately to be

measured independently of the basic premise.

29

When the charge was completed, the railroad objected,

as follows:

“{I]n the charge where the Court charged that in

the elements of damages recovery could be had on

mental anguish and for loss of enjoyment of life and

then recovery for physical impairment and loss of

vitality, I think really they are one and the same, but

the way the charge was given it sounds like there

are a total of four elements involved, mental anguish,

loss of enjoyment of life, physical impairment and

loss of vitality, there are four separate elements of

damage. Really mental anguish and loss of enjoy-

ment is one thing and I believe the proper instruc-

tion on mental anguish, pain and suffering and on

the other hand, physical impairment and those would

be confusing and indicated additional grounds for

recovery, that the law doesn’t provide for.”

Counsel for plaintiff responded that his requested in-

structions did “combine mental anguish construction” and

that there would be no confusion “that the two are re-

lated”. He further pointed out that the Court had said the

jury was “to reach a result on these elements of damages

so that there will be no duplication of damages of any

one item.”

He added, however, that if there was any doubt about

it possibly the Court would prefer to clarify it. The Court

thought that he had touched base, as counsel had indi-

cated, and declined to say anything further.

We examine what the record shows to have actually

been said to the jury. The elements of damage were sub-

mitted to the jury in the following language, adding em-

phasis to the use of the word “and”;

30

“Such physical pain, mental anguish and loss of

enjoyment of life as the plaintiff has sustained from

the date of occurrence until the date of trial, such

physical pain and mental anguish and loss of en-

joyment of life as plaintiff may in reasonable proba-

bility sustain in the future beyond this date, such

loss of earning power, physical impairment, and

loss of vitality as plaintiff has sustained from the

date of the occurrence until the date of the trial;

such loss of earning power, physical impairment, and

loss of vitality as plaintiff will in reasonable proba-

bility sustain in the future beyond this date.”

The Court wound up with the following language:

“Further, you are instructed in considering the

plaintiff's injuries and damages that you may also

take into account physical impairment and loss of

vitality as indicated herein. For example, you may

consider the value of such physical impairment, the

loss of vitality as you may find associated with

plaintiff's condition which you have not already con-

sidered in your evaluation for Mr. Dugas’ pain

or mental anguish, past or future, to the end that

the dollars and cents you find for plaintiff's physical

impairment and loss of vitality should not constitute

a double recovery for other damages you have

already considered.”

Despite the reluctance naturally experienced in the act

of setting aside the quantum of damages awarded a badly

injured, unemployed man, who can follow no occupation

but that of a common laborer, this Court is compelled

to do it for it clearly appears that the cited instructions

repeatedly asserted “loss of enjoyment of life” and “loss

of vitality’ as if they were separate and independent,

rather than includible, items of damages, or, at the very

31

least, they were couched in terms which could have con-

fused the jury as to the correct standards it had a duty

to apply in this regard. And this is true despite the warn-

ing at the close of the instructions, which mentioned

duplication only in connection with “loss of vitality”.

The defendant must pay damages, but it is entitled

to have a jury measure those damages according to clear,

legally correct, plainly enunciated standards, an obliga-

tion which the trial court no doubt intended but did

not accomplish.

EXCESSIVENESS OF THE VERDICT

Appellants maintain that the $200,000 verdict is ex-

cessive and is the result of jury prejudice or confusion. The

trial court overruled a motion for a new trial and request

for a remittitur.

Since we have concluded that the case must be re-

manded for a new trial on the issue of damages alone,

it ordinarily would not be necessary for us to consider

the assignment that the jury awarded excessive damages.

Since, however, that is the very issue which must be

tried anew we feel that we should discuss that subject.

Appellant’s injuries required extensive medical treat-

ment. He did not undergo surgery until the day after the

accident because his physician felt that he could not

withstand its rigors on the same day of the injury. His

feet were placed in traction so the injured bone fragments

could be pulled into place. After the fragments were po-

sitioned as best as they could be, a metal nail three and

a quarter inches long with an attached metal plate was

placed in the leg to connect the shattered bone frag-

32

ments. This metal appliance remains in the leg and

probably will not be removed unless irritation develops,

It was estimated that Dugas lost approximately six

pints of blood before and during surgery. Anemia de-

veloped from the high loss of blood and transfusions

were required. Subsequent hospitalization and a mye-

logram disclosed a ruptured disc. In the future the

ruptured disc may require a laminectomy and/or spinal

fusion.

Dr. Walter Glass, the orthopedic surgeon who treated

Dugas, testified that:

“* & %* he has shortening of the leg, he has some

restriction of motion in the hip joint due to scar

tissue formation about the hip, he has the internal

fixation plate and screws and Jewett appliance still

in there. In other words, he is nowhere near the same

condition that he was prior to the injury.”

Some twenty months after the accident, appellee was

still experiencing pain in his back and leg. Dr. Glass

also stated that appellee was at least fifty per cent perma-

nently disabled.

At the time of the injury Dugas was forty-two years

old, with a fourth grade education and had no other

formal schooling. He was trained for nothing except

manual labor. He has been unsuccessful since the ac-

cident in obtaining employment.

On the authority of Grunenthal v. Long Island Rail-

road Company, supra, we judge the damage award not

to have been excessive.

33

CONCLUSION

The judgment of the District Court on the issue of lia-

bility is affirmed.

The judgment as to the quantum of damages is reversed

and remanded for a new trial solely on that issue.

Each party will bear his or its own costs.

WISDOM, Circuit Judge, Dissenting:

I respectfully dissent.

The boxcar door did not happen to fall on Dugas as

he was passing by. It fell off when he opened the door.

Dugas opened the door by banging it against the door-

stop. In these circumstances, the jury should be permitted

to decide whether the door was in the control of Dugas,

for purposes of applying or not applying the res ipsa

loquitur doctrine. In effect, the trial judge took over the

jury’s prerogative to decide the issue of control and di-

rected a verdict on the application of res ipsa to this case.

I would reverse for a new trial.

I concur in the Court’s holding that the trial judge’s

instructions on damages “could have confused the jury

as to the correct standards it had to apply.”

34

APPENDIX “B”

IN THE

fntted States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 72-2338

R. P. DUGAS,

Plaintiff-Appellee,

versus

THE KANSAS CITY SOUTHERN

RAILWAY LINES, ET AL,

Defendants-Appellants.

Appeal from the United States District Court for

the Eastern District of Texas

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Feb. 2, 1973, 5 Cir., 1973, F.2d )

(March 27, 1973)

Before WISDOM, BELL and COLEMAN,

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.

WISDOM, Circuit Judge. dissents.