Brief for the Respondents in Opposition — Texas v. New Mexico

Ge I or ih a oon

ed

Jupiciat Painting Co., Inc., 82 Beekman St., N. ¥Y.—BEekman 3-9084-5-6 <a 182

Uifice-Supreme Couri,

os ie

a - emnente

Supreme Court of the United States

Ooroser Tzerm—1951

No. 44 Misc.

JOHN R. BROOKS,

Petitioner,

against

THE PENNSYLVANIA RAILROAD COMPANY,

Respondent.

enero repeepeeemereemenennee enna eee ey

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

EEE ————————————————eeeeeee

JOSEPH WALKER,

Attorney for Respondent.

INDEX

a IE go kisn o's odin os canes coccvcwoovs

SOR FS 55:4 jndateceitensn iad a wake

Point I—Rule 56 of the Rules of Civil Procedure pro-

vides for the granting of summary judgment upon

application of a defendant where the Court shall

' find that there is no genuine issue as to any material

fact and that the moving party is entitled to judg-

ROGS COW WO OE Ra de ve bidacveeccecnbaerens

Pont II—Delivery of the shipment was accomplished

by delivery to the petitioner’s agent...............

Point I1I—The judgment in favor of the delivering

carrier in the original suit instituted in the United

States District Court for Southern Texas, Laredo

Division, determined the liability of all carriers in

the rail movement from New York to Laredo and

bars any recovery in this action..................

II 555.0 SCrnacvecectess coins oe

Cases CITED

A. D. Blowers & Co. v. Canadian Pace. R., 155 Fed. 935. .

Arnold Milling Co. v. Commodity Credit Corp. and

Atchison, Topeka & Santa Fe Ry. Co., 81 F. Supp.

BOP Asiweniihevenss iaseveus denon oti be

Atlantic Coast Line v. Riverside Mills, 219 U. S. 186,

GOD sind doo Stones <seivensenbeuahansseceseen

Peraserens nese eager te cums wore nnaci™ 24 LORIN TER AMON MOTTE lh A Ee eam

ii INDEX

PAGE

Bancroft v. Yazoo & M. V. R. Co., 193 So. 481, 482.. 7

Brown v. Wabash R. Co., 281 S. W. 64.............. 8

Engl v. Aetna Life Ins. Co., 139 F. [2d] 469......... 4

Hayman v. Can. R. R., 43 Mise. 74; 86 N. Y. 8.728... 9

Medeirense Do Brasil S/A v. Stulman-Emrick Lumber

Co., 147 Fed. (2) 399; certiorari denied 325 U. S.

OUR iresssaeuneiteree ss iiteseiteedere Leck, 5

Panhandle & S. F. Ry. v. Montgomery, 140 S. W. (2)

eee LER LNAE LLL 7

Parsons v. Hardy & M’Cormick, 14 Wend. (N. Y.) 215 9

Pere Marquette Rail v. J. F. French & Co., 254 U. S.

WMP R enw este neese Was baker beets dielkck lsd, 6

Sweet v. Barney, 23 N. Y. We Ca wide seu seenca 5, 9

The Daytonian, 1933 A. M. C. 359 (U. 8. D. C., S. D.

a Ee hd Obs o eabSIKEE OO td adv belle ca ce 7

Statutes Crrep

Federal Rules of Civil Procedure:

WE Wear dase bnoeoud ii cun vues sib rckcc ce 2, 4,5

ME She MG uli nehatsdpendeWineey ciiseds. oauni 4

MOUNT hie bien édaiy bo Skid on eiide<UkesSovcuieck: 4

Title 49, U. 8S. C. A. § 20( | EER ay Meo ally Se 7

TREATISES

) Hutchison on Carriers (3rd Ed, Vol. Il, p. 754, §674).. 6

Sp WE ce salons co tnc tebe tesa 8

IN THE

Supreme Court of the United States

Ocroser Term—1951

No. 44 Misc.

Joun R. Brooks,

Petitioner,

against

Tue Pennsytvanta Rattroap Company,

Respondent.

ts

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Preliminary Statement

The United States Court of Appeals for the Second

Circuit unanimously affirmed the decision of the District

Court which granted summary judgment to the respond-

ent dismissing the complaint herein, said complaint hav-

ing been brought for alleged misdelivery of a shipment

moving in interstate commerce under a uniform domestic

bill of lading.* The respondent’s answer consists, among

other things, of a general denial aud affirmative defenses

of (1) delivery, and (2) res adjudicata. The District Court

found that the facts, on proof by documentary evidence,

showed that the respondent had performed its contract

through delivery to petitioner’s authorized agent. The

Court of Appeals also found that there was no genuine

issue of material fact so as to prevent an award of sum-

mary judgment.

* Reported in 187 Fed. (2) 869.

2

Petitioner having failed to establish, in the Courts

below, any material question of fact, now seeks in this

Court a review of the power of a Federal Court to grant

summary judgment, a remedy which is specifically pro-

vided by Rule 56 of the Rules of Civil Procedure. There

is here no legal question, novel or otherwise, and petitioner

has shown nothing which should move this Court to grant

certiorari.

The Facts

Petitioner on October 4, 1945 shipped 11 cartons, 1 case

and 1 package of books and household goods from New

York City, destination Laredo, Texas and consigned to him-

self. The uniform straight bill of lading, copy of which is

annexed to both the respondent’s answer [item 4*] and the

respondent’s motion papers on the motion for summary

judgment [item 5] clearly shows that the destination for

the rail carriage of the shipment was Laredo, Texas. The

petitioner, having gone to Guadalajara, Mexico, hired a

customs broker and transportation agency known as The

Corrigan Dispatch Company [operated by one Edward H.

Corrigan] and by letter dated October 19, 1945 [Ex. C,

subd. e, of item 5] petitioner wrote to said Corrigan Dis-

patch Company and sent to it the bill of lading covering the

shipment to Laredo, asking Corrigan to arrange to forward

the shipment to petitioner at Guadalajara. The petitioner

thus constituted The Corrigan Dispatch Company as his

agent to receive and direct the goods.

Delivery was made by the Texas & Mexican Railway

the final rail carrier, to The Corrigan Dispatch Company at

Laredo [ Ex. C., subd. b, of item 5] and the latter forwarded

the goods by truck to Guadalajara under a new bill of lad-

* References are to items contained in Record on Appeal in the United

States Court of Appeals, as listed in index thereof.

ing which The Corrigan Dispatch Company sent with draft

attached to the National Bank of Mexico at Guadalajara,

giving petitioner notice by letter dated November 28, 1945

[Ex. C, subd. d, of item 5]. The petitioner paid the draft

and telegraphed Corrigan Dispatch on December 4, 1945

that he had done so [Ex. ©, subd. e, of item 5]. The letter

of the petitioner dated October 19, 1945, the delivery

receipt of the final rail carrier {Texas Mexican Railroad

Company], the letter dated November 28, 1945 from The

Corrigan Dispatch Company to the petitioner and the peti-

tioner’s Western Union Telegram dated December 4, 1945

to The Corrigan Dispatch Company stand admitted [ Ex.

C of item 5].

The petitioner instituted two prior actions in connection

with this same shipment and the history of those two ac-

tions are set forth in his complaint herein [item 3]. The

simple fact of delivery to the petitioner’s own agent at

Laredo was established before the Court in Texas in the

first of the prior actions and established the defense of the

delivering carrier who, under the law, would have been

liable on behalf of the rail carriers for any misdelivery of

such an interstate shipment, if any such misdelivery had

occurred. In the second action that judgment was held

binding upon the petitioner and the action as against the

delivering carrier was again dismissed. Those adjudica-

tions are the basis of the respondent’s defense of res adjudi-

cata as set forth in the answer herein [item 4].

4

POINT |

Rule 56 of the Rules of Civil Procedure provides

for the granting of summary judgment upon applica-

tion of a defendant where the Court shall find that

there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a

matter of law.

Summary judgment is provided under Rule 56 of the

Rules

vides:

of Civil Procedure, subdivision (b) of which pro-

‘*For DEFENDING PARTY. A party against whom a

claim, counterclaim, or cross-claim is asserted or a

declaratory judgment is sought may, at any time,

move with or without supporting affidavits for a sum-

mary judgment in his favor as to all or any part

thereof.’’

That rule also provides [subd. (c)]:

In

Court

““# * * The judgment sought shall be rendered

forthwith if the pleadings, depositions, and admis-

sions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment

as a matter of law. * * *”’

Engl v. Aetna Life Ins. Co., 1389 F. [2d] 469, the

said:

‘*But the history of the development of this pro-

cedure shows that it is intended to permit ‘a party

to pierce the allegations of fact in the pleadings and

to obtain relief by summary judgment where facts

set forth in detail in affidavits, depositions and ad-

missions on file show that there are no genuine issues

of facts to be tried.’ * * * Hence we have often held

that mere formal denials or general allegations which

do not show the facts in detail and with precision

are insufficient to prevent the award of summary

judgment [citing cases].

‘In the present case we have from the plaintiff

not even a denial of the basic facts, but only in effect

an assertion that at trial she may produce further

evidence, which she is now holding back * * *, If

one may thus reserve ones evidence when faced with

a motion for summary judgment there would be little

opportunity ‘to pierce the allegations of fact in the

pleadings’ or to determine that the issues formerly

raised were in fact sham or otherwise unsubstan-

tial. @ @ @5»9

See also:

Madeirense Do Brasil S/A v. Stulman-Emrick

Lumber Co., 147 Fed. (2) 399; certiorari denied

325 U. S. 861.

The petitioner cannot be heard to complain if he failed

to offer proof to raise a genuine issue of fact on the motion

for summary judgment. In the circumstances the District

Court was more than justified in granting the motion, was

empowered to do so under Rule 56 of the Rules of Civil

Procedure and there is therefore no question for review by

this Court.

POINT Il

Delivery of the shipment was accomplished by de-

livery to the petitioner’s agent.

Delivery by a common carrier may be made to the owner

or his agent.

Sweet v. Barney, 23 N. Y. 335, 338.

The proof conclusively showed that The Corrigan Dis-

patch Company was the authorized agent of the petitioner,

whose letter of October 19, 1945 was a direct authorization

to The Corrigan Dispatch Company to handle the shipment

for the petitioner, that letter containing the original bill

of lading covering the rail shipment to Laredo, Texas. The

delivery of the bill of lading and the request to The Cor-

rigan Dispatch Company to act on the petitioner’s behalf

clearly constituted Corrigan the agent of the petitioner.

**But to justify delivery to an agent no further

or other proof of the fact of the agency is required

that is necessary in other cases,”’

Hutchison on Carriers (3rd Kd., Vol. Il, p. 754,

§ 674).

If delivery to The Corrigan Dispatch Company, in the

face of the facts, could possibly have been held to be a mis-

delivery then the petitioner ratified that delivery. Instead

of petitioner disclaiming the right of The Corrigan Dis-

patch Company to act on his behalf, upon receipt of the

letter from The Corrigan Dispatch Company dated No-

vember 28, 1945 [which contained both a copy of the draft

and the documents covering the further shipment of the

goods by truck from Laredo to Guadalajara, thus notify-

ing petitioner of the steps which The Corrigan Dispatch

Company had taken in connection with the shipment], he

went to the bank, paid the draft, picked up the bill of lad-

ing for the truck movement from Laredo to Guadalajara®

and telegraphed further instructions to The Corrigan Dis-

patch Company by telegram dated December 4,1945. These

actions of the petitioner clearly constituted a ratification

of the delivery made to The Corrigan Dispatch Company

as his agent.

See:

Pere Marquette Rail v. J. F. French & Co., 254

U. S. 538;

* See complaint [item 3] p. 2.

7

A. D. Blowers & Co. v. Canadian Pac. R., 155 Fed.

935;

The Daytonian, 1933 A. M. C. 359 (U. S. D. C.,

S. D. of N. Y.).

POINT Ill

The judgment in favor of the delivering carrier in

the original suit instituted in the United States District

Court for Southern Texas, Laredo Division, determined

the liability of all carriers in the rail movement from

New York to Laredo and bars any recovery in this

action.

The shipment in question was an interstate commerce

shipment governed by the Interstate Commerce Act and

the liability of the rail carriers was that provided in Title

49, U. S. C. A. §20(11) which section provides that the

owner or consignee may sue the originating or the deliver-

ing carrier for the through liability of all carriers involved

in the transportation.

Atlantic Coastline v. Riverside Mills, 219 U. §.

186, 196, 200 (originating carrier liability) ;

Panhandle & S. F. Ry. v. Montgomery, 140 S. W.

(2) 241, 245 (delivering carrier liability) ;

Bancroft v. Yazoo & M. V. R. Co., 193 So. 481, 482

(delivering carrier liability).

Thus petitioner could have sued the Texas & Mexican

Railway Company (delivering rail carrier at Laredo} or

The Pennsylvania Railroad Company [originating carrier}.

He cannot, however, sue both for the same liability and

the determination of the carriers’ liability as against one

of them is determinative as against all the carriers. The

judgment against the petitioner in favor of The Texas &

8

Mexican Railway Company [delivering carrier] estops pe-

titioner from suing The Pennsylvania Railroad Company

(initial carrier] on the same claim.

See:

Brown v. Wabash R. Co., 281 8S. W. 64.

C/F:

Arnold Milling Co. v. Commodity Credit Corp. and

Atchison, Topeka & Santa Fe Ry. Co., 81 F.

Supp. 889.

Petitioner argues in his brief on this application that

there was an issue of fact as to whether the destination of

the shipment was Laredo or Mexico City. The bill of lading

clearly shows the destination of the shipment to have been

Laredo. But even if there were a question of fact as to

what the destination of the shipment was it would be imma-

terial in this case because no liability can attach to a car-

rier for delivery to an owner or consignee or the agent of

such owner or consignee at a point other than the destina-

tion. Acceptance of delivery at Laredo by petitioner’s

agent discharged the carriers from further transportation

under the bill of lading in any event.

‘*So long as the goods remained the property of

the bailor (shipper) he may countermand any direc-

tions he may have given as to their consignment, and

may at any time during the transit require of the

carrier their re-delivery to himself * * *,”

‘** * * So clearly the owner would have the right,

while no new interests have intervened and subject

to the carrier’s claim for full freight, to intercept

the goods upon their journey and demand their de-

livery at any reasonable point upon the carrier’s

line short of the original destination * * *,”

Hutchison on Carriers (3rd Ed.), §§ 660 and 661;

13 C. J. S. §§ 164, 166;

9

Sweet v. Barney, supra;

Hayman v. Can. Pac. R. R., 43 Mise. 74; 86 N. Y. 8.

728 ;

Parsons v. Hardy & M’Cormick, 14 Wend. (N. Y.)

215.

There is nothing in the petitioner’s application herein,

just as there was nothing in the affidavits or briefs on the

motion below, which would justify any different result

than was arrived at by the Courts below.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Joseph Wa ker,

Counsel for Respondent.

BLEakLeyY, Piatt, Gicurist & WALKER,

Dewnis P. Donovan,

Rosert L. Conxuina,

Of Counsel.