Petition for Writ of Certiorari — Century Indemnity Co. v. Arnold

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Supreme Cowt of the United States

Ocroner Treo, 1945

THE CENTURY INDEMNITY COMPANY,

Petitioner,

agaist

DUNCAN ©, ARNOLD and MARGARET C,

GALBREATH,

Respondents.

+

PETITION FOR WRIT OF CERTIORARI AND

BRIEF IN SUPPORT THEREOF

ask

ON APPEAL TO THE UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT,

Jounx Witson Hoon,

Counsel for Petitioner.

TABLE OF CONTENTS

PAGE

PETITION :

A. Summary Statement of the Matters Involved. 1

1. Nature of the Action and the Judgments

ee TE

2. Statement of Facts ----------—------—-- 2

B. Statement of Jurisdiction... ---.... -

C. The Questions Presented... —-

D. Reasons Relied on for Allowance ~ & . | RTS

Brier:

The Opinion Below —._.......-.-------—-——---—------~

Jurisdiction —............-------—--——--—-—---——-—---——--—

Statement of the Case... ..-.-------------------------

Assignments of Error... 8

ARGUMENT:

1. Summary of Argument —.--------—-

(A) The improper trial; conduct of Court... 9

(B) The improper trial; conduct of counsel 10

(C) Error on appeal construction of Rule

75 R.C. P..- LSP TR APIs

(D) Federal sencilieiil effect of res ipsa

loquitur; plaintiff’s right to a directed

rm ac ee 10

2. The Case Was Not Tried Properly, and

Should Be Tried Again to Give Petitioner a

hair Taal fas

ii

PAGE

3. The Cireuit Court Erred on Appeal in Con-

struing Rule 75 of the Rules of Civil Pro-

NE eos ottnnctess pinecialieanngeincionn ay

4. Procedural Effect of Res Ipsa Loqutar in

the Federal Courts 0... ‘ink

Table of Cases

Chicago Railway Co. v. Krauer, 234 Fed, 245... 5, 16

Commercial Corp. v. N. Y. Barge Corp., 314 U. 8. 104,

eta SUN ASR he OE cee te BO hesbiitesod 6, 16

C. & O. — Co. v. eee ve’ Co., 270 U.S. siete

423 _ a _ 6, 16

Dittinger v. Isal 11 Realty Corp., 290 N. Y. 496... 7, 12, 13, 15

Dunagan v. Appalachian Power Co., 23 Fed. (2d) 395 _7, 18

Rastland v. Clark, 165 N. Y. 420.....__..................-. 13

Equipment Acceptance Corp. v. “Arwood Can Mtg

Corp., 117 Fed. (2d) 442. ae ie fe. _ 6,14

Evans v. Stettnisch, 149 U. S. WM roi cohol oat BE

Poltis, Ine. v. City, 207 M. Y. 108.

Gertler v. Alexanders, 47 N. Y. S. (2) 165.7, 12

Haefeli v. Woodrich Engineering Co., 225 N. Y. 443.7, 18

Hogan v. Manhattan Ry. Co., 149 N.Y. 23 0... 15

Jenks v. Thompson, 179 N. Y. 20...........-----------7, 18

Katz v. Goldring, 237 A. D. 824...--..------------------ 7,12

Kirby v. Tallmadge, 160 U. 8. 379_ awe

Levine v. Brooklyn, ete., Ry. Co., 183 A. D. 606 —

Lincoln National Life Ins. Co. v. Ericson, 42 Fed. (2a)

OI csc cbnctcalnharinectreiaseiednnmeiansicnlactitiinrtbiniwtinnsasvamannsineenntl 6, 14

Lyberg v. Holz, 145 ONE ERS ee a

Moglia v. Nassau Electric Ry. Co., 127 A. D. 248... 15

New York Central Railway Co. v. Johnson, 279 U. 8.

906, 318, 319... 7,12

Stewart v. Wyoming, ete. Co., 128 U. S. 383... 14

Sweeney v. Erving, 228 U. S. 283. 16

RTL IN LINING SERRE SE RT SIREN NE ARR Eis PRESSE Re SS IR EES: _—

iii

Statutes

PAGE

Section 240A, Judicial Code —.............----------------- 3

Section 78, N. Y. Multiple Dwelling Law Rahat: A

Section 29, N. Y. Workmen’s Compensation Law 2,12

Rules

Rule 51, Rules of Civil Procedure... io et ae

Rule 75, Rules of Civil Procedure... ~~... 5, 8, 10

Rule 75 (f), Rules of Civil Procedure 3, 4, 5, 8, 10, 14

Law Reviews

Rosenthal: ‘‘Procedural Effect of Res Ipsa Loquitur

in New York’’, Cornell Law Quarterly, December,

PO te 16

ANTAL RNS ORL, EELS EA CS CFIA AS 1 Pes HES

Se ea Pa

eat _—

IN THE

Supreme Court of the United States

Ocroser TERM, 1945

Tae Century Lypemnity CoMPaNy,

Petitioner,

against

Duncan C. Annotp and Margaret C, GALBREATH,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To THE HonoraBLe, THe SupREME CourT OF THE Unitep

STATES:

The Century Indemnity Company, a Connecticut Cor-

poration, respectfully petitioning, shows to the Court:

A. Summary Statement of the Matters Involved

1. Nature of the Action and the Judgments Below

Petitioner brought an action in the District Court, as

subrogee under the New York Workmen’s Compensation

Law, of an injured man’s civil cause of action for damages

against the landlord of defective premises. Though peti-

tioner is plaintiff, any recovery under said law is divided,

after deducting compensation payments and suit expenses,

one-third to petitioner and two-thirds to such injured man.

Ata trial in the District Court the jury found for defen-

dants. From the judgment entered thereon petitioner ap-

pealed, and the Cireuit Court affirmed the judgment on

February 6th, 1946.

2

2. Statement of Facts

Petitioner issued a policy of Workmen’s Compensation

Insurance to Essie Cohen, who made a contract with re-

spondents to paint a vacant apartment in respondents’

tenement house. Essie Cohen employed Abe Kalman to do

such painting. While Kalman was in such vacant apart-

ment, standing on a step ladder, a floor board broke under

one of the legs of the ladder, causing Kalman to fall and

suffer personal injuries (fols. 41, 42, 50). The New York

State Department of Labor determined that such injuries

resulted from said employment, and made an award of

compensation, which was paid by petitioner. By reason of

Kalman’s failure to sue respondents within one year after

the accident, petitioner became subrogated to his cause of

action under Section 29 of the New York Workmen’s Com-

pensation Law, and authorized thereby to bring suit in

petitioner’s name against respondents, for the joint bene-

fit of petitioner and the injured man (fols. 39, 43, 44, 47).

Petitioner sued in the District Court, jurisdiction resting

on diversity of citizenship.

The apartment had been vacant for several months and

was under control of the respondents as a matter of law,

under New York decisions. Respondents had acquired the

building 60 days before the accident, continued the employ-

ment of both the agent and superintendent of the former

owner, and imposed a new general agent over both of them.

No inspection of the floor was made by respondents or a

qualified person prior to the accident (fols. 45, 144) and

the only attention given the floor by the superintendent was

such casual glances as were incidental to sweeping and

cleaning up prior to the painting (fols. 142, 144). Upon

such casual observation the superintendent did not see any-

thing wrong with the floor, nor did Kalman see anything

wrong in his quick glance prior to setting up his ladder.

3

Respondents presented only medical testimony. Peti-

tioner’s motion for a directed verdict was denied (fols. 316,

395, 396). The Trial Judge failed to read petitioner’s trial

brief and requested instructions until after the charge, and

then just glanced over them, with the result that the Court

failed to inform counsel of rulings thereon prior to sum-

mation as required by Rule 51 R. C. P. and failed to grant

a number of important instructions, and consequently the

petitioner’s legal theory was not made clear to the jury

(fols. 399, 400, 401).

The verdict was induced by improper summation and

appeal to prejudice. Respondents’ counsel opened his

summation by stating that the case was just one of an in-

surance company that had received a premium for insuring

against the accident, and was now suing respondents to

get back a loss for which it had received the premium (fol.

408). This statement was not only prejudicial but untrue,

since the injured man also had a financial interest in the

suit. Although immediate objection was made, the Trial

Judge failed to correct counsel or even advise the jury

that such argument was improper. On appeal the Circuit

Court did not reverse for this, saying that it could not con-

sider the question because the facts appeared in part in

affidavits on petitioner’s motion for a new trial, and that

such affidavits were not part of the record, though they

were printed and made part of an agreed record by the

parties under Rule 75 (f) R. C. P. (p. 146).

B. Statement of Jurisdiction

Jurisdiction is conferred on this Court to review this

cause on Writ of Certiorari by Section 240A of the Judicial

Code (U. S. C. Title 28 Section 347A). The judgment of

the Cireuit Court of Appeals to review which the Writ is

sought, was entered February 6th, 1946 (p. 148). A mo-

4

tion for reargument was made by petitioner, and denied

on March 12th, 1946 (p. 162). That judgment is one

affirming a judgment of the District Court rendered Febru-

ary 9, 1945 in a civil action seeking damages for personal

injuries. This petition for certiorari was filed before the

expiration of three months from the entry of the judgment

of the Cireuit Court of Appeals.

C. The Questions Presented

1. May a defendant’s attorney, in a subrogation action

brought by an insurance company, which by statute

must share the recovery with an injured man, argue on sum-

mation, over objection, that the case is only one of an in-

surance company that got a premium for carrying a risk,

and now is seeking to get the loss back that it got a premium

to bear?

2. May affidavits on a motion for a new trial be con-

sidered on appeal if made part of an agreed record under

Rule 75 (f) R. C. P.?

3. In a statutory subrogation action by an insurance

company where an injured man has a percentage interest

in the recovery, is the Court’s failure to inform the jury

of such interest excused by the fact that insurance counsel

made an abortive effort to explain this in opening the case,

which effort was prevented by intervention of the Trial

Judge?

4. Should the Cireuit Court have reversed where the

District Court submitted an important question of law to

the jury, which had been decided by the Cireuit Court on a

previous appeal?

5. Should a Federal Court jury be instructed, on re-

quest, that if a party fails to produce material witnesses

5

under the party’s control, the jury may infer that the tes-

timony of such absent witnesses would be unfavorable to

such party?

6. Is the procedural effect of res ipsa loquitur in the

Federal Court determined by State or Federal law? In

either case, was petitioner entitled to a directed verdict,

where there was no contributory negligence, no doubt the

accident happened, and defendant offered no testimony on

liability ?

7. Did the Cireuit Court fail to follow controlling New

York decisions on statutory interpretation and the duty of

inspecting the defective premises?

D. Reasons Relied on for Allowance of Writ

I. The Cireuit Court of Appeals in the Second Circuit

has decided important Federal questions which have not

been but should be, settled by this Court.

(a) That Court has decided that under Rule 75 R. C. P.

affidavits on a motion for a new trial may not be made part

of the record by agreement under Rule 75(f) R. C. P., and

hence cannot be considered on appeal.

(b) That Court has decided that the procedural effect

of res ipsa loquitur in the Federal Court is determined by

State law.

(c) That Court has decided that a plaintiff may not ob-

tain a directed verdict in a res ipsa loquitur case where the

defendant offers no defense or explanation, and there is no

question of contributory negligence or of the happening

of the accident. This ruling is in conflict with the opinion

of the Seventh Cireuit Court of Appeals in Chicago Rail-

way Company v. Krauer, 234 Fed. 245. It also seems in

conflict with the decisions of this Court that a bailment

ALLL PTL TM

—

6

ease is a special application of the doctrine of res ipsa

loquitur (Commercial Corp. v. N. ¥. Barge Corp., 314 U. 8.

104, 113) and that the unexplained failure of a bailee to

return bailed goods is prima facie proof of negligence, and

that in the absence of rebutting evidence the plaintiff is

apparently entitled to a directed verdict (C. € O. Railway

Company v. Thompson Mfg. Co., 270 U.S. 416, 423).

(ad) That Court has decided that failure of the Trial

Judge to explain the law to the jury regarding the injured

man’s financial interest in the suit, is excused by a partial

effort of counsel on opening to explain this to the jury,

which effort was interrupted by the Trial Judge in a man-

ner caleulated to remove any such claim of counsel from the

minds of the jury.

If. The Cireuit Court of Appeals for the Second Circuit

has decided Federal questions in a way probably in con-

flict with applicable decisions of this Court, and of other

Cireuit Courts of Appeal.

(a) That Court has decided that a Federal jury may not

be instructed that if a party fails to produce material wit-

nesses under the party’s control, the jury may infer that

the testimony of such absent witness may be unfavorable

to such party. This seems in conflict with the decision of

this Court in Kirby v. Tallmadge, 160 U. S. 379, and with

the decisions of the Eighth Circuit Court of Appeals in

Lincoln Nat. Life Insurance Co, v. Ericson 42 Fed. (2d) 997

and the Sixth Circuit Court of Appeals in Equipment Ac-

cept, Corp. v. Arwood Can Mfg. Corp., 117 Fed. (2d) 442.

(b) That Court has sanctioned the submission of a ques-

tion of law to the jury that had previously been decided by

the Appellate Court on a former appeal, following the ap-

plicable State decision. This seems in conflict with the de-

Srey >=

_—

cision of the Fourth Circuit Court of Appeals in Dunagan

v. Appalachian Power Co., 23 Fed. (2d) 395.

(c) That Court has sanctioned a verdict secured by ap-

peal to prejudice against insurance corporations. This

seems in conflict with the decision of this Court in New

York Central Railway Co. v. Johnson, 279 U. S. 306, 318,

319.

3. The Circuit Court of Appeals has failed to follow

applicable New York decisions on important questions of

local law.

7

(a) That Court has decided that failure of respondents

to inspect their defective premises and discover the de-

fects does not constitute negligence. Here, where respon-

dents fail to show that such defect could not have been

discovered by reasonable inspection, the ruling seems in

conflict with Gertler v. Alexanders, 47 N. Y. S. (2) 165.

(b) That Court has sanctioned a failure to instruct the

jury that the injured workingman owed no duty to inspect

the floor and was entitled to assume that the floor was

alright. This seems in conflict with Jenks v. Thompson, 179

N. Y. 20, and Haefeli v. Woodrich Engineering Co., 255 N.

Y. 443.

(c) That Court has decided that respondents owed no

duty to keep the premises in repair, though required to do

so by Section 78 of the N. Y. Multiple Dwelling Law, wnless

respondents had notice of the defect. But notice is not re-

quired in a res ipsa loquitur case, under Katz v. Goldring,

237 A. D. 824, and Dittinger v. Isal Realty Corp., 290 N. Y.

496,

—_ SEALIFE ORE BS Tees