Opposition Brief — Zellan v. Giddings

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In THe

Supreme Court of the United States

Octosrr Term, 1946

vo RE] 133

Jacos L. ZELLAN, «

Petitioner,

vs.

Harry P. Gipprnes,

Respondent,

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF

COLUMBIA.

Join J. SEDGWICK,

Attorney for Respondent.

WILSON - EPES PRINTING Co. - RE 6003.- WASHINGTON 1. D. c.

INDEX

Pace

Statement of case 1

Reasons for Denying the Petition 3

Conclusion 6

CITATIONS

Rubenstein v. Williams, 61 App. D. C., 266; 61 Fed.

(2d) 575 (1932) [R103]

Paxson v. Davis, 62 App. D. C. 146, 65 F. (2d) 492

(1933) [R103]

Western Union Tel. Co. vs. Brown, 234 U. S. 542,

547 (1914) [R103]

Phil. Wilm. & Balt. R. R. vs. Hoefleich, 62 Md. 300

(1884) [R103]

Phil. B. & W. Ry. v. Green, 110 Md. 32, 43 (1909) .... [R103]

Heinze v. Murphy, 180 Md. 423, 24 A. (2d) 917

(1942) . [R103]

Davis v. Gordon, 183 Md. 129, 36 A. (2d) 699 (1944) -.... 4

General Talking Pictures Corp., v. Western Elec. Co.

304 U. S. 175; 58 S. Ct. S49 nnn eeeeenneeeeseeeeennseneees 6

Ruhlin v. New York Life Insurance Co., 304, U. S.

202+ 5S S. Ct. S60 nn nnennseencoesesnesnnsnssnsensensensenenssnssneens 6

STATUTES

Maryland Code Annotated (Flack, Supp. 19438) art.

6614; para. 153 (Flack, 1939), art. 56, para 199. [R103]

In THE

Hupreme Court of the Anited States

October TERM, 1946

No. 1490

Jacos L. ZELLAN,

Petitioner,

Vs.

Harry P. Grpprnes,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF

COLUMBIA.

STATEMENT OF CASE

The accident and injury which occasioned the suit

occurred on September 7, 1945, about 1:00 o’clock A. M., on

private property of The Crossroads Tavern, Bladensburg,

Prince George County, Maryland. Contiguous thereto is

the Dixie Pig Restaurant. Petitioner and the Respondent

were guests, respectively, of these two taverns and both

had indulged in intoxicating liquors. Each had his auto-

mobile parked on the particular tavern property; each

had left his tavern preparatory to driving off. Respondent

_

9)

~

had started to drive along in a narrow space between rows

of parked cars and in making a right turn toward an exit,

the left end of his front bumper struck the lower corner

of the right side door of petitioner’s automobile, which

petitioner was then opening, and the calf of petitioner’s

left leg was caught in between and lacerated.

The original Complaint charged negligence and prayed

for compensatory damages. Respondent’s Answer denied

negligence and asserted contributory negligence. Upon the

issues thus joined the case came on for trial before a

Court and Jury. At the close of all the evidence and after

the parties had rested their cases the Court, over respond-

ent’s objection, granted petitioner’s motion to amend his

Complaint to include an additional ad damnum clause for

exemplary damages, raising the amount of the suit from

$50,000.00 to $100,000.00 (i.e. $50,000.00 compensatory

damages; $50,000.00 punitive damages).

The respondent, thereupon, and over strenuous objection,

was called back to the stand by petitioner’s counsel and

cross examined concerning his assets, financial worth and

related items. And, notwithstanding that the petitioner

owns and operates large apartment houses and properties,

and has financial worth and income many times that en-

joyed by the respondent, the jury, without proper instruc-

tion from the Court, returned a verdict for $13,311.00, of

which $10,000.00 was punitive damages, in favor of the

petitioner and against the respondent.

Respondent appealed, assigning fourteen errors, and

contested the verdict and judgment insofar as_ the

$10,000.00 punitive damages were concerned; the respond-

ent otherwise would have been content with the verdict

awarding $3,311.00 actual damages. The United States

Court of Appeals for the District of Columbia reversed

and remanded the case for a new trial in accordance with

3

its Opinion (R 103). Petitioner filed for a rehearing in

the aforestated Court, which was denied. Petitioner now

has petitioned this Court for a writ of certiorari, to which

petition the respondent now files these Objections.

REASONS FOR DENYING PETITION

1. The United States Court of Appeals for the District

of Columbia did not, in this case, render a decision in

conflict with the decision of another circuit court of appeals

on the same manner.

2. Said Court did not decide, an important question of

local law in a way in conflict with applicable local decisions.

3. There is no question of federal law involved calling

for action by this Court.

4. The aforestated Court did not depart from the ac-

cepted and usual course of judicial proceedings as to call

for an exercise of this Court’s power of supervision.

5. The aforestated Court applied the Law of Maryland

to the case, which is in accordance with law, inasmuch as

the particular accident in question occurred in Maryland.

6. Other reasons call for a denial and dismissal of the

Petition and are set forth herein.

While the respondent reserves all right to argue all of

the matters set forth in the Petition, including his ‘‘Ques-

tions Presented,’’ ‘‘Specification of Errors to be Urged,”’

and his ‘‘Reasons for granting the Writ,’’ it does not

appear necessary or proper to discuss all of them when

they formed no part of the decision and were not con-

sidered by the Justices of the United States Court of

Appeals for the District of Columbia. It is true the

4

respondent, in the appeal proceeding, asserted fourteen

assignments of error on the part of the Trial Justice, but

the appellate Court found it necessary to consider but one

of them and that was sufficient to warrant a reversal of the

District Court judgment. The Opinion (R 103) recites:

‘‘On this appeal appellant assigns fourteen separate

alleged errors occurring in the trial. But in the view

we take of the case it is necessary to notice but one of

these.

Therefore, and without admitting them, the respondent

submits to this Court that the matters asserted in the Peti-

tion were neither considered, nor ruled upon, by the

United States Court of Appeals for this District.

The case involved here is a simple one: there was an

automobile accident which occurred in the State of Mary-

land, a man was injured, the Laws of that State governed

and fixed the rights and liabilities of the parties hereto,

the trial court omitted to apply the law of Maryland and

an erroneous charge was given the Jury.

On appeal, the United States Court of Appeals reversed

the judgment of the trial court. In its Opinion (R 103)

the appellate court reviewed the Maryland cases on the

subject, as to which there can be no possible contradiction

or meritorious debate.

The Maryland Courts have considered the matter fully

and the policy of that State has become fixed. That Wis-

consin, or other states, may follow a different rule is of

no concern here. Maryland has no law supporting the

comparative negligence rule (followed in Wisconsin and,

perhaps, other states). That petitioner urges a Wisconsin

ease is of no moment. In a very recent case, that of

Davis v. Gordon, cited here, the Court of Maryland said,

‘‘The other question, however, the instruction that

the jury may award punitive damages, is a new one

in this State in cases of automobile accidents. Here

5

we have no rule of comparative negligence. If the

defendant is negligent, the negligence resulting in

injury, and the plaintiff has not contributed to. the

injury, the latter is entitled to recover in full for the

damage and pecuniary loss. The fact that the act of

negligence may be slight and not gross makes no dif-

ference. The test is, the damage done. We have many

rules of the road all designed and intended to promote

the public safety. They have severe penalties for their

violation whether there is an accident or not. If all

drivers and all pedestrians observed these rules there

would not be any accidents.

‘The rules of the road are far more effective than

any inflammatory verdicts in making our streets and

highways safe for travel. The fear of arrest is more

of a deterrent than a verdict in a civil case for dam-

ages.

While the Opinion discusses other considerations, there can

be no doubt of the fact that the appellate court’s decision

is in accordance with law.

The petitioner would like this Court to take a different

view, either of the evidence or of the law of Maryland.

Petitioner proved to the satisfaction of the jury negligence

on the part of respondent and actual damage to himself

of $3,311.00. Although a very wealthy man himself and

notwithstanding that he engaged in the same conduct (im-

bibing in intoxicating liquors) as that complained of by

him against the respondent, petitioner wishes to enjoy the

$10,000.00 punitive damages awarded him by a jury im-

properly charged as to the law. There is no support in

law for the verdict and it represents manifest and gross

injustice and oppression.

In effect the petition is requesting this Court to review

the evidence and proceedings with the view of having this

Court draw an inference different than that drawn by the

appellate Court and, perhaps, reach a different conclusion.

Also, it asks this Court to say what the law of Maryland

should be. It js believed this Court will not allow the Writ

under such circumstances.

In the case of General Talking Pictures Corp. v. West-

ern Electric Company, 304 U. S, 175, 58 S. Ct. 849, it was

held that

_“‘The Supreme Court will not grant a writ of cer-

tiorari merely to review the evidence or inferences

drawn from it.’’

In the case of Ruhlin vs. New York Life Insurance Com-

pany, 304 U.S. 202, 58 S. Ct. 860, this Court held that

‘*As to questions controlled by state law, conflict

among Federal Circuit Courts of Appeals is not of

itself a reason for granting a writ of certiorari by

the Supreme Court of the United States, as the con-

flict may be merely corollary to a permissible differ-

ence of opinion in the state courts.’’

CONCLUSION

In view of the facts and circumstances present in this

cause and for the reasons stated it is respectfully sub-

mitted that the Petition for Writ of Certiorari to the

United States Court of Appeals for the District of Co-

lumbia should be denied and dismissed.

Respectfully submitted,

Pau J. SEDGWICK,

Attorney for Respondent.

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