# Reply Brief — Thiel v. Southern Pacific Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1948
- **Citation:** 335 U.S. 872

## Text

Subject Index

ANSWER TO PETITION FOR CERTIORARI

Preliminary Statement
1. Nature of Petitioner’s Action
2. Earlier Proceedings in the Case

The Sufficiency of the Evidence Is Not an Open Ques-
tion

There Was No Error in Denying the Motion to Pro-
duce

The California First Aid Kit Law Had No Application

. There Was No Irregularity in Preparing the Jury
Panel, Petitioner Is Not in Position to Raise the Ques-
tion and the Pure Question of Fact Presented Does
Not Warrant Review
Preliminary Statement and Holding in Thiel v. South-
ern Pacific Company.

1. Petitioner Waived Any Claim the Panel Was Not
Properly Constituted
2. The Jury Panel Was Properly Constituted.

~ Conclusion

q APPENDICES
' Appendix A—Review of the Question of Liability Presented
to thy Jury

- Appendix B—Testimony as to How the Jury Panel Was
_ Constituted a
_ Appendix C—Occupations, ete. of the 37 Prospective Jurors
Examined
_ Appendix D—Opinion of the District Court on the Jury
Panel Question ;

Table of Authorities Cited
in Answer to Petition

CASES

Pages
Adams v. U. S., 317 U.S. 269, 275, 87 L.ed. 268, 272.............. 14, 19
Aetna ete. Co. v. Yeatts, 122 F.2d 350 (C.C.A. 4)... 6a
Agnew v. United States, 165 U.S. 36, 41 L.ed. 624.00. 16
Akin v. Texas, 325 U.S. 398, 89 L.ed. 1692 21, 22
Andrews v. Swartz, 156 U.S. 272, 39 L.ed. 422.0000. 22, 28
Ballard v. U. S., 329 U.S. 187, 91 L.ed. 181 17, 25
Bank of Grottoes v. Brown, 8 F.2d 382 (C.C.A. 4)_.......18-19
Beckett v. U. S., 84 F.2d 713 (C.C.A. 6) 22
Breese v. U. S., 226 U.S. 1, 11, 57 Led. 97, 102.0. 15
Bush v. Kentucky, 107 U.S. 110, 27 L.ed. 354 17
Capitol Traction Co. v. Hof, 174 U.S. 1, 48 Led. 873... 4n
Carruthers v. Reed, 102 F.2d 933, 937 (C.C.A. 8, cert. den.

307 U.S. 643, 83 L.ed. 1523) 14n, 18, 19
Carter v. Texas, 177 U.S. 442, 447, 44 L.ed. 839, 841... 18n
W. W. Clyde & Co. v. Dyers, 126 F.2d 719 (C.C.A. 10—

cert. den. U.S. 638, 87 L.ed. 514) 9
Fay v. New York, 332 U.S. 261, 91 L.ed. 2043_..19-20, 22, 25
Felton v. Spiro, 78 F. 576, 583 4n
Francis v. Southern Pacific Company; U.S. —., 92 L.ed.

(Adv. Op. 610, 614) 15, 18, 19
Franklin v. South Carolina, 218 U.S. 161, 167, 54 L.ed.

980 17, 21
Gay v. City of Eugene, 53 Or. 289, 100 Pac. 306.0000... 17
Gen. ete. Co. v. Cent. Nat. Bank, 139 F.2d 821, 823 (C.C.A.

8) 5n
Gibson v. Mississippi, 162 U.S. 565, 40 L.ed. 1075.00. = 28
Glasser v. United States, 315 U.S. 60, 85, 86 L.ed. 680, 707.. 21
Haussener v. U. S., 4 F.2d 884, 887 (C.C.A. 8). i
Hawk v. Olson, 326 U.S. 271, 279, 90 L.ed. 61, 67... 15

Hicks v. State, 143 Ark. 158, 220 S.W. 308 ¢.d. 254 US.
630, 65 L.ed. 447 18

TABLE oF AUTHORITIES CrTED iii

Pages

Hoagland v. Chestnut Farms Dairy, 72 F.2d 729 (C.A. for
Dist. Col.) 19
Hyde v. U. S., 225 U.S. 347, 56 Lied. 1114, 1128... 6

Johnson v, State, 143 Tex. Cr. 54, 156 S.W.2d 986
Johnson v. Williams, 244 Ala. 395, 18 So.2d 687... *!
Johnson v. Zerbst, 304 U.S. 458, 82 L.ed. 1461, 58 S.Ct.
1019
Jugiro v. Brush, 140 U.S. 291, 35 L.ed. 510.

Kelly v. Jackson, 6 Pet. 622, 632, 8 L.ed. 528, 527
Kohn v. Lehlbach, 160 U.S. 293, 302, 40 L.ed. 432, 435

Loranger v. Nadeau, 215 Cal. 362, 366, 10 P.2d 63...

Mobile Ship Building Co. v. Federal Ete. Co., 280 Fed.
292 (C.C.A. 7, cert. den. 260 U.S. 726, 67 L.ed. 483)...
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 85 L.ed.
147 Seek
Moore v. New York, 333 U.S. 565, 92 Led. (Adv. Op.)

637
MeNichol v. U. 8., 9 F.2d 623 (C.C.A. 6)

Patton v. United States, 281 U.S. 276, 74 L.ed. 854, 50
S.Ct. 253, 70 A.L.R. 263
Penley Bros. Co. v. Hall, 84 F.2d 371, 373 (C.C.A. 1)
People v. McCrae, 303 Mich. 213, 6 N.W.2d 489, 514.
People v. Nakis, 184 Cal. 105, 111, 193 P. 92
Pierre v. Louisiana, 306 U.S. 354, 83 L.ed. 757
Powers v. U. S., 223 U.S. 303, 312, 56 Lied. 448, 452

Queenan v. Oklahoma, 190 U.S. 548, 47 L.ed. 1175, 23 S.Ct.
762

Reid v. Md. Casualty Co., 68 F.2d 10, 12 (C.C.A. 5)
Riley v. Davis, 57 Cal. App. 477, 207 P. 699 (hr. by Su-
preme Ct. den.)

Schuchardt v. Allen, 6 Wall. 359, 17 L.ed. 642, 646...
Strang v. U. S., 45 F.2d 1006 (C.C.A. 5, cert. den. 283 U.S.

835, 75 L.ed. 1447) and 53 F.2d 820 (C.C.A. 5, denying

writ of error coram nobis) 16n, 19

TaBLE oF AUTHORITIES CITED

Pages

State v. Koritz, 227 N.C. 552, 43 S.E.2d 77 25
State v. Wilson, 204 La. 24, 14 So.2d 873, app. dis. 320
U.S. 714, 88 L.ed. 419 18

Thiel v. Southern Pacific Company, 126 F.2d 710 (C.C.A.

9, 1942, cert. den. 316 U.S. 698, 86 L.ed. 1767; 328 US.

217, 90 L.ed. 1181 8n, 10, 12, 15n, 18, 21, 22
Thomas v. Texas, 212 U.S. 278, 53 L.ed. 512 21, 22
Turher v. U. S., 66 Fed. 280, 285 (C.C.A. 5) 16

U. S. v. Brady, 47 F. Supp. 362, aff’d 133 F.2d 476 (C.C.A.
4, cert. den. 319 U.S. 746, 87 L.ed. 1072 reh. den. 319 U.S.
784, 87 L.ed. 1727)

U. S. v. Gale, 109 U.S. 65, 77, 27 L.ed. 857, 858

U. S. v. Havner, 101 F.2d 161, 165 (C.C.A. 8)

U. S. v. Loeal 36, 70 Fed. Supp. 782.

U. S. v. Meyer, 113 F.2d 387, 396 (C.C.A. 7, cert. den. 311
U.S. 706, 85 L.ed. 459)

Virginia v. Rives, 100 U.S. 313, 25 L.ed. 667

Washington v. State, 95 Fla. 289, 116 So. 470 ¢.d. 278 U.S.

599, 72 L.ed. 528 18
Williams v. Mississippi, 170 U.S. 213, 42 L.ed. 1012 17, 21
Williamson v. Chic, etc. Corporation, 59 F.2d 918 (C.C.A.

8)
Wood v. Brush, 140 U.S. 278, 285, 35 L.ed. 505, 508
Wood v. Howard, 157 F.2d 807 (C.C.A. 7, cert. den. 331

U.S. 814, 91 L.ed. 1832)
Wong Yim v. U. S., 118 F.2d 667 (C.C.A. 9, ¢.d. 313 U.S.

589, 85 L.ed. 1544
Wuichet v. U. S., 8 F.2d 561, 562 (C.C.A. 6, cert. den. 270

U.S. 561, 70 L.ed. 781)

Young v. Masci, 289 U.S. 253, 77 L.ed. 1158, 1161

Zeller’s Lessee v. Eckert, 4 How. 289, 298, 11 L.ed. 979
Zito v. U. S., 64 F.2d 772 (C.C.A. 7)

TABLE OF AuTHORITIES CiTac

STATUTES

Cal. C.C.P. §198
Cal. C.C.P. §199
Cal. -C.C.P. §200
Cal. C.C.P. §205 .....

Jud. Cod. §275, 28 U.S.C. §411
Jud. Cod. §276, 28 U.S.C. §412
Jud. Cod. §287, 28 U.S.C. §424

TEXTs
Beale, Conflict of Laws, §§378.2, 378.4, 379.1 383.1, 384.1
Restatement, Conflict of Law, §§377-388

Table of Authorities Cited in Appendices

CasEs

Pages
Agnew v. United States, 165 U.S. 36, 42, 41 L.ed. 624, 626. 51
Akins v. Texas, 325 U.S. 398; 65 S.Ct. Rep. 1276, 1278,

1279 53
Alabama etc. R. Co. v. Alseep, 101 F.2d 157 (C.C.A. 5)... 14
Albizu v. United States, 88 F.2d 138, 140
Arnett v. C. & O. Ry. Co., 198 Ky. 742, 248 S.W. 1040... 19
Atchison ete. Co. v. Calhoun, 213 U.S. 1, 9, 53 L.ed. 671,

675 14

Boyd v. Alabama etc. Co., 11 Miss. 12, 71 So. 164, 656.......19, 19n

Chicago ete. Ry. Co. v. Sears, 210 S.W. 648 (Tex. Comm.

App.) 16, 16n
Dabuey v. R. Co., 140 Ill. App. 269 15n
Dokus v. Palmer, 130 Conn. 247, 33 A.2d 315, 318... 16n

Fagerdahl v. Coast T. Co., 178 Wash. 482, 35 P.2d 46........
16, 17, 18, 19, 20

Gates v. Bisso Ferry Co., 172 So. 829 (La. App.) ...... 15, 18, 19, 20
Glasser v. United States, 315 U.S. 60, 62, S.Ct. 457; 315

U.S. 60, 85, 86 L.ed. 680, 707, 708 37, 49, 52
Gulf ete. R. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 563.. 14
Gulf ete. R. Co. v. Garner, 115 S.W. 273 (Tex. Civ. App.)... 17n

Hammerschmidt v. U. S., 287 Fed. 817 46

Ill. C. R. Co. v. Cruse, 123 Ky. 463, 96 S.W. 821.0. 16n

Kansas City Southern Ry. Co. v. Pinson, 23 F.2d 247
(C.C.A. 5) 14

L. & N. R. Co. v. Barnes’ Adm’x., 297 Ky. 616, 180 S.W.

2d 547 15
L. & N. R. Co. v. Dyer, 152 Ky. 264, 153 S.W. 194; 173 Ky.
330, 191 S.W. 102 19, 20

TaBLE oF AUTHORITIES CITED vii

Pages
L. & N. R. Co .v. Phelps’ Admr’x., 181 Ky. 689, 205 S.W.

793 15n
Lewis v. United States, 279 U.S. 63, 72, 73 L.ed. 615, 619.50, 53
Louisville Ry. v. Gregory’s Adm’r., 173 Ky. 747, 133 S.W.

805 15, 18
Louisville ete. Co. v. Mudd’s Admr’x., 173 Ky. 330, 191

S.W. 102 15n

Olson v. Minn. ete. Ry. Co. v. Adams, 43 N.D. 371, 175
N.W. 371 18, 19, 20

Paris etc. R. Co. v. Robinson, 104 Tex. 482, 140 S.W. 434,

439 15n, 16, 20
Pointer v. United States, 151 U.S. 396, 405-409, 14 S.Ct.

410, 38 L.ed. 208 47, 49

R. Co. v. Carr, 47 Ill. App. 353 15n
Ruthenberg v. United States, 245 U.S. 480, 482, 62 L.ed.
414, 418 51

Scott v. U. P. R. Co., 99 Neb. 97, 155 N.W. 217
Shipman v. United ete. Co., 70 R.I. 454, 40 A.2d 730
S. P. Co. v. Buntin, 54 Ariz. 180, 94 P.2d 639
So. P. Ry. Co. v. Hayne, 209 Ala. 187, 95 So. 879 16n, 19
St. Louis ete. Ry. Co. v. Adams, 163-S.W. 1029 (Tex. Civ.
App.) ; 136 S.W. 1029 (Tex. Civ. App.)
St. Louis ete. Ry. Co. v. Carr, 47 Ill. App. 353
St. Louis ete. R. Co. v. Dobyns, 54 Okla. 643, 157 P. 735,
738 ani 17
Sullivan v. Seattle Elec. Co., 51 Wash. 71, 97 P. 1109,
1112 16n, 18

United States v. Ballard (D.C.S.D. Cal.), 35 F. Supp. 105;
affirmed 152 F.2d 941 (9th Circuit), certiorari granted 66
S. Ct. 816 49
U. S. v. Lewis, 192 Fed. 633 46
U. 8. v. Richardson, 28 Fed. 61, 69
United States v. Roemig, 52 F. Supp. 857
U. 8. v. Shackleford, 18 How. 588

viii Taste or AuTHORITIzs Crrep

W. & A. R. Co. v. Earwood, 104 G. 127, 29 S.E. 913.000... 17n
Watts v. Spokane ete. R. Co., 88 Ore. 192, 171 P. 901, 906.16, 17
Welsh v. Spokane ete. R. Co., 91 Wash. 260, 150 P. 679;

91 Wash. 260, 167 P. 679, 681 14, 16n, 17
Willets v. Buffalo ete. R. Co., 14 Barb. (N.Y.) 585.0000. 16n
STATUTES
Judicial Code, §§275, 276 52
Judicial Code, §276, amended 46
Judicial Code, §277 (28 U.S.C.A. 413) 50
28 U.S.C.A. §411, §412, et seq 46
28 U.S.C.A. §412 46, 51

28 U.S.C.A. §411, §412 51, 52

In the Supreme Court of the
United States

Octoser Term, 1948

No. 148 Misc.

Gupert E. THe,
_ Petitioner,
vs.

Sournern Paciric Company, a corpora-
tion,
Respondent.

ANSWER TO PETITION FOR CERTIORARI

L
PRELIMINARY STATEMENT'
1. Nature of Petitioner's Action.
Petitioner, a salesman, his wife and a male companion,
Johnny Morris, spent Sunday, February 18, 1940, to Sun-
day evening, February 25, 1940, in Reno, Nevada. During

1. Parenthetic numerals refer to the record.

2. The complaint alleges petitioner ‘‘was 28 years of age * * *
and was employed as a salesman’’ (4).

2
that week, but not after noon of Saturday, the 24th, peti-
tioner drank and gambled. He was sober at the time of the
accident of this action. About 8:40 p.m., Sunday, the 25th,
his wife, Morris and he, boarded Train No. 9 at Reno,
for San Francisco. They sat in the second day-coach. The
train left Reno about 8:50 p.m.

After the train left Reno, while it was in motion, peti-
tioner, Morris and a passenger, Rippetoe, left the second
coach and went forward to the smoker. In the smoker
petitioner and Morris sat together, petitioner next to the
window, Morris toward the aisle. Rippetoe took the seat
just ahead. About 25 minutes out of Reno, the conductor
eame through the smoker, lifting tickets. The conductor
had passed Thiel and Morris, a step or two, when peti-
tioner, without warning, suddenly opened the window and
jumped out, so fast that it was impossible for Rippetoe,
Morris and the conductor to stop him.’ They tried. Peti-
tioner was hurt. This was all in Nevada.*

Petitioner had no connection with respondent except
that of a passenger. His compla.:.t shows that the cause
of his injury was his own act.

2. Earlier Proceedings in the Case.

This action was commenced in the California Superior
Court for San Francisco, on December 30, 1940. Respond-
ent removed the action into the United States District

3. The complaint alleges that ‘‘while said train was in mo-
tion’’ appellant ‘‘suddenly opened the window of said train and
leaping out’’ was injured (2, 3).

4. Between Verdi and the California line, in the Truckee
River Canyon (1164, 1165).

3
Court for the Northern District of California’ and an-
swered. It set up appropriate defenses by denial and
affirmative statement® (6-11 and see 251-253).

An unsuccessful attack on the District Court’s juris-
diction (see note 5) was followed by an attack on the jury
panel which was overruled. The case then went to trial
before Judge Bowen, sitting in the Northern District of
California, in November 1942 and resulted in a verdict
and judgment for the defendant. Motions for judgment
n.o.v. and for a new trial were denied. On appeal the
judgment was affirmed (149 F.2d 783). This Court granted
certiorari ‘‘limited to the question whether petitioner’s
motion to strike the jury panel was properly denied’’
(326 U.S. 716, 90 L.ed. 423) and reversed the judgment,
May 20, 1946 (328 U.S. 217, 90 L.ed. 1181).

On the going-down of the mandate the case was again
set down for trial upon the same pleadings before the
court and a jury from the July 1946 Term panel (147-
237; 39).

The case went to trial before a jury on September 10,
1946 (272) and ended on September 24, 1946 with a verdict
for the defendant (1028; 96) on which judgment was en-

5. Petitioner twice moved to remand to the state court. His
motions were denied. On respondent’s petition attempts to pro-
ceed in the state court, in defiance of the orders of the District
Court denying his motions, were enjoined. On appeal the decree
was affirmed. (Thiel v. Southern Pacific Company, 126 F.2d 710
(C.C.A 9, 1942, certiorari denied 316 U.S. 698, 86 L.ed. 1767.) )
This settled the jurisdiction of the court below.

6. The answer (6, 11) admitted petitioner ‘‘had been’’ drink-
ing (not that he was drunk), that he ‘‘suddenly opened the win-
dow’’ and leaped out and denied all charges of negligence. Other
defenses set up petitioner’s own negligence, recklessness, wilful-
and wanton conduct, specifically setting up that his injuries were
due to his own ‘‘independent, voluntary and wilful act.’’

4

tered (97). The evidence, except as respondent offered
new evidence that petitioner’s injury was the result of
his own voluntary, thoughtful and designed conduct, was
the same as on the first trial. Motions for judgment n.o.v.
and for a new trial (99-115) were denied (116). On appeal
the judgment was affirmed (169 F.2d 30,—C.C.A. 9). This
petition followed. ;

II.

THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE VERDICT
AND JUDGMENT IS NO LONGER AN OPEN QUESTION

The evidence on the second trial was substantially the
same as on the first trial, except that in some respects it
strengthened the conclusion that the plaintiff was in pos-
session of his normal faculties, was fully oriented, knew
and appreciated where he was, fully appreciated the con-
sequences of his own conduct and deliberately jumped
from the train in an attempt to destroy himself." The
meaning and effect of the evidence has been passed on
ten times, always with the same conclusion,—twice by
juries, twice by courts as matter of fact* in denying mo-

7. Testimony and evidence by interrogatories and documents
was exactly the same and the testimony of 4 witnesses, Wilcox,
the express messenger, conductor Cosgrove, Dr. Bernard, and
Carl Smith, investigator for the California Motor Vehicle Depart-
ment, was exactly the same because given by reading their testi-
mony on the first trial.

Witnesses who were not called at the first trial were engineer
Tassi, called by the plaintiff, and the ambulance driver Laity and
deputy sheriff Parks, called by the defendant, to whom peti-
tioner said he had attempted to commit suicide. (This, of course,
was not the language he used.)

8. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 85 L.ed.
147; Capitol Traction Co. v. Hof, 174 U.S. 1, 48 L.ed. 873; Kelly
v. Jackson, 6 Pet. 622, 632, 8 L.ed. 523, 527; Zeller’s Lessee v.
Eckert, 4 How. 289, 298, 11 L.ed. 979, 983; Schuchardt v. Allen,
6 Wall. 359, 17 L.ed. 642, 646; Felton v. Spiro, 78 F. 576, 583

5

tions for new trial, by two irial courts as matter of law
in denying petitioner’s motions for directed verdicts and
for judgment n.o.v., and twice by the Circuit Court of
Appeals for the Ninth Circuit. On each appeal it was
argued, as it is now argued, that the evidence was in-
sufficient to sustain the verdicts for the defendant. In
addition the same point was made to this court in the
petition for certiorari to review the judgment of the Cir-
cuit Court of Appeals for the Ninth Circuit affirming the
judgment on the first verdict for the defendant. This
Court declined to consider the contention and in granting
the petition limited its writ to the question whether the
motion to strike the jury panel was siete denied. (See
p. 3 above.)

The technique used in attempting to present the matter
is not unfamiliar. Disregarding the rule that the verdict
has resolved all conflicts in favor of the respondent, and
that all inferences favorable to respondent (the party
successful below) are to be indulged, it distorts the evi-
dence by selecting only those parts of it thought to help
petitioner. There is no occasion here to review the testi-
mony at length. For convenience we summarize it (as it
was summarized in our Brief in the Court below) in
Appendix A hereto. It has not been suggested that this
statement is inaccurate or that there are improper omis-
sions.

The burden of petitioner’s claim is that as a result of
heavy drinking he was under a mental disability, that
respondent had notice of his condition, and accepted him
(C.C.A. 6); Reid v. Md. Casualty Co., 63 F.2d 10, 12 (C.C.A.

5); Aetna etc. Co. v. Yeatts, 122 F.2d 350 (C.C.A. 4); Gen. etc.
Co. v. Cent. Nat. B’k, 189 F.2d 821, 823 (C.C.A. 8).

6
as a passenger and negligently failed to guard him, stop
the train promptly and render first aid.

The short answers are that the best that can be said
for petitioner is that the following were questions of fact
to be resolved by the jury:

1, In fact was petitioner under any disability? There
is evidence that he was not.

2. Asuming that petitioner was under any disability,
did respondent have any notice of a disability calling
for action on its part? There was evidence that it did not.

3. Assuming that petitioner was under some sort of
disability and that respondent had noticed that he was
under some sort of disability, was there any negligence
on its part in failing to take special steps to care for
him in view of the fact that he was accompanied by at-
tendants, apparently fully capable of taking care of him,
who could do as much as any attendant that respondent
could provide, and in view of the fact that if respondent
had notice of any disability it was of such character that
it could not reasonably be anticipated that respondent
would do any harm to himself? There was evidence that
there was no negligence.

4. In view of the fact that petitioner went out the
window so fast that three men who were within arm's
reach could not stop him could the providing of an attend-
ant have done more? Was assumed failure to provide an
attendant a proximate cause of any injury? There was
evidence that an additional attendant could have done no
more and his absence was not a cause of any injury.

5. Was there any negligence on the part of respond-
ent after petitioner jumped out the window, in failing

7
to stop the train sooner? The evidence was that the stop
signal was given immediately and was immediately acted
upon. There was evidence that there was no negligence.
While the conductor was endeavoring to hold the peti-
tioner by his coat, others in the coach, including a brake-
man who was riding to the rear of the smoker, immedi-
ately gave the stop signal.

6. Was there any negligent failure to render first aid?
There was evidence that there was not and that nothing
that was done or was not done contributed to or aggra-
vated any condition from which petitioner was suffering
as a result of his own rash act.

Il.
CLAIMED ERROR IN DENIAL OF THE MOTION TO PRODUCE

Granting a motion to produce documents obtained by
the adversary in preparation for trial is, if proper at all,
at most discretionary. Nothing has been suggested to
show an abuse of discretion here. This case had been fully
tried once. Counsel for the plaintiff knew the defense
he would meet. He had ample opportunity to learn what,
if any, proper documents existed. His demand was first
_made at the pre-trial conference before the second trial.
Full objection was made that the foundation had not been
laid;® that there would be no objection to things which
were normal matters of record, but objection would be
made to an attempt to obtain the defendant's prepara-
tion for trial. Plaintiff's attorney then stated that he was
“not asking for anything which they obtained by means

9. ‘*There is no showing in any form that there are any such
reports in existence’’ (262).

8
of investigation or otherwise” (262, 263). Defendant’s at-
torney asked that he “designate for us with particularity”
what was required “so I can identify them” (263). When,
later, the motion was renewed, the documents claimed to
exist were specified and identified by affidavit on “in-
formation and belief” only.

This affidavit does not state the basis of affiant’s “in-
formation and belief.” Then it undertakes to specify with
extreme particularity the documents claimed to exist. As
to each it is said that it was made “in the usual course
of business, shortly after said accident.” It then specifies
for each of nine named persons, a purported statement.
For each there is a claimed specific description. For ex-
ample it is said that the report from engineer Tassi was
one in which he stated “that he received only one stop
signal”; that Clark’s report was that “he saw plaintiff
hanging on the window of said train”; that brakeman
Sherman’s report was that he observed plaintiff ‘‘and
saw that he looked abnormal”; that Wogan’s report was
that he was told “that plaintiff was acting crazy, but he
made no investigation,” etc. In each instance the refer-
ence was to a specific paper claimed to exist.

This motion and affidavit were met by a counter-afii-
davit (70). The counter-affidavit flatly stated of each
paper specified that “there is no such report or any report
in existence made ‘in the usual course of business shortly
after said accident’” (here following exactly the language
of the affidavit offered in suport of the motion) as dis-
tinguished from material obtained for the purpose of:
defending litigation. But the counter-affidavit did not stop
here and expressly continued, “and that there is no such

9
report of any kind in existence as that specified.” The
trial court “in the light of all the circumstances surround-
ing the motion and the affidavits of the parties on file
herein’’ found ‘‘the plaintiff has not shown good cause’’
and denied the motion.

IV.
THE CALIFORNIA FIRST AID KIT LAW HAD NO APPLICATION

It is claimed the Court should have instructed on the
California First Aid Kit Law. There were several short
answers.

As matter of fact, there is no evidence that any failure
to have any first aid kit caused amputation of plaintiff’s
legs or in any way contributed to any condition from
which he suffered (see Appendix A, p. 23).

As matter of law the California statute had no applica-
tion and could not have been violated. The accident hap-
pened in Nevada. ‘‘Liability for a tort depends upon the
law of the place of the injury.’’ (Young v. Masci, 289
U.S. 253, 258, 77 L.ed. 1158, 1161; W. W. Clyde & Co. v.
Dyers, 126 F.2d 719 (C.C.A. 10—cert. den. 317 U.S. 638,
87 L.ed. 514); Loranger v. Nadeau, 215 Cal. 362, 366, 10
Pac.2d 63; Restatement, Conflict of Laws, §§377-388; 3
Beale, Conflict of Laws, §§378.2, 378.4, 379.1, 383.1, 384.1).
Nevada law governs substantive rights and duties and the
California statute had no application. Even if it had ap-
plied the instructions proposed were improper. They
ignored §4 of the statute. There was no attempt to show
the facts necessary as conditions precedent to a claim of
violation of the statute.

10

V.
THERE WAS NO IRREGULARITY IN PREPARING THE JURY
PANEL, PETITIONER IS NOT IN POSITION TO RAISE THE

QUESTION AND THE PURE QUESTION OF FACT PRESENTED
ON THIS RECORD DOES NOT WARRANT REVIEW.

The petition misses the significance of the holding in
Thiel v. Southern Pacific Company, 328 U.S. 17, 90 L.ed.
1181. The contentions now made with respect to the prepa-
ration of the jury panel were made when the judgment on
the first verdict for the defendant was reviewed by this
Court, and were rejected.

When this case was before this Court one of the grounds
of attack on the jury panel was that there was no proper
apportionment of jurors by districts. Attention was called
to the applicable statute (Jud. Cod. §277, 28 U.S.C.A.
§413) and it was pointed out at some length the part of
the district from which jurors were drawn, the consistent
practice approved by the Court and the reason, i.e., to
select names from the area for which there were com-
muting facilities to and from San Francisco. (See Re-
spondent’s Brief in Thiel v. Southern Pacific Company,
October Term, 1945, No. 349, pp. 9, 16, 17.) Petitioner’s
contention was rejected sub silentio. The repetition of the
contention here calls for no further notice. The record
here demonstrates that the practice is the same as that
which was before the court when it reviewed the first
judgment, and was expressly approved by the order of the
District Court for the drawing of this very panel (see
below, pp. 12, 13).

The main contention now made, although expressed in
different words, was made when the case was here before.

ll
The Court noticed (328 U.S. at 219, 90 L.ed. at 1184), the
claim that ‘‘mostly business executives or those having
the employer’s viewpoint are purposely selected on said
panel, thus giving a majority representation to one class
or occupation and discriminating against other occupa-
tions and classes, particularly the employees and those
in the poorer classes.’’ This broad claim was not sus-
tained by this Court. The Court did not deal with propor-
tions or percentages at all. The holding was not on the
ground that any practice resulted in a panel composed
mostly of ‘‘business executives or those having the em-
ployer’s viewpoint’’ but on the narrow ground that the
panel was improperly constructed because one particular
type of wage earner, the wage earner receiving daily
wages, was purposely and intentionally excluded. This
was all the case held. It was recognized that not ‘‘every
jury must contain representatives of all the economic,
social, religious, racial, political and geographical groups
of the community; frequently such complete representa-
tion would be impossible.’’ All that was required was
‘that prospective jurors shall be selected by court officials
without systematic and intentional exclusion’’ of any of
these groups. ‘‘The choice of the means by which unlaw-
ful distinctions and discriminations are to be avoided rests
largely in the sound discretion of the trial courts and their
officers.’? The difficulty was that ‘‘both the Clerk of the
Court and the Jury Commissioner testified that they de-
liberately and intentionally excluded from the jury list
all persons who worked for a daily wage.’’ This exclusion
of a class, deliberately and intentionally, was held to be
improper. ‘‘Jury competence is an individual rather than

12
a group or class matter.’’ It was further pointed out that
‘the admitted discrimination was limited to those who
worked for a daily wage.’’ This discrimination having
now been removed, as clearly appears from the testimony
now here, the only discrimination pointed to by the Court
no longer exists. (See Appendix B)

The short of the holding is that of all the matters
raised and urged the only point upon which the decision
was rested was that ‘‘a blanket exclusion of all daily wage
earners’’ was improper. This was the vice this Court
found. This has been corrected (see the Clerk’s testi-
mony, 220 1. 3 et seq.; and the Commissioner’s testimony,
201 |. 22). In this respect there has been a change in the
method (202 1, 7-14).

Although there is an attempt to disclaim it, the real
burden of the petition is an endeavor to maintain the
proposition that there was not proportional representa-
tion of classes on the panel. The record will not sustain
even this claim. We shall return to it. But first there is
a preliminary proposition. The petitioner is not entitled
to raise the point. As a preliminary, it is first necessary
to state some steps in the case after the decision of this
court and before the second verdict was returned.

Thiel v. Southern Pacific Company, 328 U.S. 217, 90
L.ed. 1181 was decided May 20, 1946. On June 6, 1946,
the matter being regularly noticed on the District Court’s
Calendar, published in The Recorder’ (234:10-235:15) the

10. The calendars of the District Court for the Northern Dis-
trict of California, Southern Division, were and are regularly
published Monday through Friday of each week in The Recorder,
a paper of general circulation, published in San Francisco, On
District Judge Goodman’s Calendar in The Recorder for Thurs-
day morning, June 6, 1946, there appeared for 4 o’clock P.M.

13

jury panel for the July, 1946, Term was publicly drawn
in open court before District Judges Goodman and Roche."
The Court first examined the Clerk (154-160) and Jury
Commissioner (160, 161) on how the names in the box had
been selected and found that the names had been selected
properly. It then made its order that from the names in
the box 80 be drawn for possible grand jurors and 300
for possible trial jurors for the July, 1946, Term. This
was done (161:19-162:11).

Petitioner, as his case approached trial, noticed a mo-
tion to strike the entire July, 1946, Term panel (30), the
motion was heard August 19, 1946 (147-237), the proceed-
ings of June 6, 1946, were made part of the record (154-
162), testimony was taken and the motion was denied.
The Court’s opinion contains findings (147-237; 39; 67
F. Supp. 934).

The case went to trial September 10, 1946, and on that
day a jury, selected from the July, 1946, Term panel,
was empaneled (272-279). With the constitutional 12, the
Court selected an alternate juror (360-369).'*

1. Petitioner Waived Any Claim That the Jury Panel Was Not
Properly Constituted.

On the morning of the 6th day of the trial, Wednesday,

September 18, 1946, in chambers, the Court told counsel

“In re selection of Master Jury Trial List—1946—July term of
Court’’ (234:10-22). The statement of the attorney for the plain-
tiff that there was nothing in The Recorder (162:18) was in
error.

11. The proceedings (154-162) were made part of the hearing
on petitioner’s motion to strike the jury panel.

12. The information obtained as to the jurors, the only in-
formation in the record as to any of the individuals on the panel,
is summarized in Appendix C,

14
for the parties that two jurors, Albert N. Wilmes and
Miss Zola Taylor were unable to appear because of illness.
In open court counsel agreed that they were satisfied that
these jurors were ill. By stipulation the alternate juror,
Mrs. Troupe (365), took Miss Taylor’s place. The Court
then stated that this made 11 jurors in the box and asked
if counsel were willing to make a stipulation.” Counsel
for petitioner then stated:

“Yes, your Honor, plaintiff is willing to stipulate

that the trial may proceed with the 11 jurors and the

verdict of the 11 jurors may have the same full force
and effect as if returned by 12 jurors.”

He added that the stipulation was entered into under
Rule 48." Respondent joined in the stipulation and both
parties announced they were ready to proceed (725-728).

For the protection of litigants rules have developed
regulating the structure of courts (juries included) and
judicial proceedings. Some are sufficiently important to
be guaranteed by the Constitution. Two are the right to
trial by jury and to be represented by counsel. Yet these
rights, though constitutional, are so far personal to the
litigant that he can waive them. (Adams v. U. S., 317

13. The stipulation had been agreed upon at the conference
in chambers (1209 :21-25).

14. Petitioner stipulated because he was satisfied with the jury
he had and thought it would give him a verdict. He thought
that for him it was a fair jury (see 1219:2-22). (Cf. Carruthers
v. Reed, 102 F.2d 933, 938, col. 1 (C.C.A. 8, cert. den. 307 U.S.
Having had his chance and lost he is not
it was not ‘‘because we were discussing the
chambers’’ (1219:22). Cf. pp. 18, 19 below.

15. ‘*The ies may stipulate that the jury shall consist of
any number less than twelve * * *.”’

zg
8
co
2
Bie

15
U.S. 269, 275, 87 L.ed. 268, 272;* Hawk v. Olson, 326 U.S.
271, 279, 90 L.ed. 61, 67; Wood v. Howard, 157 F.2d 807
(C.C.A. 7,—cert. den. 331 U.S. 814, 91 L.ed. 1832; People
v. Nakis, 184 Cal. 105, 111, 193 P. 92."" Cf. Breese v. U. S.,
226 U.S. 1, 11, 57 L.ed. 97, 102."*)

Within this rule claimed defects in the construction of
a jury panel can be waived. Grounds of challenge to the
array (or for motion to strike or to quash the panel)
can be waived and are, in fact, waived if the objection is
not made in time (Francis v. Southern Pacific Company,
U.S. ..., 92 Lied. (Adv. Op. 610, 614))" or is not made

16. The court said: ‘‘This brings us to the merits. They are
controlled in principle by Patton v. United States, 281 U.S. 276,
74 L.ed. 854, 50 S.Ct. 253, 70 A.L.R. 263 and Johnson v. Zerbst,
304 U.S. 458, 82 L.ed. 1461, 58 S.Ct. 1019. The short of the
matter is that an accused, in the exercise of a free and intelligent
choice, and with the considered approval of the court, may waive
trial by jury, and so iikewise may he competently and intelligently
waive his Constitutional right to assistance of counsel. * * * The
relation of trial by jury to civil rights—especially in criminal
cases—is fully revealed by the history which gave rise to the pro-
visions of the Constitution which guarantee that right. Article 3,
Sec. 2, Para. 3; Sixth Amendment; Seventh Amendment. That
history is succinctly summarized in the Declaration of Independ-
ence in which complaint was made that the Colonies were de-
prived ‘in many cases, of the benefits of Trial by Jury.’ But
procedural devices rooted in experience were written into the
Bill of Rights not as abstract rubrics in an elegant code but in
order to assure fairness and justice before any person could be
deprived of ‘life, liberty or property.’ ’’

17. The sheriff, the officer designated to summon juries, was
disqualified. The court, improperly, instead of designating the
coroner designated an elisor who summoned the jury. Held, that
the objection was waived.

18. Waiver of the claim that the grand jury was not present
when the foreman presented an indictment.

19. ‘‘Petitioners contend that the jury panel from which the
jury in this case was selected was drawn contrary to Thiel v.
Southern P. Co., 328 U.S. 217, 90 Led. 1181, 66 S. Ct. 984, 166
A.L.R. 1412. We do not stop to inquire into the merits of the

16
in sufficiently precise form.” (U. S. v. Gale, 109 U.S. 65,
77, 27 L.ed. 857, 858;*" Agnew v. U. S., 165 U.S. 36, 41
L.ed. 624; Powers v. U. S., 223 U.S. 303, 312, 56 L.ed.
448, 452;" Hyde v. U. S., 225 U.S. 347, 373, 56 L.ed. 1114,
1128;* Turher v. U. S., 66 Fed. 280, 285 (C.C.A. 5);
Haussener v. U. S., 4 F.2d 884, 887 (C.C.A. 8) ;*> McNichol
v. U. S., 9 F.2d 623 (C.C.A. 6) * U. S. v. Meyer, 113 F.2d
387, 396 (C.C.A. 7,—cert. den. 311 U.S. 706, 85 L.ed. 459)

claim. The objection was made for the first time in the motion
for a new trial. It seems to have been an afterthought, as the
Thiel Case was decided a few weeks after the verdict of the jury
in the present case. If not an afterthought, it is an effort to re-
trieve a position that was forsaken when it was decided to take
a gamble on the existing jury panel. In either case the objection
comes too late. Cf. Queenan v. Oklahoma, 190 U.S. 548, 552, 47
L.ed. 1175, 1178, 23 S. Ct. 762.’’

In the Queenan Case, the claim was of disqualification of an
individual juror for conviction of a felony. Proper objection was
not made at the time of discovery of the fact. Held, that the
defendant ‘‘could not speculate on the chances of getting a ver-
dict and then set up that he had not waived his rights.’’

' 20. The same rule applies to grounds of challenge to individ-
ual jurors. Kohl v. Lehlbach, 160 U.S. 293, 302, 40 L.ed. 432, 435;
Strang v. U. S., 45 F.2d 1006 (C.C.A. 5, cert. den. 283 U.S. 835,
75 L.ed. 1447) and 53 F.2d 820 (C.C.A. 5, denying writ of error
coram nobis).

21. Objection was made that a statute excluding certain per-
sons from the grand jury was unconstitutional.

22. Claimed that a special venire was improperly returned
from part only of the District. Waiver was one of the grounds
for rejecting the claim.

23. The claim was that the grand jury was not properly sum-
moned and sworn.

24. The claim was that the jury commissioners improperly
delegated their functions to a third person.

25. The challenge was insufficient in form.

26. It was claimed the jurors were ‘‘repeaters’’ and did not
come from the body of the district. Beyond this counsel declined
to state-in what respect the jurors were not properly selected.
Held, that any point was waived because of insufficiency of state-
ment of the grounds of challenge.

17
and cases cited; Johnson v. Williams, 244 Ala. 395, 13 So.
2d 687; People v. McCrea, 303 Mich. 213, 6 N.W.2d 489,
514; Johnson v. State, 143 Tex. Cr. 54, 156 S.W.2d 986;
Gay v. City of Eugene, 53 Or. 289, 100 Pac. 306.)

The rule of waiver has been applied to a claimed im-
proper inclusion of women on a jury panel (Zito v. U. S.,
64 F.2d 772 (C.C.A. 7)),” to claimed improper exclusion
of women (Wuichet v. U. S8., 8 F.2d 561, 562 (C.C.A. 6,—
cert. den. 270 U.S. 561, 70 L.ed. 781) and see Ballard v.
U. S., 329 U.S. 187, 91 L.ed. 1818) to claimed improper
exclusion of a class because of race or color (Bush v.
Kentucky, 107 U.S. 110, 27 L.ed. 354;2° Williams v. Missis-
sippt, 170 U.S. 213, 232, 42 L.ed. 1012, 1016;* Franklin v.
South Carolina, 218 U.S. 161, 167, 54 L.ed. 980, 984;*
U. S. v. Brady, 47 F. Supp. 362," aff'd 133 F.2d 476"

27. The claim was based on the circumstance that less than
30 days after sentence the Illinois statute providing for the in-
clusion of women was declared unconstitutional.

28. This case held that the point had not been waived but the
court’s discussion makes it clear that the objection that women
were improperly excluded could be waived and would be waived
by failure appropriately to make the point.

29. Held, that the motion to set aside the petit jury panel was
properly overruled ‘‘for the reason, among others, that the
grounds upon which it was rested do not clearly and distinctly
show that the officers who selected and summoned the petit jurors
excluded. from the panel qualified citizens of African decent be-
cause of their race or color.’’

30. The Court took occasion to notice ‘‘that there is nothing
direct and definite in this allegation either as to means or time
as affecting the proceedings against the accused.’’

31. ‘“‘There was no allegation in the motion to quash upon this
ground, or offer of proof to show that persons of the African
race were excluded because of their race or color * * *.’’ The
court notices that it was ‘‘essential to aver’’ as well as prove the
fact relied upon.

32. At page 367 the court notices the failure properly to pre-
sent the point.

33. At page 480 and following the court speaks of the failure
properly to present the point as a ‘‘waiver.’’ It said that ‘‘the

18

(C.C.A. 4,—cert. den. 319 U.S. 746, 87 L.ed. 1702 reh.
den. 319 U.S. 784, 87 L.ed. 1727); Carruthers v. Reed,
102 F.2d 933, 937 (C.C.A. 8,—e.d. 307 U.S. 643, 83 L.ed.
1523) ;* State v. Wilson, 204 La. 24, 14 So.2d 873, app.
dis. 320 U.S. 714, 88 L.ed. 419; Hicks v. State, 143 Ark.
158, 220 S.W. 308 e.d. 254 U.S. 630, 65 L.ed. 447; Wash-
ington v. State, 95 Fla. 289, 116 So. 470 ¢.d. 278 U.S. 599,
72 L.ed. 528.** Cf. Virginia v. Rives, 100 U.S. 313, 25 L.ed.
667) and to the rule of Thiel v. Southern Pacific Company
itself (Francis v. Southern Pacific Company, above).

The stipulation to ‘‘proceed with the 11 jurors’’ in the
box effectively waived ary objection to the panel or the
jury petitioner had examined and before whom he had been
trying his case for 5 days.** (Bank of Grottoes v. Brown,

failure of experienced counsel, for reasons of their own, to offer
the necessary proof to support the charge was as deliberate and
effective a waiver as if the point had not been made at all. That
a defendant, especially when represented by counsel, may make
a competent and intelligent waiver of a constitutional right bind-
ing upon him is well established by repeated decisions.’’ The
point ‘‘of racial discrimination was raised so, inadequately * * *
that in effect it was not raised at all and was therefore waived.’’

34. After the trial it was claimed that negroes were system-
atically excluded from grand and petit juries. But the point was
not raised because counsel feared to prejudice his case and be-
cause he thought he had a good jury. ‘‘ Where parties, even in a
criminal case, knowingly and deliberately adopt a course of pro-
cedure which at the time appears to be to their best interest, they
can not be permitted at a later time, after a decision has been
rendered adverse to them, to obtain a retrial according to pro-
eedure which they voluntarily discarded and waived.’’

35. These three state cases were cases of claimed racial dis-
crimination. Since a constitutional right was involved the pro-
cedure as well as the substance presented a federal question and
whether the question was properly raised was a federal question.
It was so held in Carter v. Texas, 177 U.S. 442, 447, 44 L.ed. 839,
841.

36. Compare the related question of consent to trial of a law
issue on the equity side (Williamson v. Chic, etc. Corporation, 59
F.2d 918, 921 (C.C.A. 8); Penley Bros. Co. v. Hall, 84 F.2d 371,

_ ae

19
8 F.2d 382 (C.C.A. 4);°7 Hoagland v. Chestnut Farms
Dairy, 72 F.2d 729 (C.A. for Dist. Col.) ;** eases cited
above.) A party cannot agree to go forward with a
jury in the box whose composition is known, take his
chance that he will get a verdict and then claim he was
prejudiced by the jury’s composition because the ver-
dict is against him. (Francis v. Southern Pacific Com-
pany, quoted in note 19; Queenan v. Oklahoma, quoted in
note 19; Carruthers v. Reed, quoted in note 34; Adams
v. U. 8., above; Strang v. U. S., note 20 above;*® Fay

873 (C.C.A. 1); U. 8. v. Havner, 101 F.2d 161, 165 (C.C.A. 8))
and consent to try an equitable issue on the law side (Mobile
Ship Building Co. v. Federal Etc. Co., 280 Fed. 292 (C.C.A. 7,
cert. den. 260 U.S. 726, 67 L.ed. 483) ).

37. It was claimed that the Court improperly excluded from
the jury all persons who were directors or stockholders in any
bank or renters of safe deposit boxes. Held: Unnecessary to con-
sider the point. After the jury retired it twice reported inability
to agree. ‘‘Apparently, at that time, neither party wanted to be
put to the expense and delay of a new trial and they mutually
stipulated to accept a majority verdict. The Bank then knew
who were on the jury and the agreement made was clearly a
waiver of any objection to the way in which they were originally
selected.’’

38. A juror became sick. This left 10 men and an unmarried
woman. On the suggestion that the testimony would be such as
to cause her embarrassment the Court announced it would with-
draw her and did so over the objection of plaintiff’s counsel
stating it would either discharge the remaining 10 jurors or pro-
ceed with the 10. Counsel for the parties then agreed to proceed
with the 10. The Court said: ‘‘It is, of course, very clear that
the appellant having consented to proceed with the remaining 10
male jurors cannot now complain.’’

39. The Court said in addition to what is quoted in note 16
above :
~“Simply because a result that was insistently invited, namely,
a verdict by a Court without a jury, disappointed the hopes
of the accused ought not to be sufficient for rejecting it.’’

40. ‘‘Upon the showing made after verdict, the conclusion is
inescapable that appellant was speculating on his chances of being
acquitted, intending to rely on the disqualification of the juror

20
v. New York, 332 U.S. 261, 91 L.ed. 2043 ;* Riley v. Davis,
57 Cal. App. 477, 484, 207 P. 699 (hr. by Supreme Ct.
den. ).**)

2. The Petit Jury Panel Was Properly Constituted.

Waiver aside, and on the merits, little beyond necessary
corrections is needed. The grounds now urged were urged
when the case was here before. They were passed without
notice. The Court confined itself to the single ground
pointed out above.

The petition’s gratuitous assertion that the courts be-
low ‘‘openly defied’’ the mandate of this Court and were
‘defiant or apathetic about complying with this Court’s
mandate,’’ warrants no comment.

The petition has gone outside the record, \idistonaty.
This calls for no comment.

Complaint is made that the jury panel was ‘‘hand-
picked,’’ and was not selected by a system of lot or
chance. The method of selecting names was determined by

only in ‘the event he was convicted. He could not do this, but
must be held to have waived the ground of challenge for cause
based on the disqualification of the juror.’’

41. ‘“‘It is not easy, and it should not be easy, for defendants
to have proceedings set aside and held for naught, on constitu-
tional grounds when they have accepted as satisfactory all of the
individual jurors who sat in their case * * *.’’

42. ‘Moreover, it is equally wey that if any disqualification
existed it was waived by the failure of appellant to make timely
objection. * * * He chose, however, to take his chances upon re-
ceiving a favorable verdict ; and in such cases the just and well-
established rule is, that, after the case goes against him, he can-
not object to the validity of the verdict because of circumstances
within his knowledge which he has declined to seasonably urge.
* *© © The authorities, indeed, seem to be uniform that a known
cause of challenge is waived by holding it until after verdict,
‘since such practice is incompatible with good faith and fair deal-
ing which should characterize the administration of justice.’ ’’

21
Congress. Selection by a system of lot or chance would
not respond to the procedure set up. The names for the
jury panel for any district court are to be selected ‘by
the Clerk of said Court, or a duly qualified Deputy Clerk
and a Commissioner’’ (Jud. Cod. $276, 28 U.S.C. §412).
They are to select persons having ‘‘the same qualifications,
* * * and be entitled to the same exemptions, as jurors of
the highest court of law in’”’ the State where the federal
court is sitting (Jud. Cod. §275, 28 U.S.C. §411). The selec-
tion of such persons is committed to the discretion of the
Clerk and Commissioner (Thiel v. Southern Pacific Com-
pany, supra; Glasser v. United States, 315 U.S. 60, 85, 86
L.ed. 680, 707; Williams v. Mississippi, 170 U.S. 213, 42
Led. 1012; Franklin v., South Carolina, 218 U.S. 161, 168,
54 L.ed. 980, 985; Akins v. Texas, 325 U.S. 398, 89 L.ed.,
1692; Thomas v. Texas, 212 U.S. 278, 53 L.ed. 512). The
exercise of judgment is called for. The Clerk and Commis-
sioner must select ‘‘citizens’’ of proper age, possessed of
‘“‘natural faculties and of ordinary intelligence and not
decrepit,’ who have a ‘‘sufficient knowledge of the English
language’’ (Cal. C.C.P. §198). They must avoid persons
‘convicted of malfeasance in office or any felony or other
high erime’’ (Cal, C.C.P. $199), take only those ‘‘of fair
character, and approved integrity, and of sound judg-
ment’? (Cal, C.C.P. §205), and should avoid persons hav-
ing any of the numerous California exemptions (Cal.
C.C.P. §200, listing 14 classes of exemptions).

The ground principally urged is that there was no pro-
portional representation of classes on the panel. That this
is the complaint is disclaimed. But the substance, for all
the petition’s protest, is the claim of want of proportional

22
representation of two selected classes, (a) an economic
class of persons other than business men and executives
and (b) women. These claims were urged when the case
was here before. To neither of them did this Court give
consideration on a record substantially the same as the
record here. It would seem sufficient to refer to those
eases holding that there is no right to proportional repre-:
sentation. (Thiel v. Southern Pacific Company, above;
Akins v. Texas, above; Virginia v. Rives, 100 U.S. 313,
25 L.ed. 667; Thomas v. Texas, above; Wong Yim v. U. S.,
118 F.2d 667 (C.C.A. 9, ¢.d. 313 U.S. 589, 85 L.ed. 1544) ;
Beckett v. U. S., 84 F.2d 713 (C.C.A. 6). Cf. Fay v. New
York, 332 U.S. 261, 91 L.ed. 2043; Moore v. New York
333 U.S. 565, 92 L.ed. (Adv. Op.) 637.)

But even the claim of want of proportional representa-.
tion is not made out. The argument is based on a mutila-
tion of the record.

The question for the trial court was one of fact.** The
question raised by the motion,—more properly a challenge
to the array,—was to be tried by the court. Its determina-
tion of the fact is entitled to the same respect as any
determination of fact by a trial court (Jud. Cod. §287, 28
U.S.C. §424; Thomas v. Texas, above; Akin v. Tezas,
above; Wood v. Brush, 140 U.S. 278, 285, 35 L.ed. 505, -
508; Jugiro v. Brush, 140 U.S. 291, 35 L.ed. 510; Andrews

,

43. The undisputed testimony of the Clerk and Commissioner
in the record when the case was here before that they endeavored
to exclude all persons working for an hourly or daily wage because
of hardship presented pure questions of law whether (a) non-
statutory blanket exclusion of a class could be made and (b)
whether anyone other than the court acting on individual cases
could exclude for hardship, real or assumed.

23

v. Swartz, 156 U.S. 272, 39 L.ed. 422; Gibson v. Missis-
sippt, 162 U.S. 565, 584, 40 L.ed. 1075, 1079; Pierre v.
Lousiana, 306 U.S. 354, 83 L.ed. 757). The finding of the
fact can be attacked only if there is no evidence to support
it. This can fairly be argued only by a review of all of the
evidence,—not by wrenching from its context a selected
portion. (We review the testimony in Appendix B hereto.
Compare the opinion of the trial court, Appendix D hereto.)
Even the testimony selected has not been fairly quoted.

The petition claims that the testimony shows the Clerk
and Commissioner ‘‘made a conscious effort to select
half of the names included on the original panel from
executives, proprietors and managers’; that the other
half was selected from persons not included in that group”’
(p. 7); that there was ‘‘purposeful handpicking of 50%
executives and 50% non-executives’’ (p. 13); that pur-
posely and arbitrarily there was adopted the system ‘‘of
selecting 50% of the panel from the class of ‘executives or
managers of firms or presidents or owners of business.’
The remaining 50% was chosen from all others eligible.’’
(p. 14)

This claim is based upon what purports to be a quota-
tion from the testimony of the clerk. It reverses the effect
of his testimony and does this by deliberately omitting
part of what he said. The argument is that the Clerk
and Commissioner selected one-half from business men,
proprietors and executives and allowed only one-half for
all other classes. This is just the reverse of what the
testimony was. The testimony was that one-half came
from working people and the other half was made up of
all other classes, only one of which was executives or
managers or proprietors.

24
This is what the Clerk testified to, and we put in bold
face the portions omitted** in undertaking to quote his
testimony at page 7 of the petition:

“I endeavored each time to select approximately
half of the proposed jurors from the working class;
by that I mean I made no distinction between those
working for a daily wage as against those who worked
for a weekly or monthly wage. That applies to women
as well as men. The other 50% that made up the list
were made up of some of the executives or managers
of firms or presidents or owners of business; the
colored population was taken into consideration; we
put some 15 to 20 colored people in the jury box
and also put the same number of Chinese into the
jury box.” (158)

In other words 50% were from the working class and
the other 50% were from all other classes:

“Q. So that fifty percent in that classification of
truck drivers, carpenters, plumbers, longshoremen,
people of that general classification that we call
working people and their wives made up about half
the list?

A. That is correct.

Q. And the other half was made up of everybody
else?

A. Yes.” (222:19 et seq.)

The great difficulty is that people are usually in more
than one class. It is impossible to get proportionate repre-
sentation of classes (even if called for) unless only one

44. Less important is the same sort of mutilation and conse-
quent misstatement of a stipulation of counsel for the respondent
(see Petition, p. 9)..To get the proper sense the reading must
start at R. 231:19.

25
basis of classification is used (Cf. Fay v. New York,
above; U. S. v. Local 36, 70 Fed. Supp, 782; State v.
Koritz, 227 N.C. 552, 43 S.E.2d 77). The problem presented
by the inclusion of women is an instance (Cf. Fay v.
New York, above). They, like negroes, chinese, members
of particular religious groups, etc. appear all along the
social and economic scale, It is more difficult to determine
their occupation and economic status than in the case of
men (usually they list themselves only as housewives) and
so to get a proper balance in other classifications. Women
are not as likely to present claims of exemption as are
men. A selection starting with 60% men may well end up
with a panel of half men and half women. There was no
total exclusion as in Ballard v. United States, above.
That case, the Fay Case and the Moore Case clearly indi-
cate that the decision in the Thiel Case was not disturbing
settled and well understood rules and practices shown by
the record in that case.

The claim that a majority of tke prospective jurors
called were connected with the Southern Pacific Company
or partial to it calls for no comment. The fact is that
four were excused because they were biased against the
defendant. And the characteristics of the 37 who hap-
pened to be examined in this case shows nothing as to the
propriety or the conduct of the Clerk and Commissioner
in first putting the names into the box. Even so, the
petition does not accurately represent that sampling of the
panel. What was learned of these 37 prospective jurors is
set out in Appendix C hereto and need not be repeated.

26
CONCLUSION
It is respectfully submitted that the petition should be
denied.

Dated at San Francisco, California, October 26, 1948.

Artuur B. DunNE
Attorney for Respondent.

APPENDIX A

All of the evidence as to what happened before Sunday,
February 25, 1940, the day petitioner jumped from the
train, comes from petitioner alone. Neither Mrs. Thiel nor
Morris was produced.

1. Petitioner's Actions Up to the Day of the Accident.

Petitioner, his fiance, whom he had known about 3
months, and his friend, Johnnie Morris, left San Fran-
cisco on Saturday, February 17th, 1940, and arrived in
Reno next morning. The object of the trip was his mar-
riage to his fiance. They were married in Reno on the
18th (373, 412, 413, 484-494). All three went to the Senator
Hotel,’ and stayed there through Friday, the 23rd (414,
485, 494-496).

On Monday, the 19th, petitioner quarreled with his wife?
and started drinking* (413, 485, 486, 496, 498). Monday
through Thursday he drank and gambled. He drank with
Morris; they drank about one bottle of bourbon a day,

1. When asked whether he registered as ‘‘George Wendell and
wife—Marin County’’ he said ‘‘A. No, it is not—not that I—
no.’’; that if he used another name he was drunk (494, 495).

He, his wife and Morris did not use their right names (769-
773). They occupied rooms 338 and 337 (1044) and the names
registered for room 338 were ‘‘George Wendell and wife, Marin
County, California’’ (771, 772).

2. He said she told him she had been married twice before;
that he had known her and her father about 3 months but had
not known this; that he had so testified on deposition and on an
earlier trial and now so testified (487, 488). Yet the affidavit
for marriage license which he signed and swore to showed she
had been married before (488, 489, 493).

3. After he was asked whether he registered at the hotel
under a fictitious name (see note 1) he was inclined to move
some of the drinking up to Sunday the 18th (495-497). Earlier,
on his deposition (498) and on the first trial (500) he said he
started after the quarrel on Monday.

2 Appendix

and perhaps had some drinks in a bar* (374, 501-504).
Possibly by Friday, and certainly by Saturday morning,
he had lost all their money (413, 501, 504). He was not
sure whether he drank on Friday (504). At any rate, on
Saturday they left the Senator Hotel with their bill un-
paid, leaving their bags (514, 516). On deposition he testi-
fied that on Saturday he had only 10 cents left, put this
in a slot machine, got 80 cents, and with this bought
whisky® (505 et seq.).

Petitioner says that on Saturday, the 24th, he was
nervous, upset and sick; that he had hallucinations® (489,
515); that he was out of money and anxious about getting
home (515). Saturday night he and his wife stayed at a
different hotel (414, 485, 489).

Petitioner had nothing to drink for over 24 hours before
he jumped out the train window.’ The amounts of alcohol
he had taken were not excessive; give no foundation for

4. Hardly enough to produce DTs in view of the fact Mrs.
Thiel drank some of the whisky (503).

5. On the trial he tried to move this to Sunday morning
(505). But the rest of the record makes it clear he drank nothing
on Sunday and the date was not corrected on the deposition
though other dates were (505-513). See note 7.

In any event it was stipulated that he was sober when he got
on the train and he so testified (541, 587).

6. On this trial for the first time appellant enlarged on the
claimed Saturday night hallucinations; said that he spent all
night on top of a dresser, did not go to bed, did not take his
clothes off, threw sticks down a light well, ete. Yet, in the same
breath, he says his wife was with him all the time and was un-
moved by his antics (516, et seq.). His deposition clearly indi-
cated that he did go to bed (516). He says that he did not
change his clethes (489, 490). Evidence of his neat appearance
the next day contradicts his story.

7. At one point he said he drank nothing even on Saturday
(514) and on his deposition said the slot machine episode may
have been on Friday (see 505-513 and note 5). In any event it
was stipulated he was not drunk Sunday afternoon and evening.

Appendix x
hallucinations that harm threatened.’ There is nothing
to show that he was not fully oriented, that he did not
fully appreciate his surroundings, know where he was and
what he was doing. He never tried to run away.

2. Petitioner's Actions on Sunday, February 25, 1940, Until Just
Before Train Time.

Petitioner says that on Sunday, the 25th, he was ner-
vous and afraid.®

Petitioner had nothing to drink on Sunday, the day of
the accident (484, 525-530; see notes 5 and 7). He got
up about 6 a. m., before sun-up, and left the hotel. Al-
though he claims to have been in fear, before sun-up, he
wandered around Reno, alone (418, 489, 525-530). When
he left he asked his wife to meet him at the Southern
Pacific Depot at 11 o’clock. About 11 o’clock he met her
and Morris there. That was the first time he had been
there or had any contact with respondent since arrival in
Reno (418, 419, 428:1; 489, 522, 525, 526). Prom the time
he arrived at the Southern Pacific Depot until he boarded
train No. 9 he stayed in the waiting room, in front of the
ticket office, except when all three left for the Western
Union office (376, 427, 428, 530).

Before 4 o’clock Mrs. Thiel phoned her mother collect
to have money wired. Thiel told his wife what to say
(431, 532). All three waited at the station for a reply un-
til about 6 P. M. (427, 428, 530, 545), when they heard
the money had been wired, left, and walked to the tele-

8. His fears were also for Morris and Mrs. Thiel, he says
(415, 483, 439, 557), a subjective symptom said by plaintiff's
witness Dr. Anderson not to be a symptom of alcoholic psychosis
(647, 660). He says he feared for his wife. But he left her alone
and unattended a number of times.

+ Appendiz

graph office’ (427, 431, 432, 530, 533). It was then dark
(537, 538). From there they walked to the police station
and were interviewed (377, 434 et seq., 531), the police
saw no reason to detain them and suggested they take
their train for San Francisco’ (1032, 1033, 1035-1041),
they walked to the Senator Hotel, paid their bill," got
their bags (436, 531, 539), walked back to the railroad
station, arriving about 8 o’clock, having stopped to eat
on the way (430, 436, 437, 531, 539, 540, 545), and were
there till the train arrived (531).

3. Petitioner's Actions From the Time He Returned to the Depot
Until He Went Through the Train Window.

The railroad station was lighted and there were people
in the waiting room (538). Tickets for San Francisco were
bought (546). When the train arrived petitioner, his wife
and Morris got on the head end of the second coach, on

9. Although he says he was afraid and the money was wired
to his wife he could not or would not say why he went with them
instead of staying at the station (538).

10. There is no claim the railroad knew anything about what
happened at the police station. Each of the three was inter-
viewed by Detective Sergeant Castlebury (1029-1031). Thiel did
not appear drunk and there was no odor of alcohol (1032). Castle-
bury, after observing and interviewing them advised them to
take their train to San Francisco and said he had no facilities
‘to guard anyone who apparently didn’t need any assistance
along that line,’’ and that since he was accompanied by ‘‘two
normal adults, that he felt that he was in perfect safety’’ (1033).
The Reno police had facilities for caring for people who might
harm themselves. When in his judgment there was such a case
Castlebury used these (1041). But he never assumed that Thiel
should be detained or guarded (1040); he was coherent, knew
where he was and looked normal (1037-1039) and no effort was
made to detain him and no record or report was made because
it was not thought warranted (1035-1036).

11. Although he says he was acting queerly and his wife and

Morris knew it, he was given the money received and paid the
hotel bill (539).

Appendiz 5
the station side, practically in front of the waiting room,
went into the second coach and took seats. Petitioner got
on without assistance (549 et seq., 619). Rippetoe followed
immediately behind them. This was the first time Rippe-
toe noticed petitioner. Nothing had attracted his attention
to the three people (614, 619, 620). Yet he had been in the
depot since about 4:30 (618).

After the train left Reno, petitioner, Morris and Rippe-
toe went from the second coach to the smoker (370, 453,
552, 556, 557, 560, 611, 614, 623). Petitioner and Morris
took a seat, Thiel next to the window, and Morris on the
aisle. Rippetoe was in the seat ahead (450, 561, 612, 613,
633). There was a trainman in the back of the car (450,
451, 561, 905).

About 20 minutes out of Reno, in Nevada, the conductor
came through lifting transportation (452, 561, 562, 608,
613, 1074). When he reached Morris and petitioner, Morris
stood up. According to petitioner Morris was standing
talking to the conductor (562, 624, 626), and according
to the conductor the conductor had passed on a step or
two (1077, 1095), when petitioner suddenly opened the
window and leaped out (454, 562-565, 613-615).”

Petitioner undertook to testify in detail to what hap-
pened in the smoker, how and why he went out the win-
‘dow and what led up to this. But when he was not testify-
ing in his own law suit his statements were different. At
Truckee he was helped by Carl E. Smith, an employee of
the California Motor Vehicle Department (1053). He told
Smith he had been on relief, looking for a position in Reno,
was desperate, did not know what to do and that was why
he jumped (1054).

12. See the complaint and note 3 of the brief above.

6 Appendix
William H. Laity drove the ambulance which took Thiel

to Reno. On the way in Laity and Thiel talked intermit-

tently (926-936). Laity asked what happened and Thiel

said:
“Well, I really don’t know.” He said, “There were
three of us sitting in front of the coaches, and the
other gentleman and I went forward to the smoker,”
and he said that, “We were sitting there, and on the
spur of the moment I raised the window and jumped,”
and then he said, “I don’t know why I did it.” He
said, “I don’t want to die now. At that time I did.”
(932 :12-18)

Next morning, in the hospital, about 24 hours before
he was seen by Dr. Wyman (675, 692), Parks, chief crim-
inal investigator for the District Attorney and Sheriff at
Reno (948), after receiving permission from the head
nurse, talked to Thiel in the presence of the head nurse
(949, 950, 953, 955). Thiel told Parks that “he jumped on
the spur of an impulse, and before he reached the ground
he was sorry he had jumped” (959).

4. Petitioner's Testimony of His Own Mental Condition and
Claimed Notice to Respondent.

This case presents grave questions of appellant’s ver-
acity. He has testified to what he thinks are helpful
details of his Saturday night hallucinations, to an un-
truthful statement that he did not know his wife had been
married before (see note 2), hesitated and then denied
that he registered under a fictitous name (see note 1) and
was squarely contradicted repeatedly. We might omit any
reference to his testimony. The jury was entitled to dis-
regard all of it. But this is what he says:

Appendix i

On Sunday he feared he, his wife and Morris would be
harmed (see note 8). He complained to others (415, 432).
People in the station looked like they were practically all
after him (437). Just before he jumped he saw a man
ahead in the smoker who appeared to have a knife in his
chest (454). On the first trial he said he did not know
the train was moving (574). But after his witness, Dr.
Anderson, testified that petitioner told him he became
frightened as the train swung around a curve (635, 636),
this pretense was given up, and appellant testified that
he went to the smoker and the conductor came through,
after the train left Reno (561). On this trial there was no
such pretense (561). He further testified:

After he first arrived at the station two ticket sellers
were on duty (429). He told one that he was afraid to
leave the station, and to call a policeman. He heard Mor-
‘ ris asked for a policeman, and say he could not handle
petitioner™ (428, 432, 437, 440). Morris made similar state-
ments after return from the telegraph office (439, 440).
Petitioner asked for a policeman to ride the train, and was
told one would be along soon (437, 438).

After the tickets were bought a policeman arrived (438,
546). Thiel asked him to ride the train (439-443, 736).

After the train arrived the policeman did not get on
the train, so Thiel got off, found him, and the police-
man got on the train and sat near Thiel (445, 550, 738-
741). Later Thiel noticed that the policeman was gone and
became frightened (448).

13. If Morris made such a statement it was untrue. There is
no evidence anyone had trouble handling Thiel. Cf. note 10 above.

14. Every other witness on the subject contradicted this.

8 Appendiz
5. Further Testimony as to Petitioner's Appearance, Conduct,
and as to Alleged Conversations.

Petitioner’s witness, Dr. Anderson, testified: Patients
with delirium tremens have hallucinations; they are
anxious, have “a flushed face,” perspire profusely, have
a course tremor, jerky movements, and rapid pulse; these
signs would be quite apparent to lay people (655, 656).
(No witness, not even petitioner, testified to the presence
of any of these signs.) He also said the fears are for
self, not others*® (647, 660).

Mr. Forsyth was the ticket agent from 8 a.m. to 4:30
p.m. (794-796). He first noticed Thiel and his companions
when they came to the ticket window, between 10 a.m.
and noon, to have him accept a collect telegram wiring
for money. He could not, and suggested that they ’phone
collect. They came back from time to time to inquire for
a reply (796-798). The party was under his observation
until he went off duty (798, 799).

Morris was about 5 feet, 10 inches tall, and weighed
at least 160 Ibs. The woman was tall for a woman and
heavily built. Thiel was not over 5 feet 6 inches, and
slim (796, 797). All were neat in appearance (797). Morris
and the woman were sober, coherent and normal (799).
Thiel looked like a man who had a hangover. He talked
coherently and was oriented. He did not have the
“shakes,” and appeared normal. He knew where he was
and with whom; he did not stumble or stagger; his face
was not flushed; his movements were not jerky; he caused
no disturbance or commotion; there was no loud talk or
gesticulation. He was not extremely nervous and restless;

15. See note 8. The reaction is to shield self from harm. It is
not the attitude of one seeking harm but exactly the opposite.

Appendix 9
no more than hundreds of passengers who wait for a train
(799-801, 805, 811, 812). Nothing was said about fear of
life, nor were inquires made about police (801).

Mr. Wogan, a ticket clerk at Reno for 18 years, was
on duty from 4 p.m. until midnight (813). Mr. Forsyth
told him of the ’phone call for money (814). Mr. Wogan
observed the party from time to time. They were well
dressed. He talked only to Mrs. Thiel. She inquired about
the money and a restaurant (813-817). Later they left the
depot (821). There was no other conversation before they
left (814-816). They returned about an hour and a half
later (816).

Throughout petitioner was attended by his two com-
panions (813). Wogan’s description of the party corres-
ponded with Mr. Forsyth’s (817, 824). Mrs. Thiel and
Morris were sober, normal, and under no incapacity (817,
818). Petitioner appeared entirely normal (817, 818, 824,
825, 830, 836). He was not demented (842). He did not
have the shakes, his face was not flushed, and his move-
ments were neither irregular nor jerky (821). There was
no gesticulating, argument, noise, row or anything of that
sort (818, 823). Thiel was nervous, but not more so than
normal passengers. He did not look drunk or alcoholic
(817, 818, 834). He did not then appear to have a hang-
over (834). The party appeared to be in proper condition
to be sold tickets (834, 836, 837).

Mr. Wogan had no conversation with either of the men
(816, 817, 819). About 8 o’clock he sold Mrs. Thiel 3
coach tickets (816, 819). Although petitioner looked nor-
mal, because of an earlier remark to him, he asked Mrs.
Thiel whether anything was wrong with petitioner. She

10 Appendiz

said that he was somewhat nervous, but for no definite
reason; that it might be the altitude; that he was dis-
turbed by too many people. She declined to take a draw-
ing room (819, 833, 835). Mr. Wogan flatly denied any
such conversations as petitioner had testified to that -peti-
tioner was afraid, or police protection was requested (819,
826).

Mr. Sorenson, a railroad police officer regularly com-
missioned by the Governor of Nevada came on duty at
about 8:30 p.m. (443, 582, 585, 842-844). He observed peti-
tioner and his companions, but had no conversation there
with either Mr. or Mrs. Thiel in the station (845, 874).
Morris said that Thiel had been drinking heavily lately,
was “acting crazy,” and that Morris had come to bring
him home; that Thiel had tried to run away once; “After
I get him on the train then I will be all right” (595, 844,
848, 875, 876-886).’° He observed the party until the train
left (849), but had no further conversation, except as
noticed below. Petitioner looked normal and was not
drunk (849, 850, 879, 887, 888, 890, 891). Mr. Sorenson
denied that he was asked to ride the train, or was told
petitioner was afraid or would harm himself, or would
not go without protection or that he, Sorenson, said he
would go along (845). Mr. Sorenson followed the party
to the train, but did not go in the car. Before the train
left he got on the car platform and looked in, as he often
did, but he did not go in (850, 851, 875).

While Mr. Sorenson was on the station platform, peti-
tioner came out. He did not ask Mr. Sorenson to go with

16. Thiel claims to have been present at the conversation (735
et seq.).

Appendix 11
him. Lz ter Morris came along and Mr. Sorenson said
that Th..1 had stepped out of the car, to which Morris
replied that it was all right, “I’ll take care of him now”
(850, 851, 878).

Mr. Sherman, the brakeman, testified that while he was
at the car entrance Morris came out and said to the
policeman, “It is all right, I will look out for him,” which
prompted Sherman to ask what was the matter. The
policeman said, “I think he has been drinking” (903-
905). Petitioner did not look drunk. There was nothing
wrong with him that Mr. Sherman saw (906, 918).

Mr. Cosgrove,’ the conductor, first noticed petitioner
when he was collecting the tickets; that till then there
was no conversation with petitioner or any of his com-
panions (1075, 1076, 1085). He noticed nothing unusual.
He was just sitting quietly in his seat (1078, 1114).

Petitioner’s witness Rippetoe had been at the station
since 4:30. He got on the train just behind petitioner and
his companions. Nothing attracted his attention to them.
He sat behind Thiel. He did not notice petitioner before
he got on the train; there was no loud talk or arguing,
and he heard nothing said about petitioner not wanting to
stay on the train. Thiel did not talk to the conductor.
While the policeman got up on the car, he did not come
in and sit down as petitioner testified (612-615, 619-621,
625, 626). There was nothing unusual in the smoker (633).

Petitioner’s witness Buck was a passenger. He got on at
the rear and walked through to the smoker. He saw
nothing unusual. His attention was first attracted by the

17. He died before the second trial and his testimony at the
first trial was read so it was exactly the same.

12 Appendix
commotion when Thiel jumped through the window (708,
709).

6. Petitioner's Condition Was Not in Fact Such as to Require

Special Care or Attention From Respondent.
The claim that Thiel was abnormal before he jumped

can be supported only by his testimony. His veracity
was open to grave question.**

The conversations prove nothing. They were admissible,
in an attempt to impute notice, but are no evidence of the
fact. They are untrue. If Morris said appellant was acting
crazy, was hard to handle, and had tried to run away, it
was untrue. There was no basis in Thiel’s conduct. The
only basis could be what Thiel said. Thiel may have said
that he was in fear. He had quarreled with his wife.
What motive of self-pity, to attract attention or sympathy,
he had he does not say. It is a legitimate inference that
he was talking for effect.’® 3

But there is something more substantial. There was
nothing unusual in his appearance. Not even he testified
to any abnormality in appearance or action, or any out-
ward symptom of D. T.’s. To anyone who saw him he
was normal.” There was nothing wrong with his per-

18. His testimony is inherently inconsistent. It does not square
with his own medical evidence (see note 8 above). It is contra-
dicted in almost every particular where others were present and
available to contradict it, including his own witnesses. It is con-
tradicted by his own conduct and statements. See note 19 below.

19. He never explained why he registered at the Senator Hotel
under a fictitious name (note 1 above) or how he could have been
ignorant of his wife’s previous marriage when the fact was stated
in his affidavit on application for a marriage license (see note
2 above).

20. Compare his own witness Castlebury (note 10 above):

Appendiz 13
ception or recollection.* He described in detail the events
of the week in Reno. Although he claims to have been in
fear of injury, he wandered around Reno in the dark
early on Sunday morning. He had little, if anything, to
drink since Friday. His speech was normai, coherent and
rational. He claimed to remember conversations. He re-
membered and recited in detail the events of the day of
the accident, and the construction and arrangement of
the station (534 et seq.; 795). He knew who he was with,
what he was doing and where he was going. He recognized
policemen, ticket sellers, the Western Union office, hotels,
a police station, a place to eat, ete. He knew he needed
money and what to do to get it. There was no loud talk-
ing or unruly conduct, gesticulation or commotion. He
required no assistance. He moved normally. He knew he
was getting on a railroad train, and where it was going.
He knew with whom he got on. He got on willingly. He
knew tickets must be bought and surrendered. On the
train he appreciated where he was, and, after the train
left Reno, that it was moving. At all times he was ac-
companied by two people capable of caring for any need.

7. Respondent Was Not Guilty of Negligence in Being Unable
to Prevent Petitioner From Leaping From the Train.

It is argued that respondent owed to petitioner the duty
of the highest care. While ordinarily as to transportation
a common carrier owes that duty, this rule does not ap-
ply where the risk realized was injury to the passenger
from his own conduct. (Fagerdahl v. Coast T. Co., 178
Wash. 482, 35 P.2d 46.) A passenger’s disability, if any,

21. Want of memory is one of the symptoms of. DTs. His
Dr. Anderson so testified (647, 657-659).

14 Appendia
does not change the carrier’s duty or increase the degree
of care required. It is only a circumstance in view of
which care is to be used. (See Alabama etc. R. Co. v.
Alseep, 101 F.2d 157 (C.C.A. 5); Gulf etc. R. Co. v. Con-
ley, 113 Tex. 472, 260 S.W. 561, 563.) Under any rule the
carrier ‘‘is bound to guard only against those occurrences
which can be reasonably anticipated,’’ and a ‘‘reasonable
man * * * will neither neglect what he can foresee as
probable, nor waste his anxiety on events that are barely
possible.’’ (Atchison etc. Co. v. Calhoun, 213 U.S. 1, 9,
53 L.ed. 671, 675; Kansas City Southern Ry. Co. v. Pin-
son, 23 F.2d 247 (C.C.A. 5).)

Nor is there any occasion to discuss intoxication or its
effects and negligence or contributory negligence. In-
toxication or its effects does not excuse negligence, nor
does it affect defendant’s duty, except only where an un-
attended passenger is obviously so intoxicated as to be
helpless, and is seen in a dangerous position. There is no
case where intoxication affected the result, except where
the injured party was, to the knowledge of the carrier,
incapable of caring for himself. Respondent was entitled
to judgment as matter of law unless appellant was under
a known disability.

The first essential is the existence in fact of the requisite
disability. The only disability claimed was mental.

Just any mental incapacity—any deviation from the
normal sober person—will not do. The evidence must
show “need of special attention” and “that the passenger
is at the time incapable of taking care of himself.”
(Welch v. Spokane etc. R. Co., 91 Wash. 260, 157 P. 679,
681.) The passenger must be ‘‘in a helpless condition.”

Appendiz 15
(Gates v. Bisso Ferry Co., 172 So. 829 (La. App.).) Special
attention is required only “under special circumstances”
and “the mere fact that a passenger is drinking or under
the influence of liqour is not enough”; “intoxication that
does not produce helplessness or incapacity” will not do;
if the passenger is “merely rendered less capable of pro-
tecting himself from accident or injury, than he otherwise
would be, or his condition induces him to become more
indifferent to his safety, he must take the consequences
of his own recklessness,” and “his right to recover is no
greater than would be that of a sober person.’’ (Louisville
Ry. Co. v. Gregory’s Adm’r, 141 Ky. 747, 133 S.W. 805;
L. € N. R. Co. v. Barnes’ Adm’a, 297 Ky. 616, 180 S.W.2d
547.) This requirement is not confined to drunks; in other
cases it must render the passenger ‘‘unable to care for
himself.’’ (St. Louis etc. Ry. Co. v. Adams, 163 S.W. 1029
(Tex. Civ. App.).)* The incapacity must have relation to
what it is claimed the carrier failed to do. If the loss of a
leg requires special care, it does not impose liability for
failure to prevent suicide.
At least until appellant went through the window” he

22. See also Paris etc. R. Co. v. Robinson, 104 Tex. 482, 140
S.W. 434; Louisville etc. Co. v. Mudd’s Admr’z, 173 Ky. 330,
191 S.W. 102; Dabuey v. R. Co., 140 Ill. App. 269 and R. Co. v.
Carr, 47 Ill. App. 353 quoted in theWelch Case above; L. & N.
R. Co. v. Phelps’ Admr’x, 181 Ky. 689, 205 S.W. 793.

23. Even this does not necessarily indicate that at that time
Thiel was suffering such mental derangement as to require atten-
tion from anyone. A deliberate and thoughtful intention to harm
one’s self is not a disability within the rule we are discussing.

But even if it could be assumed that this act alone was evi-
dence from which an inference could be drawn, it was evidence
of a mental condition only at that time. It is no evidence of
mental attitude, at an earlier time. All the other evidence, upon
which he relies, indicates that he was in fear of harm, sought
protection from it, and knew what steps to take to get protec-

16 Appendix

was not incapable of caring for himself. If there were any
deviation from normal, it was an unfounded fear of harm
and a desire to avoid it, with mental capacity to know
how; not a mind that invited injury.™ (Cf. Chicago etc.
Ry. Co. v. Sears, 210 S.W. 684 (Tex. Com. App.).)

Even if the requisite disability exists, this is not enough.
Its existence must be known to the carrier. The carrier
has no duty to examine passengers. It can presume they
are sane and sober until it has actual knowledge to the
contrary. The doctrine of constructive notice has no appli-
cation. (Fagerdahl v. North Coast T. Co., above;* Watts
v. Spokane etc. R. Co., 88 Ore. 192, 171 P. 901, 906; S. P.
Co. v. Buntin, 54 Ariz. 180, 94 P.2d 639; Paris etc. Co. v.
Robinson, 104 Tex. 482, 140 S.W. 434, 439;7" Shipman v.

tion from the harm he feared (compare Chicago etc. Ry. Co. v.
Sears). Moreover, while we have this evidence of his rash acts
before us now, as one of petitioner’s cases, Dokus v. Palmer, 130
Conn. 247, 33 A.2d 315, 318, points out ‘‘the defendants at the
time of the accident had not.’’

24. If his condition were as claimed by him and respondent
knew it, it could reasonably anticipate this and act accordingly.
See Dr. Anderson’s testimony.

25. Stating the rule by quotation from Sullivan v. Seaitle
Elec. Co., 51 Wash. 71, 97 P. 1109, 1112, and Welsh v. Spokane
ete. R. Co., 91 Wash. 260, 150 P. 679. The Sullivan Case, opinion
by Rudkin, J., later Senior Circuit Judge of the Ninth Circuit,
held an instruction prejudicially erroneous whica permitted re-
covery if the carrier's agents, although they did not know of the
disability, should have known of it. In the Welsh Case, it was
said that there was not even a duty of ‘‘observation’’ to ascertain
the passenger's condition.

26. ‘‘But if the carrier does not know of the abnormality it
owes no more care to the abnormal than it would to a normal
passenger, and it is under no duty to make an investigation to
determine the condition of the passenger.’’

27. Accord with the cases above that there is no duty of
examination or even of observation: So. P. Ry. Co. v. Hayne,
209 Ala. 187, 95 So. 879; Il. C. R. Co. v. Cruse, 123 Ky. 463,
96 S.W. 821; Willets v. Buffalo etc. R. Co. 14 Barb. (N.Y.)

Appendiz 17
United etc. Co., 70 R. I. 454, 40 A.2d 730.) If the passen-
ger’s condition is revealed only by the accident, there is
no liability. (Welsh v. Spokane etc. R. Co., supra; see note
23.) ’ :
But more, the carrier must have actual notice of the
precise kind of disability. If it has notice of one disability
it cannot be held for failure to guard for a different dis-
ability. (Fagerdahl v. North Coast T. Co., above; St. Louis
etc. Co. v. Adams, 136 S.W. 1029 (Tex. Civ. App.) ; Chic.
etc. Ry. Co. v. Sears, above. Compare Welsh v. Spokane
ete. Co., above; Watts v. Spokane etc. Co., 88 Ore. 192,
171 P. 901, 906; S. P. Co. v. Buntin, above; St. Louis etc.
R. Co. v. Dobyns, 54 Okla. 643, 157 P. 735, 738.) ~
What was respondent’s knowledge? There was nothing
in petitioner’s appearance or actions to indicate mental
disturbance. Passing from what respondent could observe
to what petitioner claims was told (whether true or un-
true),** it remains that what was told comes to this: Thiel
did not like crowds, feared someone would harm him, was
afraid to leave the station (although he did leave it) and
wanted protection—not general protection, but protection
from gangsters. That we were told he had been drink-
ing, was meaningless. He was not then drunk, and did_
not appear to be. There is no claim we were told (1)
he would harm himself or had threatened to, or (2) did
not want to go on the train. He had not tried to harm
himself. His mental attitude was one of avoiding harm.
He did want to go on the train. He offered no resistance,
and had no attitude of resistance.
585; Gulf ete. R. Co. v. Garner, 115 S.W. 273 (Tex. Civ. App.) ;

W. & A. R. Co. v. Earwood, 104 Ga. 127, 29 S.E. 913; Scott
v. U. P. R. Co., 99 Neb. 97, 155 N.W. 217.

28. His claims were denied.

18 Appendiz

There was no one threatening Thiel. We knew this. So
it comes to this: We are told that petitioner wants pro-
tection from non-existent harm from non-existent per-
sons. As matter of law or fact, what steps should we have
taken to protect him from a non-existent threat of harm?
What could we anticipate from a non-existent condition?
(Compare the Sears and Adams Cases.)

We knew nothing which would give rise to a reasonable
anticipation that harm would come to petitioner. We had
no notice of any mental condition such the harm would
result, or that petitioner was in a position of danger when
there was still time to act to prevent injury. Until peti-
tioner went out the window he never was in danger.

Even when passengers are disabled, from drink or other-
wise, and are unattended, if rut in a position of danger
the carrier need not act against a risk not then present.
It need not guard the passenger “to prevent him from
injuring hir «elf, or placing himself in a place of danger.”
(St. Louis etc. Ry. Co. v. Carr, 47 Tl. App. 353; the Welsh
Case above.) The rule has been applied to a passenger on
a bench in a waiting room (Fagerdahl v. North Coast T.
Co., above); asleep on a bench on a ferry boat (Gates v.
Bisso Ferry Co., above); on a platform of a car stopped
on a trestle (Louisville Ry. v. Gregory’s Adm’r, above) ;
seated in moving railroad cars (Olson v. Minn. etc. Ry. Co.,
v. Adams, 43 N.D. 371, 175 N.W. 371. See also Sullivan v.
Seattle Elec. Co., 51 Wash. 71, 97 P. 1109, and Thizton v.
Ill. C. R. Co., 29 Ky. 910, 96 .8.W. 548).

Where a passenger under a mental disability is with
an attendant or companion apparently capable of caring
for him, the carrier owes no duty of special attention, and

Appendia 19
is not liable if the passenger hurts himself. (Gates v. Bisso
Ferry Co., above; Boyd v. Alabama etc. Co., 111 Miss. 12,
71 So. 164, and 655; Olson v. Minn. etc. R. Co., above. Cf.
Fagerdahl v. North Coast T. Co., above. These cases deal
with intoxicated or otherwise mentally incapacitated pas-
sengers. Compare: So. Ry. Co. v. Hayne, 209 Ala. 186,
95 So. 869; Arnett v. C. € O. Ry. Co., 198 Ky. 742; 248
S.W. 1040; L. d N. R. Co. v. Dyer, 152 Ky. 264, 153 S.W.
194.)

Respondent, as to the claim of failing to provide a
guard, was entitled to a directed verdict. But, if not,
there was a jury question. If our evidence was believed,
and it was, there is no liability. The only claim of notice
is through the policeman and two ticket sellers. The
ticket sellers denied any conversations which could con-
vey notice of any incapacity. If it cannot be said as mat-
ter of law that the policeman was acting only under his °
state commission, in view of the presumption if for no
other reasons, the jury could find as a fact that he was
appealed to in his official capacity and was acting under
state authority and not as our agent. It could find he
was not on notice and exercised proper care.

The jury, under instructions not now questioned, could
and did find that there was no breach of duty in the cir-
cumstances of this case.”

But there is a shorter answer. Morris was in the seat
with petitioner. Rippetoe was immediately ahead. Con-

29, Petitioner makes some reference to a circular and rules
put out by respondent (Plf. Ex. 1). (1) The circulars clearly
state to what they apply. They apply only to-‘‘demented’’ pas-
sengers, or passengers who are incapable of taking care of them-
selves. (2) Even if they did apply, the question of negligence was
still for the jury.

20 Appendix
ductor Cosgrove was a step away. Petitioner went so
fast that no one could stop him. Another attendant could
not have done more. Any failure to provide a guard
was not a cause of injury (St. Louis etc. Ry. Co. v.
Adams, above).
For closely parallel facts see:
Chicago etc. Ry. Co. v. Sears, 210 S.W. 684 (Tex.
Com’n. App.) ;
St. Louis etc. Ry. Co. v. Adams, 163 Ww. 1029
(Tex. Civ. App.) ;
Boyd v. Alabama etc. Co., 111 Miss. 12, 71 So. 164
and 655.

With these should be compared:

Olson v. Minn. etc. R. Co., 43 N.D. 371, 175 N.W.
371;

Gates v. Bisso Ferry Co., 172 So. 829 (La. App.);

Fagerdahl v. North Coast T. Co., 178 Wash. 482,
35 P.2d 46;

Paris etc. R. Co. v. Robinson, 104 Tex. 482, 140 S.
W. 434;

L. @-N. R. Co. v. Mudd’s Adm’z, 173 Ky. 330, 191,
S.W. 102.

In the Sears and Adams Cases the mental aberration
claimed was the same as here,—hallucination of danger
from robbers.

No case supports petitioner’s claim. The farthest any
goes is to hold that there was a jury question, and these
are distinguishable. The cases above hold that the carrier
was entitled to judgment as matter of law.

Appendix ' 2
8. There Was No Negligent Delay in Stopping the Train After
Petitioner Was Out the Window.

Taking estimates from men admittedly in no position
to estimate correctly, and disregarding what actually was
done, petitioner claims delay in stopping the train.

Rippetoe estimated he was-holding Thiel, dangling from
the window, from 1 to 5 minutes (616) but said that in
the circumstances it was very hard to judge time* (628).
Thiel was kicking, trying to get loose (627, 635). He
testified that the conductor said “Let him go” (617). This
was denied,** but could have rio bearing because petitioner
was not turned loose; he was held until his coat broke
and he slipped from it (616, 617).

The conductor testified that after he had passed just
beyond Thiel and Morris he heard a window open and
someone holler (1077, 1078, 1095). He immediately turned,
got Thiel’s collar, and held until the coat tore and Thiel
fell.** Up to that time his whole attention was centered
on Thiel (1078, 1080, 1095, 1096, 1098, 1102, 1113). He did
not remember Rippetoe having a hold (1078, 1096, 1097).
As soon as Thiel fel] he gave a stop signal (1080, 1102).
He could not say whether anyone else did (1102, 1114),
but by the time he signaled the train was stopping (1080,
1099). The time from the time petitioner ‘‘went through

30. On his deposition taken by the plaintiff August 3, 1942
(628) Rippetoe said ‘‘You know time. You are not much of a
judge of time then,’’ (629); that his best estimate was ‘‘ Well,
something like a minute.’’ (630).

31. The conductor flatly denied he made any such statement
(1113). Clark across the aisle heard no such statement (786).
Brakeman Sherman testified that he heard someone say ‘‘He is -
gone’’ (907).

32. Clark corroborates this (790).

22 Appendia
the window” “for said train to come to a stop” he esti-
mated at a minute or less (1101, 1107).

The brakeman, back in the smoker (905), saw the con-
ductor lifting tickets. As the conductor turned, the window
went up and a man went out. He was grabbed immediately
by Morris and the conductor (906, 911). Immediately,
the man still being held, Sherman gave a stop signal
(906). The brakes were applied at once (907, 912). Sher-
man immediately got his lantern and went to the rear
platform of the car. As he opened the door someone said
“He -is gone.” He gave a stop ‘signal, a “wash-out” with
his lantern (907, 912). There was an attempt to suggest
that Sherman was too short to reach the signal cord, but
he pointed out that he had been doing it for 33 years
(907).

Sherman is corroborated by Buck. Buck was at the
front of the smoker, reading (702, 706). A commotion in
back attracted him, he stood and immediately turned (704,
707, 709). He saw a group and a brakeman with his hand
up (704). He thought the brakeman couldn’t reach the
cord, but “I could not swear to it.” He pulled the cord.
The brakeman signaled to do it again (704, 705, 707, 708).

Engineér Tassi testified: He was running about 40
miles per hour (717, 722). He received a stop signal and
acted at once with the heaviest brake application he could
make safely and made the fastest possible stop (711, 712,
717, 718, 720). He stopped in about 1000 feet,—he could not
have stopped in 500 feet (712). They then backed. It was
a dangerous move to back into the face of a following
train (714-716).

It is fantastic to suppose that in the circumstances any
man could estimate time accurately. The time elements

Appendia 23
are better spoken by what the men did, than by what they
say.

Immediately petitioner went out the window he was
grabbed. His coat tore at once and he fell. The conduc-
tor immediately signaled the train to stop. But the signal
already had been given by Sherman or Buck, or both,
and the engineer had acted.

9. There Was No Negligent Failure to Render Aid.

On the first trial it was claimed that Dr. Bernard, the
doctor who gave emergency treatment at Truckee, was
negligent. On the second trial by stipulation this claim
was abandoned (1013, 1014). The issue was submitted to
the jury on evidence of other conduct claimed to show
negligence. The jury found there was none.

As soon as the train could be backed—i.e., protected
against a following train—it was backed to petitioner
(907, 1080). Sherman got a stretcher from the baggage
car, petitioner was put in the baggage car (714, 721, 920,
922, 1046, 1081), and rushed to a doctor (721, 1051, 1081,
1083, 1109).

Conductor Cosgrove was the first one to reach petitioner
(1107). Inquiry was made of the Pullman porter for first
aid equipment, usually carried in the Pullman car, but
there was none (922, 1107). However, while petitioner
had bled, he was not bleeding much (1107, 1109). The con-
ductor fearing infection, did not bandage with sheets from
the Pullman car (1107). If he had wasted time looking for
string or wrapping it would have taken another 25 to 30
minutes. In that time they got petitioner to the doctor
(1108). It was the conductor’s idea to get him to Truckee
as fast as possible (1109).

24 Appendia

Mr. Wilcox, the express messenger, made space for peti-
tioner in the baggage car. Mr. Wilcox had two banks of
steam pipes in the baggage car. One was on. He turned
on the other, the double bank. It was hot in the car.
Petitioner was not bleeding badly. He lost about a pint.
All haste was used to get to Truckee (1046-1052; ef. 696).
Dr. Bernard attended appellant at Truckee (1063, 1064).
Petitioner was suffering from shock, and open, dirty
wounds (1063). There had been and was very little bleed-
ing. The crushing nature of the injuries had controlled
the flow of blood. A tourniquet was not called for. He
had not bled enough to affect him (1067, 1068, 692, 693,
1070, 1071). Dr. Bernard and Dr. Wyman both testified
that the immediate first aid required, and given by Dr.
Bernard, was of such character that it could not have
been given except by a doctor with instruments; not even
by a registered nurse (694).

The testimony of Drs. Anderson and Wyman* shows
that the steps taken were proper; that the immediate
steps were to control bleeding, splint obvious fractures,
keep the patient warm and combat shock and get him to
a doctor (648-650, 662, 666, 667). A tourniquet only con-
trols bleeding (649, 664, 692). If, as a result of a trau-
matic wound, bleeding is controlled, a tourniquet is not
needed (665, 693). Dr. Bernard testified that no tourniquet
was necessary. As to splinting, Dr. Anderson testified that
15 minutes would be better spent in getting the man to a
doctor than taking time to hunt up a splint and to apply
it (666, 667; cf. 695-697), that an open wound with dirt
ground in could not be cleaned except by use of instru-

33. Petitioner’s witnesses.

Appendiz 25
ments, operating room equipment and anesthetic (661, 663,
694) and what should be done is a matter for the person
on the scene (669), that if there were any infection, it
would have come from the wounds at the time of injury
(661, 663) and that if a wound would not come in contact
with anything, it would be. better to leave it exposed
to the air than risk infection by bandaging with material
not known to be sterile (664, 694).

It clearly appeared that the only infection introduced
was at the time of injury and there was no evidence that
anything done or not done before Thiel reached a doc-
tor’s hands in any way. introduced new infection or ag-
gravated any existing condition. Any claim that want of
first aid care contributed to any after effects is without
support in the evidence. The train crew did the only
things they shou'd have done. Of first importance was
to get petitioner to a doctor, and then to a hospital. Proof
of the wisdom of the course pursued is that petitioner is
alive. There is not a word of evidence that any injuries

resulted from or were aggravated by what was or was
not done for him.

26 Appendix
APPENDIX B

The testimony of Mr. Calbreath, the Clerk, and Mr.

Mikulich, the Jury Commissioner’ showed:
The areas from which names were selected was en-

larged in 1940 to include the general commuting area
tributary to San Francisco and again in 1943 when Mr.
Calbreath became Clerk (C. 219:17 et seq.; 223:17; M.
200:20). It included the counties of San Francisco, San
Mateo, Alameda and Marin. The Commissioner took a
few names from southern Contra Costa. About 50% of the
names were from San Francisco, some 20% to 25% from
Alameda, and the remainder from the other counties.
Within each area the attempt made was to get a geo-
graphical cross-section and to take an appropriate pro-
portion of the names from each part. Lists of registered
voters, city directories for San Francisco and Oakland,
and phone directories were used; about 50% of the names
came from the lists of voters, a small part from telephone
directories and the remainder from city directories (C.
155:15-159:10, 214:18; 220:18; M. 160:21-161:18; 164:17-
19; 166:4 et seq.; 184:7; 191:2; 195:1; 200:15; 204:1). The
names were taken at random, from the top of one list,
from the end of the next, from the middle of the third,
etc. (C. 156:21; 159:16; 215:3; 224:23; M. 160:21-161:18;
194:17-195:6).

Using their best judgment the attempt was made to get
a fair cross-section of this whole community within com-
muting distance of the court (M. 184:1 et seq.; 191:2; C.

1. ‘‘C’’ refers to testimony of the Clerk, ‘‘M’’ that of the
Commissioner.

Appendiz 27
216:22; 218:14; 219:6; 224:19). No class was excluded
for any reason whether the class was one defined by race,
color, creed, occupation, economic status or otherwise. In
this respect a change had been made and included were
those working for an hourly or daily wage. The only ex-
clusions were those of people disqualified or exempt as
provided in the California statute. No class was excluded.
(C. 157:24; 220:3 et seq.; 221:4; M. 201:2-202:15; 170; 221).
Indeed, in many instances the business connection of a
person whose name was selected was not known. The
salary, financial and economic status of the persons se-
lected were not known. No attention was paid to occupa-
tion unless it showed exemption or disqualification and
except that if one class, e.g., insurance people, was too
heavily represented, an adjustment was made so the list
would fairly represent all classes (C. 156:25 et seq.; 215:16
et seq.; 218:22; 220:13 et seq.; M. 165:10; 184:20; 193:18;
201:5). There was no attempt to get people of higher
intelligence or other than ordinary intelligence and there
was no information on this except as. occupation showed
it (M. 191:21; C. 214:3).

Mr. Calbreath testified (158) that he tried to select
approximately half of the proposed jurors from the work-
ing class, making no distinction between those who worked
for a daily wage and those who worked for a weekly or
monthly wage. It is asserted that the other 50% was
made up of “executives or managers of firms or presi-
dents or owners of business” and “the remaining 50% was
chosen from all others eligible’? (see Petition, pp. 7 and
14 and compare the mutilated quotation at the top of p.
7). This perverts and reverses the meaning and what the

Appendix

Clerk said. His testimony was that he “endeavored each
time to select approximately half of the proposed jurors
from the working class” with no distinction between those
working for a daily, weekly or monthly wage and,

“The other 50% that made up the list were made
up of some of the executives or managers of firms
or presidents or owners of business; the colored
population was taken into consideration; we put some
15 to 20 colored people in the jury box and also put
the same number of Chinese into the jury box.” (158:8)
[The matter in bold face is omitted in the quotation
made at p. 7 of the petition. The omission distorts
what was said.]

In other words 50% were from the working class and
the other 50% were from all other classes:

“Q. So that fifty percent in that classification of
truck drivers, carpenters, plumbers, longshoremen,
people of that general classification that we call work-
ing people and their wives made up about half the
list?

A. That is correct.

Q. And the other half was made up of everybody
else?

A. Yes.

Q. Was that other half restricted to high-salaried
executives of corporations?

A. Well, I don’t know what a high-salaried execu-
tive of a corporation is, but I do put in some vice-
presidents of banks. I put them in there—tellers of
banks, general managers of plants, owners of small
businesses. For instance, I put a tailor, a man who
owns a tailoring business, I put him in that class.

Q. And a cleaner and dyer?

A. If he owns a business, I put him in that class.

Appendiz 29
Q. Neighborhood grocery store?

A. Yes.

Q. Or a meat or grocery concessionaire in a large
market?

A. Yes.

Q. You put them in that classification?
A. Yes.” (222:19-223:12)

He did not try to get a group of a particular class or
discriminate by excluding any particular class, or by over-
loading or including any particular class and in this sense
endeavored to equalize; if he found he was overweighed
by department store clerks or insurance people he balanced
by taking carpenters or butchers or other people of that
class (221:2).

The Jury Commissioner was asked what percentage of
businessmen, executives, managers and owners of business
he selected and replied by asking what was meant by
executives (167:1-168:24). The term was not thereafter
used. He then said that. he endeavored to divide between
“people who were working for a wage, daily or by the
month, laboring people, business people * * * about half
‘the names of business people in and the other half those
that are working for wages”; trying to get a balance;
“50% of employers, businessmen, and so forth, as against
50% of people earning wages, daily or weekly” (171:5-
172:4; 174:21). He made it clear that by “business people”
he did not mean owners, officers of corporations or prin-
cipal executives of large business concerns. He testified
that on the list as a whole there had been an increase of
laboring people (188:2), that from 25 to 30% represented
manual laborers (174:25-175:8; 183:15) and that by busi-
ness people he did not mean managers and executives;

30 Appendix

that there were very few executives (205:25); that there
were not 50% of managers and executives (207 :9; 208:5);
that among business people he included all people who
were connected with business; that business people would
include people operating small businesses of their own,
such as a storekeeper, a market keeper, a butcher having
a concession, department managers, buyers and people of
that class, employees of business houses as salesmen and
accountants; that he did not intend the expression to mean
officers of corporations or executives (203:7-25); that a
young lady who was a clerk would be a business person
and he would include clerks, stenographers, solicitors, and
salesmen (205-206 :21):

“Q. I present again that the record is indefinite.
Counsel said in the other fifty per cent you put in
—and we have been talking here about a fifty per
cent and I don’t know whether that is this fifty per
cent or not, but fifty per cent or half of the people
on your list are managers and presidents and officers
of corporations, and business people of that type?

A. No, they are not.

Q. So, you are talking about business people and
you mean people connected with what you would call
a business house, an insurance concern or ¢ stationery
or a department store, whatever their occupation or
position might be there?

A. Yes, that is my interpretation of business.

Q. That may include some department heads?
A. Yes.

Q. But it would also include a salesgirl?

A. Yes.

Q. Or a stockroom clerk?

A. Yes.

Q. Or salesman or solicitor, people of that type?
A. Yes.” (208:5—208:21)

Appendix 31

“I am telling you my idea of business people are
people that are connected with business. I wouldn't
call a hod carrier a business man, but I think a clerk,
a salesman, a man connected with a business, any
type of business, are business people.” (209:7-11)

Jury Impanelmen?.

We outline the information obtained about the 37 pro-
spective jurors called when the jury was empanelled.
Twelve jurors and an alternate were selected. Of the
12, 8 were men and 4 were women. The alternate was a
woman. During the trial two of the 12 became sick and

were excused. They were:
Albert N. Wilmes (273, 319, 725, 726), sign painter
operating his own business.
Zola Taylor (343, 725, 726), bookkeeper, American
Trust Co.

The 4 women who served throughout and were among
the 11 who returned the verdict were:

Mrs. Mary A. Stewart (273, 280, 281), occupation
not disclosed.

Miss Bessie P. Walthall (273, 317), occupation not
disclosed.

Mrs. Julie Mescovich (358), wife of a restaurant
keeper.

Mrs. Lei Troupe (365), occupation not disclosed.

The seven men who served through and were among
the 11 who returned the verdict were:

Elmo J. Martinez (273, 335), shipping clerk, Amer-
ican Chicle Co.

D. P. Surber (314, 342), U. S. Army retired.

Carl A. Rick (315), in mortgage loan department
of Prudential Insurance Co. (317), otherwise na-
ture of employment not disclosed.

Appendia 33
Joseph De Martini (324,.325), wholesale tobacco,
partnership with his brother.
Frans Schmitt (337, 339), retired leathergoods
manufacturer.
Warren J. Tyson, Jr. (348), clerk, Signal Oil Co.
, Louis A. Pastroni (352), teller, Bank of America.

A total of 11 women were examined. They were in addi-
tion to the 5 selected (see above):

Florence M. Douglas (273, 286-289), sales manager
and buyer for a rice business. Excused at plain-
tiff’s suggestion.

Mrs. A. McOullon (289, 290), secretary to an S. P.
Co. executive. Excused.

Mrs. Eleanor Van Praag (314), occupation not dis-
closed. Said she was prejudiced against defend-
ant. Excused.

Nell A. Biggins (314, 329), with Sunset Feather Co.,
biased in favor of plaintiff. Excused.

Miss Dianna M. Domeconi (346, 347), occupation
not disclosed and excused because biased in favor
of plaintiff.

Mrs. Helen G. Starr (350-352), occupation not dis-
closed, excused because biased against user of
liquor.

In addition to the 3 women excused because they were
biased in favor of plaintiff or against defendant Emil
Pahika (348), a real estate broker, was excused because
biased against railroads.

Of the 37 examined there is not sufficient information
to state what the occupation or economic or social position
of 9 was. In addition to those noticed were Harvey P.

34 Appendiz

Clark (273, 280, 305, 306), Harry R. Land, Jr. (273, 314,—
with McKenzie and Co. but the nature of their business
and his connection with it did not appear), Gilbert L. Van
Wormer (300, 302).

There were 10 of the 37 who were in the laboring or
wage earning class: Martinez, shipping clerk; Mrs. Mc-
Cullon, secretary or stenographer; Thomas G. Stevenson,
Jr. (306, 307-313), undisclosed connection with a grain
merchant and exporter; Nell A. Biggins with Sunset
Feather Co.; Ricks, apparently in a clerical position with
a loan department of an insurance company; Zola Taylor,
bookkeeper; George R. Dagnall (329, 336, 337), working
at the moment organizing the Marin County Community
Chest Drive; Tyson, clerk, Signal Oil Co.; Pastroni, teller,
Bank of America; James Di Maisimo (361-363), a car-
penter working for a macaroni factory, peremptorily chal-
lenged by the plaintiff.

Four were retired: Surber, from the Army, position not
disclosed; Andrew Verino (273, 282, 298, 299, 346), ap-
parently formerly in some phase of the insurance busi-
ness; Schmitt, retired leather manufacturer; Clarence W.
Dobie (297), retired from an undisclosed position with
Crocker First National Bank. —

Five jurors held semi-executive positions: Mrs. Douglas,
sales manager and buyer for a rice concern; Edgar R.
Trethway (273, 279, 281, 294), credit manager for an auto-
mobile dealer; Homer F. Rosetti (273, 280, 330, 343),
branch manager of Pacific Finance Corp.; Allen J. Uren
(302), sales manager Gypsum Division, Pacific Portland
Cement Co.; Edwin G. Asplin (353, 358), purchasing agent
and traffic manager for a bakery.

Two were probably fairly important business men.
Thomas R. Edwards (273, 333), was in the candle supply

Appendix 35
business. James A. Cambridge (290) was auditor of
Anglo California National Bank.

Seven were proprietors of business, the business appar-
ently being small, or self employed: Wilmes, sign painter;
Leslie H. Carter (273, 321), dramatic book publisher; Sea-
men J. Molkenbuhr (323), was apparently the proprietor,
or one of the proprietors, though he may have been only
a salesman, of a jewelry concern; De Martini, partner in
a wholesale tobacco business; Emil Pahlka, real estate
broker; Mrs. Mescovich, wife of a restaurant keeper ;
George 8. Minot (364), independent advertising coun-
sellor.

Fifteen of the 37 had some connection, close or remote,
with S. P. Co. or someone connected with it. Mrs. Mc-
Cullon was employed by S. P. Co. as a secretary. Ros-
setti was the brother of a director. Clark knew an S. P.
Co. director and possibly owned some stock,—he did not
know. Dobie owned S. P. Co. stock. Verino for a short
time, about 1900, had a boiler job with S. P. Co. Treth-
way, 22 or 23 years ago, worked for S. P. Co. for a short
time as an investigator; he had a cousin with S. P. Co.
and some friends working for it. The concerns with which
several were connected were shippers by rail: Mrs. Doug-
las, Van Wormer, Uren, Stevenson and Asplin. As was
natural, they knew people connected with S. P. Co. Cam-
bridge was with a bank which did some banking for S. P.
Co. Molkenbuhr sold jewelry to an S. P. Co. employees
club (not S. P. Co.). Minot knew a Mr. Turner.

Appendix
APPENDIX D

In the United States District Court, in and for the
Northern District of California, Southern Division.

Gilbert E. Thiel, )
Plaintiff,

7 | No. 21,780

Southern Pacific Co., a corp.,

Defendant. !

OPINION AND ORDER ON MOTION TO STRIKE
OUT ENTIRE JURY PANEL, ETC.

Plaintiff has filed herein a notice of motion for an order:
‘*(a) Striking out or quashing the entire jury panel for
the ‘July Term, 1946’, which is to be used for trial of
this action, now set for September 10, 1946; (b) Directing
the Clerk and Jury Commissioner of this Court to select
a new panel which will be a fair, democratic cross-section
of the community without discrimination in favor or
against any one group or class of citizens because of their
wealth, occupation, sex or race; and (c) Directing the
‘parts of the district’ of this Court from which ‘jurors
shall be returned’ ‘so as to be most favorable to an im-
partial trial’.’’

In support of the motion, movant filed a purported affi-
davit of Attorney Allen Spivock. This affidavit was not
offered or received in evidence. In all events the plaintiff
can rely on the showing made by the evidence ore
tenus. It is incumbent on the moving party to introduce,
or to offer, distinct evidence in support of the motion;

Appendiz 37
the formal affidavit alone, even though uncontroverted,
is not enough. Glasser v. United States, 315 U.S. 60, 87;.
86 L. Ed. 680, 708.

Before taking up the several asserted grounds in sup-
port of the motion, and in order to appreciate this more
recent attack upon the jury system in this ‘court, the his-
tory of the litigation should be given:

On December 30, 1940, plaintiff brought an action against
the defendant, Southern Pacific Company, for damages in
the sum of $250,000.00 for injuries resulting from a leap
from a train. The complaint in substance and effect alleged
that plaintiff was ‘‘out of his normal mind’’ on February
25, 1940; that, before accepting plaintiff as a passenger,
defendant was informed that he was ‘‘out of his normal
mind’’ and therefore should not be accepted as a passenger
or else should be guarded; that defendant, Southern
Pacific Company, nevertheless accepted plaintiff as a
passenger, left him unguarded and when he leaped failed
to stop the train before he fell to the ground; that de-
fendant’s conduct constituted alleged negligence and caused
plaintiff’s alleged injuries.

The action was originally instituted in the Superior
Court of the State of California, in and for the City and
County of San Francisco. On petition of the defendant it
was removed from that court to the District Court of the
United States for the Northern District of California.
The defendant answered, and in substance and effect de-
nied that plaintiff was ‘‘out of his normal mind;’’ denied
that said defendant was informed that plaintiff was ‘‘out
of his normal mind’’ and therefore should not be accepted
as a passenger, or else should be guarded; and denied that
defendant was guilty of any negligence, and affirmatively

38 Appendiz

alleged that plaintiff’s injuries were caused by his own
negligence; as a separate defense it was alleged that his
injuries were attributable to his own negligence.

Plaintiff filed a written demand for a jury trial in the
District Court, and thereafter moved said Court to re-
mand the action to the Superior Court. The motion was
denied. Thereafter, disregarding the refusal to remand,
plaintiff attempted to prosecute the action in the said
Superior Court. Defendant applied for, and after a hear-
ing, obtained from the District Court a judgment enjoin-
ing such prosecution. The judgment was affirmed. 126
F.(2d) 710. Certiorari to review the decision was there-
after denied. 316 U.S. 698; 62 S. Ct. 1295.

The action was thereafter assigned to tria! in the Dis-
trict Court. A panel of prospective jurors was drawn, and
the jury was thereupon and thereafter impaneled. On
November 5, 1942, plaintiff challenged the array—the panel
of prospective jurors drawn as aforesaid. The challenge
was overruled. Thereafter plaintiff amended his complaint
alleging in substance and in effect that defendant was neg-
ligent in failing to give him first aid treatment and medical
attention at the scene. These allegations were denied.

Thereafter plaintiff moved the Court to strike his de-
mand for a jury trial. The motion was denied. _

Trial of the action was commenced on November 24,
1942. After the jury was impaneled and sworn plaintiff
challenged the twelve jurors comprising it. The challenge
was overruled and the trial proceeded. At the close of the
evidence plaintiff moved the Court for a directed ver-
dict; the motion was denied. The jury thereafter returned
a verdict for the defendant, Southern Pacific Company.
Plaintiff thereafter moved for a new trial, and also moved

Appendiz 39
to take depositions; both of said motions were denied.
Judgment was entered for the defendant.

Plaintiff prosecuted his appeal. Thiel v. Southern Pacific
Company, 149 F.(2d) 783, (Circuit Court of Appeals,
Ninth Circuit) and therein specified as error the over-
ruling of his challenge to the array. The challenge was
based in substance and effect on practically, if not all,
the same grounds urged in the motion before this Court.
The judgment was affirmed in its entirety.

On certiorari review was had before the Supreme Court
of the United States ‘‘limited to the question of whether
petitioner’s motion to strike the jury panel was properly
denied.’’ Thiel v. Southern Pacific Co., 66 S. Ct. 472, 66
S. Ct. 984, 985.

The Supreme Court, speaking through Mr. Justice
Murphy, held, in effect, that the intentional exclusion of
daily wage earners from the jury list required the reversal,
regardless of whether the plaintiff was prejudiced by the
wrongful exclusion or whether he was one of the excluded
class, even though the jury which actually decided the
factual issues was found to contain at least five members
of the laboring class.

Mr. Justice Frankfurter and Mr. Justice Reed, dis-
sented. The Court said, in part:

‘*It is clear that a federal judge would be justified
in excusing a daily wage earner for whom jury serv-
ice would entail an undue financial hardship. But that
fact cannot support the complete exclusion of all
daily wage earners regardless of whether there is
actual hardship involved. Here there was no effort,
no intention, to determine in advance which individual
members of the daily wage earning class would suffer
an undue hardship by serving on a jury at the rate of

40 Appendiz
$4 a day. All were systematically and automatically
excluded.’’ 66 S. Ct. 984, 987.

It was not claimed before the Supreme Court that the
District Court Judges for the Northern District of Cali-
fornia, with the approval of the Circuit Court Judges,
designed racial, religious, social, or economic discrimina-
tion to influence the makeup of jury panels, or that such
unfair influence infused the selection of the panel, or was
reflected in those who were chosen as jurors. Nor was
there any suggestion that the method of selecting the jury
was an innovation. The challenge went to a practice
adopted in order to deal with the special hardship which
jury service entailed for workers paid by the day. What
was challenged, in short, was not a covert attempt to
benefit the propertied but a practice designed, wisely or
unwisely, to relieve the economically least secure from
the financial burden which jury service involves under
existing circumstances. 66 S. Ct. 984, 988.

Several other grounds raised and presented by petitioner
(plaintiff herein) were in substance and effect identical
with those presently urged. They were given no mention
in any of the Justices’ opinions.

With that historical background of the case established,
it is now proper to refer to the more recent events.

On Thursday, June 6, 1946, in the District Court of the
United States for the Northern District of California,
Southern

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1878%3A1. Public record. Not legal advice.