Opposition Brief — Kent Food Corp. v. United States

Page No.

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CITATIONS

Cases:

Babler v. United States, 187 F. 2d 98................... 8

Bowman v. Loperena, 311 U. 8. 262... ©... can 8

Pfister v. Northern Illinois Finance Corp., 317 U. 8. 144. . 8

Safeway Stores v. Coe, 136 F. 2d 771... ........ 6... ns 8

United States v. Schlotfeldt, 136 F. 24 935.............. 8

Wayne U. Gas Co. v. Owens Co., 300 U. 8. 131......... 8

Statutes involved:

Federal Food, Drug and Cosmetic Act of June 25, 1938, «.

675, 52 Stat. 1040:

Sec. 304(a) [21 U.S.C. 384(a)]....... 2... 0.6.88, 2,9

904(d) [21 U.S.C. $94(d)}... 2... 2... 2,9, 14

402(a) [21 U.S.C. 342(a)(3)]..... 2.6... 08. 3, 9,10

801(d) [21 U.S.C. 381(d)}........ 3, 9, 10, 11, 12,13

Food and Drug Act of 1906, 34 Stat. 768, Sec, 2........ 12

Miscellaneous :

Rules of Civil Procedure, Rule 59(b)..... ©... 6. 8

(1)

Guthe Supreme Court of the nited States

OcToBER TERM, 1948

Nos. 352, 353

Kent Foop Corp. anp CLarK-IGER Foop Propucts

Co., INC., PETITIONERS

v.

Un ITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (R. 59-63)

is reported at 168 F. 2d 632. The opinions of the

District Court (R. 23-25, 44-45) are not reported.

JURISDICTION

The judgment of the Court of Appeals was en-

tered June 16, 1948 (R. 63-65), and a petition for

rehearing was denied July 19, 1948 (R. 75-76).

The petition for a writ of certiorari was filed Octo-

ber 15, 1948. The jurisdiction of the court is in-

voked under 28 U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

1. Was the respondent’s appeal from the decree

of the District Court timely ?

2. Did the District Court, after the entry of a

decree condemning adulterated articles of food,

have the power to release those articles for export

in the same adulterated condition which constituted

the basis for the condemnation ?

STATUTE INVOLVED

The Federal Food, Drug, and Cosmetic Act of

June 25, 1938, c. 675, 52 Stat. 1040, provides:

Sec. 304(a) [21 U.S.C. 334(a) ].

Any article of food, drug, device, or cosmetic

that is adulterated or misbranded when intrco-

duced into or while in interstate commerce,

* * * shall be liable to be proceeded against

while in interstate commerce, or at any time

thereafter, on libel of information and con-

demned in any district court of the United

States within the jurisdiction of which the ar-

ticleis found * * *.

Sec. 304(d) [21 U.S.C. 334(d)].

Any food, drug, device, or cosmetic con-

demned under this section shall, after entry of

the decree, be disposed of by destruction or

sale as the court may, in accordance with the

provisions of this section, direct and the pro-

ceeds thereof, if sold, less the legal costs and

charges, shall be paid into the Treasury of the

United States; but such article shall not be

3

sold under such decree contrary to the provi-

sions of this Act or the laws of the jurisdiction

in which sold: Provided, That after entry of

the decree and upon the payment of the costs

of such proceedings and the execution of a

good and sufficient bond conditioned that such

articles shall not be sold or disposed of con-

trary to the provisions of this Act or the laws

of any State or Territory in which sold, the

court may by order direct that such article be

delivered to the owner thereof to be destroyed

or brought into compliance with the provisions

of this Act under the supervision of an officer

or employee duly designated by the Adminis-

trator, and the expenses of such supervision

shall be paid by the person obtaining release

of the article under bond. * * *

Sec. 402 [21 U.S.C. 342(a)(3)]. A food shall

be deemed to be adulterated—

* * * * *

(a) (3) if it consists in whole or in part of

any filthy, putrid, or decomposed substance,

or if it is otherwise unfit for food. * pots

Sec, 801(d) [21 U.S.C. 381(d) ]}.

A food, drug, device, or cosmetic intended

for export shall not be deemed to be adul-

terated or misbranded under this Act if it (1)

accords to the specifications of the foreign pur-

chaser, (2) is not in conflict with the laws of

the country to which it is intended for export,

and (3) is labeled on the outside of the ship-

ping package to show that it is intended for

4

export. But if such article is sold or offered

for sale in domestic commerce, this subsection

shall not exempt it from any of the provisions

of this Act.

STATEMENT

On February 26, 1947, two libels of information

were filed by the United States in the District

Court for the Eastern District of New York, pur-

suant to Section 304(a) of the Federal Food, Drug,

and Cosmetic Act, for the seizure and condemna-

tion of two separate lots of tomato catsup, consist-

ing of 902 and 215 cases, respectively, which had

been shipped in interstate commerce from Bay

City, Michigan, to Brooklyn, New York, and Mas-

peth, Long Island. Each of the libels alleged that

the food was adulterated in interstate commerce

within the meaning of Section 402(a)(3) of the

Act in that it consisted wholly or in part of decom-

posed tomato material. (R. 3-5; see also R. 1-2,

10, 29.)

Kent Food Corp. and Clark-Iger Food Products

Co., Inc., petitioners here, appeared in the pro-

ceedings as claimants (R. 6-7, 8-9), and the libels

were consolidated (R. 29). No answers to the

libels were filed. Instead, petitioners filed a motion

‘for an order approving a consent to a decree of

condemnation’’ which would permit release of the

articles to petitioners for export (R. 10-11). At-

tached to this motion was an affidavit of an offi-

cer of Kent Food Corp. (R. 12-18) in which it was

5

alleged that the catsup was originally intended for

export; that the manufacturer, Beutel Canning

Company of Bay City, Michigan, had secured per-

mission from the state health department to ship

the catsup out of Michigan for export; that Andre

Trading Company, from whom petitioners pur-

chased the catsup, had not informed them that it

was to be sold only for export; and that the lot of

902 cases which was seized in the warehouse of

Sweet Life Food Corp. had been sold to Sweet Life

by petitioners, and that Sweet Life had in turn sold

it for export (R. 12-15).’

The court entered a memorandum opinion (R.

93-25) on July 3, 1947, granting the motion and

permitting (R. 24-25) :

* * * the entry of a decree of condemna-

tion which will provide for release of the goods

to the owner, under such terms and conditions

as may be suggested by the Government, so

that the goods may be exported in compliance

with the provisions of Sec. 381(d). I believe

the section last mentioned applies, because I

find as a fact on the papers before me that the

good were intended for export while in the

hands of the claimants although the seizure

was justified because there was no literal com-

pliance with the statute a eee

1 The lot of 215 cases involved in the other libel was seized

in the warehouse of Kent Food Corp. and it is the sole claimant

of this lot (R. 12-13).

6

On July 16, 1947, a decree of condemnation was

entered (R. 26-29), which provided for the release

of the catsup to petitioners for the purpose of pre-

paring it for export ‘‘in compliance with the pro-

visions of 21 U.S.C.A., Section 381(d).”’

On September 10, 1947, the Government moved

for reargument and for an order vacating the

court’s order of July 16, 1947, permitting release

of the goods for export (R. 30). Attached to this

motion were affidavits of two employees of the

Food and Drug Administration (R. 32-36, 37-38)

which showed that the catsup had been ‘‘produced

in whole or material part from rotten tomatoes”’

(R. 37-38); that Kent Food Corp. had ordered

4000 cases of this brand of catsup from Andre

Trading Company in September 1946 on the ex-

press understanding that it was to be sold for

export only; that Kent had sold 285 cases of the

catsup to its customers in the New York Metropoli-

tan area, and another 2500 cases to a dealer in

Scranton, Pennsylvania, which had been seized and

was the subject of other litigation; and that in re-

spect of the lot sold to Sweet Life, it was ‘‘mere

coincidence”’ that the latter had sold it for export,

since that corporation had stated to the affiant that

it did not receive any specification that the catsup

was to be sold for export only (R. 33-35).

On October 22, 1947, the court entered a memo-

randum opinion (R. 44-45) finding that petitioners

did not intend to export the goods but planned to

7

dispose of them in the domestic market, but hold-

ing nevertheless that the court had discretionary

power to permit the food to be exported, even

though it could not be brought into compliance with

law, so long as it is fit for human consumption and

accords with specifications of foreign purchasers

and is not in conflict with the laws of the country

to which it is to be sent. Accordingly, on October

29, 1947, an order was entered granting the Gov-

ernment’s motion for reargument, but adhering to

the terms of the decree of condemnation entered on

July 16, 1947 (R. 46-48).

A notice of appeal from the orders of July 16

and October 29, 1947, was filed by the Government

on December 17, 1947 (R. 49). A motion by peti-

tioners to dismiss the appeal on the ground that it

was untimely (R. 54-58) was denied by the Court.

of Appeals on March 1, 1948 (R. 58). Thereafter,

the Court of Appeals reversed the judgment of the

district court in so far as it released the articles to

petitioners for export, holding that such provisions

of the decree were beyond the power of the court.

It remanded the proceeding ‘‘for the elimination of

these provisions and for the substitution of provi-

sions appropriate to the condemnation of the ar-

ticles under 21 U.S.C.A. §334 (d).”” (R. 63.)

ARGUMENT

1. Petitioners’ contention (Pet. 25-27) that the

Government’s appeal was not timely is without

merit. As pointed out in the Statement, supra,

8

p. 6, the Government’s motion of September

10, 1947, asked for reargument of the portion of the

order of July 16, 1947, which released the catsup to

petitioners for export sale, and the motion was sup-

ported by an affidavit showing that petitioners did

not intend to export the goods but were selling

them domestically. This evidence established that

the court was mistaken in its understanding, as

expressed in its opinion of July 3, 1947 (R. 23-25),

that the catsup was intended for export. Although

the Government’s motion was not filed within 10

days after the entry of the order of July 16,’ it was

entertained by the district court, the court re-

examined the original order in the light of the mo-

tion, concluded that petitioners did not intend to

export the goods but planned to dispose of them

domestically, but determined that nevertheless the

court had power under the statute to release the

goods for export. In these circumstances, the

time for appeal ran from the date of the order on

the motion. See Pfister v. Northern Illinois

Finance Corp.,317 U.S. 144; Bowman v. Loperena,

311 U.S. 262; Wayne U. Gas Co. v. O: ens Co., 300

U. 8. 131; Babler v. United States, 137 F. 2d 98

(C.C.A. 8) ; United States v. Schlotfeldt, 136 F. 2d

935 (C.C.A. 7); ef. Safeway Stores v. Coe, 136 F.

2d 771 (App. D.C.), involving an untimely motion

?See Rule 59 (b), Rules of Civil Procedure, prior to the

amendments which became effective in March, 1948.

9

for rehearing based upon a later appellate deci- _

sion.

2. It is undisputed that the tomato catsup was

adulterated, as that term is defined in Section

402(a) (3), in that it consisted wholly or in part of

decomposed tomatoes. The shipment of such

adulterated food in interstate commerce (except in

compliance with the conditions of the export ex-

emption of Section 801(d)) subjects it to seizure

and condemnation under Section 304. Where a

district court has, as here, decreed the condemna-

tion of adulterated food, the disposition of the food

is governed by Section 304(d). The latter subsec-

tion provides three alternative dispositions: (1)

destruction, (2) sale in compliance with the Act

and the laws of the jurisdiction, or (3) delivery to

the owner for destruction or to be ‘‘brought into

compliance with the provisions of this Act’’ under

the supervision of the Food and Drug Administra-

tion. Admittedly, the adulterated catsup could not

be sold in compliance with the Act, and, admittedly,

the composition of the catsup with the resulting

high mold count could not be changed or improved,

i.e., “brought into compliance,’’ so that it would no

longer be adulterated within the meaning of the

Act. Thus, the district court was required to order

the destruction of the catsup unless, as the peti-

tioners contended and the district court held, the

Act authorized the court to release it to them for

‘export.

10

The district court held that Section 801(d) of the

Act empowered it to release the catsup to the peti-

tioners for export. That subsection provides:

A food, drug, device, or cosmetic intended

for export shall not be deemed to be adul-

terated or misbranded under this Act if it (1)

accords to the specifications of the foreign

purchaser, (2) is not in conflict with the laws

of the country to which it is intended for ex-

port, and (3) is labeled on the outside of the

shipping package to show that itis intended

for export. But if such article is sold or of-

fered for sale in domestic commerce, this sub-

section shall not exempt it from any of the

provisions of this Act.

The quoted language obviously provides an ex-

emption, upon compliance with the stated condi-

tions, from the consequences of transporting

adulterated food in commerce. Where food is

found to be adulterated within the definition of

Section 402(a), the burden is upon the claimant

asserting this exemption to show (1) that the food

was intended for export, and (2) that there has

been compliance with the enumerated eonditions of

Section 801(d).

In the district court’s original opinion, it was

found that the catsup was intended for export

(R. 25). There was no finding, nor did the present

petitioners even allege, that the catsup accorded to

the requirements of any particular foreign pur-

chaser or that it was not in conflict with the laws

ll

of the country to which export was intended. In

the district court’s modified opinion after reargu-

ment, and upon undisputed evidence of domestic

sales of such catsup by petitioner Kent Food Cor-

poration, it was specifically found that the claim-

ants “‘did not intend to export the goods, but

planned to dispose of them in the domestic mar-

ket.” (R. 45.)

The petitioners contend, although the district

court did not specifically adopt this reasoning, that

the power given to a district court by Section

304(d) to release condemned food to the owner to

be ‘‘brought into compliance with the provisions of

this Act’’, embraces the power to release adulter-

ated food for an export sale in which the food

would no longer be regarded as adulterated for the

purposes of the Act (Pet. p. 29). In fact, the

petitioners even contend that when the export

exemption of Section 801(d) is destroyed by do-

mestic sales, it may be restored by re-diverting the

goods to the export market (Pet. p. 31).

We believe that the Court of Appeals was clearly

correct in reversing the District Court and in

holding that Section 801(d) does not provide dis-

trict courts with an additional alternative disposi-

tion of adulterated food condemned under

Section 304. :

The position of Section 801(d) in the Act as

part of a different title than Section 304, as weli as

the fact that the export provisions of Section

12

801(d) derive from a similar provision in the

Food and Drug Act of 1906,* indicate that the

export provisions were not intended to constitute

an alternative method of disposing of condemned

food. The purpose of the export provisions is to

allow American producers to export to foreign

countries foods, drugs and cosmetics which, while

adulterated by American standards, are acceptabie

to the countries to which they are exported. The

American producer of such substandard food may

not, under Section 801(d), ship such food in inter-

state commerce in the vague hope of finding a for-

eign purchaser, ana with the risk that such food

may be diverted to domestic consumption. Rather,

the movement in commerce of such food subjects it

to condemnation unless, in compliance with the

express requirements of Section 801(d), the ship-

ping packages are labelled to show intention to

export, and the food is from the outset consigned

to a specific foreign purchaser whose specifications

are satisfied in compliance with the laws of his

country.

Admittedly, when this proceeding was com-

menced, no foreign purchaser had been found for

the catsup here involved (R. 41). Obvious prac-

tical considerations indicate that this export ex-

emption is not an ad hoc matter—to be seized upon

by a detected purveyor of adulterated food.

Rather, Section 801(d) provides a narrow channel

8 Section 2 of the Act of June 30, 1906; 34 Stat. 768.

13

—beginning with the initial movement in commerce

—by which foods which are below our standards

may be utilized solely for export to foreign coun-

tries willing to receive them. On its face, there-

fore, this export provision was not designed to

provide a seller of aduiterated goods in the do-

mestic market with a last minute ‘‘out’’ from the

consequences of condemnation—in this case de-

struction, since the catsup could not be made to

meet the statutory requirements for sale in the

United States.

The District Court’s construction of Section

801(d) in relation to Section 304 holds out an

attractive vista to the owner of adulterated food ;

with impunity he may ship in interstate com-

merce in search of a market, any market—and if

the adulterated shipment is detected, he simply

cries, ‘‘For export’, thus minimizing the statutory

liabilities for making such shipments. The distinc-

tion between legitimate export shipments which are

at all times earmarked as such, and the maneuver-

ing of a detected purveyor of adulterated food, be-

comes hopelessly blurred if the latter may at any

stage invoke the discretion of a district court to

allow such food to be diverted to export.

In any event, the last sentence of Section 801(d)

provides that ‘‘if such article [a food, drug or cos-

metic intended for export] is sold or offered for

sale in domestic commerce, this subsection shall not

exempt it from any of the provisions of this Act.’’

14

In other words, since the undisputed evidence and

the finding of the District Court is that part of this

batch of catsup had already been sold domestically

(R. 34-35, 40, 44-45), the export provisions of

Section 801(d) are by their terms inapplicable,

and the disposition of the adulterated catsup is

governed entirely by Section 304(d). Also, it

should be noted, even if the original shipment of

the catsup was exempt from condemnation by rea-

son of compliance with the export provisions, that

exemption was destroyed by the domestic sales.

The petitioners’ contention that the power of the

district court under Section 304(d) to deliver con-

demned food to the owner to be ‘brought into com-

pliance’’ with the Act includes the power to allow

such food to be exported, boils down to the argu-

ment that the subsection permits release of the food

to be ‘‘sold in compliance with the Act’’ (Pet. pp.

6-7). Theshortanswer to this is that Section 304(d)

does not so provide. ‘‘Brought into compliance’’

means such reconditioning, reprocessing, or re-

' labelling of the product as will remove the grounds

upon which it was condemned as adulterated. In

the same subsection, it is to be noted, when Con-

gress desired to refer to sales it did so specifically,

from which it can only be concluded that the phrase

‘*brought into compliance’’ means exactly that, and

does not include disposition by sale.

If there were any remaining doubt as to the

issue, it would be resolved by the cardinal principle

15

of so construing the Food, Drug, and Cosmetic Act

as to give effect to the Congressiona: purpose of

assuring this country a pure supply of the com-

modities covered by the Act. This basic purpose

can be fulfilled only by giving the export provisions

of Section 801(d) a literal and natural construc-

tion which will not make that subsection a last-

minute haven for every claimant of admittedly

adulterated foodstuffs.

CONCLUSION

The decision below is correct. We respectfully

submit, therefore, that the petition for a writ of

certiorari should be denied.

/ PHILIP B. PERLMAN,

Solicitor General.

NS ALEXANDER M. CAMPBELL,

Assistant Attorney General.

J Rosert S. ERDABL,

Attorney.

Epwarp E. TURKEL,

Attorney, Federal Security Agency.

NoveMBER 1948.

W wv. 8. GOVERNMENT PRINTING orrice: 1948 ersztie ae

INDEX TO PETITION

Page

SraTEMENT oF MaTTeRS INVOLVED ...........2+0eee00s 2

Initial Proceedings in District Court ............ 3

Decision of U.S. Court of Appeals on First Appeal 3

Subsequent Proceedings in District Court........ 5

Refusal of U. S. Court of Appeals to Pass Upon

Substantial Questions Presented on Second Ap-

NE F356 EXE TOSES EROS ERS COCR Oa 8s OR OSS 12

STATEMENT OF JURISDICTION ..........cccecececececs 13

Qunernowe PRMBBMTMD 2 oes cnce sce cteccccccssue 13

Reasons RELIED ON FOR THE ALLOWANCE OF THE Writ.. 15

INDEX TO BRIEF.

Petitioner Has Been Dentep a Farm Hearne sy Un-

WARRANTED ACTION OF THE CoURT OF APPEALS....... 17

Tue ‘‘Law or THE Casg’’ Doctrine Cannot PROPERLY

BE APPLIED IN THE RETRIAL OF AN ACTION ON A

TOSA TORS THOS fh va v5 oss 0b Soc caeeeceas 20

THEFT oF THE TRucK Was Nor ReasonaBiy F'orEstgE-

ABLE IN THE EXERCISE OF OrpINARY CARE, AND NEITHER

Necuicence Nor Proxrmate Cavse Was Esras-

LISHED BY THE EVIDENCE .... 2.2... cece cccccccsccce 21

Tuis Court 1s Nor Bounp sy Any ‘‘Law or THE Casp’”’

AND SHouLD REvIEW THE JUDGMENT TO PREVENT A

DEA Is a Gb ww kos eked honed dx aX 24

CASES CITED.

American Security Company v. Greek-Catholic Union,

oes § foe Peer eT ieee 24

Barney et al. v. Winona & St. P. R. Co., 117 U. S. 228,

St a ah Re eae 0b ob Ss as ee ob kaos cee 17

Berman v. Schultz, 40 Misc. Rep. 212, 81 N. Y. 8S. 647... 23

Brady v. Southern Railway Co., 320 U.S. 476, 88 L. Ed.

ORE EE RP TE EET POSE ETT OTT Or TT TET TSS,"

ii Index Continued.

Page

Chicago, Milw. & St. P. R. R. Co. v. Tompkins, 176

U.S. los, 44 L. Hid. 41/, 422, zu S. Ct. Sou... ..... 18

City of Uweusboro v. Uweusporo Waterworks Uo., 191

ae Se ea re a ee eaie 18

Conneii v. Beriand, 233 App. Div. 234, 228 N. Y.S.20.. 22

Duke Power Co. v. Greenwood County, 8. C., 299 U.S.

oe ee RP eee 19

Ex Parte Watkins, 32 U. S. 568, 8 L. Ed. 786........ 18

Gumbrell v. Clausen, Flannagan Brewery, 199 App.

Be PU A oe hes vacas bas saws 22

Illinois Centrai R. R. Co. v. Crail, 281 U. S. 57, 50

as GE SUR hate eG es cs bun eS pes entdakess 24

Jackson v. Mills-Fox Baking Co., 221 Mich. 64, 190

Bie 4 Sn a i WE nk CAA as KS sees esnes 23

Kaplan v. Shults Bread Co., 212 App. Div. 110, 208

RC Che even eticeacy.....sapusaacnaes 23

Lee v. Van Buren & N. Y. Bill Posting Co., 190 App.

ee es ee ee in Os a Ka hie een ds reeunncee 22

Lotito v. Kyriacus, et al., 74 N. Y. S. (2d) 599, 600,

chek CUM AK A inh ca VEGA Rade Rhcewes Wkeeek 24

Maloney v. Kaplan, 233 N. Y. 426, 135 N. E. 838....... 22

Mann v. Parshall, 229 App. Div. 366, 241 N. Y. S. 673.. 23

Marbury v. Madison, 5 U. S. 137, 2 L. Ed. 60.......... 18

Messinger v. Anderson, 225 U. S. 436, 444, 32 S. Ct. 739,

DE ty cc APE ASA TEA MAG AS BEEK UA SAW KOR Oh eka 21, 24

Millers Mutual Fire Ins. Assoc. v. Bell, 99 F. (2d) 289

GI 6 wi Sine ee ES SK daa d SAR ead enous 21

Milwaukee & St. P. R. R. Co. v. Kellogg, 94 U. S. 469,

ee I Sn exch ou kabhbatebs kycnxda ches 23

Mutual Life Ins. Co. of N. Y. v. Hill, 193 U. S. 551, 24

PE lca bk As gee Gn bs obs S44 oo Ch nw REE RA 19

Oklahoma Natural Gas Co. v. Russell, et al., 261 U. S.

SE MCE OU GA a bo one co Gea sat ean kndwacnes 18

Panama Railroad Co. v. Napier Shipping Co., 166 U. S.

et | SS RSH eg rra 24

Pesaty v. Hearn and Son, 202 N. Y. S. 264............ 23

Prairie Farmer Pub. Co. v. Indiana Farmer’s Guide

Pub. Co., 299 U. 8. 156, 57 S. Ct. 135, 81 L. Ed. 93.. 1¢

Rhad v. Duquesne Light Co., 255 Pa. 409, 100 Atl. 262.. 23

Ross v. Hartman, 78 U.S. App. D. C.17, 139 F. (2d) 14.3, 22

Schaff v. Claxton, 79 U. S. App. D. C. 207, 144 F. (2d)

PE CK. a htRuh a dah bOeminenca sauchcebebakenecn 4,13

Index Continued.

Squires v. Brooks, 44 App. D. rer ee

Schilling, et al. v. Schwitzer-Cummins Co., 79 U. S.

App. D. C. 20, 142 F. (2d) 82 ..... +... -eee seers

Sibbald v. U. S., 37 U. S. 488, 9 L. Ed. 1167........-.

Slater v. T. C. Baker Co., 261 Mass. 424, 158 N. E. 778..

Slocum v. New York Life Ins. Co., 228 U. S. 364, 399,

SSB Ob BB nik cccaciicssececesvstsccaceeaees

Sullivan v. Griffin, —— Mass. ——, 61 N. E. (2d) 330.

Tierney, etc. v. New York Dugan Bros., 288 N. Y. 16,

41 N. EB. (2d) 161, 140 A. L. R. 534..........----

Touris v. Brewster & Co., 235 N. Y. 226, 139 N. BE. 249.

U. S. v. Beatty, 232 U. S. 463, 34 S. Ct. BOG issaee nes

U.S. v. Denver & RGR Co., 191 U. 8. 84, 98, 24 S. Ct. 33

U. 8. v. County Clerk of Clark County and the Justices

thereof, 96 U. S. 211, 24 L. Me, GU. ¢ eodates 4a eee

Vincent v. Crandall and Godley Co., 131 App. Div. 200,

115 N. V. 8. GOO 2... ccc cece ec ece nsec ccceceees

Walter v. Bond, 267 App. Div. 779, 45 N. Y. 8. (2d) 347

Wash. & Georgetown R. R. Co. v. The American Car

Co., 5 App. D. C. 524 2.2... eee eee eee eee eee

Western Union Tel. Co. v. Czizek, 264 U. S. 281, 44 S.

| BR Neer Uh ieee ys tee

Wilson Cyvress Co. v. Pozo, 236 U. S. 635, 35 S. Ct. 446

White v. Higgins, 116 F. (2d) 312 (C. C. A. ,* PR ey

IN THE

Supreme Court of the Anited States

OcToBER TERM, 1948

Number ——.

R. W. Cuiaxton, INCORPORATED, PETITIONER

Vs.

Boyp F. Scuarr, ET AL, RESPONDENTS

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT.

To the Honorable, The Chief Justice of the United States

and the Associate Justices of the Supreme Court of the

United States:

Your petitioner, R. W. Claxton, Incorporated, being ag-

grieved by the decision of the United States Court of Ap-

peals for the District of Columbia, handed down on the 28th

of May, 1948, in the certain case or matter entitled before it

as ‘*R. W. Claxton, Inc., appellant, v. Boyd F. Schaff et al,

appellees, No. 9609,’’ now reported in 169 F (2d) 303, re-

spectfully represents and shows unto the Court that:

2

I.

Statement of Matters Involved.

Petitioner is engaged in the business of selling seafood in

the District of Columbia, and operates certain trucks in

making deliveries to its customers. On the 7th of May,

1941, petitioner made a delivery of 7% pounds of halibut

fish to the Fat Boy Restaurant on New York Avenue near

Bladensburg Road, N. E., in the District of Columbia. The

restaurant sets back from the street, and has a private

driveway around the building with parking space in the

rear. About 7:40 A. M. on said date petitioner’s driver

drove its truck onto said private property and parked

near the rear door of said restaurant, for the purpose of

making said delivery. The driver expected to be in the

restaurant only a few minutes, and left the ignition key

in the switch while he went inside the restaurant to make

the delivery. At that hour of the day, the restaurant was

closed, and there were no persons loitering about the

vicinity.

While the driver was inside, two employees of the res-

taurant, who had been at work in the kitchen when the

driver entered the restaurant, went outside and got in the

truck and drove it away.

Respondents were riding in the automobile of respond-

ent Schaff, proceeding on West Virginia Avenne (some dis-

tance away from the restaurant), when their automobile

was struck by petitioner’s truck. The thief who was driv-

ing the truck was operating it at a fast rate of speed, and,

in attempting to pass another automobile, either pulled

over too far on the wrong side of the road, or temporarily

lost control of the truck, and struck the automobile in

which respondents were riding. The automobile was sub-

stantially damaged, and each of the respondents sustained

some personal injuries.

3

Inrr1aL Proceepines tN District Court

On the 6th day of June, 1942, respondents brought this

action against petitioner in the United States District Court

for the District of Columbia, alleging that it should re-

spond in damages for their injuries, because, as they said,

petitioner’s truck at the said time and place ‘‘Was driven

on said Avenue by a driver as agent of, and with the con-

sent of, defendant,’’ and that the collision was caused by the

negligence of the petitioner’s said agent (R-3). Petitioner

answered, denying that its truck was operated by its agent

or by any person with its knowledge or consent (R-4).

Upon the issue thus made (R-5), the case duly came on

for trial. The evidence disclosed that the truck had been

taken by one Matthews without the authority or permission

of the petitioner; and the Court directed the jury to re-

turn a verdict in favor of petitioner, upon which judgment

for petitioner was entered.

The respondents took an appeal to the United States

Court of Appeals for the District of Columbia.

Decision or U. S. Court or APPEALS ON First APPEAL

While the appeal was pending the said Court of Appeals

handed down its decision in the case of Ross v. Hartman

(78 U. S. App. D. C. 217, 139 F. (2d) 14), wherein the

Court held that the violation of a traffic ordinance against

leaving a vehicle unattended im a public place with the ig-

nition unlocked and the key in the switch was negligence,

and that such negligence might be deemed the proximate

cause of the injuries sustained when the unknown person

who drove the vehicle away negligently struck the appeNant,

overruling the prior decision of the Court in the case of

Squires v. Brooks (44 App. D. C. 320).

When respondents wrote their brief as appellants in said

appeal, they added an ‘‘additional’”’ point, asserting that

they had been prevented by the rule established in Squires

vy. Brooks from urging that petitioner was liable to respond

in damages because its driver left the key in the ignition

4

switch, and also contending that the said vehicle had been

left parked in a ‘‘public place.’’

The said Court of Appeals, with then Chief Justice Gron-

er dissenting, reversed the judgment of the District Court,

and remanded the case for a new trial (79 U. S. App. D. C.

207 ; 144 F. (2d) 532).

The full text of the Court’s opinion is as follows:

‘*This is an appeal by the plaintiffs from a judgment

for the defendant, upon a directed verdict, in a suit

for personal injuries.

‘*The complaint alleged that appellants were injured

by the negligent operation of appellee’s truck by his

agent. The only negligence alleged in the complaint

was in the actual driving of the truck at the time of the

accident. But the evidence showed that appellee’s

driver left the truck, with the keys in it, in the parking

space beside a restaurant to which he was delivering

goods for appellee, and that employees of the res-

taurant drove off in the truck and injured appellants.

‘*Squires v. Brooks * held that the intervening act of

a third person who helps himself to a car protects the

driver who left the keys in the ear from responsibility

for a resulting accident. But the recent case of Russ

v. Hartman® overruled the Squires case. It is true

that the Ross case involved the violation of an ordi-

nance against leaving an unlocked car in a ‘‘public

piuce,’’~ and we do not think that a restaurant’s private

parking space is a ‘‘public space’’ within the meaning

of the ordinance. But we said in the Ross case: ‘‘In

the absence of an ordinance * * * leaving a car unlocked

might not be negligent in some circumstances, al-

though in other circumstances it might be hoth negli-

nt and legal or ‘proximate’ cause of a resulting acci-

ent.’’* Under that ruling, the evidence in the present

ease should have been submitted to the jury with in-

structions to find for the plaintiffs if they yt that

144 App. D. C. 320.

*?78 U.S. App. D. C. 217, 139 F. 2d 14.

® Traffic and Motor Vehicle Regulations for the District of Co-

lumbia, § 58.

*78 U. S. App. D. C. 217, 139 F. 2d 14, 15. Cf. Maloney v.

Kaplan, 233 N. Y. 426, 135 N. E. 838.

5

the defendant’s driver was negligent in leaving the

car unlocked and that this negligence was a proximate

cause of the accident.’

‘« Appellee contends that the issues on appeal should

be confined to those which were duly presented at the

trial. This of course is commonly true. But this suit

was tried before the Ross case had overruled the

Squires case. Therefore appellant did not have a fair

chance to raise and press at the trial, nor the court

to pass upon, the point concerning the keys. ‘‘We have

power not only to correct error in the judgment under

review but to make such disposition of the case as

justice requires. And in determining what justice does

require, the Court is bound to consider any change,

either in fact or in law, whick has supervened since

the judgment was entered.’ ‘‘On the appeal ork

the ease should be disposed of under the law as de-

termined by the later decisions.’’' The case will there-

fore be remanded for a new trial.

Remanded for a new trial.

“GRONER, C. J., dissenting: Plaintiffs brought

this action, based on the presumption of agency aris-

ing from defendant’s tome | of the vehicle and

the negligence of the driver. e case was tried on

that issue and resulted in a judgment of acquittal of

the defendant.

‘“Since, as I understand, we all agree that on the

issue made the case was properly decided, I think we

should affirm rather than send the case back for a

new trial on a totally different issue.’’

SussEqvuEnt Proceepines in District Court

Upon the mandate of the said Court of Appeals, the

District Court on the 18th of June, 1945, entered an order

vacating and setting aside the judgment for petitioner,

and restoring the case to the docket and trial calendar for

5 It was evidently not a proximate cause if, as some of the testi-

mony tended to show, defendant’s driver invited the restaurant

employees to take the car.

® Patterson v. Alabama, 294 U. S. 600, 607, 55 S. Ct. 575, 578, 79

L. Ed. 1082.

* Ruppert v. Ruppert, 77 U. S. App. D. C. 65, 68, 134 F. 2d 497.

6

further proceedings (R-6). On the 29th of October, 1946

respondents filed a motion for leave to amend their com-

plaint (R-7), proposing to amend paragraph 5 of their

complaint by substituting a new paragraph 5, alleging that

petitioners’ agent ‘‘negligently and carelessly left said

truck unattended and with the ignition key remaining in

the lock, while said servant went inside said restaurant for

delivery of fish,’’ that two other persons then entered said

unattended truck and finding the key in the ignition lock,

drove it on the highway until the collision occurred, and that

said collision was proximately caused by the negligent

action of petitioners’ agent in leaving said truck unat-

tended without removing the key from the ignition lock.

The court granted respondents leave to so amend their

complaint (R-9). Petitioner thereupon filed an answer to

the amended complaint (R-9).

Thereupon the case came on for pretrial hearing on the

17th of February, 1947 and by agreement of counsel it was

stipulated that ‘‘the only issues to be tried in view of the

decision of the Court of Appeais is that of negligence of

the defendant in leaving the truck unattended with the ig-

nition key therein and the negligent operation of the truck

by the person operating it and whether or not acts of negli-

gence of the defendant was the proximate cause of the

injuries sustained by plaintiffs’’ (R-10, 11).

The case duly came on for trial upon the issues so pre-

sented. For the first time, the parties addressed them-

selves to the development of the evidence respecting the

‘*circumstances’’ under which the truck was left unattended

with the key in the ignition switch for a few minutes while

the driver went inside the restaurant to make the de-

livery, and under which the said truck was stolen or taken

without permission and driven away.

The respondents called Luther Matthews, who testified

that he was employed at the Fat Boy Restaurant on the

7th of May, 1941, as a helper and handyman (R-21) ; that

he had just finished cutting up some chicken when the

truck came with a delivery of fish, and he and Hills and

7

another boy went for a ride for the first time with Roscoe

(R-22); that the keys were in the truck, and the collision

took place as he was hurrying to get back to Fat Boy’s

(R-23) ; that he was charged and convicted of unauthorized

use of the truck (R-24); that when he got into it the truck

was parked on the side entrance by the door (R-24); that

the Fat Bioy closed about 4:30 or 5 o’clock in the morning,

and there were no customers around when the truck came

to deliver fish that morning (R-24) ; that he saw the driver

of the truck when he came in, and spoke to him, but he

did not ask permission of the driver to take a spin in the

truck, ‘‘Wallace asked him something like thet’’ (R.25) ;

and he adimitted that he testified in the first trial that he

had obtaimed permission to take a spin in the truck, but that

was not so (R-26).

Respondents called George Edward Glascoe as a wit-

ness, andi he testified that he was employed by the peti-

tioner in 1941, and made a delivery to the Fat Boy Res-

taurant on New York Avenue on the morning of the 7th

of May, 1941 (R-28-29); that he arrived there about 7:40

in the morning, drove the truck in off Bladensburg Road,

parked, and went in to make the delivery; that he inquired

as to who would sign the receipt,.found that Wallace Jones

was the one to sign, they went downstairs, checked the order

and Jones signed for it, they talked a few minutes, and he

then came upstairs and found that the truck was gone (R-

30); that he had left the keys in the truck; that he might

have been in the Fat Boy five or ten minutes, and that he

had no instructions about leaving the keys in the truck,

but used his common sense, and removed the keys when

he was going somewhere where it was crowded, but at the

time he just intended to drop the order and come back

out (R-31) ; that when he arrived at the Fat Boy Restaurant

that morning there were not any cars parked there or

any people loitering around on the outside, and he only

saw three boys in the restaurant (R-32) ; that he had made

deliveries to the Fat Boy Restaurant during a two year

period, and always drove around in back of the building

8

and parked near the back door, and on the occasion in

question he parked within five feet of the back door (R-

33) ; that his delivery that morning consisted of 74% pounds

of halibut fish (R-34); that he had left the keys in the

truck on prior occasions in making deliveries at the Fat

Boy, and had never had any experience of anyone meddling

with or taking the truck, and he knew that it was the prac-

tice of other drivers making deliveries there to leave keys

in the trucks, and he had never heard of anyone having his

ear stolen (R-34); that there was a driveway leading off

New York Avenue with parking facilities in back of the

restaurant (R-35).

The petitioner called Harry L. Claxton, who testified that

he was president of petitioner which was engaged in the

seafood business and had been since 1888 (R-37-38); that

the company had used trucks since 1912 (R-38) ; that George

Glascoe was employed in June or July of 1939 as a driver

of one of their delivery trucks, making deliveries to hos-

pitals, restaurants, and institutions, and he was instructed

that he should not carry any passengers, should drive the

ear carefully, and should not loan it to anyone (R-38);

that the Fat Boy Restaurant on New York Avenue was one

of his customers to which deliveries were made, and had

been for about three or four years prior to the occurrence

in question, and he had never had any experience at the

Fat Boy, or anywhere else that he made deliveries, of

anyone meddling with or stealing a delivery truck while

making a delivery, and he never heard of anyone else

having such experience at the Fat Boy Restaurant (R-38-

39); that he never gave his drivers any instructions about

leaving the keys in the ignition switch, as he hired compe-

tent drivers and left that to their judgment and good com-

mon sense (R-40); and that he had been to the Fat Boy

Restaurant, and knew it to be in operation in the afternoon

and mostly at night (R-41).

Petitioner called Raymond L. Mitchell, salesman for

Charles Schneider Baking Company, who testified that he

9

sold bread on a route, making deliveries by truck, that he

served the Fat Boy Restaurant, and had been serving it

for about eight years; that he identified petitioner’s Ex-

hibit No. 8 as an accurate picture of the location of the

Fat Boy Restaurant, as it had existed without any change

during the time he had made deliveries there; that he usu-

ally drove in from New York Avenue, went around to the

back of the building, parked his truck, rapped on the door,

and then went in and made deliveries; that he left his key

in the truck; that there was no one around in the morning

at all; and that he had never had any difficulty with any-

one tampering with or stealing his truck (R-41-43). The

petitioner also called Joseph Savia, of the Quick Service

Laundry Company (R-46) ; Donald G. Norris, of the Royal

Crown Cola Company (R-49); Eugene McMickle, of David

G. Tavan, beer distributor (R-51) ; Harry C. Mantzouranis,

of the Versis Food Specialty Company (R-52); Joseph E.

Henson, of M. E. Horton, Ine. (R-54); Robert C. Deal, of

the Carry Ice Cream Company (R-56); and Harris L. At-

will, of the Wilkins Coffee Company (R-58); all of whom

testified as to their respective experiences in making de-

liveries of merchandise to the Fat Boy Restaurant for

verying lengths of time, as to their customary practice of

driving around to the rear of the building, parking the

truck and leaving the key in the ignition switch while

making deliveries, as to the fact that there was no one

around the building in the mornings, and as to the fact

that they never had experienced any difficulty with anyone

tampering with or stealing their trucks.

At the conclusion of all the evidence, counsel for peti-

tioner moved the court to direct a verdict in behalf of peti-

tioner upon the ground that respondents had failed to es-

tablish any facts or circumstances upon which the jury

could find that it was reasonably forseeable in the exercise

of ordinary care, when petitioner’s driver parked the truck,

that the truck would be stolen if left unattended with the

key in the ignition switch, and thereby that respondents

had failed to prove any actionable negligence on the part

tA

10

of petitioner or that any negligence of the petitioner was

the proximate cause of respondents’ injuries (R-60-66).

The trial judge was of opinion that the prior decision of

the Court of Appeals prevented him from passing upon the

legal sufficiency of the evidence to go to the jury, and in fact

required that he submit the issues to the jury for decision,

and thereby overruled the motion (R-66-67).

Petitioner submitted its Prayer No. 4, wherein it re-

quested the trial judge to instruct the jury that:

‘‘The jury is instructed that the fact-defendant left

its delivery truck temporarily unattended and with

the ignition key in the switch is not negligence in the

absence of circumstances and conditions making it

reasonably forseeable by defendant in the exercise

of ordinary care that said truck would be stolen if so

left.’’

The trial judge denied the prayer (R. 67).

Petitioner submitted its Prayer No. 5, wherein it re-

quested the trial Judge to instruct the jury that:

‘‘The proximate cause of an injury is that cause

which, in natural and continuous sequence, unbroken

by any efficient intervening cause, produces the injury,

and without which the result would not have occurred.

It is the efficient cause—the one that necessarily sets

in motion the factors which accomplish the injury. It

may operate directly or by putting intervening agen-

cies in motio

‘‘Causal connection between original negligence and

an injury is broken when there intervenes a wilful,

malicious and criminal act of a third person which

causes the injury, provided that such intervening wil-

ful, malicious and criminal act was not intended by the

person originally negligent and could not have been

foreseen by him in the exercise of ordinary care.’’

The court denied the second paragraph of requested

Prayer No. 5, but in so doing stated, ‘‘I think that is sound

law, personally, but I feel I am constrained by that case.’’

(Ross v. Hartman, supra.) (R. 67, 68.)

11

Petitioner submitted its Prayer No. 6, wherein it re-

quested the trial judge to instruct the jury that:

‘You are instructed that if you should find from

the evidence that the defendant was negligent in leav-

ing the truck in question unattended with the ignition

key therein, you shall then consider whether or not

such negligence was the proximate cause of the injuries

sustained by the plaintiffs; and if you should find from

the evidence that the defendant could not have fore-

seen, in the exercise of ordinary care under the cir-

cumstances and conditions then existing, that the truck

would be stolen or was likely to be stolen if so left

unattended with the key therein, and if you should

further find from the evidence that the truck was

stolen or taken by a third person and thereafter op-

erated in a negligent and careless manner by such

third person, and that such negligence of such third

person was the direct and efficient cause of the injuries

sustained by the plaintiffs, then, in such case, the negli-

gence of the defendant would not be the proximate

cause of the injuries sustained by the plaintiffs, and

your verdict should be for the defendant’’ (R. 76).

The trial judge denied the prayer as submitted (R. 68).

Thereupon, the trial judge instructed the jury, giving

only general definitions of negligence (R. 70-71), and prox-

imate cause (R. 72), and failing to charge in any manner

as to any standard whereby responsibility of petitioner

would be measured or affected by the presence or absence

of circumstances and conditions making the taking or theft

of the truck reasonably foreseeable by petitioner’s driver

in the exercise of ordinary care. At the conclusion of the

trial judge’s charge to the jury, counsel for petitioner in-

vited his attention to this omission, but he allowed the

charge to stand (R. 74).

The jury returned a verdict in favor of respondents in

the sum of $5400 and costs; and judgment was entered on

the verdict (R. 66, 67).

Petitioner filed a motion to set aside the verdict and

judgment, and to enter judgment for the petitioner in ac-

12

cordance with its motion for directed verdict, or, in the al-

ternative, to set aside the verdict and judgment for re-

spondents and order a new trial (R. 77-79). The trial

judge denied the rotion in a memorandum opinion, in which

the Court referred to the prior expressions of the said

Court of Appeals in Ross v. Hartman, and in the first

appeal in this case, and indicated that they set forth the

law in this jurisdiction which a trial judge must follow

(R. 79-80).

Petitioner thereupon took an appeal to the United States

Court of Appeals for the District of Columbia.

Rervsau or U. S. Court or Appeats To Pass Upon Susstan-

TIAL QuEsTIONS PRESENTED ON SECOND APPEAL.

Petitioner, in presenting its appeal to the U. S. Court

of Appeals for the District of Columbia, urged upon the

court that respondents had failed to establish any action-

able negligence on the part of the petitioner, in that, when

petitioner’s driver parked the truck on private property in

the rear of the restaurant and left it unattended with the

key in the switch for a few minutes required to make a

delivery, there were no circumstances making theft of the

truck reasonably foreseeable by the driver in the exercise of

ordinary care, and that he was not required to anticipate

and guard against the remote or slight possibility of the

truck being stolen if so left, and also urged that respondents

had failed to establish that any such negligence was the

proximate cause of the injuries sustained by them, in that

theft of the truck was not reasonably forseeable in the

exercise of ordinary care as a probable result of leaving it

unattended and unlocked, and that the unexpected theft

was an intervening and efficient cause that superseded any

negligence of petitioner’s agent, as well as the fact that

the negligent operation of the truck by the thief was the

real proximate cause of the injuries sustained by re-

spondents.

Under these propositions, petitioner urged upon the said

Court of Appeals that the District Court had erred in

13

denying petitioner’s motion for directed verdict and in

denying petitioner’s Prayer’s Nos. 4, 5 and 6.

However, the Court of Appeals handed down its decision

on the 28th day of May 1948, affirming the judgment of the

District Court, (R-81). in which it held that on the first

appeal it had said:

‘<the evidence in the present case should be submitted

to the jury with instructions to find for the plaintiffs

if they found that the defendant’s driver was negligent

in leaving the car unlocked and that the negligence

was a proximate cause of the accident. * * * The

case will therefore be remanded for a new trial.’’;

that ‘‘the law stated in that opinion,”’ (italics supplied), had

been followed by the District Court upon the new trial, and

that therefore the judgment was affirmed.

Petitioner filed a petition for rehearing, but the said

Court of Appeals denied the same on July 17, 1948.

II.

Statement of Jurisdiction.

The United States Court of Appeals for the District of

Columbia entered a judgment on May 28, 1948 (R-83) affirm-

ing the judgment of the District Court; which decision is

reported in 169 F. (2d) 303. A petition for rehearing was

timely filed. The Court of Appeals denied the petition for

rehearing on July 17, 1948 (R-95).

Jurisdiction of this Honorable Court to grant certiorari

is invoked under Section 240 of the Judicial Code, as

amended (28 U.S. C. A. 347).

Il.

Questions Presented.

1. Whether the United States Court of Appeals for

the District of Columbia, in reversing a judgment of dis-

missal for failure to establish a case under the issues tried

in the District Court, and remanding the case for a new

14

trial on a totally different issue, in a proper exercise of its

appellate jurisdiction, may:

(a) Consider certain evidence found in the record on

appeal, and, by pre-judging its legal sufficiency, direct and

require the District Court, upon the new trial on such

totally different issue, to submit the case to a jury for

determination.

(b) Deprive petitioner of the right to have the trial

judge consider and initially determine the legal sufficiency

of all of the evidence adduced, and otherwise to pass on all

legal questions arising during the new trial on such totally

different issue, thereby denying petitioner a fair trial in

accordance with accepted and usual procedures.

(c) Foreclose consideration and determination of sub-

stantial legal questions arising initially in the course of

the new trial upon such totally different issue, by appli-

cation of the ‘‘law of the case’’ doctrine.

2. Whether petitioner, in leaving a vehicle on private

property, unattended, with the key in the switch for a few

minutes, may be guilty of actionable negligence in the

absence of some fact or circumstances making it reason-

ably foreseeable in the exercise of ordinary care that the

vehicle would be stolen if so left.

3. Whether petitioner’s leaving the vehicle on private

property, unattended, with the key in the switch, may be

deemed the proximate cause of injuries resulting to re-

spondents, in the absence of some fact or circumstances

making theft of the vehicle reasonably foreseeable in the

exercise of ordinary care if so left, when respondents’ in-

juries resulted from negligent operation of the vehicle by

a thief who took the automobile and operated it to the

point of collision some substantial distance away from the

place where it was stolen.

4. Whether the District Court erred in denying petition-

er’s motion for directed verdict.

15

5. Whether the District Court erred in denying peti-

tioner’s Prayers Nos. 4, 5 and 6.

6. Whether the District Court erred in submitting the

case to the jury for decision without any standard or guide

whereby the jury might reach an informed and properly

reasoned verdict upon consideration of the evidence.

IV.

Reasons Relied on for the Allowance of the Writ.

1. Petitioner has been denied a fair trial in that its oppor-

tunity to have a fair and full hearing upon a totally different

issue was improperly and unreasonably impaired and re-

stricted by the action of the United States Court of Appeals

for the District of Columbia in pre-judging the legal suffi-

ciency of certain evidence found in the record on a prior

appeal and in directing submission of the case thereon to

the jury for determination.

2. Petitioner has been denied due process of law in that

the District Court has entered judgment against it and the

Court of Appeals has affirmed that judgment without

either the trial judge in the first instance or the Court of

Appeals on the appeal therefrom, giving any real consid-

eration to, or deciding, substantial legal questions raised

by petitioner during the course of the trial.

3. Petitioner has been denied free and untrammeled con-

sideration of substantial legal questions, probably demon-

strating that the judgment against it is unlawful, upon the

basis that such consideration is foreclosed by the ‘‘law of

the case’’ doctrine, and great injustice and injury will result

to petitioner unless this Honorable Court grants this peti-

tion and reviews the case.

4. Petitioner has been adjudged liable to pay substantial

sums to respondents in the absence of any violation of any

duty on its part and by the process of submitting the case

to the jury for determination without any standard or

guide whereby the result would be saved from the mischance

of speculation upon a legally unfounded claim.

16

5. Petitioner has been required to go through the for-

mality of a trial without having a fair opportunity to obtain

consideration and determination of substantial legal ques-

tions arising during the course of such trial, in accordance

with accepted and usual procedures.

6. The decision of the United States Court of Appeals

for the District of Columbia is in conflict with applicable

and controlling decisions of this Honorable Court.

7. The United States Court of Appeals for the District

of Columbia has decided an important question of local

law in a way probably in conflict with applicable local de-

cisions.

Wuererore, your petitioners respectfully pray that a

writ of certiorari be issued out of and under the seal of this

Honorable Court directed to the United States Court of

Appeals for the District of Columbia, commanding that

Court to certify and to send to this Court for its review

and determination, on a day certain to be therein named,

a transcript of the record and proceedings herein; and that

the decree of the United States Court of Appeals for the

District of Columbia be reversed by this Honorable Court

and your petitioners have such other and further relief in

the premises as to this Honorable Court may seem meet and

just.

Respectfully submitted,

R. W. Cuaxton, Incorporatep,

Petitioner.

By James M. Earnest,

600 Woodward Bldg.,

Washington, D. C.

Ausert F’. Beastey,

300 Investment Bldg.,

Washington, D. C.

Attorneys for Petitioner.

17

IN THE

Supreme Court of the Anited States

OctoBer TERM, 1948

Number ——.

R. W. Cuaxton, INCORPORATED, PETITIONER

vs.

Boyp F.. Scuarr, ET AL., RESPONDENTS

BRIEF IN SUPPORT OF PETITION FOR CERTIORARI.

I.

Petitioner Has Been Denied a Fair Hearing By Unwar-

ranted Action of the Court of Appeals.

The statement by the United States Court of Appeals

for the District of Columbia that ‘‘Under that ruling [re-

ferring to the Ross case] the evidence in the present case

should have been submitted to the jury,’’ has been the

cause of the predicament arising in this case. That sen-

tence was unnecessary to the decision, and should be con-

strued as dicta.

It was a mere expression of an opinion on a matter, the

disposition of which was not required for the decision.

Barney et al. v. Winona & St. P. R. Co., 117 U. S. 228, 6 S.

Ct. 654. As was very appropriately said by this Court

18

in United States etc., v. County Court of Clark County and

the Justices thereof, 96 U. S. 211, 24 L. Ed. 628, the ‘‘case

called for nothing more; and if more was intended by the

Judge who delivered the opinion, it was purely obiter.’’

It is the essential criterion of ‘‘appellate jurisdiction’’

that it revises and corrects the proceedings in a cause al-

ready instituted and does not create that cause. Marbury

v. Madison, 5 U. S. 137, 2 L. Ed. 60; Ex Parte Watkins, 32

U. S. 568, 8 L. Ed. 786. Appellate power is exercised over

the proceedings of inferior courts, not on those of the

appellate court. Sibbald v. U. S., 37 U.S. 488, 9 L. Ed. 1167.

‘It is not the function of an appellate court to assume

the powers of the trial court. * * *.’’ Schilling, ef al., v.

Schwitzer-Cummins Co., 79 U. S. App. D. C. 20, 142 F (2d)

82.

A party litigant has a right to the determination of the

facts in the first instance by the trial court. Chicago M.

& St. P. R. Co. v. Tompkins, 176 U. S. 167, 44 L. Ed. 417,

422, 20 S. Ct. 336; City of Owensboro v. Owensboro Water-

works Co., 191 U.S. 358, 24 S. Ct. 82. The evidence should

be considered and passed on by the trial court before a

reviewing court is called on to pass on it. Wilson Cypress

Co. v. Pozo, 236 U. S. 635, 35 S. Ct. 446; Oklahoma Natural

Gas Co. v. Russell, et al, 261 U. S. 290, 43 S. Ct. 353.

This rule has been heretofore followed by the United

States Court of Appeals for the District of Columbia in

Washington and Georgetown Railroad Co. v. The Ameri-

can Car Co., 5 App. D. C. 524, where the Court said:

«* * * We do not, of course, intend to be understood

as in any manner qualifying the general principle

that questions not made on the trial and presented

to the court below for decision canont be entertained

by this court. ° ° °”’

An appellate court is not bound to anticipate—and should

not anticipate—all of the questions that are likely to arise

or might arise in the re-trial of a case when it reverses a

— ee

19

judgment and remands the case for re-trial. Hence the

rule is ‘‘that a judgment of reversal is not necessarily

an adjudication by the appellate court of any other than

the questions in terms discussed and decided.’’ Mutual

Life Insurance Co. of N. Y. v. Hill, 193 U. 8. 551, 24 8S. Ct.

538.

In the first appeal the ‘‘reversal operated to set aside

the verdict and put the issues at large as they were be-

fore.’’ Slocum v. New York Life Insurance Co., 228 U.S.

364, 399, 33 S. Ct. 523. This is particularly true where,

as here, respondents in the new trial completely aban-

doned their original theory of liability and the case was

tried on a totally different issue.

The question as to whether or not the evidence adduced

at the new trial on a totally different issue required sub-

mission of the case to the jury should have been determined

by the trial judge ‘‘untrammelled by any supposed ex-

pression upon that point’’ by the United States Court of

Appeals in its decision in the first appeal. Prarie Farmer

Publishing Co. v. Indiana Farmer’s Guide Publishing

Co., 299 U. S. 156, 57 S. Ct. 135, 81 L. Ed. 93.

As correctly stated by this Court in Duke Power Co. v.

Greenwood County, S. C., 299 U. S. 259, 57 S. Ct. 202,

81 L. Ed. 178,

‘If it appears that supervening facts require a re-

trial in the light of changed situation, the appropriate

action of the appellate court is to vacate the decree

which has been entered and revest the court below

with jurisdiction of the cause to the end that issues

may be properly framed and the re-trial had.’

In its decision on the first appeal, the United States

Court of Appeals for the District of Columbia, in revers-

ing the judgment of the District Court, did not revest the

District Court with jurisdiction of the cause, to the end

that totally different issues could be properly framed and

a new trial had. On the contrary, the said Court of Ap-

peals considered certain evidence found in the record on

20

appeal, prejudged its legal sufficiency, and directe: and

required the District Court, upon the new trial to be had

on a totally different issue, to submit the case to a jury

for its determination.

In so doing, it becomes manifest that the said Court

of Appeals has exceeded its proper appellate jurisdic-

tion, has usurped the essential prerogatives of the Dis-

trict Court to consider and initially determine the legal

sufficiency of all of the evidence which might be adduced

during the new trial, and otherwise to pass on all legal

questions which might arise.

In the nature of things, petitioner had neither the occa-

sion nor the opportunity to meet the evidence which was

considered by the said Court of Appeals. Neither has

petitioner had a fair opportunity to obtain consideration

and determination of substantial legal questions arising

for the first time during the new trial. Petitioner has,

therefore, been denied due process of law, since it has

been deprived of the accepted and usual procedures af-

forded litigants in civil actions.

Il.

The “Law of the Case” Doctrine Cannot Properly Be

Applied in the Retrial of an Action on a Totally

Different Issue.

The application of the ‘‘law of the case’ doctrine by the

United States Court of Appeals for the District of Colum-

bia, in summarily disposing of the second appeal, neces-

sarily means that the statement of said Court of Appeals

in its decision in the first appeal that ‘‘the evidence should

have been submitted to the jury’’, was intended to mean

and did in fact mean that the Court held, as a matter of

law, that the fragmentary and unresisted evidence con-

tained in the record in the first appeal was sufficient to

make out a cause of actionable negligence and required

submission of the case to the jury. The trial judge felt

constrained to so construe the decision. It now appears

21

that the said Court of Appeals in its decision in the second

appeal, has given the same binding interpretation and ef-

fect to the above quoted fortuitous statement.

The ‘‘law of the case’’ doctrine affects the retrial of an

action after reversal only insofar as the issues of fact, the

evidence, and the applicable law are substantially the same

as upon the first trial. The doctrine of the ‘‘law of the

case’’ is not an inexorable command. It ‘‘merely expresses

the practice of courts generally to refuse to reopen what

has been decided, not a limit to their power’’. Messinger

v. Anderson, 225 U. S. 486, 444, 32 S. Ct. 739, 740. ‘‘It does

not have the effect of placing the issue, the evidence, or

even the applicable rules of law in a straight-jacket.’’

Miller’s Mutual Fire Insurance Assoc. v. Bell, 99 F. (2d)

289 (C. C. A. 8).

Where, as here, following the reversal of the District

Court in the first appeal, amended pleadings were filed and

substantially different evidence was developed in connec-

tion therewith, and the retrial was governed by entirely

different principles of law, it cannot be said under any con-

ceivable hypothesis that the doctrine of the ‘‘law of the

ease’’ could be properly invoked. Plainly, no ‘‘law of the

ease’’ could be established by mere dicta. The error is

substantial, because petitioner has thereby been foreclosed

from obtaining a decision upon substantial legal questions

arising for the first time during the retrial of the case upon

a totally different issue.

Il.

Theft of the Truck Was Not Reasonably Foreseeable in the

Exercise of Ordinary Care, and Neither Negligence

Nor Proximate Cause Was Established by the Evi-

dence.

Respondents were injured as a result of negligent opera-

tion of petitioner’s truck by a thief. They allege that their

injuries were proximately caused by the negligence of peti-

tioner’s driver in leaving the truck unattended with the

22

key in the ignition switch. The evidence disclosed that,

when the driver parked the truck, there were no conditions

or circumstances existing as would put a reasonably pru-

dent person on notice that theft of the truck was a likely

consequence of leaving it unattended with the key in the

switch. Nothing of the kind had ever happened before.

In Ross v. Hartman, 78 U.S. App. D. C. 217, 1389 F. (2d)

14, the Court of Appeals said:

‘*Everyone knows now that children and thieves fre-

‘quently cause harm by tampering with unlocked cars.

The danger that they will do so on a particular occa-

sion may be slight or great. In the absence of an ordi-

nance, therefore, leaving a car unlocked might not be

negligent in some circumstances although in other cir-

cumstances it might be both negligent and a legal or

‘proximate’ ceuse of a resulting accident.’’ (Emphasis

supplied. )

As authority for the aforesaid statement that ‘‘in some

circumstances’’ both negligence and proximate cause may

exist, the Court of Appeals cited certain decisions by New

York courts, mainly: Lee v. Van Buren and New York Bill

Posting Co., 190 App. Div. 742, 180 N. Y. S. 295; Gumbrell

v. Clausen Flanagan Brewery, 199 App. Div. 778, 192

N. Y. S. 451; Connell v. Berland, 233 App. Div. 234, 228

N. Y. S. 20; Maloney v. Kaplan, 233 N. Y. 426, 135 N. E.

838.

In the Lee, Gumbrell and Connell cases, the vehicle was

left unattended with the key in the switch, and was of

such construction that it could be started up by merely

moving a lever. Children at play got on the vehicle and

moved the lever, and the vehicle thereupon was set in mo-

tion and caused to strike the party injured. In each case

there was prior notice of children playing on the vehicle.

In the Maloney case, the vehicle was parked on a grade,

and started up and rolled down the grade, either because

it had not been securely parked or because some meddle-

some boys released the brake.

23

The New York courts have established beyond question,

and with compelling logic, that the owner of a vehicle is not

negligent in leaving a vehicle unattended with the key in

the switch, unless the circumstances then existing make it

reasonably foreseeable in the exercise of ordinary care

that the vehicle will be meddled with if so left. Tierney,

etc. v. New York Dugan Bros., 288 N. Y. 16, 41 N. E. (2d)

161, 140 A. L. R. 534; Kaplan v. Shults Bread Co., 212 App.

Div. 110, 208 N. Y. S. 118; Mann v. Parshall, 229 App. Div.

366, 241 N. Y. S. 673; Tourts v. Brewster and Co., 235

N. Y. 226, 139 N. E. 249; Walter v. Bond, 267 App. Div.

779, 45 N. Y. S. (2d) 378; Pesaty v. Hearn and Son, 202

N. Y. S. 264; Vincent v. Crandall and Godley Co., 131 App.

Div. 200, 115 N. Y. S. 600; Berman v. Shultz, 40 Mise. Rep.

212, 81 N. Y. S. 647.

The same rule has been established as the law by deci-

sions of courts in other jurisdictions. Jackson v. Mills-Fox

Baking Company, 221 Mich. 64, 190 N. W. 740, 26 A. L. R.

906; Rhad v. Duquesne Light Co., 255 Pa. 409, 100 Atl. 262.

Even if deemed negligence, the act of leaving the vehicle

unattended with the key in the switch must be the proxi-

mate cause of respondents’ injuries before any liability can

be imposed. Proximate cause exists only when ‘‘the in-

jury was the natural and probable consequence of the

negligence or wrongful act, and that it ought to have been

foreseen in the light of attending circumstances.’’ Mil-

waukee and St. Paul R. Co. v. Kellogg, 94 U. S. 469, 474,

24 L. Ed. 256. ‘‘Events too remote to require reasonable

provision need not be anticipated.’’ Brady v. Southern

Railway Co., 320 U. S. 476, 88 L. Ed. 239.

In every case that counsel have been able to find wherein

the vehicle was stolen and injury caused to another by

negligent operation on the part of the thief, the courts have

held that any act of negligence of the owner in leaving the

vehicle unattended with the key in the switch was not the

proximate cause of such injury. Slater v. T. C. baker Co.,

261 Mass. 424, 158 N. E. 778; Sullivan v. Griffin, — Mass.

| 2 one seinen armen ceeeaienernceim ey aman RTE Neem

24

—, 61 N. E. (2d) 330; Lotito v. Kyriacus, et al, 74 N. Y.S.

(2d) 599, 600, 601.

IV.

This Court Is Not Bound by Any “Law of the Case” and

Should Review the Judgment to Prevent a Manifest

Injustice.

After a Circuit Court of Appeals has affirmed a judgment

on the ground that their decision in an earlier appeal has

become the ‘‘law of the case’’, this Court is nevertheless

free to take the case on certiorari and reverse the judg-

ment. Panama Railroad Co. v. Napier Shipping Co., 166

U. S. 280, 284, 17 S. Ct. 572. This Court frequently does so.

Western Union Telegraph Co. v. Czizek, 264 U. S. 281, 44 S.

Ct. 328; American Surety Co. v. Greek-Catholic Union, 284

U. S. 563, 52 S. Ct. 235; Illinois Central RR Co. v. Crail,

281 U. S. 57, 50 S. Ct. 180.

The judgment of the said Court of Appeals on the second

appeal must stand or fall on its merits and has no improved

standing before this Court from the fact that it resulted

from an application of that Court’s ‘‘law of the case’’. ef

White v. Higgins, 116 F. (2d) 312, (CCA 1). When this

Court, in the exercise of its supervisory jurisdiction issues

a writ of certiorari to bring up the whole record, the entire

ease is before this Court for examination. Panama Rail-

road Co. v. Napier Shipping Co., supra; Messinger v.

Anderson, 225 U. S. 436, 444, 32 S. Ct. 739, 740.

The judement of said Court of Appeals in the first

appeal, merely reversed the judgment of the District Court,

and ordered a new trial. Essentially, it was interlocutory

in nature. Now that the case has proceeded to a final judg-

ment in said Court of Appeals, petitioner is entitled to its

correction. U.S. v. Beatty, 232 U. S. 463, 34 S. Ct. 392;

U.S. v. Denver & R. G. R. Co., 191 U. S. 84, 93, 24 S. Ct. 33.

The earlier adjudication was plainly wrong, and the erro-

neous application of the doctrine of the ‘‘law of the case’’

25

works a manifest injustice to petitioner, since it has never

had an opportunity to have any judge or any court give due

and proper consideration to its contentions. This Court

should therefore reverse the judgment.

Respectfully submitted,

James M. Earnest

600 Woodward Building

Washington 5, D. C.

Ausert F.. BEasLey

300 Investment Building

Washington, D. C.

Attorneys for Petitioner