# Opposition Brief — Turner County v. Miller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1991%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1949 - **Citation:** 336 U.S. 925 ## Text SUBJECT INDEX Page PRELIMINARY STATEMENT ...........cccccccccccccccccccccsscese 1-2 MET IMED AAIMAMOE can ccc cde cecccc ewes weber nssese cereus cence nse 2-3 ALLEGED DEPARTURE FROM USUAL COURSE OF JUDICIAL NEN ove cored ecencsedivecWestewesedaescteneeenstia oe 4-7 EINE wickc re reece dexccrwaeSener bases Seven cunts tevabasede 8 TABLE OF CASES Alford v. United States, 282 U. S. 687, 51 S. Ct. 218, 75 L. Ed. 624...... 7 Berger v. United States, 295 U. S. 78, 55 S. Ct. 629, 79 L. Ed. 1314....... 7 Chicago & N. W. R. Co. v. Green, 164 F. (2d) 55, 64.......---------+--- 4 Chicago & N. W. R. Co. v. Kelly, 84 F. (2d) 569, 575.........--+----+- - Clementson v. Union County, 63 S. D. 104, 256 N. W. 794........-...-+.- 2 District of Columbia v. Clawans, 300 U. S. 617, 57 8S. Ct. 660, 81 oS CI ee et er eee eee re Tree ee eee ee 7 District of Columbia v. Woodbury, 136 U. 8S. 450, 10 S. Ct. 990, 34 Di TEE Rivka chara vkun nS ERVAWUSA CONG RAN es eu cel eee eeN count 3 Fleming v. Husted, 164 F. (2d) 65, 68............ eee ee eee eee eee e eens 4 Gantz v. United States, 127 F. (2d) 498, 504............. eee ee eeeene 4 Gellenbeck v. City of Mobridge, 40 S. D. 157, 166 N. W. 631...........- 3 General Talking Pictures Corp. v. Western Electric Co., 304 U. S. 175, BS B.Ob. DAR, GS Te. Bld. TSTB io oie se ccc cee eter ee aesessnsses 1 Handy v. Meridian Township, 114 Mich. 454, 72 N. W. 251.........-...- 3 Johnson v. Iron River, 149 Wis. 139, 185 N. W. 522...........-.--5-85- 3 Layne & Bowler Corporation v. Western Weil Works, 261 U. 8S. 387, 43 OE CR SRR ST Ty, BG. THRs ice see cc inca enc vees casceseceeesecess 1 London Guarantee & Accident Co. v. Woelfle, 83 F. (2d) 325, 344........ 4 Magnum Import Co. v. Coty, 262 U. S. 159, 43 S, Ct. 531, 67 L. Ed, 922.... 1 Metropolitan Life Ins. Co. v. Banson, 106 F. (2d) 561...........+++545- 4 Moore v. Kenockee Township, 75 Mich. 332, 42 N. W. 944.............. 3 New York Central Ry. Co. v. Johnson, 279 U. S. 310, 49 S. Ct. 300, ee re et Cee ee CRETE Cee cE ee 7 Palmer v. Miller, 145 F. (2d) 926, 931..........ccceescccccssesceccoecs 4 Pietch v. United States, 110 F. (2d) 817, certiorari denied 310 U. S. 648, GO SB. Ct. 1100, 84 La. BG. 1414... 0. cc cece cece cece nccrccessncce + Reaney v. Union County, 69 S. D. 392, 10 N. W. (2d) 762 (opinion ad- hered to on rehearing 69 S. D. 488, 12 N. W. (2d) 14)......-.- 0.00. 2 Schuler v. City of Mobridge, 44 S. D. 488, 184 N. W. 281. .-............-5 3 Smith v. City of Yankton, 23 S. D. 352, 121 N. W. 848.............. Oe. SUBJECT INDEX—(Continued) Southern Power Co. v. North Carolina Public Service Co., 263 U. S. 508 44.8, Ct. 164, 68 L. Ed. 413 United States v. Socony Vacuum Oil Co., 310 U. S, 150, 60 S, Ct. 811 84 L. Ed. 1129 : ied lide ted de de ted te de bein tei tytn nh kbar cehoecLEcLiLiLeT TTT Te Williams v, Wessington Township, 70 S. D. 75, 14 N. W. (2a) 492... 2 STATUTES CITED South Dakota Code of 1939, Section 28,0913 2 RULES CITED Rule 38, Paragraph 5 of Rules of this Court rs IN THE Supreme Court of the United States OCTOBER TERM 1948 No. 541 TURNER COUNTY, SOUTH DAKOTA Petitioner Vs. FLOYD MILLER Respondent BRIEF OF RESPONDENT IN OPPOSITION TO PETITIONER’S APPLICATION FOR WRIT OF CERTIORARI PRELIMINARY STATEMENT Petitioner seems to misapprehend the function of certiorari in this Court. It is settled that certiorari is granted only when it is desir- able in the public interest, and that the writ is not issued to review fact questions, Rule 38, Paragraph 5 of Rules of this Court, effective February 27, 1939; Magnum Import Co. v. Coty, 262 U. 8. 159, 43 S. Ct. 531, 67 L. Ed. 922; Layne & Bowler Corpora- tion v. Western Well Works, 261 U. 8. 387, 43 S. Ct. 422, 67 L. Ed. 712; Southern Power Co. v. North Carolina Public Service Co., 263 U. S. 508, 44 8S. Ct. 164, 68 L. Ed. 413; Gen- eral Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S. Ct. 849, 82 L. Ed. 1273. —_— We shall, therefore, ignore Petitioner’s argument to the effect the evidence herein did not sustain the judgment, and deal only with Petitioner’s contentions that the Court of Appeals decision is in conflict with South Dakota Supreme Court decisions, and that there has been such a departure from the usual course of judicial procedure as to require correction from this Court. These will be treated under appropriate subheadings. “R” in parentheses followed by an Arabic numeral will denote the page of the record to which reference is made. ALLEGED CONFLICT As appears from the opinion of the Court of Appeals (R 414-482), that Court followed Clementson v. Union Coun- ty, 63'S. D. 104, 256 N. W. 794 as establishing the basic prin- ciples on which Petitioner's liability was predicated. The gist of Petitioner's contention is that the Clementson case has been so moditied by Reaney v. Union County, 69 S. D. 802, 10 N. W. (2d) 762 (opinion adhered to on rehear- ing 69'S, D, 488, 12 N. W. (2d) 14) and Williams v. Wessing- t 4 Township, 70 8. D. 75, 14 N. W. (2d) 493, as to be no longer applicable to vital questions here involved. Specifically, Petitioner asserts that contrary to the Clem- entson case, the Reaney and Williams cases made it immar terial whether or not Petitioner kept the bridge in question in proper repair, and that there would be no liability unless there was actual, as distinguished from constructive notice of the allegedly dangerous condition. In so contending, Petitioner tries to read into the Reaney and Williams cases things which simply are not there. By comparison of the Clementson and Reaney cases it will be found that all the Reaney case holds is that due to a change in the applicable statute, a county is no longer liable for injuries resulting from a highway or bridge defect which is inherent in the original construction. There is not even a hint that liability may not be based on failure to keep the structure in proper repair. The controlling statute, Section 28.0913 of the South Dakota Code of 1939, printed at Pages 38-39 of Petitioner's brief, makes it manifest no court could a 3 reach the conclusion asserted by Petitiiner. The statute is that if a “bridge shall become . . . out of repair... to such an extent as to endanger the safety of public travel,” liability exists for any resulting injury if barricades are not placed within twenty-four hours after “notice” to the governing body under statutory duty of maintenance. Whether the notice required must be actual, or whether it may be constructive, was decided by the Clementson case, wherein it was held constructive notice is sufficient. There is no suggestion in the Williams case that this is overruled. On the contrary, the Williams case cites the Clementson case with apparent approval, and discusses what circumstances are sufficient to show constructive notice. All that the Williams case holds is that the governing body has twenty- four hours after notice in which to act, and that there can be no liability for failure to act earlier. On the question whether constructive notice was shown, the trial court and Court of Appeals followed the well estab- lished rule, supported by South Dakota and other decisions, to the effect that the governing board of a public corporation charged with the duty of maintaining a public way, has constructive notice of any defect which would have been dis- covered if such duty had been adequately performed by such governing body and its subordinate officers and employees. Giellenbeck v, City of Mobridge, 40 8. D. 157, 166 N. W. 681; Smith v. City of Yankton, 23 8, D, 352, 121 N. W. 848; Schuler v, City of Mobridge, 44.8. D, 488, 184 N. W. 281; Dis- trict of Columbia v. Woodbury, 136 U.S. 450, 10 8S. Ct. 990, 34 L. Ed, 472; Nandy v. Meridian Township, 114 Mich, 454, 72 N. W. 251; Moore v. Kenockee Township, 75 Mich, 382, 42 N. W. 944; Johnson v. Lron River, 149 Wis. 189, 185 N. W. 522; Thomas v. City of Flint, 123 Mich. 10, 81 N. W. 936; Waud v. Polk County, 88 Towa 617, 55 N. W. 528. It is clear the Court of Appeals applied the local law as such local law has been enunciated by the South Dakota Supreme Court. The conflict asserted by Petitioner is fanci- ful, not real, — ALLEGED DEPARTURE FROM USUAL COURSE OF JUDICIAL PROCEEDINGS Petitioner’s contentions in this respect are also unsub- stantial. So far as concerns the alleged misconduct of Re- spondent’s counsel, Petitioner simply failed to follow the well established rule for preservation of this question for review as a matter of right. More than twelve years ago—on April 20, 1936 — the Court of Appeals for the Eighth Circuit, in London Guaran- tee & Accident Co. v. Woelfle, 838 F. (2d) 325, 344 an- nounced : “In the future, to secure from this court, as a matter of right, a reversal of a judgment because of improper remarks of counsel in an argument made to a jury, the bill of exceptions must contain all arguments in full and must show, either that adequate objections and ex- ceptions to rulings thereon were taken during the argu- ment complained of, or that such remarks were specifi- cally excepted to at the close of the argument. While failure of a party to take proper exceptions will not deprive this court of its power to grant a new trial in the public interest, we think there is no reason why that power should be exercised in such a case except under th most unusual circumstances.” (Emphasis supplied.) The rule has frequently been reiterated since then, the last time as late as October 27, 1947. Chicago & N. W. R. Co. v. Kelly, 84 F. (2d) 569, 575; Thomson v. Boles, 123 F. (2d) 487, 496; Gantz v. United States, 127 F. (2d) 498, 504; Palmer v. Miller, 145 F. (2d) 926, 931; Chicago & N. W. R. Co. v. Green, 164 F. (2d) 55, 64; Fleming v. Husted, 164 F. (2d) 65, 68. There was, accordingly, no excuse for failure to follow this rule on the part of any litigant who felt he had for presen- tation any such question that really warranted appellate attention. The same practice exists in the Tenth Circuit. Pietch v. United States, 110 F. (2d) 817, certiorari denied 310 U. S. 648, 60 S. Ct. 1100, 84 L. Ed. 1414; Metropolitan Life Ins. 5 Co. v. Banson, 106 F. (2d) 561. This is also true in the Sec- ond Circuit. Vause v. United States, 53 F. (2d) 346, 354, and United States v. Dilliard, 101 F. (2d) 829, 887. That such procedural rule is sound is nicely illustrated by United States v. Socony Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129. There this Court held that certain statements of counsel, standing by themselves, appeared “highly improper,” but that “a reading of the entire argu- ment before the jury leads to the firm conviction that the comments which respondents now rely on for their assertions of error were isolated, casual episodes in a long summation of over 200 printed pages and not at all reflective of the qual- ity of the argument as a whole.” The alleged misconduct (R 245-246) was obviously of such character that whether or not there was impropriety, and if so, whether it was prejudicial, would be dependent on the entire context of the arguments made, just as it did in the Socony Vacuum Oil case. So far as concerns the claimed restriction of cross- examination, the record speaks largely for itself. Petitioner was allowed wide latitude, of cross-examining and recross- examining witnesses, to the extent of much repetition. (R 44-53, 59-62, 65-67.) On analysis most of Petitioner's complaints in this respect are trivial. One is because the trial court sustained an objection when Plaintiff was asked on cross-examination if his tires would leave skid marks on the bridge without the brakes applied. It was in the record without dispute that the weather was frosty, such as to leave tire marks visible (R 18). Obviously the question called for speculation and conclusion. Another complaint is that Petitioner was not permitted to cross-examine as to an alleged discrepancy in Respondent's testimony as to the distance a car was behind him, The only basis for any estimate was the reflection in Respondent's windshield of the lights of the car in the rear (R 47). Obvi- ously any estimate would be a guess, and the trial court was Within its discretion in holding any such minor discrepancy had no tendency to show untruthfulness or unreliability. Another complaint reduces itself to a quibble on nomen- clature. In his trial testimony Respondent told of a bump as the bridge went down under him (R 39), while in a pre trial examination he did not speak specifically of a bump, but of feeling “the drop” (R 47-48), which would necessarily include a bump. The trial court held this was not such a dis- crepancy as could be used as impeachment. The complaint by Petitioner commencing at the middle of Page 24 of its brief reduces itself to nothing whatever. After considerable contention as to the state of the record, Peti- tioner was permitted to introduce the impeaching testimony offered (R 51). The same is true as to the complaint in the paragraph commencing at the bottom of Page 24 of its brief (R 69). As to the complaint made by Petitioner in the two para- graphs in the middle of Page 25 of Petitioner's brief, refer- ence to the record will show the attempted cross-examination unfair. The witness, Willard Miller, had testified on cross- examination that the bridge floor did not at all times look flat ahead as if he could have driven right across (R 69). Impeachment was attempted on a portion of the pre-trial statement wherein the witness said that “at that time,” obvi- ously referring to when he went onto the bridge, the floor looked flat ahead and as if he could have driven right across (R 69). As to the complaint on Page 27 of Petitioner's brief as to restriction of the cross-examination of Respondent’s witness McWayne, all that this involves is that the trial court would not permit a question as to whether a specified part from the wrecked bridge was in a certain yard, when the witness had already been cross-examined as to this, and the question represent mere repetition. (Compare R 139 with R 140.) The alleged misconduct of the trial court was as to a state- ment made while Petitioner’s expert witness Giertsen was on the stand. Mr. Giertsen was asked as to the relative strength of the hip rods in the hanger plates at what had been referred to as Point 1 and Point 2 (R 239). After answering that it was “about one to three,” he then went on to repeat what he had previously testified (R 238), which was that hip rods Net are by Jalntavadte A en Th Wine tienes i ustnabaner (vf —_- 7 were the weakest point in the structure, and that the rods were three-quarters of an inch in diameter. Respondent ob- jected that this was repetition, and the court sustained the objection. The witness then interjected, “I don’t think it is,” with the court responding “I said it was.” (R 239.) The court’s ruling was correct, and if trial decorum is to be pre- served, witnesses may not be permitted to argue with the judge. There is nothing here at all comparable to any case in which this court has granted certiorari on the ground alleged. Petitioner relies on Alford v. United States, 282 U. 8. 687, 51 S. Ct. 218, 75 L. Ed. 624; District of Columbia v. Clawans, 300 U. 8S. 617, 57 S. Ct. 660, 81 L. Ed. 843; New York Central Ry. Co. v. Johnson, 279 U. 8. 310, 49 8. Ct. 300, 73 L. Ed. 706; and Berger v. United States, 295 U. 8. 78, 55 8S. Ct. 629, 79 L, Ed. 1314. In the Clawans and Berger cases certiorari was granted on other grounds. On the resulting review, error was held to have been committed in each case for flagrant infringement on the rights of a person on trial for alleged crime. The Alford case, also criminal, disclosed a complete shut- ting-off of all right of cross-examination on a matter vital to the defense. In the Johnson case defense counsel in a personal injury suit had asked questions which sought to develop whether the claimed disability was from syphilis, rather than from the accident. Counsel for the plaintiff made to the jury a highly inflammatory address, charging defense counsel with besmirching the plaintiff, with misstatements to the effect that the alleged syphilis was the defense, et cetera. It is clear that in this case the Court of Appeals has not so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for exercise of this Court’s power of super- vision. Petitioner’s contentions in this respect are a pretext rather than a reason for certiorari. CONCLUSION All that here appears is that Petitioner wants still further appellate review. Petitioner has shown nothing to indicate | that the public interest requires such further review. Whether or not Petitioner was liable to Respondent de pends entirely on local law. This is solely for the Legislature and the courts of South Dakota to determine. The Court of Appeals followed the law as locally established. As to the alleged misconduct of the trial court and Respondent’s coun- sel, and alleged restriction of cross-examination, the most | that can be said is that those questions were such as were proper for appellate review, and such review has been had. Respectfully submitted, HOLTON DAVENPORT, ELLSWORTH E. EVANS, LOUIS R. HURWITZ, ROY E. WILLY, Sioux Falls, South Dakota, | Attorneys for Respondent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1991%3A2. Public record. Not legal advice.