Opposition Brief — Aetna Insurance v. Hart-Bartlett-Sturtevant Grain Co. (No. 679)

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INDEX

Questions Presented .. Sm OSPR

State Constitution, Statutes and Court Rules iad

Statement of the Case ._........ iy v2 ax wi he eh

Argument—

Point I. Petitioners Show No Reason for the Exer-

cise of This Court’s Discretionary Jurisdiction —

Point II. No Federal Question Was Properly Pre-

sented by Petitioners to the Missouri State Courts,

and This Court Therefore Lacks Jurisdiction ....

Point III. No Federal Question Is Presented by a

Claim That One Not a Party to a Judgment Is

Bound Thereby Because of His ean i to the

Parties Thereto

Point IV. The Holding of the iseeens Court of Mis-

souri That Respondent Was Not Estopped by the

Judgment Against Its Lessors in the Kansas wiced

tion Is Clearly Correct .

A. The Supreme Court of Missouri Sawai

Found That Any Issues Between Petitioners

and Respondent in the Kansas Litigation, As to

the Explosion Issue or Oherwise, Were Ex-

pressly Withdrawn by the Court at the Request

of the Petitioners

| B. The Supreme Court of Missouri Dineeaty Con-

cluded That There Was No Legal Relationship

Between Respondent and Its Lessors Such As

| to Bind the Former Bind a J ee wean

Against the Latter -

Point V. The United States District Court in Kan-

sas Had No Jurisdiction over Any Ordinary Civil

Controversy Between Respondent and Petitioners,

14

16

17

21

Ir INDEX

and Therefore Respondent Could Not Be Estopped

by Any Determination in the Kansas Case _. ae

Conclusion _. . Aaskibainsastancticenicammmadiaesie-ain 26

Appendix—

State Constitution, Statutes and Court Rules

Involved rose , = . Al

Extract from Statement of Points and Authorities

in Brief of Respondents (Petitioners Here) in

the Supreme Court of Missouri .

Cases CITED

Aetna Insurance Co. et al. v. Chicago, Rock Island and

Pacific R. Co., 127 F. Supp. 895, affirmed sti Cir).

229 F. 2d 584 ise 25

Bagley v. General Fire Extinguisher Company, 212 U. s.

477 - sth acihcldacindaiescapacee ae

Siesien’. v. old Denddin: unin Co., 295 U. s. er 15

Chandler v. Manifold, 290 U.S. 665 = 10, 15

Cherokee County v. Wilson, 109 U. S. 621 a co ae

Chittenden v. Brewster, 2 Wall. 191 ; . 20

Cox v. Imes, (Mo. App.) 219 S. W. 399 .. 2

Cushing v. Laird, 107 U.S. 69 18

Dorrance v. Pennsylvania, 287 U. S. 660 ae .~

Durley v. Mayo, 351 U. S. 277 aditeaiacenlateeen —.

Ellis v. Dixon, 349 U. S. 458 - poutine 12

El Paso and Southwestern Railroad — v. Eichel

and Weikel, 226 U.S.590 eae 10

Farmers Loan and Trust a," v. Waterman, 106

ee ee eee 20

Frick Co. v. Rubel Corp., (D.C. E. D. N. Y.) 1 F. Supp.

Oe seinen, 21

F. W. Woolworth Co. v. Contemporary A Arts, Inc., 344

U. S. 228 - ae oil

INDEX III

Gorman v. Washington University, 316 U. S. 98 - 13

Graham v. La Crosse & M. veined testis 3 Wall.

704 . 18

Grant v. United States, 227 U. “Ss. 74 20

Hanrick v. Patrick, 119 U. S. 156 - oes . &@

Hansberry v. Lee, 311 U. S. EE Se oe

Hart-Bartlett-Sturtevant Grain Company V. Aetna In-

surance Company et al., 108 F. Supp. 757 - 25

=" si Insurance ‘hist v. Johnson, 249 U. S.

490 . aed : 10, 12

Hughes v. St. Louis National Leaaue Baseball ‘Club,

359 Mo. 993, 224 S. W. 2d 989 —.....------ ---------- 11

Hurn v. Oursler, 289 U. S. 238 - <a 26

In re Lea} Tobacco Board of rede, 222 U.S. 578 | 20

Leahy v. Mercantile Trust teebiiiods 296 Mo. 561, 247

S. W. 396 - a i 23

Leath v. Sassi, (Mo. pomm ) 202 s. w. 2d 125 ~ 11

Lovejoy v. Murray, 3 Wall. 1 - pei 23

Lynch v. New York, 293 U. S. 52 - a 9

Manhattan Life Insurance ai v. + Cia, 234 LU. Ss.

BD wercssivae 10

Marczuk v. St. Louis Public Service A inaitinas 355 Mo.

536, 196 S. W. 2d 1000 .. ys 12

McIntosh v. Foulke, 360 Mo. .. 481, 228 s. W. 2d 757 — 7,17

Mergenthaler Linotype Co. v. Davis, 251 U. S. 256 - 12

New York Elevated R. Co. v. Fifth National Bank, 135

U. S. 432 - eee Loe 21

New York ex eat : atete v. Halvey, 330 U. ‘s. 610. 15

Partmar kesind v. Paramount Theaters een 347 U.S.

89 . a ae

Pelton v. Trico oil ‘aie, (Tex Civ. pay 167

S. W. 2d 625

23

bgt eb IES

-

IV INDEX

Postal Telegraph Cable we v. City es Newport,

247 U. S. 464 : 15, 22

Radford v. Myers, 231 U.S. 725 ——

Rice v. Sioux City Cemetery, 349U.S.70 ss sig

Riley v. New York Trust Company, 315 U. S. 343 8, 22

Severson v. Dickerson, (Mo. App.) 248 S. W. 595 12

Souffront v. La Compagnie, 217 U.S. 475 23

South Ottawa v. Perkins, 94 U. S. 260 15

Sovereign Camp v. Bolin, 305 U. S. 66 24

State ex rel. Cole v. Matthews, (Mo. Sup.) 274 S. W.

2d 286 - 11

State ex rel. Perrine v. Keirnan, 361 Mo. 871, 237 S. W.

2d 156 - 11

Stout v. Lye, 103 U. S. 66 __ nw AR 24

United States y. Silliman, 167 F.2d 607 17

Walters v. St. Louis, 347 U.S.231 sitachabidibeiwaset. a

STATE Constifution, Statutes, Court RULEs,

ETC., CITED

Annotation, 169 A. L. R. 179 : 23

4C. J. S., Appeal and Error, Section 183(a), Section

183(b) (1) Sane. 20

5 C. J. S., Appeal and Error, Section 1497 (b) 20

Constitution of Missouri, Art. V, Sec. 9 __ 2,13, Al

Missouri Supreme Court, Rules 1.08 (a), (c); 2.02 2,Al

Missouri Revised Statutes, Sec. 509.010 Pe 2,7, Al

2 Moore, Federal Practice, 2d Ed., Section = page

16, Section 14.17, page 443 | 18

Restatement of Judgments, Sec. 69(2). a nico a

Restatement of the Law of Judgments, Sec. 71 26

Restatement of Judgments, Sections 78 through 111 23

Restatement of Judaments, Sec. 105(b) ies ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1956.

No. 679.

AETNA INSURANCE COMPANY, a Corporation, et al.,

Petitioners,

VS.

HART-BARTLETT-STURTEVANT GRAIN COMPANY,

a Corporation, Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF MISSOURI.

QUESTIONS PRESENTED.

The single “question presented” as set forth in the

petition is deceptively misleading, in that it implies that

Respondent was a party to the judgment relied on by

Petitioners, which it was not. We therefore elect to re-

state the Questions Presented as follows:

2

1. Does this Court have jurisdiction to review a de-

cision of a division of the Supreme Court of Missouri, to

which ng constitutional claim was presented, when a sub-

sequent motion for rehearing or to transfer to the Court

en banc, seeking to raise such a claim was denied without

opinion?

2. Is a federal question presented as to the binding

effect of a judgment on Respondent, which was not a party

thereto, because of a contention that extrinsic facts and

circumstances create a relationship of legal identification

or privity with parties?

3. When all issues between Petitioners and Respond-

ent were removed from the scope of a trial involVing

multiple parties and multiple issues, by leave of court

upon a request of Petitioners, was Respondent bound

by a judgment thereafter rendered in favor of Petitioners

and against others?

4. Was there a sufficiently close legal relationship

between Respondent and its lessors so that a judgment de-

nying recovery to lessors under their insurance policies

covering damage to the leased premises, in which policies

Respondent had no interest, would bind Respondent on a

claim for recovery under separate and distinct policies is-

sued to it and covering its own separate interests?

All of these questions call for a negative answer.

STATE CONSTITUTION, STATUTES AND COURT

RULES INVOLVED.

(Full Text in Appendix.)

Constitution of Missouri, Art. V, Sec. 9.

Missouri Revised Statutes, Sec. 509.010.

Missouri Supreme Court, Rules 1.08 (a), (c); 2.02.

STATEMENT OF THE CASE.

We believe that Petitioners’ lengthy, argumentative,

and repetitious statement of the case is unjustified, and

that the material facts can be quite readily understood by

reading that portion of the opinion of the Supreme Court

of Missouri which discusses Petitioners’ claim of estoppel

by judgment (Pet. App., Pp. xxix through xxxv). We

cannot possibly set forth all points of disagreement within

the compass of this brief, but because of the argumentative

matter and some significant omissions, we shall supple-

ment Petitioners’ statement briefly:

(1) A glaring omission is the failure of Petitioners

to advise this Court that, prior to judgment in the Kansas

case, the explosion issue, as it affected Respondent, had

been expressly withdrawn at the request of Petitioners

themselves, and Respondent had therefore introduced no

evidence on that issue.

At the commencement of the Kansas trial, the claims

stated in the pleadings were as follows: (1) Respondent’s

claim for damages against its lessors on the covenants of

the lease, which claim did not involve explosion or insurance

in any way; (2) a third party complaint by the lessors

against their insurers, including Petitioners, seeking a re-

covery over against the insurance companies for such part

of Respondent’s claim as might be adjudged against them

which had resulted from explosion; and (3) a counterclaim

and cross-claim for declaratory judgment by the insurance

companies, seeking a declaration against the lessors and Re-

spondent that no explosion had occurred. Respondent was

not a party to the third party complaint, and had no rights

under the insurance policies there sued on. Respondent had

objected to the third party procedure, and had sought a

4

separate trial, but the objections raised prior to commence-

ment of the trial had been denied by the court.

The order of proof at the trial is described in the opin-

ion below (App. to Pet., p. xxxi). At the conclusion of the

third-party defendants’ case, and before Respondent had

introduced any evidence of its own on the explosion issue,

Respondent filed a motion seeking the withdrawal of that

issue as applied to it (Estop. Exh., p. 1817). Several reasons

were assigned, including lack of jurisdiction over the sub-

ject matter on the ground that it and the Kansas City

Fire & Marine Insurance Company, which held the bulk

of the insurance involved in the Kansas litigation but not

in the Missouri litigation, were both Missouri corpora-

tions, and prejudice arising out of admissions against in-

terest on the part of the lessors, one of which had an inter-

locking directorate and officers with such petitioner (Estop.

Exh., Vol. 2, pp. 66-7), prejudicial to the explosion issue.

During argument on this motion the following took

place (Estop. Exh., pp. 1828-9):

“The Court: It is hard for me to see that there

can be an issue to be resolved under general applica-

tion for declaratory judgment as to the group of policies

issued by the insurance companies to Minnesota Ave-

enue, Inc., and the City, how the grain company can

have any interest in those policies.

“Mr. Clausen [then and now counsel for Peti-

tioners]: I agree with you.

“The Court: I think probably the motion upon

the ground which the Court has suggested in its

discussion, the motion should be sustained and there

will be no issue submitted under the declaratory judg-

ment cross-complaint as to the first count and as

to the plaintiff in the action, but the trial has pro-

ceeded upon the liability of the insurance companies

to Minnesota Avenue, Inc., and the City.

5

“Mr. Clausen: If Your Honor please, may I

make a suggestion. Before you do that finally, it

would look silly on our record and our pleadings to

have that kind of a prayer which I didn’t realize

myself. Let me withdraw that from the pleading.

I don’t want to have that kind of a thing go up to a

court of appeals because that was a mistake as far

as I personally am concerned and I would prefer

to withdraw it from the pleading so it would not

necessitate having that kind of an order based on a

pleading that apparently there was a mistake made

in, and I would like to correct that and that would

eliminate the necessity of any order on it.”

Counsel for the insurance companies then requested

and obtained leave to amend the “counterclaims and cross-

claims” involved in the trial, so as to omit any reference

to, or request for declaratory judgment against, Respond-

ent (Estop. Exh., 1858). The amended prayer is quoted

in the opinion below (Pet. App., p. XXxil). The judg-

ment rendered in the Kansas case on the explosion issue

was not entered against Respondent (Pet. 13), and Re-

spondent was not a party to it in any way.

(2) All of the participation by Respondent in the

trial of the explosion issue in Kansas referred to by Peti- .

tioners both in the statement and in the argument, occurred

before the above-described amendment, as the Supreme

Court of Missouri observed (Pet. App., xxxiv). The stipu-

lation set out at length in the appendix had been agreed

upon prior to the trial, for the convenience of all parties, and

the facts stated therein would obviously be material to

the defenses raised by lessors. The matters detailed on

pages 16 through 20 of the statement all occurred prior to

the filing of the third-party complaint, and long before

the trial.'

If it has any significance, Petitioners’ claim that the Missouri

case was submitted on the same evidence as was the Kansas case

6

(3) The matters introduced by the caption on page

26 of the petition are purely argumentative, and are not

supported by the record. Both the Supreme Court of

Missouri and the United States District Court in Kansas

found that Respondent neither had nor claimed any in-

terest in its lessors’ insurance policies, and was not the

“real party in interest” on any claim for the proceeds,

as the following extracts from the opinion demonstrate:

“Plaintiff was not the insured in the policies is-

sued to lessors indemnifying for damage to the ele-

vator facilities due to explosion, and the issue of ex-

plosion was not essential to plaintiff’s recovery on

its claim against lessors.” (Pet. App., p. xxx).

“As we have noticed, the District Court in con-

sidering the sustension of plaintiff's motion for a

directed verdict was of the view that plaintiff had

no interest in the policies issued to lessors; and the

judge also expressed the opinion that, apparently,

there was no privity of contract claimed or asserted

under which plaintiff would have had any rights

under the policies of insurance issued to _lessors.

Clearly plaintiff would have had no property right

in any proceeds of such policies.” (Pet. App., p.

XXxXiV).

(Pct., p. 25) simply is not so. Respondent’s witnesses in the

Kansas case did not testify on the explosion issue, except possibly

on cross-examination by the lessors and insurers. Numerous wit-

nesses testified for Respondent in the Missouri case who had not

testified in Kansas, to-wit: Saeger (Mo. S. Ct., Tr. 327), Roethe

(419), Darbe (541, 567), Poisner (554), Studna (624), F. W.

Bartlett (685), Kappeler (692), Benberg (695); and Bevan gave

testimony (862) for Petitioners which was found by the Supreme

Court of Missouri to aid Respondent. Also, in the Missouri case

there were offers of proof for other witnesses, and numerous addi-

tional exhibits including motion pictures of experiments (635).

7

(4) We cannot determine what part of the state-

ment is designed to comply with this court’s Rule 23(f).

In Point II of our argument we will show that no federal

questions were timely raised in the Missouri courts.

Petitioners did not raise any question of full faith

and credit in their answer, or in their brief or oral argu-

ment in the Supreme Court of Missouri. On February 2,

1954, Petitioners filed a second amended answer to plain-

tiff’s petition in the trial court, and went to trial on this

pleading (Tr. 47-57). Count HI contained a claim that

Respondent was estopped to relitigate the explosion issue,

by reason of its participation in the trial of that issue in

the Kansas litigation. Count IV asserted that Respond-

ent was so estopped by reason of its legal relationship

with its lessors. A copy of the Kansas judgment on the

explosion issue was attached to the answer, and this

showed on its face that Respondent was not a party to

it (Pet., p. 18). No claim was made that this judgment

was conclusive on Respondent by reason of the full faith

and credit clause.”

cnnemnnenanias

“Petitioners are manifestly in error in assuming that a reply

to this answer was required by Missouri law, or that there is any

admission because no reply was filed. The Missouri law of plead-

ing is substantially the same as the system prescribed by the

federal rules, and no reply is required unless the answer contains

a counterclaim, or unless the court expressly orders a reply. When

no further pleading is required, all allegations of the opponent’s

pleading are taken as denied or avoided. This is shown by Missouri

R. S., § 509.100 (Pet. App., p. x1) and 509.010 (our App-)- In the

case of McIntosh v. Foulke, 360 Mo. 481, 228 S. W. 2d 757, quoted

from by Petitioners under their third point and described by them

as “parallel in all respects to the pleading aspect present here,”

the answer prayed affirmative relief and the court had previously

ordered a reply, which order was not complied with. There was

no such order or claim in the present case. This case was cited on

another point in Petitioners’ brief in the Supreme Court of Mis-

souri, but this is their first assertion that a reply was required.

8

Petitioners admit that they did not argue the full

faith and credit clause before Division One of the Supreme

Court of Missouri, and that this claim was first presented

on transfer to the Court en banc (Pet. 9, 10, 32), which mo-

tion was denied without opinion (Pet. 3). The opinion

below discusses all claims presented in the briefs, but

contains no reference to the question of full faith and

credit.

ARGUMENT.

POINT I.

Petitioners Show No Reason for the Exercise of This

Court’s Discretionary Jurisdiction.

Not one line in the petition shows existence of any of

the standards for guidance set forth in Rule 19 of the

Court as to certiorari proceedings, nor is any reason of

equivalent importance suggested. Petitioners simply seek

further review of a lawsuit presenting unique circum-

stances which probably never will recur. At the very

most their claimed constitutional question is nothing “‘be-

yond the academic or the episodic,” Cf. Rice v. Sioux City

Cemetery, 349 U. S. 70.

No ground for further review is stated simply be-

cause the Supreme Court of Missouri reached a conclusion

on the merits different from the opinion of a Kansas

federal judge, who was considering an evidentiary show-

ing made by different parties. This Court does not re-

view legal conclusions on matters of purely local law,

and such differences of legal opinion are inherent in our

federal system. Riley v. New York Trust Company,

315 U. S. 343, 1. ¢. 349.

Rese. te

9

It is difficult to see what rule of general application

Petitioners claim should be evolved in or applied to this

case. What they apparently ask this Court to do is to re-

view a massive record and hold that this record compels

the conclusion that Respondent must be bound by a judg-

ment to which it was not a party, on a theory that it was

the “real party in interest” in its lessors’ claims on their

insurance policies. They must concede that to reach this

result it would be necessary for this Court to arrive at a

construction of the lease different from that reached both

by the Kansas federal court and by the Supreme Court of

Missouri, and that inferences must be drawn from the

record which were not drawn by the lower courts. They

admit that no precedent supports their claim (Pet. 51),

nor is any constitutional authority cited which it is claimed

the Supreme Court of Missouri overlooked or failed

to follow. There simply is no question of general interest

or importance so as to justify further appellate proceed-

ings in this private suit over insurance contracts.

POINT II.

No Federal Question Was Properly Presented by Petitioners

to the Missouri State Courts, and This Court

Therefore Lacks Jurisdiction.

This Court has said many times that it will not review

a claim of federal right which was not presented to the

state courts. See, e. g., Walters v. St. Louis, 347 U.S. 231.

The burden is on Petitioners to show that federal questions

were presented to and decided by the state court, Lynch

v. New York, 293 U.S. 52. Here the opinion of the Sapreme

Court of Missouri is entirely silent as to the federal ques-

tions now claimed to exist.

10

In the case of Manhattan Life Insurance Company V.

Cohen, 234 U. S. 123, 1. c. 184, Mr. Chief Justice White

said:

“* * * Moreover, as a general rule, it is true that

for the purposes of review by this court rights un-

der the full faith and credit clause, § 1, Article IV of

the Constitution, come within that class which are

required to be expressly set up and claimed in the

court below. Johnson v. New York L. Ins. Co., 187

U.S. 491, 47 L. Ed. 273, 23 Sup. Ct. Rep. 194; El Paso &

S. W. R. Co. v. Eichel, 226 U. S. 590, 597, 57 L. Ed. 369,

373, 33 Sup. Ct. Rep. 179; Chicago, I. & L. R. Co. V.

Hackett, 228 U. S. 559, 565, 57 L. Ed. 966, 968, 33 Sup.

Ct. Rep. 681. ° * *"

Later holdings to the same effect are Hartford Life

Insurance Company v. Johnson, 249 U. S. 490, and Chan-

dler v. Manifold, 290 U. S. 665.

There was no claim of any federal right in the

amended answer, on which Petitioners went to trial. The

answer simply alleged that Respondent was estopped by a

judgment to which it was not a party, without any men-

tion of the full faith and credit clause. Such questions as

these are not necessarily federal questions, as is shown by

the following quotation from El Paso and Southwestern

Railroad Company v. Eichel and Weikel, 226 U. S. 590, 1. c.

597; describing a claim that a state statute was entitled to

full faith and credit:

“The points raised by plaintiff in error that are

now relied upon as an assertion of Federal Rights

were brought to the attention of the trial court and

of the court of civil appeals like any other of the mul-

titude of questions that were raised in those courts;

and, so far as appears, the decision in both courts

proceeded not in disregard of any Federal right as-

serted or suggested, nor even in disregard of the de-

11

cisions of this court or of the authority of those de-

cisions, * * *.”

Petitioners admit that they did not present any ques-

tion of the full faith and credit clause to the Supreme

Court of Missouri in their brief or oral argument to that

court (Pet. pp. 9, 10, 39). Their statement of points re-

quired in that Court (Our App.) mentions no federal

claim. They seek to excuse this failure simply on the

ground that they were appellees at that stage, thus in-

timating that they were not required to present the point

until after the opinion of the Supreme Court of Missouri,

adverse to them, was handed down. The claimed excuse

is not sufficient. Any argument that the Constitution re-

quired that the Kansas judgment be so applied as to con-

clude Respondent was as available to them then as it is

now, and under the law of Missouri, as under any orderly

system of appellate practice, the appellee has the duty of

setting forth all grounds on which he relies in seeking af-

firmance, Hughes v. St. Louis National League Baseball

Club, 359 Mo. 993, 224 S. W. 2d 989. An appellee will not

be permitted to raise points in a motion for rehearing or

for transfer to the court en banc, which were not presented

at the initial hearing. State ex rel. Cole v. Matthews, (Mo.

Sup.) 274 S. W. 2d 986: State ex rel. Perrine V. Keirnan,

361 Mo. 871, 237 S. W. 2d 156; Leath v. Weaver, (Mo. App.)

202 S. W. 2d 125.

In Dorrance V. Pennsylvania, 287 U. S. 660, this court

denied certiorari for want of jurisdiction because the Peti-

tioner, who had been appellee in the Supreme Court of

Pennsylvania, had failed to present the federal questions

relied on to that court, even though they had been presented

to the trial court and petitioner had been successful there.

OY Gets

12

This court has consistently held that federal questions

must be presented in the state courts in compliance with

the state procedure. For many years Missouri has strictly

enforced a requirement that constitutional questions be

presented at the earliest opportunity. When such points

are available at the time of answering, as they were here,

their initial presentation in a motion for new trial or there-

after, as Petitioners tried (Pet. p. 8), comes too late,

Severson v. Dickerson, (Mo. App.) 248 S. W. 595; Marc-

zuk v. St. Louis Public Service Company, 355 Mo. 536, 196

S. W. 2d 1000. In numerous cases arising from Missouri,

this court has approved the Missouri procedure and has

declined further review for noncompliance. See, e. g.,

Hartford Life Insurance Company v. Johnson, 249 U. S.

490; Mergenthaler Linotype Co. v. Davis, 251 U. S. 256.

No federal question was discussed or passed on in the

cpinion of the Supreme Court of Missouri, although that

opinion covered thoroughly everything presented in the

briefs including numerous alternative claims made by

Petitioners. In accordance with repeated decisions of

this court (e. g., Ellis v. Dixon, 349 U. S. 458), it must be

assumed that the opinion did not discuss the federal ques-

tions because they had not been properly preserved and

presented. Under Missouri law, this failure could have

been both (a) because they were not contained in the an-

swer filed in the trial court, and (b) because of Petitioners’

failure to brief and argue them before the Supreme Court.

Petitioners have failed to meet their burden of showing

affirmatively that they seek review of a federal question

presented to and decided by the Missouri courts.

Following the decision of Division One of the Su-

preme Court of Missouri. Petitioners attempted to raise

federal questions in a motion for rehearing or in the alter-

13

native for transfer to the Supreme Court of Missouri en

banc (Pet. p. 10). For purposes of review by this court,

the highest court of the State of Missouri is the Supreme

Court en banc, and the divisions of that court are consid-

ered subordinate courts of the state, Gorman Vv. Washing-

ton University, 316 U. S. 98. The denial of the motion for

transfer to the court en banc, without opinion, must be

assumed to be for the reason that the federal questions

were not properly preserved or presented, Durley v. Mayo,

351 U. S. 277, and other cases collected in 100 L. Ed. 1200.

That the Supreme Court of Missouri could have based its

decision on this ground is indicated by the provision

of the Constitution of Missouri (Art. V, Sec. 9, Our App.),

requiring mandatory transfer of a case from a division to

the court en banc when a federal question is involved.

This point is far more than procedural quibble. Peti-

tioners have presented a lengthy document containing

isolated passages from 3,000 pages of record, in two sep-

arate cases. They have made so many claims on matters

of fact, construction, and interpretation that we cannot

answer them within the scope of this brief, even though

there are many points of disagreement. The state court

has had no opportunity to sift the record so as to resolve

disputes on matters which might be material to the claimed

federal issues belatedly presented." The result is that

this court is now asked to consider an involved constitu-

tional argument which is admittedly not supported by any

authority whatsoever, and which the courts below had no

opportunity to consider, © the basis of a voluminous rec-

’Even in the post-decision motion, the full faith and credit

argument was only number Six of seven points raised, and occupied

only two of the forty-eight pages of the supporting suggestions,

without the citation of a single authority.

Sin ALLA AE RWIS FT

bd he oes

rie karat ace

BSA PIE AN tA OTL AYRE RDO Re i pte IY NB ete hk

1), ape

Bien: Loess

14

ord and disputed allegations not resolved in the state

courts. The statutes defining the jurisdiction of this court

were designed to avoid such complications at this stage of

the proceedings.

POINT III.

No Federal Question Is Presented by a Claim That One Not

a Party to a Judgment Is Bound Thereby Because of

His Relationship to the Parties Thereto.

Since Respondent was not a party to the Kansas judg-

ment, any claim that that judgment binds Respondent can-

not be based on its terms, but must depend on extrinsic

facts and circumstances. Petitioners recognize this by

their assertions of privity, which is a term defining the

class of cases in which one not a party to a judgment bears

some of its burdens, or may claim some of its benefits.

Restatement of Judgments, Sec. 69(2). A question

whether extrinsic facts or circumstances are sufficient to

create a relationship of privity, so as to bind one by a judg-

ment to which he is not a party, is not a question of federal

law.

This was expressly held in the case of Bagley v. Gen-

eral Fire Extinguisher Company, 212 U..S. 477. There

the point at issue was whether one on whom a notice to

defend had been served was bound by a judgment to

which he was not a party. This court dismissed a writ

of error (available at that time to a Circuit Court of Ap-

peals only in cases involving constitutional questions)

and, speaking through Mr. Justice Holmes, said (1. c. 480):

“Tf the judgment binds the defendant, it is not by

its own operation, even with the Constitution behind

it, but by an estoppel arising out of the defendant’s

contract with the plaintiff and the notice to defend.

* * * The decision, in other words, turned wholly on

FE eee

a atieat

15

the construction of the contract as excluding a lia-

bility over in the event that happened. Even if wrong,

it did not deny the Michigan judgments their full ef-

fect, but denied the preliminary relation between the

defendant and the party to them without which the

defendant remained a stranger to them, in spite of the

notice to defend.” (Emphasis supplied ).

The same principle was announced in Bigelow v. Old

Dominion Copper Co., 225 U. S. 111. There this court

held that the state courts of Massachusetts had the right

to determine for themselves whether a plaintiff could

maintain an action against an alleged tortfeasor, when the

same claim had been unsuccessfully presented by the

same plaintiff against an alleged co-tortfeasor in a New

York federal court. The Massachusetts court had ruled

that the estoppel of a judgment must be mutual, and this

court held that nothing in the full faith and credit clause

required it to reach a contrary result.

In Postal Telegraph Cable Company V. City of New-

port, 247 U. S. 464, it is said at page 475:

“Res judicata, like other kinds of estoppel. ordi-

narily is a matter of state ow? °°."

A question purely of ihe construction of a foreign

judgment is not a question of federal law, Chandler V.

Manifold, 290 U. S. 665.

The soundness of these holdings is apparent when we

consider that the keystone of full faith and credit is that a

judgment must have the same effect elsewhere that it has

where it is rendered, and that there is no requirement that

it be given more force abroad than it has at home, New

York ex rel. Halvey v. Halvey, 330 U. S. 610; South Ottawa

v. Perkins, 94 U. S. 260. The court which renders a judg-

ment determines its effect only as between the parties to it.

oven ‘

aS ee Ee ee eye ET a |

,

i

;

16

To determine the existence of privity, on any asserted

ground, there must necessarily be a consideration of evi-

dence dehors the judgment.

It is significant that none of the cases cited by Peti-

tioners to illustrate the doctrine of privity involved any

contention of denial of full faith and credit. In all of the

cases from this court cited on pages 54 through 58 of the

petition, the lower court was affirmed in its finding that

there was a relationship of privity.

Here, just as in the Bagley case, supra, the claim is

that a contract should be construed so as to bind Respond-

ent to a judgment to which it was not a party. The

Supreme Court of Missouri rejected the contention on

the basis of the evidence before it, and its construction

of the lease. Nothing in the full faith and credit clause

or decisions construing it furnished any guidance. The

result does not run contrary to anything ordered by the

Kansas judgment, and no effect was denied to that judg-

ment which was intended by the court rendering it. The

decision of the Supreme Court of Missouri, therefore, is

based on adequate non-federal grounds.

POINT IV.

The Holding of the Supreme Court of Missouri That

Respondent Was Not Estopped by the Judgment

Against Its Lessors in the Kansas Litigation Is Clearly

Correct.

The suggestion laboriously presented at pages 34

through 40 of the petition, that the Supreme Court of

Missouri mistakenly applied the doctrine of “res judicata”

rather than the subsidiary doctrine of collateral estoppel,

is neither pertinent nor helpful. As a matter of legal

terminology, collateral estoppel is considered a branch

17.

of the general law of res judicata, as is shown by the

quotation at pages 36 and 37 of the petition from the Part-

mar opinion and at page 39 from United States v. Silliman,

167 F. 2d 607, and also by the very language of the peti-

tion, e. g., the top of page 35 and first paragraph commenc-

ing on page 49. The case of McIntosh v. Foulke, 360 Mo.

481, 228 S. W. 757, shows that the Supreme Court of Mis-

souri is quite aware of the distinction between relitigation

of the same cause of action, and redetermination of a fact

or issue previously determined between the same parties.

Both res judicata in general, and collateral estoppel in

particular, apply only to parties to the prior litigation.

Actually, the bar of pure res judicata is stricter than is

that of collateral estoppel, since it comprehends matters

which might have been litigated in addition to matters

actually litigated. The opinion shows that arguments

presented by Petitioners on their claim of collateral estop-

pel were fully considered and decided in accordance with

the weight of authority.

A. The Supreme Court of Missouri Correctly Found That

Any Issues Between Petitioners and Respondent in the

Kansas Litigation, As to the Explosion Issue or Other-

wise, Were Expressly Withdrawn by the Court at the

Request of the Petitioners.

There is no need to speculate as to the intent of the

Kansas federal court on the explosion issue as that issue

affected Respondent. Respondent moved the court to

exclude the issue as to it, and the court indicated that it

would sustain the motion. To avoid this ruling, Petition-

ers voluntarily amended their pleading, with the assent

of the court. A separate final judgment was rendered on

the explosion issue, and Respondent was not a party to

that judgment.

18

Relying on this uncontrovertable showing from the

record, the Supreme Court of Missouri correctly held that

the judgment in the Kansas litigation did not determine

the explosion issue as far as Respondent was concerned.

This is a correct application of the law, based on the fol-

lowing general principles:

(1) A plaintiff and a third-party defendant are not

adversary parties unless an issue is framed by the plead-

ings on which they are on opposite sides, 2 Moore, Federal

Practice, 2d Ed., Section 13.06, page 16, Section 14.17, page

443.

(2) A judgment is not determinative of an issue ex-

cept as that issue arises between adversary parties,

Graham v. La Crosse & M. Railway Company, 3 Wall. 704;

Cushing v. Laird, 107 U. S. 69; Radford v. Myers, 231 U. S.

725, refuting Petitioners’ contentions that any party to

a consolidated trial is bound by everything there deter-

mined, even matters immaterial to his interest.

(3) A judgment is not determinative of an issue

which was originally present in the litigation, if that issue

is abandoned by the parties or withheld by the court from

the scope of the judgment (authorities cited by the court

below, Pet. App., p. xxxiii.)

Since the explosion issue was so withheld by the

court, Petitioners’ assertions about participation by Re-

spondent in the trial of the explosion issue in Kansas do

not aid them. This participation, without exception, all

took place before the explosion issue was withdrawn as

to Respondent, and the claims by Petitioners’ counsel that

the explosion judgment would bind Respondent as set

out at pages 63-5 of the petition, were all made prior to

that time. Respondent had been an involuntary partici-

pant on the explosion issue, following the rejection of its

oor ete

19

objections to the third-party proceedings and of its re-

quest for separate trials. Petitioners filed a cross-claim

which until amended, sought a declaration of “no ex-

plosion” against Respondent. During the trial Respond-

ent requested the court to reconsider its denial of sepa-

rate trials, as was proper (Partmar Corp. V. Paramount

Theaters Corp., 347 U. S, 89), and the trial judge changed

his mind, as he well might after hearing part of the

evidence. The amendment made a formal ruling unneces-

sary. Thereafter, not being a party to the explosion issue,

Respondent had no opportunity to and could not intro-

duce evidence of explosion, or argue the point to the jury

or the court. It had no trial on this issue since it was no

longer involved.

Petitioners’ citation of the Partmar case, supra, aS au-

thority that Respondent could have appealed from the

Kansas judgment on the explosion issue, is unsound. In

that case a judgment on part of the issues was rendered in

favor of Partmar, but a finding essential to this judgment

was that Paramount had not violated the antitrust laws.

Partmar had tendered both a defense and a counterclaim,

on inconsistent theories, and was seeking holdings that the

antitrust laws were not violated, so that it could retain its

valuable lease, but that they were violated, so as to support

a treble damage action. This court was careful to point

out that Partmar had had full opportunity to be heard,

and had been heard, in opposition to the challenged find-

ing of fact, which was rendered as a necessary part of 2

judgment to which it was a party. In the present case the

federal court did not adjudicate anything affecting Re-

spondent on the explosion issue, or any issue at all between

Petitioners and Respondent.

This court has consistently held that only a party to a

judgment or decree may appeal therefrom, Grant v. United

20

States, 227 U.S. 74; In re Leaf Tobacco Board of Trade, 222

U.S. 578. A corollary is that a party to a suit, who is not

a party to a final and separate decree rendered therein,

has no right of appeal from such a decree. Hanrick v. Pat-

rick, 119 U. S. 156; Farmers Loan and Trust Company v.

Waterman, 106 U.S. 265. The same holding has been an-

nounced by practically every appellate court in the coun-

try and cases are collected in 4 C. J. S., Appeal and Error,

Section 183(a), Section 183(b)1 and 5 C. J. S., Appeal and

Error, Section 1497(b). Nothing in the Partmar opinion

changes these principles, and the decisicn there is limited

to rights of parties to a decree to appeal from findings

which are necessary to that decree.

Utterly without merit is the intimation that Respond-

ent could have appealed “in the name of its lessors.’”’ Re-

spondent had,control over its lessors and could not have

appropriated their names to appeal from the judgment on

a claim which belonged only to them. Nor can an appel-

lant allege error affecting only a non-appealing party,

Cherokee County v. Wilson, 109 U. S. 621; Chittenden v.

Brewster, 2 Wall. 191.

Petitioners are the parties who should be estopped on

the basis of the Kansas proceeding. The conduct of their

chief counsel could only have the effect of leading Re-

spondent to believe that it was no longer affected by the

explosion trial in Kansas. The result was that Respondent

was induced to cease all further efforts at influencing the

determination of that issue, and undoubtedly the court

would not have permitted such further participation. One

cannot be heard to claim that an issue was determined by

a judgment when itself responsible for removing that is-

sue from the scope of the trial.* “Full faith and credit”

4Cox v. Imes, (Mo. App.) 219 S. W. 399, holding that a party

moving for dismissal of a counterclaim cannot later contend that

21

should require faith and credit to the action of the judge in

Kansas in unequivocally withdrawing explosion from the

scope of the Kansas trial insofar as Respondent was con-

cerned.

Petitioners’ own citations show that the doctrine of

collatera. estoppel applies only to an issue actually liti-

gated and determined—not to a matter which might have

been litigated but was not. The Supreme Court of Mis-

souri properly concluded that Respondent had not had a

trial of the explosion issue in Kansas, and that no rule of

res judicata or collateral estoppel is ever applied to prevent

a party from having one fair trial of his case. In so hold-

ing, the Missouri court did not deny effect to anything

adjudicated or intended to be adjudicated by the Kansas

court—it simply refused to give the Kansas judgment an

effect which the judge rendering it did not intend. This

is entire compliance with the law of full faith and credit.

B. The Supreme Court of Missouri Correctly Concluded

Thai There Was No Legal Relationship Between Re-

spondent and Its Lessors Such As to Bind the Former

by a Judgment Solely Against the Latter.

Apparently recognizing that Respondent cannot be

bound by a judgment to which it was not a party, Peti-

tioners fall back on a claim of privity. As is shown by the

quotation on page 52 of the petition, the minimum require-

ment for the application of the concept of privity is that a

eicuibeinamigamensnsis

it was adjudicated; Frick Co. v. Rubel Corp., (D. C. E. D. N. i

1 F. Supp. 100, holding that one consenting to dismissal of claim

without prejudice cannot thereafter assert that the claim was

determined with prejudice; also many decisions of this court hold-

ing that a party cannot subsequently take a contrary position about

matters decided at his request or with his acquiescence. See, e. g-,

F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U. S. 228;

New York Elevated R. Co. V. Fifth National Bank, 135 U. S. 432.

WMD mH ae >

22

person must be so identified in legal interest with another

that he can be said to represent the same legal right.

The suggestion that Respondent is in privity with its

lessors, who denied alli liability to Respondent and bitterly

contested every item of damage claimed by Respondent, is

So unreasonable, that to state the proposition is to refute

it. A correlative rule which must always be observed in

determining the scope of privity is that there is a denial of

due process of law in binding one by a judgment to which

he is neither party nor privy. Riley v. New York Trust

Company, 315 U. S. 348, 1. ¢. 354; Postal Telegraph Cable

Company v. Newport, 247 U. S. 464; Hansberry v. Lee, 311

U. S. 32.

One ground of privity alleged is the assertion that the

grain company “injected” the explosion issue into the Kan-

sas litigation. This is completely refuted by the opinion be-

low and by the record, which shows prompt objection by

Respondent to the institution of the third-party proceed-

ings which brought the explosion issue into the case. Re-

spondent consistently contended that explosion was no part

of its burden of proof in its claim against lessors, and the

Kansas court so held. The jury returned a verdict in favor

of Respondent there, although unable to agree on the ques-

tion of explosion. References in the petition to pleadings

which were amended prior to trial, and to colloquy and

briefs filed in pre-trial proceedings, are out of context and

wholly immaterial.

Petitioners also state as a fact that Respondent was a

“real party in interest” in regard to the insurance policies

issued to its lessors, and assert this as a ground of privity.

Both the Supreme Court of Missouri and the Kansas fed-

eral court found that this was not so, and that Respondent

had no interest in its lessors’ policies. Respondent was

23

entitled to its judgment against lessors for all flood dam-

age, and whether the lessors could recoup any of this from

their insurance carriers concerned them alone.*

Petitioners also seek to make privity by saying that

Respondent furnished employees as witnesses for the les-

sore on the explosion issue. Only one employee testified

for lessors and he was subpoenaed (Estop. Exh., p. 941).

The Restatement of Judgments, Sections 78 through

111, classifies situations in which one may be bound by a

judgment against another. None of these situations is

even close to the present case.

Nor do Petitioners’ case citations aid them in main-

taining their present claims. Lovejoy v. Murray, 3 Wall.

1; and Pelton v. Trico Oil Company, (Tex. Civ. App.) 167

S. W. 2d 625, hold that one actually in control of litigation

and having an interest therein may be treated as a party.

In this case Respondent’s lessors disputed every item of

Respondent’s cause of action. Souffront v. La Compagnie,

217 U. S. 475, and Leahy v. Mercantile Trust Company, 296

Mo. 561, 247 S. W. 396, hold that one who expressly au-

thorizes another to present his claim is bound by the re-

‘Even if Respondent stood to benefit by a judgment in .avor

of the lessors on their policies, it does not follow that it

would be estopped by a determination on a particular fact in the

lessors’ action. A judgment against a promiste in a contract does

not bind a third-party beneficiary, Restatement of Judgments,

§ 105(b). A judgment against a representative or fiduciary is

binding on the beneficiary only as to the subject matter of the rep-

resentation, and does not estop the beneficiary as to a claim which

the beneficiary holds in his own right. Ibid, Sec. 85, and par-

ticularly Illustration 6. A judgment against one cotenant dots

not bind other cotenants who are not parties, even though they

might stand to benefit if the adjudication had been favorable,

Annotation, 169 A L. R. 179.

Gadiabciae tee, |

I ts mnie *

24

sult, but here Respondent objected expressly to the third

party proceedings instituted by its lessors, as is admitted

by the petition (p. 11). The case of Stout v., Lye, 103 U.S.

66, simply holds that one acquiring an interest in the sub-

ject matter of litigation in progress is bound by the judg-

ment, which is a familiar rule but utterly foreign to this

case.

On pages 52 and 53, Petitioners set forth the law of

class or representative suits, and cite Sovereign Camp v.

Bolin, 305 U. S. 66. In such a suit a court expressly decides

that persons who are not before it are bound, because their

interests are adequately represented. No valid claim of

representation could be made in this case, for Respondent

and its lessors were adversary parties. The Kansas court

was not asked to decide this case as a representative suit

and did not do so. Quite the contrary—Respondent ob-

jected to being allied with its lessors, and the court dis-

solved the alliance. An attempt to make a case into a

representative suit after judgment, when it was not prose-

cuted as such, finds no favor in the decisions of this court.

See Hansberry v. Lee, 311 U. S. 32.

The doctrine of privity, moreover, should have no ap-

plication to a situation in which the alleged privy was a

party to the suit in which the judgment sought to be used

against him was rendered, on issues not determined by

the judgment. The effect of a judgment on parties to a

suit is spelled out by its terms. Those who want a court

to take particular action should file pleadings requesting

that action, and a litigant is justified in assuming that

issues previously excluded by an amendment, and not

contained in the judgment, simply are not adjudicated.

Petitioners are really seeking to amplify the Kansas judg-

ment, on the basis of extrinsic evidence, but are unable to

cite any authority allowing this to be done.

Ae As

i as

me Beet

~

25

Whether the question be viewed as one of federal law

or state law, the holding of the Supreme Court of Missouri

that no rule of res judicata or collateral estoppel can be

applied so as to deprive a litigant of one full and complete

trial, and that there was no privity here, is entirely sound

and in accordance with all authorities. Any contrary con-

clusion would be utterly inconsistent with general prin-

ciples of justice, and undoubtedly a denial of due process.

POINT V.

The United States District Court in Kansas Had No

Jurisdiction over Any Ordinary Civil Controversy

Between Respondent and Petitioners, and Therefore

Respondent Could Not Be Estopped by Any Determina-

tion in the Kansas Case.

The record shows that Respondent is a Missouri cor-

poration and that one of the Petitioners, Kansas City Fire

& Marine Insurance Company, is also a Missouri corpora-

tion (Tr. 1). There is no diversity of citizenship between

Respondent, on the one hand, and Petitioners, on the

other, and ordinary civil matters arising between them

could not be litigated in the federal courts. This was ex-

pressly held by Judge Duncan in his opinion in Hart-Bart-

lett-Sturtevant Grain Company v. Aetna Insurance Com-

pany et al., 108 F. Supp. 757, remanding this case to the

state court after Petitioners had attempted to remove it.

This point was never finally decided in the Kansas litiga-

tion. since all issues there between Petitioners and Re-

spondent were eliminated prior to the rendition of judg-

ment, but it is apparent that the trial judge there would

agree that he had no such jurisdiction on the basis of his

opinion in Aetna Insurance Co. et al. v. Chicago, Rock Island

and Pacific R. Co., 127 F. Supp. 895, affirmed (10 Cir.) 229

F. 2d 584

=

26

In Restatement of the Law of Judgments, Section 71,

it is expressly declared that a judgment cannot operate by

way of estoppel as to an issue which the court rendering

the judgment would lack jurisdiction to determine directly.

In the present case, no United States District Court

could have jurisdiction of the claim stated by Respondent’s

petition in the Missouri case. No federal proceedings, there-

fore, could operate as an estoppel against plaintiff on any

issue material to that claim.

! Certainly a claim for damage to grain and interruption

of a grain business under an insurance policy is not in any

sense ancillary to a suit involving damage to a building

under a lease, so as to extend the scope of federal jurisdic-

tion under the doctrine of Hurn v. Oursler, 289 U. S. 238.

This principle demonstrates an additional reason why

the result reached by the Supreme Court of Missouri is

correct.

CONCLUSION.

Certiorari should be denied.

Ratpu M. JONEs,

CHARLES B. BLACKMAR,

906 Commerce Building,

Kansas City 6, Missouri,

Victor 2-9692,

Counsel for Respondent.

BLACKMAR, SWANSON, MIDGLEY, JONES & EAGER,

Kansas City, Missouri,

Of Counsel.

fc a ieee

APPENDIX.

State Constitution, Statutes and Court Rules Involved.

(All Emphasis Added, except phrase en Banc.)

Constitution of Missouri, Art. V, Sec. 9:

Section 9. Transfer of causes to supreme court

en banc.—A cause in the supreme court shall be trans-

ferred to the court en banc when the members of a divi-

sion are equally divided in opinion, or when the divi-

sion shall so order, or on application of the losing party

when a member of the division dissents from the opin-

ion therein, or a federal question is involved, or pur-

suant to supreme court rule.

Missouri Revised Statutes, Sec. 509.010:

509.010. Shall be petition and answer—reply if

answer contains counterclaim.—There shall be a peti-

tion and an answer; and there shall be a reply if the an-

swer contains a counterclaim denominated as such; an

answer to a cross-claim, if the answer contains a cross-

claim; a third-party petition if leave is given to sum-

mon a person who was not an original party; and there

shall be a third-party answer, if a third-party petition

is served. No other pleading shall be required except

that the court may order a reply to an answer or a

third-party answer.

Missouri Supreme Court, Rule 1.08 (a):

1.08—Briefs: Contents. (a) All briefs shall be

printed. The brief for appellant shall contain: (1)

A concise statement of the grounds on which the juris-

diction of the review court is invoked; (2) a fair and

concise statement of the facts without argument; (3)

The points relied on, which shall specify the allega-

tions of error, with citation of authorities thereunder;

provided, however, if more than three authorities are

dita steal it. asi aed |

LLG SEND

peecrey —,

A2

cited in support of a point made, the three authori-

ties principally relied on shall be cited first; and (4)

An argument.

* * *

(c) The statement of the facts and the argu-

ment shall have specific page references to the tran-

Script on appeal, or, if the transcript is printed, to the

printed transcript. The respondent in his brief may

adopt the statement of facts of the appellant, or, if

not satisfied therewith, he shall in a concise statement

correct any errors therein. In other respects the brief

of the respondent (to the extent necessary) shall fol-

low the order of that required of the appellant.

2.02—Transfer to the Court en Banc. A motion

to transfer a cause under the provisions of the Con-

stitution from either Division to the Court en Banc

must be filed within fifteen days after the opinion of

the court shall be delivered in Division and notice of

the filing thereof must be served on the adverse party,

or his attorney. A motion to transfer to the Court

en Banc may be joined with a motion for rehearing and

a reearing or transfer may be prayed for in the

alternative.

Extract from Statement of Points and Authorities in

Brief of Respondents (Petitioners Here) in

the Supreme Court of Missouri.

(This statement is required under Rule 1.08 of the Su-

preme Court of Missouri. The specific authorities are

omitted, except under Point D, which relates to the estop-

pel issue.)

See

A3

A.

The Trial Judge Acted Correctly in Setting Aside the Verdict, and

in Sustaining Respondents’ Motion for Judgment in Accord-

ance with Their Motion for Directed Verdict. Since, in Light

of the Uncontradicted Evidence. There Was No Issue of Fact

Properly Submissible to the Jury.

i.

Appellant’s Case Depended upon Circumstantial Evidence.

Proof by Circumstantial Evidence Must Be Such That

the Necessary Facts to Support a Verdict May Be

Inferred and Must Reasonably Follow. The Evidence

Must Be Such As to Exclude Guesswork or Specula-

tion and Must Have a Tendency to Exclude Every

Other Reasonable Conclusion. It Is Not Enough That

the Evidence May Be Merely Consistent with the De-

sired Conclusion.

In General:

(Six authorities cited.)

Cases Involving Alleged Explosions:

(Three authorities cited. )

2.

If the Loss May Have Resulted from One of Two Causes,

for One of Which and Not the Other the Defendant Is

Liable, the Plaintiff Has Failed in Its Action Unless

It Shows with Reasonable Certainty That the Cause

for Which the Defendant Is Liable Produced the Re-

sult.

(Two authorities cited.)

3.

Even Though a Plaintiff's Proof Is Taken Most Favorably

to It, the Law Will Not Tolerate Forced or Speculative

Inferences.

(Two authorities cited.)

A4

4.

Upon the Only Direct Evidence As to the Movement of

the Metal Hopper Bottoms, It Was Established, With-

out Contradiction That Such Hopper Bottoms Were

Disengaged Slowly and Gradually Because of the

Swelling of the Wet Grain. The Gradual and Piece-

mez] Release of Such Pressure, Followed Ultimately

by the Hopper Bottoms Dropping to the Floor Be-

low, Was a Continuous Occurrence Which Must Be

Viewed As an Entirety. Measured As an Entirety,

Such Occurrence Did Not Possess Either Suddenness

or Instantaneous Reaction. Such Occurrence Was Not

an Explosion.

(Four authorities cited.)

2.

Undisputed Documentary Evidence Also Sustained Re-

spondents’ Theory.

See argument.

6.

The Trial Court Properly Set Aside the Verdict, Because

Plaintiff's Evidence As to Damages Failed to Separate,

with Certainty Those Damages Admittedly Attrib-

utable to the Flood Alone, from the Damages Which

Plaintiff Claims Were the Result of the Alleged Ex-

plosions.

(Four authorities cited. )

7.

It Is a Judicial Function to Determine Whether the Evi-

dence Is Substantial, and If It Is Not, There Is Nothing

for the Jury to Decide.

(One authority cited.)

8.

The “Scintilla” Rule Does Not Apply in Missouri.

(One authority cited.)

AS

B.

Appellant Does Not Assign Any Error on This Appeal with Respect

to the Exclusion of Any Evidence Offered by It at the Trial.

Appellant Is Not Entitled to the Benefit of Any Such Excluded

Evidence in Connection with the Issues Raised upon This

Appeal.

Supreme Court of Missouri Rule 3.23.

(One authority cited.)

1.

There Is a Presumption That the Trial Court’s Rulings on

Evidence Were Correct.

(One authority cited.)

2.

The Evidence As to What Happened in Other Elevators,

Particularly in Situations Wholly Lacking in Simili-

tude, Was Properly Rejected by the Trial Court.

(One authority cited.)

3.

Even If the Trial Court Erroneously Refused Certain Evi-

dence Proffered by Plaintiff, Such Ruling Does Not

Remedy Plaintiff's Lack of Affirmative Proof.

(One authority cited.)

C.

If the Court Should Reverse the Judgment. the Verdict Should Not

Be Reinstated, Because the Trial Court Erred in Not Sustain-

ing, in the Alternative, Defendants’ Motion for New Trial. De-

fendants’ Alternate Motion for New Trial Was Predicated

upon the Following Valid Grounds: (a) Plaintiff's Evidence As

to Damages Failed to Separate. with Certainty, Those Dam-

ages Admittedly Attributable to the Flood Alone, from the

Damages Which Plaintiff Claims Were the Result of the

Alleged Explosions; (b) There Was No Evidence As to

re owe

A6

Damages, Sufficient © Support the Verdict on Either Count

of the Petition: (c) “. Trial Court Erred in Giving Plaintiff's

Instructions Numbers 2 and 3, Relating to Damages, Since

There Was No Evidence to Support Either of Said Instructions;

(d) The Trial Court Erred in Failing to Admit into Evidence

Defendants’ “Estoppel Exhibit’; (e) the Trial Court Erred in

Failing to Recognize That the Verdict on Counts I and II of

the Petition Was Excessive and Improper, Because It Was

Not Supported by the Evidence.

(One authority cited.)

D.

The Trial Judge Properly Held That the Appellant Was Precluded

from Relitigating the Explosion Issue.

McIntosh v. Foulke, 360 Mo. 481, 228 S. W. 2d 757.

Taylor v. Sartorious, 130 Mo. App. 23, 108 S. W.

1089, 1094.

Restatement of Judgments, Sec. 83.

Bruzewski v. United States, 181 F. 2d 419, 422, 423.

Young v. Byrd, 124 Mo. 590, 28 S. W. 83, 84.

Healy v. Moore, (Mo. App.) 100 S. W. 2d 601, 605,

606.

Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S. W. 760,

766.