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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1956

## Text

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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pressly Withdrawn by the Court at the Request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 -

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1049%3A2. Public record. Not legal advice.