Respondents Answer ti Petition for Writ of Certiorari — Shaw Construction Co. v. Stark (No. 870)

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SUPREME COUR #8. | APR 5 woe |!

Supreme Court of the waite sepa a

October Term, 1957 -

No. 870

Morcan S. Stark, et al., :

Plaintiffs and Respondent,

US.

Harotp L. Saw, e¢ al.,

. _ Defendants and Petitioner. —

Respondent’s Answer to Petition for Writ

of Certiorari in the Above Matter.

MurcHison & CUMMING,

By CLaupe B. CuMMING,

3670 Wilshire Boulevard,

Los Angeles 5, California,

Attorneys for Respondent.

SUBJECT INDEX

PAGE

Statement of question presented.. Sigsnilidionetediibice 2

Argument . x

Rule 19 of the United States Supreme Court.............0222.02.20..------- 5

TABLE OF AUTHORITIES CITED

CASES PAGE

Banning v. United States, 130 F. 2d 330, cert. den. 63 S. Ct.

434 : , am

Chevillard v. United States, 155 F. 2d 929.222... eeeeeeeeeeeeseeeeees 4

D’Aquino v. United States, 192 F. 2d 338, cert. den. 72 S. Ct.

772 ' iicnGleieek Raeeaeasatnle ication adeescheineineinndinnienese 3

Kanatser v. Chrysler Corp., 199 F. 2d 610, cert. den. 73 S. Ct.

388 . SR ee 3

- Madden v. United States, 20 F. 2d 289, cert. den. 72 L. Ed.

423 ssseeessetenesssaneenees 9

Miller v. Brown, 136 Cal. App. 2d 763.........--..:------seeceeeeeeeeeee 9

Toderow v. United States, 173 F. 2d 439, cert. den. 69 S. Ct.

1169 .. scsi tliat 3

IN THE |

Supreme Court of the United States

October Term, 1957

No. 870 |

Morcan S. Stark, ef al., _

Plaintiffs and Respondent,

US. |

Harotp L. SHaw, et al., 3

Defendants and Petitioner.

Respondent’s Answer to Petition for Writ

of Certiorari in the Above Matter.

To the Honorable Earl Warren, Chief Justice of the

United States, and to the Honorable, the Assocwte

Justices of the Supreme Court of the United States:

Respondent answers the Petition in the above-entitled

matter and respectfully requests this Honorable Court to

deny the same.

THIS ACTION WAS TRIED UPON THE THEORY OF A

BREACH OF CONTRACT AND THE DAMAGES THAT FLOWED

THEREFROM, AND WHEN REVIEWED IN THE LIGHT OF THE

APPLICABLE LAW THERE IS NO CONSTITUTIONAL QUESTION

INVOLVED IN THE PROCEEDINGS AS THEY WERE CON-

DUCTED. 7

cers a

Statement of Question Presented.

Petitioner has misstated the issue presented by inchud-

ing the “question of anticipated profits.”

If petitioner would recognize and accept the theory

under which the cause was tried, its argument would

dissipate. The District Court of Appeal in its analysis

of the situation states as follows and this paragraph is

contained in page 11 of the Appendix: -

“Defendant vainly argues that the rcofing com-

pany is not entitled to recover damages for loss of

profits because its past operations do not afford a

basis from which anticipated future profits may be

ascertained. This theory is not here applicable.

The problem is not whether the roofing company

has made profits in the past, or whether, as a busi-

ness, it will produce profits in the future; rather,

the issue to be determined is whether the company

was reasonably certain to make a profit under this

particular contract.”

iiielici

ARGUMENT.

The Trial Court has the right to restrict cross-exam-

ination of any witness to matters which have relevancy

to the issue being tried.

The right of cross-examination is not unlimited, but

the matter is largely within the Trial Court’s sound dis-

cretion and its action will not be reviewed unless it appears

that its discretion was abused.

Toderow v. Umited States, 173 F. 2d 439, Cer-

tiorari Denied, 69 S. Ct. 1169 (Cal.);

D’ Aquino v. United States, 192 F. 2d 338, Certi-

orari Denied, 72 S. Ct. 772 (Cal.);.

Kanatser v. Chrysler Corp:, 199 F. 2d 610, Certi-

orari Denied, 73 S. Ct. 388;

Madden v. United States, 20 F. 2d 289, Certiorari

Denied, 72 L. Ed. 423.

“It is also proper for the Trial Court to restrict the

cross-examination to the theory upon which the cause

is being tried.

This principle was announced in the case of Miller v.

Brown, 136 Cal. App. 2d 763. In this action plaintiff

sought to recover the difference between the contract |

price and the actual cost of construction (including

extras). C ross-examination was attempted to establish

that plaintiff had exceeded contract prices in other con- —

struction jobs referred to in his direct examination in

establishing his professional qualifications. Objection to

this ¢ross-examination was sustained by the Trial Court

and was affirmed in the District Court of Appeal, a>

incall

hearing being denied in the Supreme Court of the State

of California.

The following cases support the statement that the scope

of cross-examination is limited to the subject of direct

examination: | wee.

Chevillard v. United States, 155 F. 2d 929;

Banning v. United S tates, 130 F. 2d 330, Certi-

orari Denied, 63 S. Ct. 434.

Petitioner cannot and does not contend that reasonable

opportunity was not afforded him to cross-examine all

witnesses on any evidence which related to the breach of

the contract, the cost of the performance of the contract,

and the difference that would remain which constituted

plaintiff and respondent’s damage.

Petitioner’s entire argument on pages 10 and 11 under

points 2 and 3 is, as was his attempted cross-examination,

irrelevant for the simple reason that it does not go to

the issue that was being tried.

As a matter of information only, attention is directed

to the Reporter’s Transcript of the testimony of both

Robert Griffin, Jr., a witness produced by petitioner

[Rep. Tr. p. 978, line 16, to p. 990, line 4] and the testi-

mony of Mr. Stark, the respondent [Rep. Tr. p. 471, line

15, to p. 487, line 11]. Both witnesses testified to the

~ costs of material, labor and all items of cost to perform

the contract. The difference between this cost and the

’ contract price was the damage for non-performance of

the contract.

elec

No limitation was placed on petitioner’s right to cross-

examine on this evidence and, therefore, no Constitutional

right was | violated.”

Rule 19 of the United States Supreme Court.

A review on writ of certivrari is not a matter of right,

but of sound judicial discretion, and will be granted only

| where there are special and important reasons therefore.

‘The following, while neither controlling nor fully measur-

ing the court’s discretion, indicate the character of rea-

sons which will be considered:

Where a state court has decided a federal question of

substance not theretofore determined by this court, or

has decided it in a way probably not in accord with ap-

plicable decisions of this court.

Respondent respectfully coritends that the above en-

. titled case does not come within the purview of this

Rule and that, therefore, a Writ of Certiorari is not a

Proper remedy and that even assuming the proper appli-

' cation of this Writ, there has been no denial of Consti- .

tutional rights, and that the Petition should be denied.

Respectfully submitted,

MurcHISON & CUMMING,

By CLaupE B. CuMMING,

Attorneys for Respondent.

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