Answer to Petition for Certiorari — Tenore v. American & Foreign Insurance

“IN THE

- Supreme Court of the United States

Oc TOBER Ten M, D957.

No. 368

VWICHAEL B. TENORE axn JOSEPH SCARAMUZZ0,

CO-PARENERS DOING BUSINESS as RICO) SALES °¢'°OM-

PANY. A PARTNERSHIP, i Paar

“ ‘Petitioners,

Us.

AMERITOAN AND FOREIGN INSURANCE COMPANY

“OF NEW YORK, et an.

; Respondents.

ANSWER TO PETITION FOR WRIT-OF CERTIORARI

TO THE UNITED:STATES COURT OF APPEALS

‘FOR THE SEVENTH CIRCUJT,

—DoxaLp N. CLAUSES,

« Herserr W. Hinsit,

a / Jous P. Gorwas,

Cnatsen, Hirsi. Minuer & Goran,

3S. La Salle Street,

( ‘hie ago, Hlineis,

Afttorne 4s fore Reape ndegts.

IN THE |

Supreme Court of the United States

Octroser Term, 1957. °

No. 368. ‘

‘

VICHAKRL B. TENORE axp JOSEPH SCARAMUZZO,

CO-PARTNERS DOING BUSINESS As RICO) SALES) COM-

PANY, A PARTNERSHIP, ;

’ Petitioners,

” 08.

AMERICAN AND, FOREIGN INSURANCE COMPANY

. oF NEW YORK, er an.,

we Ns

ANSWER TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS —

FOR THE SEVENTH. CIRCUIT.

To the Honorable, The Chief Justice and Associate

Justices of the Supreme Court of the United States:

This Answer to Petition for Writ of Certiorari to the

Puited States Court of Appeals for the Seventh Cireuit. .

Is respectfully submitted to this Honorable Court on be-

half of American and Foreign Insuranée Company of

New York, a corporation, Centennial Fire Insurance Com-

pany of New York, a corporation, The Commergat Union

Fire Insurance Company of New. York, a corporation,

Coutinental Insurance Company, a corporation, Detroit

Fire and Marine Insurance Company, a corporation, The

American Insurance Conipany of Newark, New Jersey,

‘2

a corporation, The Home Insurance Company, a vorpora.

tio, and Old Colony Insurance Company, a corporation,

respondents herein, ad is in opposition to the Petition

_ for Writ of Certiorari herein sought to review a judymen

of the: United States Court of Appeals for the Sevent!

| ‘ireuit) .

ft .

_ QUESTIONS PRESENTED.

1. Does a Court of Appeals have the power on review

to reverse a finding of'a trial’ judge, if, in its Opinion, fros

an examination of the entire evidence, said* finding *

clearly -erroneous?

STATEMENT OF THE CASE.

Respondents” herein adopt as their Statement of the

Case that portion of the opinion of the United States

Court of Appeals for the Seventh Cireuit isstied on Jun

19, Ios, and written. by Chief. Judge Duffy on behal! ”

of a unanimous court which relates the factual circun.

stances giving rise to-this controversy, Said: statement o:

the case is found in Appendix A. of the Petition for Wr:

of Certiorari herein filed by .petitioners aiid ap pears at

pages la through ‘ta of said Appendiy.

Respondents are compelled to disregard the stateme:

of the evidence found in the petition filed herein for th:

‘reason that said statement of the evidence is written te

create. the ‘impression that one Frank Hunt, ao salvay

supervisor at a warehouse owned: by the Underwriters

Salvage Company and an digent of the respondents lier.”

played: a part in-dete rmining the value of the ens ale

yum parts herein in question. *The italieizing of the ela

descriptive of Hunt on page 5 of the petition gives vis

to an inference clearly opposite to the facts founds

the record of this cause.

3

In said reeord, at page 191) the following testimony

appears: ° | _

“The Court: As far as that is concerned, your

testimony is that you had nothing to do with fixing .

values and you do not purport to know values—

; ae. Hunt: That is correct; I don’t know."’

~e trial judge, at pace 956 of the reeord, in rendering

opinion on the questions herein prese nted, stated un-

equivecally that in the determination of values;

“* * * the evidence showed that Mr. Searamuzzo [one

of the petitioners herein! is’ the one who made the

decisions. Mr. Hunt had nothing to do with deciding,

he merely wrote down the values.’’

er

ARGUMENT IN OPPOSITION TO THE GRANTING

1 : OF THE WRIT.

Respondents “roxpectfully submit that there is ne good .

mason for this Court to erant the writ of certiorari herein

soucht. Although respondents can not help but desire

the Hnpriniatur of this highest court upon: the decision

heretofore: rendered by the Court of Appeals for the

Seventh Cireuit, they are compelled to oppose the grant-

ing of this writ, as there is no vital question presented

it this case to which this Honorable Court should devote

Hitselt. There is no. federal question presented in. this

diversity aetion, There is 10 novel question here relative

“to. the supervision’ of the Courts of Appeal, nor is there

any confliet of ‘decisions among the Courts of Appeal of

Ne various cirenits on any of the issues herein involved.

Respondents respectfully. submit that petitioners here

~ek nothing but a second review of the evidence by this”

livhest tribunal,

The ‘major emphasis of ‘the Petition for the Writ. of

°

Was testiniony as to his opinion of the value of guns and

AX

4 SS

“Ss Certiorari, as it was in the Petition fof Rehearing sul.

intted on behalf of petitizioners -here to the Court, of

Appeals for the Seventh Circuit, is an argument that's

Court ‘Of Appeals has no right to examine the faets deve.

aped in the court below or to consider, on review, the

inferences drawn, from sthose facts by the trial judge,

We respectfully ~uTirauit that such an argument is without

foundation and is neithe® sypported by the Rules of Civil

Procedure nor by any case cited by: petitioners, cithe:

4

to this Court or to the -Court of “Appeals below,

Petitioners here, as they did in their Petition for. Re-

hearing, protest that the Court of Appeals did not see the

petitioner Scaramuzzo sit on the witness stand and swear

that-in his opinion the value of-old and mutilated weapots

of 1890 vintage is the same as that taken frome the current

tanufacturers® catalogues, This testimony. of the expert,

Scaramuzzo, acman who has been a gunsmith for alinost

lis entire span of life, was not testimony as to a disputed

occurrence Which: he had‘ viewed or a disputed? conversa:

Hon @r agreement to which hgphad been a part, but rather

eun parts. When that testimony was placed side hy side

that of disinterested experts from many parts. of the

country, it) appeared ‘ineredible, Respondents respect

‘fully submit that a sober examination of the entire record

in this case does more to betray petitioner's testimony

than would an evasive look or a halting voice, which are.

the usnal manifestations by which a trial judge . gauges

the demeanor of the Witness before him.

* : .

Of more serious ‘iniport, ‘however,’ is “petitioners”. dis-

cussion of the nature, function and power of.a Court of

; Appex on review. Petitioner, in both its Petition cor

Rehearing sand. this petition, ha’s contifiually chosen to

disregard Rule 52(a). of the Rules of Civil Proeedure and

Q

a

4)

. those cases from this Court and the Courts of Appeals

‘ar the various circuits: interpretive thereof.

Rule S2(a), governing actions ‘tried without a jury,

provides in part: .

Findings of fact shall not be set ashe unless cleanly

‘erroneous and due regird shall be given to the oppor-

tunity of the trial court to judge of the eredibility of

the withesses,”* — ‘

cae . ‘

This Suprefne Court has made clear that this provision

oo does nat straightjacket a Court of Appeals and reduce it

{ DI

ty querely a rubber stamp for the approval of the action ,

of a trial judge. In ‘Enited States of American. 6

fiypsum Co. 383 U.S. 864, 92° 1L.. ed. 746, this Court

- stated:

“* * * Since judicial review of findings of trial courts

does not have the statutory or constitutional limita-

tions On judieral review of findings by administrative

agencies or by a jury (citatiofig omitted), this Court

may reverse findings of fact by a trial court where

© ‘clearly erronvons’. The practice in equity prior to

the present Rules of Civil Procedure was that the

lindings of the trial court, when dependent upon oral

testimony where the candor and eredibility of the wit-

nesses would best. be judged, had: great weight with

the appellate court. The findings were never, ¢on-

. ¢lusive, however (citations omitted). A finding is

. *cdlearly erroneous’ when ‘although there is evidence

‘ fo supports it the reviewing court on the entire evi-

dence ie left with the definte and firm conviction that

aomistake has been committed”? 385 Uy S. 364, 399,

"21. Kd. 746, 766. ;

There iz no contliet among the slieatie as td the wpplica-

‘iowof Rule S2(a). The Court of Appeals for the Seventh

Citenit is fully eognizant of. and has relied upon, the for-

tnlation of this Supreme Court, See Wasserman v. Daar,

1 Fed. Rules Serv. 26Cf)1, Case 1.

‘ . *.

6 .

.* %

In American Eagle Fire lus. Co, v.aBurdine, 200 B. 24

26, relied upon by petitioners to point gp the contlict » hick

petitioners say exists between the Seventh and ‘Tenth Chr.

cuits, the Court of Appeals for the Tenth Cireuit, after a

discussion of ‘the evidence in which it appeared that the.

preparation ofacertain report under the advice of cour

sel was ‘susceptible to either the inference that it had

heen made under an honest mistake of judgnt “o

through fraudulent intent, stated in. 200 FP. 2d at page es,

“In these’ circumstances the trial court's conclusion

are not clearly erroneous and they must stand.”

It ix obvious that if the Court of Appeals had found.

is the Court of Appeals for the Seventh Cireuit has tonne

here, that the findings of the trial judge were clegrl

erroncous, that court would have -considered itself a!

liberty to set said findings aside. .

Likewise Waialua. Aaricultural Co, vo Mane ja, 216 F-

21466, relied upon by petitioners here, is inapposite. '

that case "brought under the Fair Labor Standards Ac

the Court * Nppeals for the Ninth Cirgiit held aa it

could not take new findings to supplement those finding

already mage by the trial judge, where said. additions

findings would: be necessary for a proper decision of th

controversy hefore it. However, it positively held tw

it could reverse clearly erroneous findings’ of the cour

below, We ares unaware of any Court of Appeals whic!

has so alulieated its funesion as a court of review that

it would eonsider sueh a statement of the law éither in

proper or 7 ‘roneous,

Respondents respectfully submit that there i< to cor

Net existing between the Court of Appeals of the Seven

Cirenit and that of the Eighth Cirenit as petitioner~ cla

at page 16 of their Petition. Petitioners rely apon

cise of Din perial lasurance Co, vv. dose ph Suprone t+

A

7 a -

Fy

Nons, 184 FL 2d 980, to illustrate such a conflict. In that

case, Which wa, as this one, a diversity action, the Court

relied upon the haw of the State of Minnesota in.firming

a decision of the trial court that an insured was entitled

te recover on its policies of insurance, The court. relied

. upon amd quoted from Vational Pine Ins, Co. vy. Hasea

Pumber Co. 148 Minn: 170. IST N. WoeSS7. and stated

at page 935; ye .

a ee yveneral rule it is for the jury to say whether

there has een any fraud or fal<e swearing.*’

aw

either the Supreme Court. of the State of Minnesota

nor the Court of Appeals... for the Kighth Cire uit tuted

that the **generak rule “oprecludes an appe Mate court from

wtting aside a clearly grroneous finding by a nisi prins

court,

*

.

We, further, respectfully Being to the Court's »Hention

the fact that petitioners have argued in their Petition

“for Rehearing submitted to the Court of Appeal<for the

Seventh Cireurt, that that court,.by relying in - Case

open its decision. in wdmerictn Home lus. Ca. v..Juntvanu

Sore C'o., 78 FP. 2 1001, misread it< own prior nein

The Court of Appeals for the Seventh Cirenit: rejected

this argument by denying the Petition for Rehearing and

respectfully submit that this Supreme Court should

te likewise, by rejecting the instant Petition. wae

Tlie case of Weiminger of al. Vv. Metropolitan Fire Tnse

Co 209 TL OS4, cited by petitioners in their Petition here,

was also before the Court below. Major emphasi< was

given to that ease by petitioners in their brief on appeal

“in the { ‘ourt of Appeals “and that court rejected the argu-

ment based thereon. >

Lastly, respondents eau not refrain from c@mmenting

ppon the rather curious argument of petitioners to the

fect that it is for the legislature’ rather than the court

. . o

8

to dotermint the quantum of evidence hecessary for 4

finding of fraud. Such a determination has heen a tradi 7

tionally judicial function and we cannot help but Wonder

at the nature of the stytute Which would be dr: iatted I

a legislature to govern this issue.

It is patent from Rule 52(a) and the decisions of this

Supreme Court that a Court of Appeals may set asid

dindings af fact when said findingy‘are clearly erroneous

The Court of Appeals, in the instant case, in setting a-id

the findings of the trial gourt, remained within the wed,

defined ambit of its, power ‘and properly perferined. its

function and duty as a court of review, Respondents

respectfully submit’ that the Court of Appeals for: th

Seventh Cireuit has expressed in most positive lingua

a definite and firm conviction that the findings of the tria

court were clearly erroneous. .The reeord before tha’

court cowd lead to no other conclusion.

CONCLUSION.

For the foregoing ‘reasons, respondents pray that th.

Petition for, Writ of Certiorati be denied.

Respectfully submitted,

Donarp N. CLAusen,

*Herpert W. Hirsn,

Joun P. Gorman,

. Cravsex, Hinsn, Minter & Gorway.

_ 185 8. La Salle Street,

e Chicago, Illinois,

; ‘ A Aftorneys for Ri Spon nis

~