# Answer to Petition for Certiorari — Tenore v. American & Foreign Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0523%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Answer to Petition for Certiorari - **Published:** January 1, 1958 - **Citation:** 358 U.S. 880 ## Text “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 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 ~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0523%3A3. Public record. Not legal advice.