Brief for the Respondent in Opposition — Mihalchak v. American Dredging Co.

—— : emnee-Supeme tee u

FILE COPY FILED.

a | NOV 2 1959

[nam 2 oncnm ont

‘Supreme Court of the United acai

‘October Term, 1959. ©

-- Ne. 439.

JOHN MIHALCHAK;

fe Petittoner,

w *

AMERICAN . DREDGING COMPANY,

eiecnaee

BRIEF FOR RESPONDENT IN OPPOSITION.

Txomas E. Byrne, Jz, -

21 South 12th Street,

Philadelphia 7, Pa.,

Counsel for Respondent.

Karvusen, Evans anp SHaw,

Of Counsel.

" International, 711So. SOth St., ‘Phila. 43, Pa.

INDEX.

? » r yr

CoUNTERSTATEMENT OF THE CASE ........ ep ee ciyeuee

;

Tt ae, SE SEP, iar gh ea Pe aa i Lee a Teh ee

Page

Point I. Theie [Is No Important Question of Law in the _—

a Case Unless This Court Is Prepared to Re-

E-xdmine the Line of Cases Commencing With Rogers

v. /Missouri Pacific Railroad Co., 352 U.-S. 500 ....

Point /II. There Was Ample Evidence to Justify the Con-

Alusion NWMNCH the Jaty TOME ook ees cee es

Poiht III. This Court's Decision in Crumady ». Joachim

/ Hendrick Fisser, 358 U.S. 423 and the Other Cases

Cited in Point II. of the Petition Are Not Even Re-

: . -

motely Involved in the Present Case ...............

CONCLUSION -....... Cigoas Seawiries Pew heey waa e Neer oe

/

e

AS } “« e

be

CASES CITED.

Chesapeake and Ohio R. Co. y. Martin, 283 U.S. 209... ae

Crumady v. Joachim Heidrick Fisser, 358 U.S. 423 ...

Dietz ¥. The Greyhound Corporation, 234 F. 2d 327 .........

Elzig v. Gudwangen, 91 F. 2d 434 ....... SUA dank ee eras ‘3

Ferdinand v. Agricultural Insufance Company, 126 A, 2d 323 ..

Ferguson v. Moore: McCormack Lines, Inc., 352 U. S. $21 .

Gibson v. Thompson, 355 U.S. 18 .......... Cudbeg se Crewe ss

Moore v. Terminal Railroad Association, 79 S. C2 piiaenea

Nicholas v. Davis, 204 F. 2d 200 ..........c.ccceecescece

Kogers +. Missouri Pacific KR. Ce., 352 U. §. 500... cde.

San Fraucisco Association for the: Blind v. Industrial Aid for the

es Fae, CO OO i. ss ee eee

Sartor v. Arkansas Natural Gas Corporation, 321 U. S.:620 .

Second National Bank of P ittsbiirg v.. Hoffman, 229 Pa, 429. .

Slocum v. New York Life Insurance Company, 228 WU. S. 34

Sonnentheil v. Christian, Moerlein Brewing Co., 172 U. S. 401

~

‘MISCELLANEOUS.

oem ee Sg ee ere nr Nine ruta

Federal Soe Liability: Act: 45.USCA 51 ........:...

3 4 2 aoe eeatcal eee pee caehpeee eee peas:

cts Aet, 4 USCA O88 eh Ne ie pal wee Actene

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a

IN THE

~ Supreme Court of the United States.

Ocroper Term, 1959.

No. 439.

ee

. JOHN MIHALCHAK,

Petitioner,

i v.

AMERICAN DREDGING COM PANY,

Respondent,

BRIEF FOR RESPONDENT IN OPPOSITION.

COUNTERSTATEMENT OF THE CASE.

The Petitioner, Mihalehak, brought this action under

the Jones Act, 46 USCA.688, against his employer, Ameri.

can Dredging Company, alleging that’ an injury sustained

by the Petitioner on May 22, 1956 was due to cither negli-

gence of the employer or unseaworthiness of the unmanned

barge upon which he was injured.

Mihalehak was an experienced hand in this sort of.

_ work. He-shad held similar jobs fora period of about two

years with other companies, plus about seven months that

he had ‘ioreas this same work for the Respondent

(ib, ‘1b). .

1-An making reference to the record, we will use the gtittix Cad to desig

_mate the Appendix for the Petitioner in the Court below and the letter cb) for

the Appendtx--for the’ Respondent in the Court) belo

= ER ~Counterstatement of the Case

On the evening of the accident which is here in ques-

tion, Mihalehak had been’on board a tugboat which was not

owned or operated by the Respondent. The tug was utilized

to provide: motive power for barges or seows which. were

hauling mud from the place where the Respondent Was con-

ducting dredging operations to a dumping ground. | The

one-way trip was approximately 8 to 10 miles... While in

transit, Petitioner rode the tug. .

The scow in question (pictured 34a) had five: separate

pockets into which the dredged material was deposited.

The unloading operation consisted of opening doors in the

bottom of each of these pockets so that the dredged material

sitiply sank to:the bottom of the dumping area. |

‘Anyone who has ever lifted a‘spade-full of mud is in a

position. to draw the inference that the weight of the con-

tents in each of the five pockets, of the seow was con-

siderable. 3 .

The door on the bottom of each pocket was opened

and closed by means of a chain. We accept the deserip-

tion of the mechanical arrangement as. outlined in’ the

Opinion of, the Court below (page 18 of the Petition).

What the Court below has referred to as a ‘*dog’’ is noth-

ing inore nor less than a ratehet and pawl arrangement

familiar to anyone who has ever tightened a tennis net.”

On this scow the pawl or ‘*dog’? was pivoted at its lower.

-end so as to move in a horizontal plane as opposed to the

vertical plane whieh is more customary on the ratehet aml

pawl used on a tennis. net: 7 |

Qn the night that the cause of action in this ease arose,

Wien the flotilla arrived at the dumping site, Mihalchak

left the tug and went on board the loaded scow. He was_

~the only person on the seow and, in this connection, it Is

worthwhile to note that the crew of the tug were not em-

ployees of this Respondent. When he went on board the

scow Mihaichak had in-his hand the heavy maul or sledge

which it was ingended Should be used:to strike the pawl so

as to dislodge it from the teeth of the ratchet and thereby

‘ C'ounterstatement of the Case . : 3

permit thé tremendous weight of the wet mud to foree open

the doors composing the bottem of the pocket of the seow

and thus empty it. ;

Once aboard tlie scow, Mihalehak used his sledge in the

usnal and expected -way to strike the pawl and open the

first pocket. He-moved to the second one. He testified

that he had his hand in the space on one side of the pawl,

removing mud and debris when the pawl spontaneously -

moved sidewise- out of the teeth of the ratchet thus per-

mitting the door to open. .

While. it is true that the Respondent placed no witness:

upon the stand who testified as to the manner in which the

accident happened, that is not quite a full and complete

account. The Respondent argued to the jury that the un-*

controverted facts as established by the testimony intro-

duced by the Petitioner, plus the plain and clear inferences

to be drawn from photographs introdueed into evidence by

the Petitioner, which photographs were taken on two dis-

tinct eceasions, logically compelled the jury to conclude

that the Petitioner’s injury was due neither to negligence

of the Respondent nor unseaworthiness of its seow. Rather,

the argument made to the jury was that Mihalehak brought

~ about his own injury by striking the pawl at a time while

his other hand was in thé space into which the blows he |

was delivering were intended to drive the pawl and that,

consequently, he had caused his own injury: That was the

argument which the jury must necessarily have ‘accepted

-because it returned a verdict in favor of the Respondent.

There is no question presented here concerning the - -

propriety of the Charge of the Trial Judge to the jury. No

exception was taken to that Charge and the issue submitted,

particularly the contention of the defense, is clearly set

forth in the first full*paragraph on.page 40b of the Appen-:

dix of the Respondent in the Court below.

ory

4 ; Argument

ARGUMENT.

, . Point L

There Is No Important Question of Law i in the Present Case

- Unless This Court Is Prepared to Re-Examine the Line

of Cases Commencing With Rogers v. Missouri Pacific

Railroad Co., 352 U. S. 500.

During the 1956, 1957 and 1958 Terms of this Court

a host of cases were decided, based upon ‘the philosophy

expressed in this ( ourt’ s decisions in Rogers v. Missouri

Pacific R.Co., 852 US. 500, Ferguson v. Moore-McCormack

Lines, Inc., 852 U.S S521 and the other cases in the group

decided) February 25, 1957. Since that -date this Court,

on several occasions, has reinstated the verdicts of juries

which had found uv favor of a plaintiff under the F. FE. L.A.

and or the Jones Act, stating :

“We hold that: the proofs justified with reason

the jury’s conclusion, that employer negligence played

a part in producing the ers injury.’’

Moore v. Terminal Railroad Association, 79S. Ct. 23 Gibson

Thompson, 355 U.S. 18.

In both of these deeisions the Rogers line of decisions

has been cited in support of the action taken by the you

We assume that in so holding the Court was not promulga

ing a unilateral rule and that, where the jury pete eae

that employer negligence (or unseaw orthiness) did) not

_ play a part in producing the Petitioner's injury, thix Court

will not tolerate judicial intervention with that jury finding.

If, in fact, Congress in passing the Federal Employers’

Liability det, 40 USCA ol, and the Jones Act, 46 USCA

68s, intended to require abdication of the judicial function

where the jury had found a verdict in favor of the plain-

tiff, it seems to follow logically that the abdication which

~ the Acts of Congress required was not intended to be

»

z

Arqument | 5

unilateral so as to apply only where the jury’s verdict had

been returned in favdr of the original plaintiff, but that

logie requires the same end result where the verdict of the’

jury has been a finding of the absence of negligence ‘(and.

unseaworthiness) on the part of the employer.

As we see the present case, it is a fit sibjeet for the

erant of certiorari by this Court only under two possible

conditions. One is if this Court is prepared to rewrite the

rule it laid down in Rogers vr. Missouri Pacific, supra, to

provide that the proofs justify. with reason the jurv's eon-

‘clusion only where there is a finding in favor of the plain-

tiff, or if this Court is prepared to re-examine the Rogers

— ease and those which have followed it. In the latter event

we would join in the Petitioner’s prayer that the Writ be

eranted, |

Point II.

There Was Ample Evidence to Justify the Conclusion

Which the Jury Reached.

The Petitioner does not attack the holding of the C ourt

of Appeals that in this Jones Aet suit the Petitioner has ~

the burden of production and of persuasion, The Petitioner

affirmatively argues for what would necessarily be a revi-

sion of the rule of Rogers. He makes, this attack on the

holdings of both Courts below, in spite of. the following

facts:

The credibility of the Petitioner was attacked

upon a number of Points. Some went. directly to the.

core of the question of liability (21a, 4b, 5b, 19b, 20b,

. 31b, 826) and-the veracity of Petitioner and his. wit-

ness. Other questions were raised as to the veracity

of Petitioner’s testimony upon the question of dis-

ability, its duration and degree (12b, 13b, 14b, 15b, 16b,

26b, 27b, 2b, 80b). No direet testimony other than the ‘

Petitioner's was possible because no one else was on

5

6 Sol Dies | Arqument

the scow and there was no witness to the accident ex-

cept Petitioner.

». The Pialtions ‘ro Was an interested witness,

&. The Petitioner had the burden of proof.

4. The Petitioner’s version of how the accident

_eceurred was inherently ineredible and contrary. to

physieal laws and common experience.

Evidence in the form of photographs which the

Petitioner himself introduced clearly demonstrated the

converse of the Petitioner’s assertion that the equip-

ment in-question was unfit for the purpose for which it

Was intended (unseaworthy).

We start with the fundamental proposition that the

question of whether a witness is to be believed or not ‘is

ordinarily one of faet for decision by the jury. The general |

rule is that a jury question as to eredibility is presented by

oral testimony which, although not directly contradictory,

contains inherent probability or there has been reflection

upon the veracity of the witness at other points in his

testimony. Elziq vr. Gudwanqen, 91-F. 2d 434, and’ cases

there cited: see eases collected 62 A. L. R. 2d 1191 et seq.

Since that was true.in the ease at bar compare. 6b, 7b

with 12b, 14b, 15b, 16h, 17b. There was an issue for the

. Jury te resolve as to the credibility of this Petitioner. ‘The

cases upon Which the Petitioner relies such as San Francisco

Association for the Blind v. Industrial Auld for the Blind,

Ine., 152 F.2d 582, and Diets +. The Greyhound Corpora-

* tion, 24 BF. 2d. 827 :eNicholas 1. Davis, 204 F.2d 200, are

neither controlling nor persuasive. The inferences which

a jury may draw are outlined at length by the late Chief

Justice Vanderbilt speaking for the Supreme Court of New

Jersey in Fe rdinand v. Agricultural Insurance Company,

126 A. 2d-323. S6 long as different inferences may reason-

ably be drawn the verdict ‘of the jury may not be set aside.

Argument ms

The Petitioner here was an interested witness. The

reliance which he places _— this Court's decision -in

Chesapeake and Ohio R. Co. v. Martin, 283 U. 8. 209, is

' mistaken. The witness whose Sah aiies was under disetis-

sion in the Martin case did not have such an interest in the

outcome of the litigation as would make applicable the rule

stated by this Court in Sonnenthed v. Christian Moerlein

Brewing Co., 172 U.S. 401 and Sartor +. Arkansas Natiral

Gas Corporation, 321 U. 8. 620. In the Sunnentheil case

this Court said that the mere fact of interest.on the part of

the witness in the outeome of the. proceeding is sufficient

to require determination by the jury. In the Sartor case

judgment had been granted in the Court below in a summary

judgment proceeding based upon affidavits, but this Court

reversed, saying:

‘*The mere faet that the Witness is interested in the

result of the suit: is deemed sufficient to require the

credibility of his testimony to be submitted to the jury

ona question of fact’’. 321 U.S. 620 at 62s.

This is the usual rule applic ‘able in most, if not all,

Courts. It is the Pennslvania rule. In Second National

- Bank of Pittsburg vc. Hoffman, 229 Pa. 429, the. Supreme

‘Court of Pennsylvania said:

“Tf he-was interested, his credibility under none.

of our cases could have been taken from the jury"

What has been said is made doubly apt by the facet that in

the case at bar the person whese testimony ts being dis-

cussed was the party upon whom the law imposed the bur-

den of proof. Slocum v. New York Life Insurance Com-

pany, 228 U.S. 364. The rule of the Slocum decision has .

been reiterated in a host of later cases. .

As part of his case, the Petitioner introduced two sep-

arate sets of photographs. The first set was taken without

the.knowledge of the Respondent only a few weeks following.

~ : Arqument

the injury. The second set was taken shortly prior to trial

and long after suit had been instituted. The Petitioner and _

his witness said that the ratchet and pawl arrangement |

shown upon both sets of pictures was the same ratchet and

pawl which had been involved in the accident. The pictures

were their own demonstration of the fact that the equipment

chad not been changed, altered or repaired. in the interim.

On both oceasions the testimony showed the mechanism was

performing its intended function, the pawl prevented the

ratchet from turning and it in turn was holding the chain

which supported the bottom of the seow. It was surely

-reasonable for ‘the jury to draw the inference that steel

chain does not stretch. If that he so, then the pawl was

inserted in the portion of the ratchet shown in the photo-

graphs. Those photographs showed that one edge of the

pawl was flared from repeated blows of the sledge,in a

manner somewhat similar to the way the head of a steel

chisel becomes flared with use. Iti is obvious that no amount

of flaring of the head of a chisel prevents the ofher end from

performing its intended function. So in our case, the end

~ of the pawl intended fo hold the ratehet was performing its

‘intended function in the photographs the Petitioner himself

infroduced into evidence. It was just as obvious that the

equipthent was neither new nor recently repaired. The

Petitioner nevertheless now argues that the jury was not

free to conclude that the most: likely explanation for the

_aecident was that the Petitioner himself had caused it, and

that he had been less than completely candid in his testi-

mony in which he denied that he struek the pawl with his

sledge just prior io the accident. The demonstration which

the photographs gave of proper and successful operation all

during the intervening time, from the date of the aecident to.

the date the second set of photographs was taken, was in-

«licative of the fitness of the equipment for its purpose and

the jury was certainly entitled to reach ifs own conc clusions

hased upon this record.

Arqument 9

What the Petitioner really asks this Court to hold is’

that a Trial Court must nevertheless direct the verdict in

favor of the party upon whom rests the burden of proof

and the burden of persyasion simply because there may be

oral. testimony as to the existence of something which, on

the basis of physical facts demowstrated in the record, is

either impossible or inherently improbable. ,

The Petitioner makes an argument which, in the setting

of this case, is hardly pertinent. This statement is directed

to that portion of the Petitioner’s argument (Petition p.

10) wherein it Is stated thiat the equipment involved was in

the possession of the Respondent. From this it is argued

that the election of the Respondent to dispensé with oral

testimony, concerning points already photographically dem-

~ lonstrated by exhibits, introdticed- by the Petitioner, called ,

for the direction of a verdict for Petitioner. The Petitioner

was entitled to‘ask the Trial Judge to instruct the jury on

this point if he had then deemed it appropriate. ° No such

gustruction was requested and no complaint is here made

concerning the Charge of the Trial Judge’ to the jury.

Since no instruction on the point was requested, the Peti-

tioner is not now entitled to complain. F. R. C. P. 51.

Point III.

This Court’s Decision in Crumady v. Joachim ‘Hendrick

Fisser, 358 U. S. 423 and the Other Cases Cited in Point

II of the Petition Are Not Even Remotely Involved in

the Present Case.

Tn the Petitioner’s Point TH, he seizes upon language

taken out of: context from the decision of the Court Indow

ane atte mpts to premise an argument w hich is pate sntTy in-

correet,

The Court of Appeals was discussing testimony (Peti-

tion p. 20) tof instances on some of the ether seows oper-

ated by the same company where similarly chipped teeth

and dogs had actually slipped**. The Opinion of the ¢ ‘ourt

10 Argument

below then went on to point out that the testimony in this

case, pertaining to those other instances, did not foreclose

the possibility that in those other instances of slipping of

the pawl on other scows there was the possibility that such

slipping ‘‘was occasioned by original improper securing of

the dog’’. That, we suggest, is a far cry from arguing that

‘the Court of Appeals founded its decision, affirming the

District Court, upon the proposition that the dog or pawl |

in this case slipped from the gear because it had been

improperly secured originally. . - |

The Petitioner’s argument lacks legic on other grounds

if it is applied to the facts of this case.\ Here the pawl or

. dog had been inserted well enough to support the tremen-

dous weight of the contents of the pockef all during the time |

the mud' was being deposited in it, plus t it took |

to transport the scow 8 or 10 miles from the dredging site

to the dumping site where the accident occurred. We con-

cede improper insertion might be a permissible. inference

for the finder of facts to draw from the evidence, but surely

it was not a compulsory inference such as to maKe the con-

clusion one oflaw for the Court rather than for jury |

determination.

| CONCLUSION:

No important point of: law i is involved in this case. The

Petitioner neither cites nor claims conflict between Circuits

and the decision of the Court below is clearly consonant with

the rules of decision of this Court. There is nothing i in the

case which merits the grant of certiorari.

Respectfully submitted,

TxHomas E. Byrne, Jr.,

‘Counsel for Respondent.