Brief in Opposition to Petition for writ Certiorari — Reynolds Metals Co. v. Martin (No. 691)

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aw OcTOBER Term, 1999

: No. 691

_. REYNOLDS METALS COMPANY, a corporation, °

Petitioner,

Vv. .

PAUL MARTIN arid Maa Se husband .!

and wife,

Respondents.

ae _ os, BRIEF IN OPPOSITION TO

\ ‘PETITION FOR WRIT OF. CERTIORARI

GEORGE ‘W. Meso, :

IRVING RAND, ~ ‘

1211 Public Service Building,

Portland 4, Oregon,. “

Attorneys for Respondents. .

- STEVENS-NESS LAW PLB CO, PORTLAND. ORE

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"2° * SUBJECT INDEX

on

The Facts:

Statute of Limitations

Federal Question -

Conclusion

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at

TABLE OF CASES aie ee

Page

Bedell v. Goulter, 199 Or. 344, 261 P. 2d.842,. 4

Brinkerhoff-Faris Trust & Savings Co. v. Hill 281 ~=«C

U.S..673 | ‘5

‘Brown v. Gessler, 191 Or. 503, 230 P.. 2d 541.

‘Great Northern R. Co. v. Sunburst Gil & Refining

\Co., 287 U.S. 358

Hotelling v. Walther, 169 Or. 559, 130 P. 2d 944 .

_ Huber v. Portland Gas & Coke Co., 128 Or. 363, 274

P. 509 : | 4

Kesterson v. California Oregon Power Co., 114 oF.

+22, 228 P. 1092 4

a Matthews Vv. Chambers Power Co, (81 Or. 251, ia

“P54 ee

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Mendenhall v. Water Company, 27-Or. 38, 39 P.399 . 4.

Reynolds Metals. Co. v. Yturbide (C.C.A. Ninth.

Circuit 1958), 258 F. 2d 321, certiorari. denied,

Reynolds Metals Co. v. ¥turbide, 358 san 840,

79 S.. a. 66 2-3

Roots v. “Boring Junction Seema Co., 50 ‘Or. 298,

‘92 P. 811, 94 P. 182 2 4

Shives ve Chamberlain, 168 Or. 676, .126 P. 2d 28 3

| Ure v. United States, 93 Fed. Supp. 779 (reversed on

wt

other grounds, 225 F. 2d 709)

Urie v. Thompson, 48g U.S. 163, 69 S. Ct. 1018

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. RULES |

Rule 23(f) : eecescee ee

Rule 24 : Jar tee

In the Supreme Court

: af the Hnited States

OcTOBER TERM, 1959.

e

No. 691

REYNOLDS METALS. COMPANY, a corporation,

‘Petitioner,

Vi. .

‘PAUL MARTIN and VERLA MARTIN, husband —

» and wife, we

Respondents.

a _ ce rCeenes

* BRIEF. IN-OPPOSITION TO © 9 ~~,

'. PETITION FOR WRIT OF CERTIORARI “~,

vs Gee

Respondents submit the following, as permitted by

Rule 24, in opposition to the granting of the petition for ©

a writ of certiorari. |

THE FACTS

This case involves nothing more than an award of

damages for injury caused by petitioner's tortious con-

duct.. Petitioner [defendant in the trial court; appellant

in the Oregon Supreme Court] spilled forth from its '

factory tons of poisonous fluoride ‘compounds, which

settled upon the near-by_lands of respondents, poisoned

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_ ‘quired to be ¢, passed upon by the Oregon Supreme Court.

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the forage thereon, and prevented use of the land for

grazing cattle. - 7

: The trial court awarded /lagenatie damaggs. The

Oregon Supreme. Court affirmed. A petition by a

for a rehearing was denied. ce Wa

STATUTE OF LIMITATIONS

- Petitioner states, “the ultimate question involved in

' this case is whether the two or the six year statute of

limitations is applicable.” (Petition for Writ, p. 17.)

The question of whether recovery was limited to re-

covery for the damage occasioned within two years °

before the commencement of the action was never raised

in the trial court by demurrer, -pleading, motion or

otherwise, and was not an issue between the parties re-_

-This quistion -could-have become important only if it.

had been made 4n issue in this particular case, but even *”

so would have been only a matter of local Jaw.

‘Continuously between. August, 1951 and January,

1956, petitioner, in the operation of its factory, emitted

each day some 800 pounds of these poisons, and toxic

quantities were deposited upon plaintiffs’ land (Petition LZ.

for -Writ, p. 37). Under the circumstance ‘of this con-

"tinuous course of tortious conduct, the statute of — ~>,

tions (whichever might be applicable) comm ses to

run only when the exposure ceases. The Oreg upreme ~~ —__

Court in this case had‘no occasion to consider or discuss. ©

this rule of law, but it is the settled rule in Oregon. Rey- °

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- , «molds Metals_Co. v. Yturbide (CEA. Ninth Circuit

1958), 258 F. 2d 321, certiorari denied, 358 U.S. 840,

79 S. Ct. 66; Shives v. Chamberlain, 168 Or. 676, ved ie

~P:-2d 28; Hotelling v. Walther, 169 Or 559, 130 P. 24-~~

944.See also Urie v. Thompson, 337 US. 163, ah

1018. : ot .

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FEDERAL QUESTION

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‘0 Petitioner claims that federal q tions, here soughts .

to be reviewed, were raised i ,

Court in a petition for rehea ing, and, that somehow re-

fusal of the Oregon Supréme Court ‘to fehear the case

deprives petitioner of the equal. protection of the law.

Under Rule 23(f) petitioner must specify the manner

in which the federal question sought to be reviewed was

raised. Does the ‘petition for rehearing in the Bs

<Supremy Court raise.any federal question? \-

is petition for rehearing (whichis i in the record in fr .

s Court) names four ‘ ‘particulars”’ in which the court

, / is said to have “erred.” In summary they are:

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‘lL. The. opinion of the Gregon Supreme Court ‘con-

tains: an erroneous definition of the tort of trespass.

2. The Oregon Supreme Court should have held peti-

: tioner guilty at most of conduct constituting a nuisance.

- 3 The Oregon. Supsinse Court in its opinion placed

an erroneous construction upon its geen in an ‘earlier ve

case (1948). : %

4. The result of the opinion would place a burden on

“all segments of the population” and in particular (A)

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upon industries functioning in‘ the national defense pro-

gram; (B) upon ‘industries such as steel, fertilizer and .

lumbering; and (C) upon a householder permitting“ ‘any

particulate” to be carried through the air “from his own

‘to an adjoining freehold.”

Considering le: 1 arid 2, we need only men-

‘tion that the describing of a tort committed by peti-

tioner as a trespass rather than a *

The Oregon Supreme Court said (Petition for Writ, p.

36). that the trial court was not “mistaken in identifying

“the defendant's invasion of the plaintiffs’ land as a tres-

’ pass,’ However the invasion with. these poisons might be

characterized, liability for the damage occasioned there-

‘by follows. under Oregon law. Mendenhall v. Water

‘Company, 27 Or. 38, 39° P. 399; Roots v. Boring Junc- ,

tion’ Lumber Co., _50 Or. 298, 92 P.-811, 94 P. 182:

~_.. Matthews Vv. Cnianbers Power Co., 81 Or. 251, 159 P.

564; Kesterson v. California Oregon Power Co., 114 Or.

22, 228 Pi 1092; ‘Huber v. Portland Gas & Coke Co.,

128 Or. 363, 274 P. 509; ‘Brown. v. Gessler, 191 Or. 503,

230 P2d 541; Bedell v. Goulter, 199 Or. 344, 261 P. 2d

842; Ure v. United States, 93 Fed. Supp. 779 (reversed —

on other. grounds, 225 F. 2d 709).

Neither does an errongous construction of.an opinion

in some other case between other parties deprive a per-

son of any constitutional right. The judgment against

Nuisance does not ..

_ deprive petitioner of property without due process of

law. Affirming a proper, just and correct judgment of a -

trial court with the use of wrong or inapt phrases in an -

opinion harms no one, and raises no constitutional issue. .

petitioner ‘in this case should have been affirmed (as it | :

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_ was) whether the Oregon ‘Supreme Court referred to or

“mentioned in its opinion any earlier cases or whether At

. “did net, or whether it even wrote any opinion or not.

As to. the fourth particular, it. seems superfluous to .

remind this Court. that industrial corporations remain

liable for their torts whethér they be ‘aluminum factories,

: steel plants or fertilizer manufacturers. Paying for dam-

age occasioned by tortious. activities may be painful or

distasteful, but there is no constitutional shield. against

; | 2 a. to do so. ;

is eas pe rieiey es ae /

The only pretended federal question, here pre eae’, .

is @ question such as could just as well have been raised»

in the trial’ court and reviewed by the Oregon Supreme

Court. The question, if otherwise of any validity, was

. not raised at “the first. opportunity.” inkerhoff- -Faris:

' Trust & Savings Co.\y. . Hilt 281 U.S: 4673: The claim is:

‘furthermore without ‘merit. Great ‘Northern R.. Co. v. ;

Sunburst Oil & Refining Co.;° 287 US. 358. 3

‘It is respectfully | submitted that there is no substan-

tial federal question prese éd for review, and that the.

petition for writ of certi tiofari § ~~ be denied.

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Respectfully submitted,

, NG

Grorce W- Mean, rae

_IRvING Ranp, - -

Attorneys for Respondents,

1211 Public Service Building,

Portland 4, eT

. ruary, 1960. .

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"CERTIFICATE OF SERVICE

I, George W ‘Mead, one of the attorneys for Re-

spondents nerGin and a member: of the bar of the Su- -

preme Court of the United States, hereby contlty that

on the - day of February, 1960, I served copies of .

the ciabies Brief in Opposition to Petition for Writ of

- Certiorari upon the Petitioner, : Reynolds Metals Com-

_pany, by mailing copies in duly addressed envelopes,

with first Class postage prepaid, to its attorneys of rec- -

ord, as follows: © >

To o Gustav.B. “Margraf and W. Tobin Lennon, Rey-

nolds Metals Building, Richmond, Virginia, they being

Counsel for Petitioner and that being’ their post-office

_address; and by delivering copies thereof at the ‘office

of King, Miller, Andersori, Nash &,Yerke, and Frederic

° A. Yerke, Jr. in the American-Bank Building, Portland —

+ Sy. Oregon, they being the Attorneys for Petitioner.

Dated at Porttand, Oregon, this: 7 ‘day of Feb-

~ Grorce W. ioe, .

bees Counsel for Respondents.

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