Petition for Writ of Certiorari — Ribeiro v. United Fruit Co. (No. 752)

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Supreme Court of the United States”

OCTOBER TERM... 1960

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’ PETITION FOR. WRIT OF CERTIORARI TO THE

LUNI TED STATES COURT OF APPEALS FOR’ THE

| “SECOND CIRCUIT

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INDEX

ad PAGE

Opinions We fen es Ceti. Ganado 1

Jurisdiction of. this Court Peedmesakebekias ounes ae :

Questions ne pneecaeiaseee Ranseeukve ns 2

Reasons for Granting the Writ .................:. 2

Poets Poe bbs Weed eae ee ek lb dee he Owe ed os aoe bs 3

Argumept ............00..004. Se Perey oe

Post I—This Court in the exercise of its supervisory

power must reverse the decision uf the Court below

in the.imterests of justice because the rulings of _

such Court and of the trial Court are so obviously —

aud ensinmeed NE ais nih neck wees bare mae 11

Point 11—The ruling of the ‘Com belaw that the

plaintiff failed to ‘‘object to the instruction origi-

nally given” defining ‘‘inimieal’* is contrary to

the record and clearly erreneous ................. 15

Post III—Assuming avgucedé, that the. plaintiff

failed-to take proper exception in the first instance,

the exception taken to the charge when the jury

came in for clarification of the original charge i is

sufficient compliance with Rule 51 .............. -

Point [V—The ruling of the Court below approving

the submission -of the three question verdict was .

contrary to Rule 49 of the Federal Ruled of Civil-

Procedu. ‘; such three questions in and of them-.

selves were prejudicial to the rights of the plain-.

tiff

cy Maen ian AAR WEIR Tad vis knicinn aan 24

| il 4

* PAGE

“Pont: V—The subenienion of thé three “question

verdict after thesargument and before the charge

_ of the C ourt to the jury is contrary to Rule o1 of

the Federal Rules of ( ‘ivil Procedure eee eee 37

Por VI—There are questions inv olving the econ-

‘struction of Rules 49 and 51 of the Federal Rules

of Civil Procedure upon which the Courts of Appeal

have expressed differing views which should be”

resolved by this Court ..................05006. “38

Point ViII—Petitioner has been denied the trial by

jury guaranteed to him by the Seventh Amend-

ment of the Constitution of the U nited States... 43

( ‘eeebinien PERCU ER SESE ARS On GASES CES Chino bas wae be 6x 45

A PPENDIX:

Opinion of United States Court of Appeals for

the Second Cireuit ...... piers rarely ree aii ark aa 47

ge Con 1 ee ee ET EVEL? Cc TeeTee a

Table of Cases Cited ~

~ American Alliance Insurance (Co. v. Keleket X-ray

‘Corp., 248 Fed. 24.920, 6 C. (.-A......... 8. 17, 18, 41

pega v. Robertson, 114 Fed. 2d 821, 822, 3

ee A Cees ete eae ee or *, 28,22:

a. Tope ‘ka’ and. S. F. Ry, Co. v. Hale, 68 Pac.

WE OE bbs ccc Canc caver cite cws : ee 27, 28

Atlantie Coast Line R.R. Co. v. Dickson, Fed.

2d 525, 5: CC, | Pe SUE I a AN ene 21

Baer Bros. Land and Cattle Co. v. Palmer, 158 Fed. — .

. * © Yo Gees eng eee 21

Baker v. Texas and Pacific Ry. Co; 359 U.S. 227, .

“9 EE ee ce a ey pe 16, 26, 33, 39, 42

‘y

sa 8

= Le

” . PAGE

The Balsa, 10 Fed. 2d 408, 400803 CL CL AL eo cs ae

Baltimore and Ohio Ry. Co. ¥..U. S.,’ 242 Fed. 1,

De ME ah es haw eae SAAR ieee 24

Beacon Theatres Ine. v. Westover, 359° U.S. 500, 79 “

Ae ss ecres LEE TV CUT eer er re 40)

Bernal V.-Baptist Fresh Air ‘Home Society, 275

-ALD. SS, aff'd 300 XN. Y..486 000... ore perawes 16

Blankenship v. Ellerman’s Wilson Line N.Y. Ine.

ood Fed, Sd $55, 2. C. AL cee ccan 27, 88, 29, 40:

Blodgett v. Pinkérton Tobaeco Co., 9 Ped, 2945,

cnt a oe “EMO S ine ea ae RD Ree Bee ee Po ree 23

Blué Ridge Rural Electric Co- a rative Ine. v. ‘By rd, :

264 Fed. 2d 689, 693; 4 8 oe Seer: roe “26, 27

Broderick v. Harvey, 252. Fed. i 274; 1 (. aie Mae ype

Butler vy. Whiteman, 356 U.S. 271, 78S. Ct. 734. 17

Byrd v. Blue Ridge Rural Electric Co-operative, 356 -

U.S. 525, 78 S. Ct. 893

Callwood Vv. Callwood, 3 ¢, ac A. 233 Fed. au. iR4,

PP hee ecu CLOT E ET ORO ere reer, Pre * 14,41

Carpenter v. Baltimore & Ohio Rv. (o., 109 Fed, m4

Nc ree a eee ater 39°

Cate v. Good Bros., 181 Fed. eH 146, 3: CS _

Chicago B. & Q.. Ry. Co. v. tue dc 74+ Fed. 2d 80,"

POE We ay soe a ot eee « of}

Clegg y. Hardware Mutual Casualty Co., 264 Fed.

24 92,5 (. C. A... 8: eet et estes ss BT, 40, 42 :

Conn v. — 267 Fed. 2d 725, 2 he eee

— W. Cross (Co, y. Burns, 81 Fed. 2d 856, 8

* A. + ORD OOo Soe Be ee eS et a ee ao es oo oe 16

ik Ry. & Termina! Co. v. Sullivan, 108 Fed, 2d .

wien, Seach tei, POU EP eee ne re s0s'g sehen

Dowell Inc. v. Jowers, 166 Fed, Mt 214,50. C. A..., 13,41

Elgin Corp. v. Atlas Building Products Ine. 251 +

Fed. 2d VA". CL A., cert. denied 7 4k. B78... . | iA

Y j

’ Farmer ms Arabian American. Oj] Co., 277 Fed.

46, 2 ¢. -, fas CLAM eee aa Susu ls ween oe. 32

<y*

>" Pes 9 3 PAGE

Ferro v. Sinsheimer Estate “Ine. , 6 XK. X38... 16

Fillippon. v. Albion _— Slate Co., 250.U. S. 76,

Se ee eee kro Mane ". «90, 21,223,257"

Fitzpatriek v. ‘Sooner Oil Co; .2 212 Fed. 2d SAS, oo

RR ek 2 4skeab a tatev ei abe<tecusel ria cet. Tae

Galloway v. U nited States, 319 v S. "372, 63 S.Ct

Gibson’v. Lockheed Aircraft Servi ice, 350.1. S.. 356,

ge NMI gs ee an ge 13, 38, 43

Giglio v. Rubin, 278 A. S 2: © Renee 16

Green v. Reading Co.,.18 3 Fed. 2°716, 3 CLC. A. .¢ hh. 4

Greenwood y. Inter: Geeais Insurance Co., 89 S. EF.

LU UE kd een ea bends Ck eh aod cok bkcke kik 21; 2%

Greyhound Corp. v. Blakley, 262 Fed. 2d 401, 9

ty a Tee aiaueance. a ee ge: eee *. 17,41

Gimes v. Raymond Cone rete Pile Co., 356 U. S.- 252,

PP ee GE eh cv ion ba dkcnkenscc wend c tee 17

~ Halecki v. United. New York and New Jersey ete.,

262 Fed. 2d 137, 2 C.-C. A: ...... ow enwnnes ae

Halvyorsony. 562 W. 149th Street Corp. m8. Y.° -.

7 Me eesk an Shad Onats Wee e6ES cawataeobebens panes 16

Hansen vy. Si: Jeccoh Fuel Oil & Manufacturing

Co., 181 Fed. 2 890;8C.C: A: ........ oo... ee

Herbst v. Balogh, 7 A. * 3 24 530° 4%. ¥. P ccpccvnc Ge

Hodges v. Easton, 106 U. S. 408, 412-413 ...... re F

* Hormel.y. Helvering, 312 C. S. 352, Oe paaciay sas 14. 4]

Johnson v. Erie R.R. Co., 236 Fed. 2d 352, 2 C. C. A. x

' Johnson v. Fireman's Fund Indemnity Co., 264 Wis.

Ree eo adie ee ane ke ee 2

Kendrick vy. th Aireraft Conp., 265 Fed. 2d 482,

We Ns Re ine no0 kw oa vesn 5 yankee aces 35, 36, 40, 42

Kennedy v. Peenebivnkin Railroad Company, 282

wed. 2d 705, 710, 3 C. C. A. oc... c cu? Ps ka neeks 26

Kermaree v, Compagnie Generale Trans-aflantique.

358 U.S. . 625, Co he 4. 25, 31, 33, 34. 35, 45

‘?

- ww

; . a a a a : . ~

Lee v. Jenkins Bros., 268 Fed. 2d 857, 2 C.C. AL... 2

~~ Louisville & N. R. Ro Co. v. Johnson, $1 Fed. 679,

PCF. Ais... Teer Tea’ 40

McKeon’ v. Central Stamping Company, 264 Fed.

38D, a3. <. A. sNeinana yal ag xin ak sae wie 40)

B. °F MeLean Liv estment Company v. City of |

» Wichita, 268 Pac. 2d 956 (Kan.) ....¢...... aie =e

MeNello v. Johu B. Ketly, Inc., 3 C. CLA. 283 Fed.

Ni ES a SEAR i ae PP 13,41

uel Aetna F reight hines, Ine., 360 Uy S. 273,

‘79'S. Ct. 1184 ee Py ee 25, 26, 29, 31, 33, 35, 39, 40, 42

‘Miller v. American Bonding Company, 2o7 U. S. 304,

SE Mikes kane Suanueds cet ore cect sds Fe ae acre 40

Miner® y. Atlass, 80 S.-C't. 1800 .......... ot 24, 25, 39

Mitchell vy. Trawler Racer, Ine., 80 S. 1. 926....... E42

Molnar v. Slattery Contracting Co. Ine., 8 A. D. 2d ;

= Be bk chan CRE ooo ora eer waka cou . 35, 36

Montgomery y. Virginia Stage Lines, Ine., 191 Fed. .

2d 770, 774, U.S. Appeals, D. De Sesqees eeensies git, 41

Mereau-y.. Pennsylvania R.R. Co., 166 ro, 2d O43.

Wee ee ee AE a PS eee 18, 41

* Murchison, In re, 349 U.S. 133, 136 Pisnietes ek adeeetan 4 oe

Neumann v. Evans, 272 Wi is. 579: Regs Dahesh ove og oe 28

Offutt v. United States, 348 U. S11. pe aes Pee a a

Palmer v. Miller, 145 Fed. 2d ye 930, 8 CC. A. <2. 22; 23

John M. Parker’& Son v. Godsey, 115 S. W. 2d 276

GG cars ccaws Limi were waa weeon Mairice inna oe 28

Petty v. Tennesse ‘e-Missouri Bridge Comm., 259 U.S.

«275, 79'S. Ct. t PEND. Lee See teach SEN ar Eon 17

. Pierro v. Carnegie- Illinois: Steel Corp., 186 Fed. 2d °

Ce 2 A ER ee SOO Tee ee

Pritchett v. Highway — Underwriters, 304

S..W. 2d 585 GOD Me iiandcsvannevagesenves eis 28

Reliance Engineers Co. v. Flaherty, 300 -N. W. 603 _

(Minn. ep perae Ga aecak ee ak Caper et eae 27

} co)

PAGE

Schulz v. Pennsylvania R.R. Co., 350 U. S. 523, 6

ole tg ee OE CEES ST REE EE rer 26

Seaboard Air Line R. ¢ 0. V. Bailey, 190 Fed. 2d 812,

3 a Sree. re batietaacia case KGS <Caew sake 21

Senko v.-La Crosse Dredging € _ 1» S02 U. S. 37,

a7 S.Ct. 415 Ti) ert ee Wi

Shokuwail Shimabukuro vy. eat Nagayama,

140 Fed. 2d 13, U.S. Appeals, D. EPO re: ee

Smith v. Texas Company, 219 Fed. 2d 4,2C. CA... . 35

Smulezeski v. City Center of Music, 3 N. Y. 2d 498 .. 21, 23

- Snyder. vy. Lehigh Valley Ry.-Co., 245 Fed. 2d 423-10

Pa 6a oda ks Ww ho kes be busied bd dhake daw en 20

Supernick v. Supornick, 222 N. W. 275 (Minn. ae 16

Sweeney v. United Feature Syndicate, 129 Fed. ‘2d

Mk £0. ©. A:......... AREA CGAS pha eon doe 17

Texas & New Orleans R. Co. Y. eines Trans.

Corp., 266 Fed. 2d 283, 290 5 C. C. A. . 35, 36, 40, 42

Thedorf v. Lipsey, 237 Fed. 2d 190, 7 C. C, A. Laewaseke ae

- Theriot -v. Mercer, 262 Fed. 2d 754, cert. denied,

yachts Mie Pte, SOP eT CO OT Tee ee seer ee 21, 23

- Troupe y. Chicago D. & G. Bay Transit Co.,2C.C. A. - —

Be We Oe Oe Fe Fi cakcicrnasevecieiiaa 14, 18

‘Tumey v. State of Ohio, 273 U.S. 510, aE eet ——

Turner v. Kelly, 262 Fed. 2d 207, 4 C. C. A. ...../. 39

_-Union ee Ry. Co..v. Owens, 142 Fed. 2d 145, 9 P

ie at a ve races biked eats bs eee eke CAE eae aw Ce 18, 41

United sat York & New Jersey Sandy Hook Pilots’

Ass’n v. Halecki, 358 U. S. 613, 79 S. Ct. 517 .. .30, 31, 35

United States v..Atkinson, 297 U. S. 157, 160 . 13, 14, 38, 41

United States v. Mississippi Valley Generating Co.,

decided "pon SP Seen Sern 17

U.S. v. Rayno, 136 Fed. 2d 376, 1 C. C. A. cert. denied,

Oe ile MW hc bu pa eaweu odes ancaeeesietiiwk 18, 41

_ Vukich v. City of Detroit, 28 NW. 2d | 894 (Mich. .. 27

| Ward v. Atlantic Coast Line R. Co., 80 S. Ct.

PP cS ingan nnn backs Leben skes so ee wae bas :16,;25, 26; 33 -

Vil

Rules and Statutes

ae PAGE

‘Moore's. Federal’ Procedure Section 51.04 ....... nee 17°

ia yee. < SA eee :

Restatement of Torts, See. 348 0...0..0........... :

Rule 19, Supreme Court ae Le. aE Fare iu a a ex ae

Rule 46, Federal> Rules - of + Civil Procedure |

(;: Be. Eee ree Per eer oe ee eae |

MCE EES. eee: 24,25, 38, 39

oe ee Se re SS ovaduxeowts 17,19, 37, 38,41,

2 Amirican Jurisprudence 82 .. ss ease Ee a a . a

2 Corpus Juris, See. 1227 ey eee ee ere). Actes ~ ome

ith Amendment. U. S, Constitution pane xe ie he aha Te

00. BCR) ovens RAEN Pee he! aca 1

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‘

‘Supreme Court of the Anited States

OCTOBER TERM, 1960

No.

ty)

JOacHIM Ripeiro, ;

| © ; Petitioner,

~ against

Uxitep Freir Compasy, a New Jersey Corporation, and.

UKsso Staxparp Org Company, a Delaware Corporation,

“ Respondents,

and

Usirep Freir Company, a New Jersey Corporation,

Third-Party Defendant.

—_—_— — —_ 1)

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR TH

SECOND CIRCUIT _ :

The petitioner prays that a writ of certiorart issue to.

review the judgment of the United States Court of Appeals

for the Second Cireuit entered in, the above cause on

all

‘

Opinions Below : aetaea

The opinion of the Court. of Appeals is reported at

284 Fed. 2d 317. -

i Jurisdiction of this Court

The judgment of the: Court of —— was entered, on -

November 21, 1960. ae

The jurisdiction of this Court js invoked under 28

U.S. C. 1254(1) and Rule 19 of the Rules of the rita

-_ of the United States.

. ’

° .

a °

e * e

‘ *

. °

. é ’

° . ¥ ° ~ :

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> ” .

Questions Presented

. Lod . _

1. In the exercise of the supervisory power of the

Supreme Court, does the interest of justice require carrec-

tion of obyiously injurious errs and review on a

or does a litigant lose’ his. right of review by appeal; of

errors: committed by a Trial Court, when, in fact, exee-

tions are taken to: the errors committed but in some

instances. not in the preeise words “I except’?!

2. Is it error for a Trial Court to inform trial counse!

that several questions, seven in number, will be subsfitted

for a jury's consideration, and then,°on the Court's own

initiative, give to the jury but three*#questions, two of

which are objected ‘to,-particularly where the clear ani

precisé meaning of the word ‘‘inimical”? is given a different |

meaning than that given by: the Supreme Court over

objection of counsel? ;

3. Is dhe consent to the submission by a Trial. Conrt

to a jury of one gf several questions, a waiver of objection |

of several other questions to which. specifie exception had

been taken? :

0 Which of the severa conflicting opinions by various

Cireuit Courts of Appeal (set forth in further detail under

Point 6 of this Petition) is correct as to construction of

Rules 49 and. 51 of the Federal Rules of Civil Procedure?

Reasons for Granting the Writ

1. There is conflict of opinion by various Cirenit Courts

of Appeai. a

_ 2. The failure to ‘use specific verbiage in'taking excep- «|

tions has been erroneously asserted as a basis for denying?

to a litigant the right of review by. appeal, when, in fact.’ |

‘adequate exceptions had been taken. This constitutes a.

denial of justice where, obviously, an injurjous error wWhs

committed by a Trial Court. , :

—s

—

" 3

3.. here is great confusion and -conflict of opinion by

various Circuit Courts of Appeal as to the meaning and

manner in which Rule 49 and Rule 51 of: the Federal

Rules of Civil Procedure are to be applied in our Federal

Courts. :

4. The Trial Court committed error. by’ a radical

departure from the correct interpretation of the ‘word

“iniyieal’ and changed and limited the meaning of said.

word as ¢xpressed by the Supreme Court of the United

States, and “gave it a meaning far different and in con-

fliet with the meaning given by said Supreme Court. The

Court below refused to pass upon this question although

urged as’ error.

5. The Trial Court erroneously usurped the fupretion

‘of the jury in total disregard of well ‘established law,

Rules of Procedure and admission ‘of evidence over strenu-

ous objection. ; : ee

F acts :

The plaintiff was a night watchman on the SS.

Parismaxia; defendant’s barge No. 23 was tied alongside

this vessél to bunker it. Its crew consisted of two men .

designated by Esso as ‘*( ‘aptain’’ and ** Mate’’. Thé barge-

men, in order to prepare for the fueling operation, placed

a ladder on the deck of the barge leading to the deck of

the ship.. The bargemen prepared the vessel for the pump-

ing of the fuel and retufned’to the ship.

Plaintiff had no duties on. board the barge. Kes

Plaintiff - climbed down from the. ship to the barge.

He testified he was injured while returning t6é his ship

because of the defective and unseaworthy condition of the

ladder. ‘.

a sf id Ree

Afte a long trial lasting from November 23 through

December 4, 1959, the Trial Court advised counsel. on.

both sides that he would submit a special verdict of

seven questions.

Later and after argument by counsel, the Trial Court

decided ‘to submit the verdict in ‘‘two sections”, the 1st.

question of ‘‘liability’’ and secondly, the issue of ‘‘dam-

ages’’, eT

The: charge States:

‘‘There are seven questions, which I will diseuss .

‘with you. I shall first discuss three of these questions

and ask you to return a special verdict of yes or

no to each one of them. Depending upon your

answers to these questions,. I shall ‘submit further

questions for your determination” (Charge 8a).

The: three questions and the answer of the jury are

as follows:

‘‘Question 1. Did the.captain of the Esso barge 23

invite the plaintiff on the barge?

Answer. No: as

Question 2. Did the Captain have authority to

invite the plaintiff aboard the barge for a purpose

other than in furtherance of the owners? ,

Answer. No. ; .

Question 3. Was the plaintiff aboard: the barge

for a purpose inimical to the legitimate interest of her

owner? ,

Answer: Yes."?

The only issue that counsel for plaintiff was willing

to have the jury answer was whether the presence of the

plaintiff on the barge was for ‘@ purpose not inimical to

the legitimate interests of the owner as construed by

this Court in Kermarec v. Compagnie Generale Trans-

atlantique, 358 U..S. 623, 79'S. Ct. 406.

_ The objections of plaintiff to the three question verdict

. are found in the footnotes of the opinion of the Court

below ‘as follows: .

‘*After the trial judge announced his intention of

submitting the question of liability first, and-then

"Ss

| ae Se

_ submitting the issue of damages only if liability was

established, the following colloquy took place:

‘Gentlemen, do you understand’ what the ques-

‘tions are that we are going to put*to them?

Mr. Rassner: I do, your Honor. ,

The Court: It won’t be necessarily in that lan-

guage, but that is going to be the substance of it. .

Mr?Rassner: May I make a comment as to that,

your Honor. . ° | oy salle hey

The Court: Yes, sir. | |

Mr. Rassner: In the main I feel that your Honor’s

thoughts should facilitate matters. However,,as a

- matter of protecting my client’s rights I would like

to express one objection. I feel that the question

of whether or not the plaintiff was aboard that. vessel

lawfully, rightfully is'a matter of law and not a

matter of fact, and therefore I object to so: much-—I

consent to everything else but object to so much—-

‘ * * _*

Mr. Rassner: I object to the submission of whether

or not the.plaintiff was lawfully or properly aboard

the vessel to the jury on two grounds: first, that 1

believe it was error for the Court to permit any evi-

dence as to the rules and regulations of the company

as not binding on the plaintiff and in no wise lessening

the authority of the master to invite or pérmit the

plaintiff aboard the vessel, and I use-¢he words ‘invite

or permit’ advisedly; secondly, that whéther or not

thé plaintiff was there with the original express invi-

tation of the magter or with his cofisent.is immaterial

so long.as he was there’ for purposes not inimical

‘to the interests of the owners of the barge 23.

With that one reservation— :

Mr. Rassner: For the record, I would like to

make my position clear. ‘

The Court: I don’t know what ‘it means, ‘for the

record.’’ In other wards, you don’t mean it seriously?

' Mr. Rassner: No. I object to a question being

submitted to the jury which in any wise gives them

the duty or Tight to pass upon whether or not the

plaintiff was aboard the vessel rightfully or wrong-

fully other than in a manner inimical to the interests

of the barge 23.’

‘*Plaintiff objected to the submission of the first

question on the ground that it was immaterial whether

he was an invitee or a licensee or even a trespasser.

The only test was whether he was on board for pur-

poses ‘inimical to the ship’s interest.’ . He objected

to the submission of the second question on the grotind

that even if the issne of invitation was relevant. it

would be the apparent authority of the captain to

invite him and not the actual itereompany limita-

tions on the captain’s authority that would control.”

+ After the charge counsel for plaintiff again excepted

to the submission of questions 1 and 2 on the ground that

neither nition ® a proper question in the case at bar.

“They are .irrelevant, immaterial and outside the issues

of this case’’ (App. 18a): | la Oo See

— As to question 3°Counsel for plaintiff stated:

“*Plaintiff, takes exception to so much of the

Court’s charge ‘tas makes comment,—this has par-

ticular reference to question No. 3—on the conversa-

tion had by the plaintiff and the captain of the barye

before the plaintiff entered the galley on the barge,

particularly in view of the fact that the conversation

‘relating to the plaintiff’s home life and business has

been omitted; furthermore, that any conversation

‘that took place before there wag this absolute change

of status, if it did not exist ‘in the first instance, of an’ '

invitee to the barge, the fact that the master went

into @ social conversation and did offer refresh-

ments, be it avith milk or coffee, in his quarters

. changed the’status, if there was a change necessary.

of the plaintiff from whatever status it. might hare

been to that of an invited guest.’’ (App. 19a) “(italics ?

ours) i 2

. Later the following colloquy took place between counsel

for plaintiff and the Court: ‘

_» “Mr. Rassner: I have made my objections on the

record. Now I have one more; that there be a diree- y

, ’ : ‘

— - - a -

. ‘ , ’ a

. . :

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7 | Ne

tion as tothe third question and a direction that the

plaintiff was aboard barge 23 for-purposes not inmi-

cal to the interests of the barge owner as there is po

dispute that he was there for purposes not inimical

to the interests of the vessel.’” (App. 22a)

.** Plaintiff takes. exception to the Court's refusal. .

to charge the jury to find that the plaintiff was on

board the vessel for purposes not inimical to the

interests of the owner."* (App. 23a)

After the jury had been deliberating for some time the

jury sent this formal communication to the Court:

‘In question. 3, please clarify the use of the werd

‘mimical’ and the phrase ‘for purpose’.”’

x Upon its receipt the. Trial Court discussed the note

with counsel, stating: ;

‘If you look in the dictionary I suppose in the

ordinary sense ‘inimical’ might be ‘hostile.’ That

ineans that unles you find that. a person boarded a

Vessel unauthorizedly ‘with a view to blowing up the

vessel he was not on there for a purpose: inimical.

I suppose ‘inimigal’ as used there might be almost

defined as inconsistent with the legitimate interests.

of the owner, and I should like to hear your definition,

Mr. Rassner, the definition you would like me to give

to the jury. A /

| Mr. Rassner: May I respectfully ask the court

to charge the jury. only by answering the-qnestion

Alireetly without elaboration. They ask: what is.the

meaning of it. The meaning is hostile or harmful

and ‘nothing more.’’ (App. 28a) i

The Court charged the jury: "

“It is very significant that your request ‘is not

: for dictionary definitions of those words, Int to

clarify. the use of those words. You know, a word

used in one context may have one meaning and that

same word used in a. different context may have

an entirely different meaning. As used in the con-"

8 Rn nr ee

text of the charge the term ‘inimical’ was intended

to mean ‘inconsistent with’ and the’ phrase ‘for —

purpose speaks for itself.’ wi

Thank you, gentlemen.

. Mr. Rassner: May I have my objection noted. pare

The Court: The objection has been noted.’’ (App.

28a ef seq.) a

Argument |

The. Court belay and the Trial Court have made xo

many fundamental and obvious errors in passing upon

_the issues of fact and in determining the applicable rules

of law that the judgment herein must be reversed.

Even though the actua] submission of the three ques-

tion special verdict was and is contrary to all proper

procedure, plaintiff was entitled to a fair and impartial

determination of his exact status on the barge immediately

before the accident and of his legal rights created by such

status.

. The factual issues at the trial were:

1. Whether the plaintiff had beén invited on the barge

| by the captain? ‘, ae

.. 2 Whether there was a change in his legal status on

- the charge because of the undisputed evidence as

~ to what occurred after plaintiff went on the barge.

Plainitff testified that he was invifed on the barge

by the captain (Charge lla) and that later he was

in the galley with the captain drinking from a con-

tainer of milk (Charge 11a). |

:The captain admitted that he gave plaintiff a glass

of milk: that he talked to him, while he was on the

barge and while he wag drinking the milk so given:

him by the’captain, about living in Hastings and ff

about his having two jobs at the time of the accident?

(App. 4a). | .

\ ao

HW)

Whether the presence of the plaintiff on the barge

Was for a purpose inimical to the legitimate interest

of the barge?

“This statement as’to the ultimate issues is. not ques-

tioned by the Court below nor by the Trial Court.

Let the reeord speak for itself:

At the conclusion.of the trial the Court told counsel '

that he would’ submit his.proposed seven question

special verdict which is proper and acceptable prae-

tice. reece e

After argument of counse]: to the jury and without

any notice from the Court that he did not intend

to submit the seven questions, the Court of its own

volition decided upon the, three question verdict.

At that time gounsel for plaintiff specifically objected

to the submission of questions 1 and 2 and at that

time counsel told the Court in no uncertain terms

‘that the rules and regulations of the company were

- inmaterial; thet any such rules and regulations in

nowise lessened the duthority of the master to invite

or permit the plaintiff aboall the vessel and that the

only issue was’ whether plaintiff was there for pur-

poses not inimical to the interests of the harge 25

(this brief, pp. 6, 7). |

The Court below based its entire decision on that

part of the’charge which is quoted in its opinion:

“If you find that plaintiff went there for the

purpose of helping himself to some food, whether

it be milk or coffee or whatever it was,-and that

*he did so without the eaptain’s consent you may

find that he went there with a purpose inimical]

to the interest of the captain. In view of the rela-

‘tionship between the captain of the barge and its

owner you may conclude from'this testimony that

the plaintiff had a purpose inimical to the legitimate

interests of the owner of the barge.’’

In reading this charge it must be noted that the charge

reférs solely to the initial entry of plaintiff on the barge.

Counsel for plaintiff had already made his objections

to that part of the charge which states: :

‘*In view of the relationship between the captain.

of the barge and its owner you may conglude from

this testimony that the plaintiff had a purpose

inimical to*the legitimate interests of the owner

of the barge.’’ .

He had already told the Court at the time question

*3?? was to be submitted that the relationship. between

the captain of the barge and its owner and the authonty.

of the captain were wholly immaterial and had no bearing

whatsoever as to whether the plaintiff’s visit was ‘‘inimi- .

cal’? (see ‘3’? immediately above). .

5. At the conclusion of the Court’s charge counsel -

again stated his view of the rights of the plaintiff on board

the barge when he specifically excepted to the charge as

set forth herein at page .*% — ns a”

6. During its deliberations the jury became confused

as to thé meaning of the term ‘‘inimigal’’ and sent a

note signed by the foreman requesting clarification as

to its meaning. .

_ At that-time the Court asked counsel for plaintiff for

_ his opinion. __ +

Counsel told the Court:

_ ‘*They ask: what is the meaning of it. The mean-’

ote) hostile or harmful and nothing more.’’ (App.

a | .

At that time the Court erroneously told the jury:

‘As used in the eontext of the charge the term

‘inimical’ was intended to mean ‘inconsistent with’.”’

- (App. 29a) , : :

To which charge plaintiff took objection which was

noted by the Court (App. 29a).

The conclusion of the Court below that ‘counsel for

_the plaintiff did not take proper exeeption to the charge

a8 originally given is contrary to the record itself.

The conclusion of ‘the Court: below that counsel for

plaintiff is precluded from taking any exception to the

errongous charge after the jury’s request for clarification

of thd term ‘inimical? is wholly erroneous and contrary

to the “teecisions of this and other Courts.

The Court below avoided and evaded the determination

of the plaintiff’s legal status by its failure to properly

examine the record and by its refusal to properly apply

the law. vee)

| The specific errors of:the Court below and the-Trial

_ Court will be diseussed seriatim in the various points of-

this. brief, 3

POINT I.

This Court in the exercise of its supervisory power

must reverse the decision of the ‘Court below in the

_ interests of justice hecause the rulings of such Court

‘ and of the trial Court are so obviously and injuriously |

erroneous.

The trial was replete with error.

- From the beginning of the trial until the rendering °

of the final verdict after the clarification of the term

‘inimical’? counsel for \plaintiff had based his claim for

recovery herein as to the legal status of the plaintiff on

the barge on two alternate factual situations, namely:

1. That plaintiff had been invited on the barge

hy its captain in the first instance, or

2. that even though the initial entry had been |

unjustifiable’ there had been a legal ‘‘change of

12.

status’’ resulting from what had transpired on the

barge after the original entry which gave the plain-

tiff the same legal rights as an invited guest from.

- the time he left the ship.

Counsel urged at all times that it was immaterial which

alternative the jury adopted.

It was always his contention throughout the trial as —

shown by the record that a recovery could he had on

either or both. theories.

The Court told counsel that it was his opinion that

the plaintiff | ;

‘‘stealthily got aboard this barge with a’ view to.

committing larceny-and apparently he succeeded in

part because he was not discovered until the captain

of’ the barge went in there after he had completed

some of his chores on the deck.’’ ” (App. 22a)*

While the Court stated that he “did not ‘expound it

to the jury’’ the record in of itself demonstrates a con-

certed never diminishing attempt of the Trial Court to

enforce such opinion by indirection what it could not

do directly because it would be manifest error and a gross |

usurpation of the powers of a jury.

The attitude of the Trial Court seems to’ have been

that as long as he’could not express to the jury his own

personal version of the case as outlined to counsel as

above, at least he could, would and did prevent the plain-

tiff from presenting his claim as to his status on the barge

in a fair and impartial manner.

Let the reeord speak for itself. |

After this Court reviews the record and the law appli-

cable thereto it is submitted that this is a case where

* This and later references are to petitioner’ s — printed

for the Circuit Court of Appeals. ;

\ this Court, in exercise of its supervisory, power, “must

| reverse the judgment-of the Court below beeause the rulings

are so obviously and injuriously erroneous.

| Gibson v. Lockheed Aircraft Service, 300 U.

oe 396, 76 S. Ct.’ 366. ‘

The Court below refused to pass upon one Vital ultimate

issue, namely, the legal status of the plaintiff on the barge

because, in its opinion, counsel for plaintiff failed to take

the necessary exceptions to protect the interests of his

client. :

* The record shows that such exceptions were taken

but: whether. he did or not becomes and is immaterial

when, as here, the errors are fundamental and obvious.

In United States y. Atkinson, 297 U.'S.,157, 160, this

Court said: 3

“ln exceptional -cireumstances,. especially in

‘criminal cases, appellate courts, in the public inter-—

est, may of their own motion, notice errors to which

no exception has been taken, if the errors are obvious,

or if they otherwise seriously affect the fairness, .

integrity, or public reputation of judicial proceed-

ings.’’ .

In Dowell Inc, v. Jowers. 5 C. C. A. 166 Fed. 2d 214:

‘‘We think that in the interest f justice the

court here must act, upon its own motion. So acting,

we hold that the trial judge’s charge to’ the jury

constitutes reversible error.’’ aes ,

In McNello'v. John B. Kelly, Inc., 3 C. C. Av 283 Fed.

2d 96, 102: Me . :

‘*The question of liability i in the present case was

submitted to the jury with what was .tantamount .

to no instructions at all. Few more fundamentdl

errors with respect to a charge can be .conceived.

A holding that counsel’s failure to take exception

to such a procedure bound his client, would, in our

opinion, result, in a gross miscarriage of justice."

‘To same effect:

Callwood v; » Callwood, at. ©.-A. 233 Fed. 2d 784,

788 ;

be Montgomery v. y irginia Stage Lines, Ine., 191 Pea.

2d 770, 774, U. S. Appeals .D. C.;

Shokuwan Shimabukuro v. Higeyoshi aiiaien

140 Fed. 2d 13, U. S: Appeals, D. CL:

Hormel x. Helvéring, 312 U. S. 552, 556.

The late Circuit Judge Frank of the Second Cireuit-

Court of Appeals in reviewing United ‘States v. Atkinson,

supra, said in his coneyrring opinion in Troupe v. Cliicaqa

_ D&G Bay Transit Ca., 2 C. ¢. A. 234 Fed. 2d 253, 261:

‘‘There the Supreme Court set forth, in the

disjunctive, two grounds for review ring such errors:

(1) the errors are obvious, or

(2). they otherwise seriously. affect the fairness,

the integrity or publie reputation of judicial

proceedings. ’’

One basic error committed at the trial was that the

plaintiff and his counsel were never Permitted to have the

jury pass upon ihe most essential issue of fact, namely,

whether there had been any change in his status after his

original entry on the barge and before the accident.

This contention that this ‘‘change of status’’ created

a proper causé for liability upon the part of the defendant,

_ was made throughout the trial as the record clearly and

‘. conclusively, demonstrates. It-was repeatedly urged upon

the Trial Court. No one questions or disputes this state-

ment.

But nowhere is there any record in the trial where

the jury was permitted to pass upon it.

It was omitted because the Trial Court refused to have

it determined. The Trial Court purposely avoided all

such suggestions of counsel for plaintiff.

. a. § :

: +

Nowhere in the opinion of the Court helow is it even

discussed. Other incidental issues are discussed bunt not

this one. !

In common fairness, in common justice no trial should

have been completed without this issue of liability due

to “change of status’? being determined by the. jury.

This error is glaringly obvious. It is a basic funda-

mental issue, ‘The refusal to have it passed upon-of heces-

‘sity Injured and prejudiced the plaintiff. — + ;

There were many other serious and most prejudicial

errors Which are discussed later,

POINT II

The ruling of the Court below that the plaintiff

failed to “object to the instruction originally given”

defining “inimical” is contrary to the record and clearly

erroneous.

The record shows (App. 19a):

‘Plaintiff takes exeeption to so much of. the

Court's charge as makes comment—this has par-

ticular reference to question No. 3—on the conversa-

tions had by the plaintiff andthe eaptain of the

barge before the plaintiff entered’ the galley on

the barge, particularly in view of the fact that the

conversation relating to the plaintiff’s home life

and businéss has: been omitted; furthermore that

any conversation that took place before there was

this absolute change of status, if it did not exist

in the first instanee, of an invitee to the barge,

the fact that the master went into a social conversa-

tion and did offer refreshments, be it with milk or .

coffee, in his quarters changed the status, if there

was a change necessary, of the plaintiff from what-

ever status it might have been to that of an invited

guest.’’ a

ts a ;

Later counsel for ‘plaintiff requested the Court to direct -

the jury that the plaintiff was on the barge for purpose-

‘not inimical to the interests of the .vessel (App. 22a and

23a).

that there can be a change of status after an original entry.

In Bernal v. Baptist Fresh Air Home Society, 275 A. P.

88, later affirmed by the Court of Appeals, 300 N. Y. 486:

‘*Plaintiff’s status in the camp generally was

similar to that of-a social guest of the defendant

and as such she was a licensee. * * * However, on

this record at the time of the ‘atcident herein=

plaintiff was in the pantry drying dishes as part

of camp routine for girls of her age,-and she was

‘at that time and place an invitee, or so a ‘jury

could find; and in such case defendant would have

the common law duty to use the reasonable care duc

an invitee.”’ =

Restatement of Torts, Section 342, also recognizes this

distinction wherein it states:

‘‘invites or permits them to enter or remain upon

. the land.’’ (Italics ours. -

¢ To same effect: - ,

- Ferro v. Sinsheimer Estate Inc.,-256 N. Y, 398:

Giglio v. Rubin, 278 A. D. 200 (N. Y.)

Supornick v. Supornick, 222 N, W..275 (Minn.):

Halvorson v. 562 W. 149th St. Corp., 290 N. Y. 40:

Henry W. Crass Co, v. Burns, 81 Fed. 2d 856, §

Chee SS oe

This exception of counsel recognizes the rule of law

This Court if many instances has held that the statu-

of a plaintiff is to be determined on the basis of all the

relevant. factors. |

Ward y. Atlantic Coast Line. R. Co., 80 S. Ct. 789;

Baker v. Texas & Pacific Ry. Co., 359 U. S. 22%.

79S. Ct. 664; -

———- 2 :

Butler v. Whiteman, 356 U.S. 271, 78 S. Ct. 734;

Senko v. La C#osse Dredging Corp., 352 U.S. 370,

"77 S. Ct. 415;

Grimes 'v. Raymond Concrete Pile Co., 336 1. S.

252, 78 S. Ct. 687: :

- Petty v.. Tennessee-Missouri Bridge Camm., 35%

. Ue 8S. 275, 79 -S. Ct. 785.

See also:

United States v. Mississippi’ Valley Generating .

Co., decided January 9, 1961.

The objection is sufficient’ if the Trial-Court is told of

the basis of counsel’s claim.

Rule 46,-Federal Rules of Civil Procedure:

Rule’ 51, Federal Rules of Civil Procedure.

: he >. |

In Moore's Federal P:vcedure, discussing Rule 51 in

Section 51.04 at page 2505:

‘*The rule does not require formality; and it ‘is

not important. in what form an objection is made,

or even that a formal. objection is made at all, as

long as the’ frial judge’ understands the party’s

position.”’ :

To same effect: as *

Sweeney v. United Feature. Symlicate? 129 Fed.

2d 904,2 C. C. A.;

Broderick v. Harvey, 252 Fed. 2d 274,10: C. A.;

Greyhound Corporation v. Blakley, 262 Fed. 2d

Wi, 90. COAG _ |

Pierro v. ooo Steel Corp., 186 Fed.

2d 75, 3. C. C. As; |

Green v. Re “hisg Company, 183 Fed. 2d 716, 3.

Ae ee

Corp,, 248 Fed. 2d 920, 6 C. C A.;

Elgin Corp. v. Atlas Bldg. Products Ine., 251 Fed.

, 2d.40 C. CL AL cert. denied 78 S. Ct. 1371.

American ‘Alliance Insurance Co. v. _ Keleket X-ray

18 |

In American Alliance Ins. Co. v. Keleket X-ray Corp.

248 F.2d 920, 6 C. C. A., the Court, stated at page 924:

‘ce * * Appellee takes the position that this court

may not consider this issue, as appellants did not

take exception to the charge when delivered by the

court. We recognize that the most important pur-

pose. of Rule« o1, Federal Rules of Civil Procedure,

28 U.S. C. &. is to prevent-litigants from challeng-

ing on appeal the correctness of the court’s charge

_ to the jury where no objections were raised before .

. the trial judge, thus failing to afford him oppor-

tunity to correct inherent errors. We think, how-

ever, that in the instant case the objections raised

by appellants in the discussion of the charge with

the district judge properly preserved the right to

assign alleged errors in the ‘court’s instructions.’

One objection i is sufficient.

‘Troupe v. Chicago D & G Bay Transit Co., 2 C. C.

A.. 234 Fed. 2d 253; a

Moreau v. Pennsylvania R.“R. Co., 166 Fed. 2d.

343, 3~C.. C. A.;

Union Pae. Ry. Co. v. Owens, 142 Fed. 2d 145,

9 C. C. A.; : |

U.S. v. Rbyno, 136 Fed. 2d 376,1 C. C. A., cert.

‘denied 320 U. S.. 776.

‘Counsel for plaintiff made proper and sufficient objec-

tions to the charge of the Court as shown by the record

herein quoted from (App. 19a).

This exception in and of itself was adequate.

However, counsel for plaintiff advised the. Trial Court

at the time the three question verdict was being forced

-upon him of his conception of the law involved in the ease.

This too was sufficient objection under Rule 51 of, the

Federal Rules of Civil Procedure.

The conclusion | ot the Court below that counsel for

plaintiff failed to object to the instruction originally given

is contrary to the record and is wholly erroneous.

—"

19 :

For this reason and this*reason alone the judgment

must be reversed? ;

“The record discloses that counsel for plaintiff at various

times during the trial made known to the Court his eon-

tention as to the change of status of plaintiff.

These statements are sufficient compliance with Rule

‘S31 as long as they were given ‘‘before the jury retires

to ‘conside ‘'y its verdict’. Rule 51, F. R. ¢. P.,

The cases cited sustain this contention.

— These and other obje ‘tions require the reversal of the —

judgment herein.

POINT III | m

Assuming arguendo, that the plaintiff failed to take

proper exception in the first instance, the, exception

taken to the charge when the jury came in for clarifica-

tion of the original charge i’ sufficient compliance with

Rule 51.

The Court below conceded that counsel for plaintiff

took proper exception when the jury after some delibera-

‘ions sent in its written request for-elarifieation of. the |

word ‘inimical’’,

~The reeord shows fhat-at that time the Trial Court

asked Mr, Rassner for his definition of the word ‘‘inimical”’

and that at that time Mr. Rassner ‘stated:

‘‘May I respectfully wsk the Court to charge the

jury only’ by answering the question directly with-

out elaboration. They ask: what is the meaning

of it. The meaning is hostile or harmful and nothing

more,"’ (App. 28a).

The Court charged the jury:

4 @ &

As used in the context of the charge the

term ‘imimical’? was intended to mean ‘inconsistent

*% with’. °

Mr. Rassner: May I have my objection noted.

The Court: The objection is noted.’’ (App. 28a

et seq.) 5

The -Court below. in its opinion states:

‘‘We think that the failure of the plaintiff to

object to the instruction originally given and which

the jury was still permitted to accept as correct even

,after the charge defining inimical as ‘inconsistent

* with’, prevents the recharge from being error if in

fact the court defined inimical too ata for

defendant which we do not decide.’’

This ruling of the Court below constitutes fatal error.

‘ Counsel for plaintiff took proper exception in the first

instance but whether he did or not bécomes. immaterial

‘when, as here, the jury came in asking for instructions —

because apparently it had forgotten and did not remember

the charge of the Court.

The situation at that time was the same as if the jury

had never been instructed as to the meaning of the term.

Tle Court asked counsel for plaintiff for his definition

and counsel for plaintiff none giving” his meaning of

‘‘inimieal’’,

But regardle ss of what transpired the Court gave an

improper and erroneous instruction to which counsel then

— took sufficient and proper exception.

The ruling’ of the Court lilies that counsel for plaintiff

could not take advantage of his exception when the jury

asked for. clarification is wholly erroneous. ©

Fillippon vy. Albion Vein Slate Company, 250 U.S.

76, 81;

Arrington v. Robertson, 114 Fed. 2d 821, 822, 3

C.C. A;

Snyder v. Lehigh Valley Ry. Co., 245 Fed. 2a112.

BS ¢..C. A.;

~ 8d. 880, 8 CL CL AL;

~ Baer Bros, poe & \Cattle Co. v. Fulmer Ios Fed.

2d 278, 10 C. C.LA.; ee

Atlantic Coast L “| R. R. Co. ve. Diron, 189°Fed.

2d 525, 3 Cc. a

Palmer vy. Miller. 145 Fed. 2d 926, 930, 8. C. Xv. :

Fitzpatrick v. Sooner Ot Company, 212 Fed. 2d

o48, 10 (1. C. AL; a

Theriot v. Mercer, 262 Fed. 2d 754.5 C2 C. A. cert.

denied 79 S. Ct. 941;

~ Seaboard Air Lines R. Co. v. Bailey, 190 Fed: 2d

od | 2; ) .. =; A.; ’ : =

Chicago B. Q. ae v. Kelley, 74 Fed. 2d

— © © 2 ee ee

‘ Smulezéski ve Citas Center of Music. 3 N.Y. 2nd

498;

: ’ Giree muecdod: 2 omer iran acme C 0. 8S. FE:

“f aT | 455, 461.

Pad

9 e v

'- 21 :

Sey &N. RR. Co. “ . Johnson, SI Fed. 679,

| Oe. Bg

Sasa v. St. Jyacph Fuel Oil € Mia. Co., IS] Fed.

In Fillippon vo Albion Vein Slate Co: 250.0; S. 76,

page 81, 39'S. Ct. 435, 426, 63 L. Ed. 853, the Supreme

Court said: . es

| é

‘We entertain no doubt that the orderly conduct

of a trial by jury, essential to the proper protection *

of the right to be heard, etititles the parties whe

attend for the purpose. to be present in person or

by counsel at all proceedings from the time the jury

is impanheled until it is discharged after render:

ing the verdi¢t. Where a jury has_ retired to eon-

sider of their verdiet, and supplementary inst rne-

-tions are required, either because asked for by the

jury or for other reasons, they ought to be given

either in the presence of counsel or after notice anid

an opportunity to. be present; and written instrue-

tions ought not to be sent to the jury’ without notice

-to counsel and an opportunity to object. Under ordi-

~ nary, circumstances, and wherever practicable, the

jury ought to be recalled to the courtroom, where

counsel are entitled to anticipate, and bound to pre-

*- sume, in the absence of notice to the contrary, that

all proceedings in the trial will be had. In this ease

the trial court erred in giving a supplementary

instruction to the jury in the absence of the parties

and without affording them an opportunity either

to be present or to make timely objection to the

instruction.’’ (Arrington v. Robertson, 114 F. 2d

821, at pp. 822, 823.) |

ArringYon v. Robertson, supra, at page 823:

‘‘The action of the trial judge in the present case

in sending instructions to the jury from his chambers

in the absence of the defendant or his counsel and.

without giving them notice and an opportunity to

be present amounted to a denial of due process of

law. We hold that it was the denial: of a~right sa

fundamental as necessarily to affect the substantial

rights of the defendant regardless of the nature

or propriety of the instruction given. The inquiry

- of the jury and the trial judge’s résponse were not

- In

reported by the court stenographer. The record

does not disclose the phraseology of the jury’s ques- .

tion.. Consequently we cannot know whether the

instructions given, even though entirely sound as

abstract legal statem@nts, were appropriate to

answer it, or whether additional instructions, appro-

priate and indeed necessary to supplement those |

given, might not have been suggested to the trial

Judge by counsel for the defendant if he had heen

given the opportunity to be present.”’

Palmer vy. Miller, supra, at page -930: -

- ««@ © © Where, after the submission of a case.

to a jury, the jury is given additional instructions

or the court has the instructions which were given

read to the jury, the case, in a practical sense, is not

finally submitted to the jury until] that time. If it

then appears that an instruction which is then given

or repeated is erroneous and should be corrected,

we have no doubt that a party has the right to object

‘to the inated at that time and that it is the

court’s duty to correct it.’’

In‘ itzpatrick v. Sooner Oil Co., supra, at page 551:

OW hen a jury returns to the courtroom with

the request for further instruction, the presump-

.tion must be that the only uncertaintyn the jury’s

mind is. with respect to the matter about which

further instruction is sought and the court is required

only to fairly answer the question asked by the

jury.’

In Smuleceskiiv. City Center-of Musié Ine. supra, the

Court said: | |

“To obviate an erroneous instruction upon a

material point, it must be withdrawn in such explicit

. termyts to preclude the inference that the jury might

have been influenced by it.’’

In Lowsville & N. Ry. Co. v. Johnson, supra:

_—

‘When. it is proposed by a further ins }ruction

to correct an erroneous charge, the purpose should

be, stated, and the explanation made so clear as

ta leave no room for reasonable mistake. ** (Italies

ours.) :

Here the Trial Courtsgad an opportunity to withdraw

or correct its prior erronceus ‘instruction to preclude any

inference that they jury might have been influenced by it.

In Theriot v. Mercer, supra, the Court held ‘that it was

pre judicial error when the Trial Court had not made the

atte mpt: ‘to correct the erroneous charge “until the jury.

had been out for-more than 30 minutes.

The presumption follows as matter of law that an

erroneous charge is prejudicial. 2

Fillippon vy. Albion Vein Slate Company, supra;

Blodgett V. Pinkerton Tobacéo tes 79 Fed. 2d

945; es, 0.’ a ;

Baltimore & Ohio Ry. Co. vy. UL S.. 242, Fed. 1,

2 oe bee

The decision of fhe Court below that petitioner cannot

avail himself of the error of the Trial Court in giving

the erroneous definition of ‘‘inimical’’? when (|. jury came

in for the express purpose of having the word clarified

_ is fatal error for which the judgment must be reversed.

POINT IV.

The ruling of the Court below approving the sub-

mission of the three question verdict was contrary to

Rule 49 of the Federal Rules of Civil Procedure; such

three questions in and of themselves were prejudicial

to the rights of the plaintiff.

Upon conclusion of the testimony. the Trial Court

advised counsel that it would submit the is€ues to the

jury by a seven question special verdict, a procedure |

permitted by Rule 49° of the Federal Rules of. Civil Pro-

eedure which specifically requires

‘fa special written finding upon each issue of fact.”

AFTER ARGUMENT and without notice to. either counse!

and contrary to all federal rules and procedure and now

expressly prohibited by Miner v. Atlass, 80 S. Ct. 1300,

the Trial Court permitted counsel to argue the expecti«

seven question special verdict to the jury and. then arbi-

trarily and without one word of warning prepared ani

submitted the three questions for -its ultimate decision.

Counsel for plaintiff was trapped.

Fhe Ua ha gone on, from November 23rd_ through

December 4th- Counsel, rather than force a mistrial, det@r:

mined that he would and did consent to the submission

of one issue and one issue only, namely, whether plaintiff >]

was on the barge ‘for purposes not inimical to the owner-

of the -barge’’.

TOS. Ct. 11M:

The Court below states that counsel could have asked

for the submission of additional facts to the jury.

Rule 49 specifically calls for the ‘submission of all

issues. The Trial Court had determined what those issues

were to be when he prepared the seven questions but when

he decided spon the three, there was nothing further for

plaintiff to do except to make the objections that were

made befere the questions were submitted. ‘

He objected to all the questions as prepared. by thi

‘Judge but did consent to.thé one question, namely, wheth: r

plaintiff caine within the ruling of this Court. in the

Kermarec case, supra.

As stated plaintiff was trapped and could take no

other nor different course.

Rule 49 and the applicable decisions of this Court

determine that there ean be no piecemeal litigation.

Miner vy. Atlass, supra, determines that not even the

Distriet Courts as such can amend federal rules of pre

cedure.

In Magenau ve Actna Freight Lines /: 260 t. Ss. 37%.

“We are therefore of the opinion that a new

trial on -the whole case is necessary, since these

disputed issues are so interrelated with the ultimate

issues of liability and damages that a limited hearing

would not be in thé interest of fairness and efficiency

-in judicial a”

In Ward v. Atliintic Coast Line Ry. Coe NO S.Ct. 789,

792; : -" '

‘*The parties’ characterization is but one factor

to be considered..among.others, sev” Restatement,

Ageney 2d) See. 220(2) (i) and the issue is one for

determination by the. jury on-the basis of alt the

relevant factors.!

In Baker v. Texas & Pacific Ry. Co., 359 U. S. 227, 79

S. Ct. 664, 665:

‘* Although we find no decision of this Court that

: has discussed the matter, we think it perfectly plain

that the question, like that of fault or of. causation

under the Act, contains factual elements .such as

tomake.it one for the jury under appropriate instruc- .

tions as to the various relevant factors under law.”’

In. Hodges ¥. Easton, 106 Us S. 408, 412-418:

‘Whether this contention be sound or not, we

need not now determine, for the reason that the

grounds upon which it rests ‘have no. existence,

where, as here, the -case, as to the issues triable

by jury, was. not submitted to the jury in the mode

required by law.’’

Plaintiff is entitled to a proper submission of all issues

to the jury. , .

2 “ > .

~Magenau v. Aetna Freight Lines inc., supra;

Schulz v. Pennsylvania R. R. Co., 3 UC. 8. 323.

' 76 S.-Ct. 608;

” Gallow ay v. U nited States, 319 U. S. 372, 63 S.

Ct. 1077;

Byrd v. Blue Ridge Rural — Co- operatire.

356 U: S. 525, 78 S. Ct. 893; . ;

Ward vy. Atlantic Coast Line R. R. Co., supra;

Baker v. Texas & Pacific Ry. Co., supra.

In Kennedy ¥. Prunautvanie Railroad Company, 282

Fed. 2d 705, 710, 3: C. C. AL:

‘*However, in the light of the foregoing the jury

findings. were not fully determinative of the ques-

tion of indemnity. ‘Therefore the judgment in favor

of the Pennsylvania Railroad Company = will be

reversed and that cause remanded for a new trial.”’

In Blue Ridge Rural Blectvic Co-ope rative Inc. v. Byrd,

264 Fed. 2d 689, 693, 4 C.-C. AL:

27 ;

(

‘‘These questions are not susceptible of. definite

answer.in the present state of the record, and hence

we cannot say conclusively that there was no evi-

dence of negligence on the part of the defendant’ S

lineman.’’

In Louisville & NV. R. Co. v. Johnson, 81 Fed. Rep. 679,

‘at page 681, 7 C. Cy A. the Court stated:

“oe * 8 Tt was, therefore, the more important

that an accurate definition and explanation of the

company’s duty should have: been: given to the jury.

The error was not corrected by other va of

the charge, which, though implying the true rule,

were not sufficient to prevent misunderstanding on

the part of the my" =>"

Plaintiff was entitled to a fair trial in a fair tribunal

where every effort should be made .to prevent even the.

possibility of unfairness.

In re Murchison, 349° U. S. 133, 136;

Offutt v. United States, 348 U. . 31;

Tumey v. State of Ohio, 273 U.S. 410, 532

The three questions speak for themselves.

They were submitted for the purpose of. confusing and

entrapping the jury and by reason thereof were highly

prejudicial and constituted error.

Blankenship vy. Ellerman’s Wilson Line New York

Inc., 4 C. C. A., 265 Fed. 2d 455;

Atchison Topeka and S, F. Ry. Co. ve Hale. 69

Pac. 612 (Kan.); |

B. F. McLean Investment Company v. City. of

Wichita, 268 Pac. 2d 956 (Kans.) ; :

Vukich v. City of Detroit 28 N. W. 2d 894°( Mich.) ;

Greenwood vo tuter Ocean Insurance Co. 89 S. E.

2d 4353; °.

‘Reliance Engineers Co. ., Flaherty, 300 a a,

603 (Minn.) ;

John M. Parker & Son v. (iodsey, 115 S. W. 2d

276 (Ark.);

Pritchett v. Highway Insurance Underwriters, 204

\ S. W..2d 585 (Tex.}; .

Veumann v. Evans, 272 Wis. 579;

Johnson vy. Firemans Fund Indemnity Co., 264

‘\. Wis. 358.

In Atchisen Topeka and S. F.-Ry. Co. v. Male, supra:

“A court should never submit special questions

¢ that are intended to or are liable to confuse or

.entrap it into: making’ mistakes.”’

In Blankenship v. Ellerman'’s Wilson Line New York,

Jne., 265 Fed. 2d 455, 4°@, CL AL, the Court) submitted

a special verdict of four quéstions:

1. Did any wiseaworthiness of the ship contribyte

to the accident? , :

2. If the answer to question 1 is answered ‘yes

Was such unseaworthiness caused by any negligence

on the part of the ship or any officer or empliver

of defendant?

3. Contributory negligence?

~4. Was the accident of which the plaintiff eom-

plains the result of risks or hazards which he voli.

tarily assumed! |

The-jury brought in the answer ‘‘no”’’ to the first ques:

tion and did not answer any of the others, and upon sueh

verdict judgment was entered in favor of defendant.

The Court of Appeals however held that) the mere

inclusion of the assumption of risk in the questions required

anew trial — | a .

“Thetestimony on the question of scaworthiness,

was ® conflicting that it would have supported a

finding either way and the jury were told that ‘n

order to find in the plaintiff’s favor on this matter.

they must not only find unseaworthiness but also that

it was the cause of fhe accident. At the same time the

question of the assumption of risk was also snl-

‘mitted and the jury were told that it comes into

play when a person knows that what he is doing

constitutes a very definite hazard and yet volun-

tarily assumes it. Keeping. this instruction in mind,

the jury might have concluded that the lighting in

the hold was bad and yet answered the first question

in the negative on the ground that the plaintiff know-

ingly assumed the risk and that this action on his

part rather than the failure of the ship was the cause

of the injury.’ (Ttalies ours.)

_ This rule of law is confirmed in Magenaw ve sled

Freight Lines, Inc., 8360 Us S, 278, 209, 79S. Ct. 1184, 1188:

“We are therefore of the opinion that a: new

trial on the whole casé.is neeessary, since these

disputed issues are so interrelated with the ultimate

issues of liability and damages that a limited hear.

ing would not be in. the interest of fairness and

eficieney in judicial administration.’’ 7

The questions .in and of themselves constituted a

premeditated act on the part of the Trial Court to inform

and advise the jury as to the legal effect of their answers.

to the questions, a course of conduet that is prohibited

‘and condemned by established rules of Jaw.

Thedorf v.. Lipsey, 237 Fed. 2d 190, 7 C.-C. A.:

Cate y, Good Grathers, 181 Fed. 2d 146,3 CC. C.-A.;

Carpenter vy. Baltin wre & Ohio Ry. Co. 109 Fed.

an oem Ot. o. Ae

The questions evidence the opinion of the Trial Court

that the plaintiff ‘‘stealthily got aboard the barge with a

view to committing larceny’? and apparently he had sue-

ceeded in part because he was not discovered until the

captain went in-there after he had completed some of

his chores on the deck’? (Anp. 22a).

~ 30

These three questions in and of themselves presented

such a prejudicial outline of this case that the judgment

must be reversed.

First Question

The suggestion by counsel for plaintitf: that only one

question of facet be submitted, namely, whether the: visit

of the plaintiff on the barge was inimical to the legitimate

interests of the barge, is the only submission that could

have been made which would have prejudiced no one.

If plaintiff's presence Was not inimical, suéh presence

could have been justified by a finding by the jury either

(1) that plaintiff had been expresely invited on the

barge by the captain, or

(2) that there had been the legal change of status con-

tended for by plaintiff by the so causal dleeisions

herein referred to.

‘ Hither finding would have been sufficient to justity

vardict in his favor as to status.

- It was not necessary for plaintiff to prove an ‘texpress”’

invitation in the first instance,

But this is what the Trial Court erroneously insisted

upon throughout the trial.

The legai distinction as to any ‘‘change of status’’ could

not have been decided by the jury by any answer to any

question, -

Such distinction could not: then and cannot now be

determined because any inquiry would be in the alterna- |

five, a rule of procedure prohibited by this Court. in

United New York and New Jerse y Sandy Hook Pilots’

Ass'n vy. Halecki, 358 U.S. 61: 13, 79'S. £ t. O17, where it js -

stated:

“Tt follows from what has-been said that a new

trial will he required, for there is no way to know

that the invalid claim of unseaworthiness was not

the sole basis for the-verdict.’’

By his own testimony the captain eliminated the legal

effect of the answer of the jury to the first questjon.

The social visit that the captain recognized and admitte d,

nullified any possible improper entry,

The first ‘question in and, ot itself presents an ounti air

prejudicial inquiry that. might and could reasgnably cause

the jury to determine that the visit of the “plaintiff on

the barge was necessarily ‘‘inimical’’ beeause he Was.

not invited on the barge...

‘‘In the interest Of faimness’? (Magenau ease, sapra)

the precise issues mast. be properly presentéd.

. The fact that there was testimony in the record which

would justify the conclusion of the jury that there had not

been an express invitation does not and cannot defeat the

claim of. plaintiff that his change of status, admitted by

the captain himself was sufficient to establish the right of

. plaintiff to recover herein under the rule of law established

in the Kermarec case, supra.

This issue required a decision by the jury.

Seconp QueEsTIos

The question itself prejudicially presents the issue of

the authority of the captain.

No shipowner can rely upon the lien that the plain- °

tiff must prove the precise actual authority. of any vessel,

harge or otherwise.

His authority is proven by thé very PR that he

‘holds. In The Balsa, 10 Fed. 2d 408, 409, 3. C. C. A.:

‘*The Master is- ineoeeaadien of the Si hied of

his little world. He is master in every sense of the

~ word.”’

Apparent authority is the test, not actual authority.

Defendant is responsible ‘for any acts of the captain

_Which are within the apparent scope of his authority.

Lee v. Jenkins Bros., 268 Fed. 2d 357, 2.0. C2 A.;

Farmer ve Arabian American Oil fee ity

Fed. 2d 46, 2 C. C. A;

2 Corpus Juris; See? 1227;

2 American Jurisprudence &2.

The question itself limits the authority to the inquiry

whether the captain shady authority to invite the plaintia

ron the barge

‘for a purpose other than one-in the interests of

its owners,

During the trial the Court permitted counse] for defend:

- ant to introduce proof as-to the written instructions givens

+. to the captain and the regulations of the Coast Guard as

«bearing on’ the authority of the captain.

They were referred to in,the charge and the jury was

instructed that they could be considered by it in determin

ing the authority. of the captain (App. Ta).

Counsel objected to these instructions 4 App. 18a, 19a).

Counsel ad already objected to, the submission of

questions T and 2 not only before argument but after the

charge.

> . ; ,

The objection to the submission of question 2 was most

“specifie: as the Conrt below stated in its second footnote:

“He objected té the submission of the second

question on the ground that even if the issue ot

invitation was relevant, it would be the apparent

fo. authority of the Captain to invite him and not th

actual inter-eompany limitations on the Captain’

aa authority: that would control.’ ,

”

* °

This question 2 and the instructions mentioned forced

_ upon the jury the conclusion that the captain had no

authority to invite or permit thé plaintiff to remain aboard

the barge ‘unless, as the question and the instructions state:

‘for a purpose other than in. the jterests of the

owners.’

This eolsbuslon is contrary to the applicable decisions

cand w holly erroneous.

This Court said in Ward vy. Atlantic Coast Line R.Co.,

80 S. Ct. 789, 792:

‘The instructions given in effect limited inquiry

to the question whether the petitioner was aware

that the railroad considered him not to be working

for it but for some third party. But neither the rail-

road’s communication of its concept: of petitioner's

status to petitioner, nor his acquiescence therein,

-° if shown, is determinative of the issue. Cf. Cimorelli

v. New York Central R. Co.. 6 Cir. 148 Fed. 2d 575,

- 578. The parties characterization is but one factor

to be considered ° among others, see Restatement,

Ageney 2d, See. 220(2) (i) and the issue is one for

determination by the jury on the basis of all the

relevant factors. Baker v. Texas & Pacifie R. Co.

supra.”’

To the same effeet:

Baker vo Texas & Pacific R. Co., supra;

Magenau v, Aetna Freight Lines Ince, supra.

THirp Qy ESTION

‘The third qtestion Was not ar improper question and

in and of. itsélf would have determined the precise issue

With reference to the ‘“status’’ of the plaintiff on the

barge at and immediately prior to the time of the accident.

‘Inimical’’ was defined in the Kermaree ease by the

statement in the opinion:

‘The purpose of the visit was entirely personal:

to pay a social call upon Yves and to give him, i

34 ae

package to be. delivered to a mutual friend: in

France.”’

“Wehbster’s Dictionary defined **inimical’?:

**1) Having the disposition or temper of an

enemy; unfriendly; unfavorable, chiefly applied to

Private, as Hostite is to Puptic, enmity.’

When the jury requested ¢ larification of the word, coun-

sel for plaintiff stated:

Fs qh . . e a a

‘“They ask: what is the meaning of it. The mean-

ing is hostile or harmful and nothing more.** (App.

28a) : .

* Plaintiff was entitled to that definition in the charge.

_ The Trial Court defined it as meaning ‘inconsistent

with”’. | 7

- Its meaning the Court below refused to determine

because it said it was unnecessary. |

‘The three question verdict was prejudicial in form. It

confused and entrapped the jury and prevented it from

determining the ultimate status of the plaintiff.

The first question limited the inquiry solely ‘to. the

initial invitation. ,

This preelnded any inquiry as to the conceded ‘‘change

of status’? as a result of what transpired during the social”

Visit of plaintiff and the captain at which time the eaptain

admitted he gave milk to the plaintiff.

The second question eliminated any possible issue of

‘‘apparent authority’? which was a real issue in the case.

It further lintited whatevér authority the captain had by

"prohibiting him from doing anything that did not further

the interests: of the ewner of the barge.

' The third «question foreed the jury te answer it tives”

hecanse the eaptain ceuld: not invite the plaintiff te con»

on the barge, could not permit him to remain on the bare

- 35

within the meaning of the Kermarce case for the alleged

reason that the captain had no authority whatsoever

beéause of the instructions given him by the owner and

by the regulations of the Coast Guard unless the visit

of the plaintiff was to further the legitimate interests of the

owners of the- barge. |

The conclusion of the Court below that the three ques-

tions were not prejudicial to the rights of the plaintiff

“js contrary to the law and mustMhe reversed.

The necessity of. submitting a special verdict free from

confusion and entrapment is analogous to the decisions

requiring proper, concise instructions to a jury upon the

precise issues. ©

United New York and New Jersey ete. v. Halecki,

358 U. S. 613, 79 S. Ct. 613; 7

Halecki v. United New York and New Jersey ete,

282 Fed. 2d 137, 2 C. C. A.; ,

Magenau ‘vy. Aetna Freight Lines, 360 U.S. te

Ward v, Atlantic Coast Line R. Co., 80S, Ct. 78

Conn v. Young, 267 Fed. 2d c25, 2 C. Co As.

Smith v. Texas Company, 219 Fed.2d 74, 2 C. C. A. ;

Kendrick v. Piper Aircraft Corp., 265 Fed. 2d 482,

486, 3, CL AL:

Teras & New Orleans R. Co. v. Dairyland Traus.

_ Corp., 266 Fed. 2d 283, 290, wt. C. A.;

Turner v. Kelly, 262 Fed. 2d 207, 4 ©. C. A.;

Louisville & N. R. Co. v. Jolinson, 81 Fed. 679

i ee oy See .

Johnson vy. Erie R. Co. 236 Fed, 2d 352, 2 a Ms

Molnar v. Slattery Contracting Co. Ine.. KA, 1.

2695 (N. Y.)3

Herbst v. Balogh, 7 A.D. 2d 530 (N. Y.).

In Kendrick v. Piper Reid Corp.” supra:

‘But error ‘there is and it cannot be het called

harmless error rf the members of the jury, perhaps

+ _ by legal fiction, listen to everything the judge tells

them, understand it, remember it, and then apply it.”

In Texas & New Orleans R. Co. v. Dairyland Transp.

Corp., supra:

md would. however, be unrealistic for us to hold

' that, by not explaining the legal effect of an extra:

hazardous crossing, the charge was rendered harm-

less. To the contrary, that-omission was an added

‘error which left free to determine such legal effect

for itself.’’ .

In Conn v. Young, supra, the Secoud Cireuit stated :

-** The instructions, however, are confusing, er

complicated and heavily w eighted in plaintiff's favor.

‘In some: instances where proper and necéssary

instructions are given in the form submitted by

defendant they are inserted out of context and so

enmeshed in irrelev ant verbiage as not.to be intelligi-

#” \le to the jury. The instructions were so erroneous

in several respects and so prejudicial to defendant as

to require a new trial.’’

-In Molhar v. Slattery Contracting Co, Inc., supra,

‘The charge, while excellent in some respects.

failed to clearly and adequately set forth the appli

cable principles of law. ‘Where a charge is inad

quate or of so confusing a character as to preclude

fair consideration by the jury a judgment will be

reversed and a new trial ordered.”’

In ‘/erbst vy. Balogh, supra:

‘When the charge is not clear and fails to ade

quately convey to the jury plaintiff's claim, a new

trial is required in the interest of justice.”’

. / *-

~ The issues were not properly submitted for the jury for

determination necessitating the reversal of the judemen!

herein. ° ; |

4 37

POINT V

The submission of the three question verdict after

the argument and: before. the charge of the Court to

the jury is contrary to Rule 51 of the F ederal Rules of

Civil Procedure. — eee 4 :

Rale 51 provides:

* . ’ . . .

‘The court shall inform counsel of its proposed

action upon the requests prior to their arguments to

the jury.’’

At the conclusion of the trial, the trial Court advised

counsel that he would submit a special verdict of seven

question covering the issues of liability and damages.

Relying upon this statement of the Court counsel for

plaintiff presented his arguments to the jury., Counsel for

defendant did likewise. |

After the conclusion of the arguments and without any

notice whatsoever the Court determined-up6n the three ques-

tion verdict. ; :

Rule 51 provides that counsel must be advised in advance

_of the guiding principles under which argument to the jury

must be. made.

o In Clegg v. Hardware Mutual Casualty Company, 264

Fed. 2d 192, 157 (5 C. C. AL):

‘It is required to enable counsel intelligently

to prepare requested charges, detérmine all of the

issues which must be submitted, and then to plan

an effective argument whose objective is to translate

persuasion into specific decisive.action by the jury.”

To thé same effect:

Dallas Ry & Terminal Co. v. Sullivan, 108 Fed.

° 4 501,56 C.4. A.

38°

In this case counsel weré misled by the'trial Court. They

were told what the special questions were to be; they

argued the case to the jury and after all arguments were

° . . ° om . .

completed they were confronted ‘with the special verdict

which the court insisted in submitting to the jury over the

objections of counsel for plaintiff.

Such conduct prevents the fair, impartial and orderly

conduct of a trial and must not be permitted.

Such erroueous conduct is fundamental, obvious and

injuriously prejudicial to the plaintiff herein.

Gibson v. Lockheed Aircraft Service Inc., supra;

United States v. Atkinson, supra, and cases already

cited in brief.

For this error this judgment must be reversed.

POINT VI

There are questions ‘eine the construction of

Rules 49 and 51 of the Federal Rules of Civil Procedure

upon which the Courts of Appeal have expressed dif-

fering views.which ‘should be resolved by this Court.

The proper construction of Rules 49 and 51 of the Fed-

eral Rules of Civil Procedure are necessarily involved

in this case.

The various Courts of Appeal have expressed differing

> views on these issues.

Such conflicts of opinion should be resolved by this Cons

and a writ of certiorari granted herein for this reason.

Mitchell vy. Trawler Racer, Inc., 80'S. Ct. 926.

” Rete 49 '

Rule 49 of the Federal Rules a Civil Procedure provides

in’ part: . ,

“Special Verdicts. The court may require a jury

to return only a special verdict in the form of a spe-

‘cial written finding.upon each issue of fact.”

After completion of the evidence the trial Court advised’

counsel that he would submit a special verdict of seven

_ questions.

After all arguments of counsel, the trial Court advised

counsel it would submit the three questions which related

to the issue of liability. i

Counsel for plaintiff objected to the three questions

but consented to one as to whether the visit of the plaintiff

on the ship was inimical to the legitimate interests of the

shipow ner.

There was no attempt to submit a general verdict with

special interrogatories as permitted by section b of Rule 49.

The Court below determined that- questions 1 and 2 were

*- hot prejudicial and that couns# for plaintiff had waived

the right-to require the presentation” of all issues by spe- .

cial interrogatories

The mere submission of the three questions was wholly

contrary to the decision of this Court in Miner v. Atlass,

“OS. Ct. 1300.

(a) The proposed piecemeal verdict was properly

excepted to and is contrary to the accepted practice of this

Court and of other Circuit Courts.

The law is well settled that there can be no piecemeal!

submission of litigation.

Magenau v. Aetna Freight I ines Inc., supra;

Ward vy. Atlantic Coast Line R. Co, supra;

Baker v, Texas &. Pacifié R-Co., supra;

Hodges v. Easton, supra;

-40

Miller v. American Bonding Company, 257 U. S.

304, 308;

McKeon v. Central Stamping Company, 264 Fed.

_ 385, 391, 3 C. C. A; ;

Beacon Theatres Inc. vy. Westover, 359 U.S: 500,

79 S. Ct. 948.

The submission of the three questions: after argument

was particularly prejudicial and contrary to the decisions

of other Circuit Courts.

This precise issue has been presented and condemned i in

these cases.’

Cleqag v. Hardware Mutual Casualty en 264

Fed. 2d 152, 157, 5 C. C. A.;

Dallas Ry. & Terminal Company v. . Sullivan, 108

Fed. 2d 581,5 C. C. A.

(b) The prejudicial attempt to entrap and confuse the ;

jury has been condemned in other decisions.

Blankenship v. Ellerman’s Wilson Line Net York,

265 Fed. 2d 455, 4 C. C. A.;

Mage i“ v. detna Fre ‘ight Lines Ine. i> 560. <.

, 273, 279, 79S. Ct. 1184.

See other aecisions of state courts eited at page 27 of

this petition.

‘The prejudicial attempt to confuse and entrap a jury

by improper instructions has likewise been condemned.

.. There are many cases aftirming this conclusion.

Kendrick v. Piper Aireraft Corp., 265 Fed. 2d 283,

290, 8: C. C, Ans s .

Texas & New Orleans BR. Co. v. Dairyland Trans:

port Corp. 266 Fed. 2d 288, 290.5. C. CO. Ag:

-Louwsville & NOR. Cow vy. Johnson, 8 Fed. 679, 6%.

Cee we

and othyr cases cited at page 35 of this petition.

Rue 51

(a) The determination by the Count below that it would

not consider the erroneous charge of the Trial Court because

no proper exception was taken is contrary to the decisions

of this Court and ner Circuit Courts.

See:

Hormel v. Helvering, 312 U.S. 552, 996;

“United States v. Atkinson, 297 U.S. 17, ges

- Dowell Inc. v. Jowers, 166 Fed, 2d 214; 5. A:

MeNello v. John B. Kelly Inc., 283 Fed. 2d of 102,

: aC, © as |

- Callwood v. Callwood, 233 Fed, Yd 784, 788, 3

ec As |

Montgomery v. V irginia Stage Line s Tne. WOT Fed.

2d 770, 774, U.S. Appeals D.C.

Shokuwan Shimabukure v. Hige oaks Naqayama,

140 Fed. 2d 15, ee ® Appeals D.«.

Precise exception is not necessary as long as the Trial

Court has been advised as to the contention of the litigant.

Many cases sustain this contention.

Broderick v. Harvey, 952 Fed. 2d 274, 1¢, je

Greyhound Corporation vy. Blakley, 262 Fed. 2d

ott) A Ok OP

Pierre vo Carnegie-TMlnors Steel site 16 Fed.

Be ee 2 ee

Green Vv. Reading Company, 183 Fed 2d 716, 5

an A.: ie e

American Alliance Insuranc é Company v. Keleket

X-Ray Corp. 248 Fed. 2d 920, 6.0. C. AL:

Elgin Corp. v. Atlas Bldg. Products Tnc., 231 Fed.

2d 7, 10. CL A, cert. denied 7& St. 1371. |

One exception is sufficient. — Pll

Moreau v. Pennsylvania R.R. Co... 166 Fed. ad 043,

2c. ©. 2%

Union Pacific R. Co. v. Owens. 142 Fed. 2d 140.

oe i. A.’ ; i

U.S. v. Rayno, 136 Fed. 2d 376, 1¢.C. A. cert. den.

820 U.S. 776. eo

(b) The determination of the Court below that plaintiff

could not raise the conceded and undenied exception taken

by plaintiff to the instruction given by Court after the jury

_ had sent the written request for clarification of the term

“inimical” as shown by the record is contrary to all prior

decisions.

‘See Point IF of this Petition and eases there cited in-

cluding decisions of this Court and various Cirenit Courts.

_(c) The determination of the Court below that it was -

not necessary to pass upon the liability created by the

“change of status” is contrary to the applicable law.

See: aa ‘g

Ward v, Atlantic Coast Line R. Co:, 80S. Ct. 789;

Magenau ve Aetna Freight Lines Inc., supra;

Baker v. Texas € Pacific Ry. Co., supra;

Kendrick y. Piper Aircraft Corp., 265 Fed, 2d 482,

486, 3.C. C. A.3.

Texas and New Orleans R. Co. v. Dairyland Trans.

‘Corp., 266 Fed. 2d 283, 290, 5 C..C. A.;

and other cases cited in Point LV of this petition.

: —s + y

(d) .The determination of the Court below that it was

not necessary to tell counsel before argument as to the exact

questions which were. to be submitted in the ultimate special

verdict is contrary to applicable law.

See:

Clegg v. Hardware Mutual Casualty Company, 204

Fed. 2d 152, 157, 5 C. C. A;

Dallas Ry. & Terminal Co. vy. Sullivan, 108 Fed.

3d 581, 5'C. C. A.

These differing views of this Court and other Cireuit

Courts as to the construction to be placed upon Rules 4!

and 51 of the Federal Rules of Civil Procedure necessitat

their review by this Court.

Mitchell v. Trawler Racer Inc... 80S. Ct. 926.

POINT VII.

Petitioner has been denied the trial by jury guar-—

anteed to him by the Seventh Amendment of the Con-

stitution of the United States. .

The decisions of this Court have enforced the rights

of all parties guaranteed by the Seventh Amendment.

It is elementary that a reversal of a judgment must be

granted, where, as here there has been an obvious miscar-

riage of justige. Gibson vo Lockheed wAtreraft Service,

supra,

Throughout the trial counsel for plaintiff based his

right of recovery herein under the rules of law enunciated

by this Court in Kermaree vy. Compagnie General Trans-

atlantique, supra. é .

It was his contention in the first instance, all throughout

the trial and now, that the same legal status given Kermaree

in his case should ‘be given this plaintiff whether it was his

at the, time he initially boarded the barge or whether his

entry, whieh might have been unjustifiable, had been

changed to that of an invited guest by reason of what had

occurred ° on the boat.

‘In any event plaintiff was and still is entitled to a

determination of his rights.

It was denied by the Trial Court.

Such determination was evaded by the Court below on

zrownds that are untenable and‘ wholly erroneous.

Plaintiff’s rights herein.cannot be defeated

1. by any finding of a:jury that he was not invited

on the barge y

2 by any erroneous finding of the jury that the

. Captain had and could have no authority other than

that given him by its owners; |

aaa

3. by any erroneous finding that his visit must

be ‘‘inimical’’ because it was ‘‘inconsistent with"

the interests of its owners. ——

Plaintitf has been and is entitled to a fair and impartial

determination by a jury as to whether ‘

. i :

1. there was a change in his legal status after he

came aboard.the barge;

2. he was entitled to the protection of the saue

legal rights given Kermaree by this Court in his

case; and

hal

do. his visit on the barge was in fact and in law

‘‘inimieal’’ to the legitimate interests as the owners

of the barge.

From the beginning of the trial to the very end the

a hed ‘ +. . . .

Priak Court was prejudiced against him. He was consid:

ered as a legal outcast entitled to no legal protection from

any source...

. ‘It was the opinion of the Court as he told counsel! at th

trial that the plaintiff

*stealthily got aboard this barge with a view to com:

mitting larceny in the cabin of the captain and appar

ently he succeeded in part beeausé he was not di-

covered until the captain of the barge went-in ther

after he completed some of his chores on the deek.

(App. 22a)

This attitude of the Tria! Coprt Is reflected throughen!

the record of the trial.

This attitude is covtirmed by the indisputable fact that

plaintii? was never permitted to have his contention. <0):

mitted for the determination of the jury.

This is confirmed by the obvious continuance of <tc

prejudicial mistreatment from the beginning to the end «!

the trial.

The Court below has errongaysly determined that plain- -

tiff had waived his right to Tap ri to a full, fair and

duprejudiced presentation of theacts before a jury.

The reeord speaks for itself.

The cases cited confirm the contentions of counsel herein.

-The protection of the’ Seventh Amendment, should be.

granted to the plaintiff by the reversal ef the judgment and

an opportunity to have his rights determined.

> j

CONCLUSION

For all of the foreguing reasons, it-is respectfully

submitteg, that this petition for a writ of certiorari be

granted.¥ — . dic

Jacos Rassxer and

* Louis J. Opat,

Attorneys -for Petitioner.

Tuomas FL Frawsey,

Bexsemiun Sciuwartz,

on the Brief.

APPENDIX

Opinion of United States Court of Appeals for the

Second Circuit

UNITED STATES COURT UF APPEALS’

; For THE SEconD Circuit .

+. 4)

~~ vi>

No. 13—October Term, 1960.

(Argued September 28, 1960

: : - Decided November 21, 1960.)

| Docket No. 26145

Joacuim Rrpeiro,

-Plaintiff-Appellant,

Ne ‘ Pa edd

USirep Frisrr Company, a New Jersey Corporation, and

EsséSraxparp Oi Company, a Delaware Corporation,

/ a —_Defendants-Appellee,

and ‘ .

U NITED Frv IT Company, a New Jersey Corporation,

Third-Party Plaintiff- Appe lee,

Esso STANDARD Ow Compayy, a Delaware C orpor ation,

Third- ‘Party Defendant- -Appelle e.

ray

Before: sare .

} - Lumparp, Chief Judge,

TuTtie® and Frienpiy, Circuit Judges.

. “Of the Fifth Gircun, sitting by designation, ;

‘47 ; o

48 : oa *,

Appeal by plaintiff in admiralty personal injury suit

from, judgment following jury’s answers to special inter-.

rogatories in favor of defendant. Judgment affirmed.

Lovis J. Opa (Jacob Rassner, Thomas F. Frawley,

Benjamin Schwartz, on the brief), for Plaintif-

Appellant.

Hampton & Mauowey, 76 William Street, New York

38, N. Y., for United Fruit. Co., Defendant-Appeller.

Kirtsy Campprin & Keatixe (Walter X. Connor, James

P. O'Neill, on the brief), 120 Broadway, New York -

bd, N.Y. for. Esso Standard Ou Co., Defendant.

Appellee. os. *

Terre, Circuit Judge: ‘

Appellant appeals from a judgment in favor of the

defendant, Esso Standard Oil Company, based on adyers:

answers by the jury to special interrogatories in this per

sonal injury admiralty case. The jury, in answering the

questions as it did, was authorized to believe the following

facts : if

~ The piaintift was a night watchman on the S.S. Pati

MINIA; defendant's barge No. 23 was tied up alongside

this vessel to bunker it. Its crew consisted of two men

designated by Esso as *teaptain™’ and **mate."* The bi are:

men, in order to prepare for the fueling operation, place

a ladder on the deek of the barge leading to the deck of

the ship. The bargemen prepared the vessel for the pump:

ing of the fuel and returned to the barge.

Plainti® had no duties on board the barge. Upon tr

return to the barge the captain entered a housing at the

—

stern which he used, as his office and which also contained

a small kitehen. When he entered he found the plaintiff

inside drinking milk from a container which he had taken °

from the barge’s refrigerator. When the captain asked the

plaintiff what Ke was doing on the barge the latter replied

that he wanted some coffee. The captain replied that he

could have a cup of coffee, but® plaintiff said he wanted

a package of coffee. The captain replied that he had no

coffee to give him. However, he permitted the plaintiff

to finish the milk,.after which he left. Shortly thereafter

‘a noise was heard on deck and the pdaintiff was found

lying on the deck of the barge near the ladder. He was

assisted by the bargeman to a chair, and, after about five

minutes, ascended the ladder to his. own ship without

assistance. Plaintiff's claim is that the ladder had fallen

with him. The captain and mate testified that the ladder

aid not fall.

Plaintiff's principal ground of reversal is sie. contention

that the trial court erred in submitting only three special

interrogatories to the jury. The questions put to the jury,

and answered by it, were: ‘

“*Did the captain of the Esso Barge 23°invite es

plaintiff aboard the barge?

The answer. is ‘No.’ ;

Did the captain have authority ‘to invite the plain-

- tiff aboard the barge ‘or a purpose other than one

in furtherance of the interesis of the owner?

The answer is ‘No.’

Was the plaintiff aboard the barge for a purpose

inimical to the legitimate interest of her owner?

The answer is ‘Yes.’ ”’

Plaintiff avers that Rule 49, Federal Rules of Civil Pro-

cedure, provides that <necial interrogatories ‘‘caw only

accompany a general verdict,*’ citing the following excerpt

from Rule 49(b):

‘*The court may submit to the jury together with

appropriate forms for a general verdict, weitten

interrogatories upon one or more issues of fact the

decision of which is necessary to a verdict. The court

shall give. such explanation or instruction as may bi

necessary to enable the jury both to make answers to

the interrogatories and to.render a general verdict.”

Being, met with appellee’ 8 citation of Section: 4(a),

‘The court may require u jury to return only a special

verdict in the forp of a special written finding upon- each

issue of fact,’’ appellant, in his reply brief, challenges ‘the

correctness of the-trial judge‘s application of: this rule | v

asserting that the ‘three questions did not present ‘each

issue of fact.’’ The defendant:counters ‘that the plaintiff

‘*consented that the jury first be asked to determine plain-

tiff’s status on the barge’’ and then points to the further

provision of Section 49(a), which provides:

‘If in so doing [submission of written questions] |

the court omits any issue of fact raised by the plead-

ings or by the evidence, each party waives his right

to atrial by jury of the issue so omitted unless before

the jury retires he demands its submission to the.

jury.”’ S

e f ;

Defendant points to the fact that, although plaintiff’s

counsel did object to certin parts of the charge, he did not

request the submission of additional fact issues to the jury.

There can be no doubt that a party can waive his right te

require the presentation of all issues by may interre /..

tory. See Merrill v. Beaute Vues C — m, 10 one

F. 2d 893.

We .hink it appropriate here to com.nent on the very

substantial failure by both parties to support several of

their contentions, especially as relates to waiver of the

submission on special interrogatories, by meorporating in

their appendices so much of the trial proceedings as was

necessary to support their respective assertions. The appel-

lant did not include in his appendix any of the discussion

between court and counsel touching on the submission of

.the question of liability separately from the issue of dam-

ages, and on the submission of special qnestions without

a general verdict. The appellee not only failed to furnish

the court with this part of the minutes, but it fdiled to

fleany »pendix whatever. ‘As to such a failure to comply

with the rules of this court we have recently said:

" ‘*Rule 15(b), adopted in an effort to save parties

the expense of printing ‘immaterial parts of-long’

records, demands a good faith effort by counsel to

reproduge, those parts that are material; and the

court is always willing to entertain applications under

Rule 15(a) to present even these in typewritten form. -

where printing would be burdensome.”’ United States

v. Lefkowitz, et al., 2 Cir..—F. 2d—.

The failure of the parties, to file appendices containing

all of the transcript necessary to support the contentions

of their proponent, and particularly the complete failure

of appellee to.furnish any appendix whatever, has made

it necessary for the’ Court to comb through the entire

stenographie transcript in order to resolve the confiicting

statements in the briefs.

The inspectiop we have made clearly demonstrates that

appellant did not object to dividing the jury issue into two

parts, nor did he object to. dividing the issue of liability

into two parts: \ the status of the plaintiff on board,

and (2) the questidn of negligence if /the answer to the

status question did not resolve the case. The trial court

made it clear before giving his charge to the jury that

he would follow this procedure, and counsel acquiesced,

as he did to the submission of the special interrogatories

without a general verdict.' Furthermore, after the charge

was given to the jury, appellant made no objection to the

form of the submission.

' After the trial court announced his ihtention of submitting the

question of lability nrst, and then: submitting the issue of damage;

only if liability: was established, the f following colloquy took place.

. “Gentlemen, do you understand what the questions are that we

are going to put to them

Mr. Rassner: I do, your Honor.

The Court: it won't be nee sarily in that language, but that

is going to be the substance of it.

Mr. Kassner: May I make a comment as to that, your Honor.

The Court: ~ Yes, sir.

Mr. Rassner: In the main I feel that your Honor's thoughts

should tacilitate matters. Hlowever, as a matter of protecting

my chent’s rights [ would like to express one objection. 1 feel

_ that the question of whether or not the plaintiff was aboard that

» vessel lawfully, rightfully is'a matter of law and not a matter of

fact, and therefore.I object to so much—I-consent to everything

else but object to so-much—-

* * *

Mr. Kassner: | object to the submission of whether or not

the plaintiff was lawfully or properly aboard ’the vessel to’ the

jury on two grounds: first, that I believe it was error for the

Court to permit any evidence as to the rules and regulations of

the company as not binding on the plaintiff and in no wise les-

sening the authority of the master to invite or permit the plairitt.

aboard the vessel, and-[ use the words ‘invite or permit’ ad-.

visedly ; secondly, that whether or not the plaintiff was there

with the original express invitation Of the master or with hy

“consent is immaterial so tong as he was there for purposes not

‘nimical to. the interests of the owners of: the*batge | 23.

With that one reservation— -

* * *

Mr. Kassner: For the record, | would like to make my pos

tion clear. : er

~The Court: [1 don't know what :it means, ‘for the record’ In

other words, vou don't mean it setiously 7

Mr. Rassner: No. [ object to a question being suiimitted te

the jury which in anv wise gives them the duty or right to pas>°

upon whether or net the plaintitf was aboard the vessel rightfulls

or wrongfully other than ina manner inimical to the intefes'>

of the barve 230 ;

- Qn the other hand, it is equally clear that plaintiff did

not waive his objections to the submission of the first two

questions as not being relevant.2, He expressly, however,

agreed to the submission of the third question, subject to

his contention that the jury should be instructed to answer

that .quéstion ig hig favor.

Plaintiff adhered to the position that it was unimportant,

in an action brought under admiralty rules, accuse the

plaintiff had been invited on the -harge or whether, if so°

invited, the master was exce eding his authority, hh

he insisted, and here urges, that the recent Supreme Court

- decision of Kermarec v. Compagnie Generale. Transatlan-

~ tique, 358 U. S. 625, makes these questions ir relevant. The

Court stated the question there to be:

‘*The decisive issue is thus whether admiralty

recognizes the same distinctions between an invitee |

and a licensee as. does the common law.””

- then answered the question by saying:

‘*For the admiralty law at this late date to import

such conceptual distinctions would be foreign to its:

traditions of simplicity and practicality. The Lotta-

wanna, 21 Wall. 558, at 575. The incorporatien of such

concepts appears particularly unwarranted when if

is remembered that they originated under a legal

system’ in which status depended almost entirely

upon the nature of the individual's estate with respect

to real property, a legal. system in that respect

entirely alien’ to the law of the sea.” We hold that

the owner ofa ship in navigable waters owes to all”

who are on board for purposes not inimical to his

2 Plaintit? objected to the submission.of thes first question on the

ground that it was immaterial whether he was an ievitee or a licensce

or even a trespasser. ‘Fhe only test’ was whether he aAwas on board

for purposes “inimical to the ship's interest.”.. He objected to the

submission of the second question on the ground that even if the

issue of invitation was relevant, if would be the apparent authority

of the captain to invite him and not the actual intercompany himita-

tons on the captaif’s authority that would control

: tuned 4

a .

legitimate interests the duty of exerci lll tints:

able care under the circumstances of "each case."

dueed.) 358 U. S. 625, 632.8

@: ae

_» We think we need not determine whether the submissio1:

-of special interrogatory.No.;1 actually presented a seh;

sary factual issue as contemplated under Rule 49(b), supra.)

The plaintiff’s mee as an invitee or as a licensee on the | —

barge may be a ‘‘cireumstance’’ within the meaning of the

‘Supreme Court’ s opinion, quoted abote. If so, it may be

argued that it was necessary for the jury to resolve this

issue before it could determine what would be reasonable

care in such circumstances. However, since none of the

three questions’was in the alternative and they were not

mutually dependeft, and since the third question, agreed

to be prover, presented the critical issue, we conclude that

the submission of the first two questions, even if they did

not.present necessary issues, did not prejudice appellant.

The jury, expressly found, in answer to question No. 3,

that he was ee the barge.for a purpose inimical to

the legitimate int@st of her owner.’’? This finding pre-

cludes a recovery on the ground of negligence. There was

-no basis for a finding that this defendant had violated

any duty which he owed to this plaintiff as a trespasser.

See 2 Harper and James, The Law of Torts, § 27.6, pp.

1461-67.: .

There is, of .cours ga further reason why the submis--

sion of the second question could not possibly harm the

plaintiff. The jury éxpressly found that the captain did

not invite the plaintiff. ‘It, therefore, is immaterial thai

the jury was also asked to find whether the captain had

actual authority to do so.

<cncina nisin, ; ; ; ¢ i

3 The term “all who are on board” was not used by the Supreme

Court \to include those as .t@ whom the law gives extra protection.

such as seamen and others aboard “doing a seaman’s wérk and

-ineurring a seaman’s hazards.” Seas Shipping Co. v. Sierdcki, 328

U.S. 85, 99. See footnote 9 in Kermarec v. Compagnie Generale

Transatlantique, supra.

« ode)

In light of. the consent by the plaintiff tha®this type ot

_ verdict might be asked, and .in light-of the fact that. the: 2

* first two questions did not complicate or bear. in any way °

on the ability of the- jury to answer. the third dne, we find

that no prejudicial error resulted in the. presenting of the

three stated questions to the jury. :

Plaintiff complains also about the ‘court? s ddmitting into

evidence the written rules of the defendant touching upon’

the authority of the captdin to invite visitors aboard the

barge, and the admission of a written report ‘of the mate.

Since’ the! jury found that the plaintiff. was on tha barge

for purposes inimical to the interests of the ship, it “is:

unimportant whether the captain. was authorized under. his

company rule to invite him aboard. The you ot the

rules could, therefore, not be prejudici al to th alz:tiff.

The written report of the maté was: admissible under the

principle recognized by this Court in Gelbin v. New Fork,

New Haven & Hartford RR. Co., 2 Cir., 62 F. 2d 500. ‘Bhat

ease quoted from and approv = the following statement

from DiCarlo v. United States s, 2 Cir., 6 F. 2d 364, 366:

‘It is well settled that, - hen ‘the veracity of a

witness is subject ‘to challenge because of motive to

fabricate, it is competent to put in evidence state-

ments made by him cansistent with what he says On

the stand, made before the motive arose. The. com-

mon sense uch a rule has been too strong for the

formal objection that the evidence is heagsay, and

, indeed the objection i¥ in substance not goad any-.

way, since the witness is by hypothesis there to be

cross-examined} _ ae “> «£ .

Finally, “he plaintiff complains here that the court

ineorrectfy charged fhe meaning of the word ‘inimical’

After thiojury had considered the case for ‘some time they

sent in a request for interpretation of the words ‘‘for pur-

pose’* and the word ‘‘inimical’” as used’ in ihe third ques-

t “tion. The. question ae by the jury was, ‘‘In question 3

‘for purpose.’ ””

? e

' 06

The court discussed the matter with counsel and plain.

tiff’s counsel said: ‘‘May I respectfully ask the court to

charge the jury only by answering the question directly

without elaboration. They ask: what is the meaning of it’

The meaning ‘is hostile or harmful and nothing more.”

Previously, in the original charge, the court had said:

«T¢A4ou find the plaintiff went there for the pur

pose of helping himself to some food, whether it !»

milk or coffee or whatever it was, and that he did.

so without the ecaptain’s consent, you may find tha:

he went there with a purpose inimical to the interest

of the captaiti. In view of the relationship ‘between -

the captain of the barge and its owner you may con-

-elude from this testimony. that tht plaintiff had a:

purpose inimical to the legitimate interests of th

owner of the barge.”’

This instruction was not objected to by the plaintiff.

In answer to its request for clarification the court teli

the jury: =, .

“It is very significant that your requéSt is not |

for dictionary definitions of those words, but t

elarify the ase of those'words: You knew, a woul .

used in one context may have one meaning and thé

‘same word used in a different context may have

an entirely different meaning. As used in the con

text of the charge the term ‘inimical’ was intende:!

to mean ‘inconsistent with,’ and the Phrase ‘for pur-

pose’ speaks for itself.’’ ..

| We think “that the failure of the plaintiff to object te

the instruction originally given and which the jury wa-

- still permitted to accept. as correct even. after the charge

defining ifimical as **inconsistent with,*’ prevents the

-rechargé from being error if in fact the court defined

inimical foo favorably, for defendant, which we do not

, decide.

The judgmient i is AFFIRMED.

rs.

Judgment

UNITED STATES COURT OF APPEALS

. For THE eam Circvuir

At a Stated Term of the United Stafes Court of

’ Appeals, in and for the Second Circuit, held

at the United States Courthouse in the City

of New York, on the twenty-firgt day of- No-

vember, one thousand nine hundred and sixty.

Present: |

Hox. J. Eowarb Lumsarp, —

: . Chief Judge,”

» Evsert P. Tette,

. Hesty J. Frimenpty,

Circuit Judges.

” oO : na

JoacHImM RIBEIRO,” +

Plaintiff-Appellant,

—

Unrren Fre ir Company, a New Jersey Corporation and

Esso STANDARD On Company, a Delaware Corporation,

a Defendants- Appellees, .

Usrrep Freuit Coxiraxy, a New Jersey Corporation,

Third- Party Plaintiff,

—_—

3 : 2 ie

Esso Staxparp Ow Compayy, a Delaware Corporation,

;

Third-Party Defendant-Appellee.

ray

Appeal from the United States District Court for os

‘Southern ‘District of New York.

‘This eause came on. to be heard on the transcript of

record from the Untied States ‘District Court for the South-

ern Distriet of} New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the Judgment of said. District’

Court be and it hereby is affirmed.

; . | ~ A.DanreL Fvsaro,

oe \ ‘ee * Clerk,

or ‘

2 : e

, =

a al

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.