Answer to Petition for Certiorari — Thiel v. Southern Pacific Co.

Subject ‘Index

4

Page

The Petition Presents: Only Two Questions of: Fact......... ...... 4 1

“The Petition Is Charactetized by Inaccurate Statements 2

The Facts in Respect of the Accident and Injury. fe eteen Met

The Facts in: Respect of the Manner of Preparing the Jury 7

Panel ncntnpenlhnnceiacceininnntetncarsentnahe

oF

Table of Authorities Cited

. Pages

: (CASES :

Armett v. (2 & O. Ry. Co, 198 Ky. ” 2.98 SW. HO Os

Ate hison ete, Co. v4 ‘alhoun, 213 U.S. 1, 53 Led. 671. ‘s

Becket x. U.'S., 84-P.2d 731 (COA 6) joe

Boyd v. Alabama ete. Co., J 11 Miss..12, 71 So. 164. .

Brush v. Kentucky, 107 U.S. 110, 27 Lied. 510 ‘.9

Bull v. Power Co., 87 N.J.Eq. 1,-90 A. 111 Js

Calloway v. Hart, 146 F.2d. 103 - CUA ——

Carroll v. U.S. 16 F.2d 951 (CCA 2-+e vert. den.) aa

Chicago ete. Ry ‘Co. v. Sears, 210 8. S.W. 684° Tex. Comm'n

APP.) 3.52 4..54 : én, 8S

Dokuis v. Palmer, 130° C¢ onn. 247. 33 A2Qd BIS wy 7

, : ars | ae

a Se v. North Coun T. Co. 178 Wash. 482, 35

le Salas wee et ee

Franklin v. South Carolina, 218 U.S. 161,54 Led. oso inn %) i)

Gates v. Bisso Ferty Co., 172 So: 829 (La. App.) - Tn

Glasser vo UL S..°315 U.S. 60, 87 Lied. 680 10:11

Hale v. Kentucky, 303 U.S. 316, 82° Lied. 1050 eae 9°

Kansas City So. Ry. Co. v. Pinson, 23 F.2d 247 CCA 8)... < th

Kie v. U.8., 27 F_ 351 ACE, DN cistcsnrnteteiptettcnpeenea 208

Lewis v. U.S., 279 U. 63, 73 Lied. 615 ae j BLL

—. Ry. Co. v. ‘Gregory s Adm’r, 141: Ky: 747, 135

W. 805 ©... Recgeaa 7

L: ; N.W. R. Co. ¥. ee, 152 Ky. 264, 153 8.W. 194 “

Manaux y. U. 8. 264 F. 816 (CCA 6) 7 11

Mason v. San-Val ete. Co., 1 C.2d 666, 36 P.2d 620 : Tin’

Martin v. Texas, 200 U.S. 316, 50 Led. 497) | a 116

° Melde y. Reynolds, 120 Cal. 234,-52 P. 4900.

. 4

4s

ad

a TABLE or AUTHORITIES CITED . iii

Pages

Nea} v. Delaware, 103 U.S. 110, 46 Led. 567 ; 9°

Needham v. U.S. 73 F.2d 1 (CCA 7—vert. den.) 4. 10m

Oisén vy. Minn. ete, Ro Co. 45 N.D. 371, 175 NW. 371 ‘On

Pandolof v. US. 286 FOS OCCA 7--cert, den. } «* lin

Paris ete®Co. v. Robinson, 104 Tex. 482. 140 8.W 434 ‘Tn

‘ Rewlins ¥. Georgia. 201 1S. 638, 50 Led S99 “1W2n. 15

Roberts-y. Publie Serviee Co. 17 F.Supp. 63 ON It

Ruthenberg v. United States, 245 UlS. 480. 60 Lied. 419 I

é .- - ‘ ° 0

Shibuya v. Gagire, QUIS. 291, 35 Lied. 510. os

Smith ~. Mississippi, Wi2 US) 592. 40 Lied. 1082 1

S° Ph. Co. v. Buntin, 54 Ariz. 180, 94 Po2d 639 ‘Tn

So Ry. Co. v. Hayne, 209 Ala. 186, 95 So. 879 . sn.

:St. Louis ete. Ry. Co. v. Adams, 163 SW. 1029 (Tex. Civ.

App.) ; 7m. 8, Sn

St. Louis ete R. (oe. v. Dobyns, .57 Okla 643, 157 PL 745 Tn

Thomas v. Texas, 212 U.S, 278, 53 L.ed. 512

‘Yn. 9, 9n, 11

nion oti: Bk- v. Kolpenitsky, 125 NIEq. 125.4 A2d 413° 11n

‘ 7}

S. ‘vy. Wood, 299 U.S. 128, 81-Loed. 78 - 16

. “ ee ” F .

Virginia v. Rives, 100 U.S. 13, 25 Lied. 667 4. 9%n

Walker v. United States, 03 F 2d 383 (COCA 8 cert. den.

3 TUS. 644, 82) Lied, 1103, reh. den. 303° US. 668,

s2 Led. 1124) om : 710

Watts &. Spokane ete. R. Co., 88 Ore, 192. 171 P. 901 7n

Weleh v. Spokaneé ete. R. Co., 91 Wash. 260, 157 P. 679 7n

Willis v. Lauridson, 161 Cal. 106, 118 P. 530 In

Wong Yim v. U. S.. 118 F.2d 667 (CCA 9—ert. den. 313

1S. 589, 85 Lied. 1544) é o', n

% 6 << TEXTS

"2 CLS. 987: oP eo

In the Supreme Court of ‘the

- United: States

i

_Octoser TERM, 1945

No. 349

_ Gitsert BE. Ture.,

. Petitioner,

vs.

a

_ SouTHERN Paciric CoMpany, a

corporation,

Respondent.

ee cones. ee eg ee ee

Answer to Petition for Certiorari

The petition fails to show a case within Rule 38. _All

that canabe said is that it presents two questions of fact:

(1) Whether the finding of the jury, that there was no

negligence on the part of Southern Pacific ( ‘ompany, “was

correct! and (2) whether the finding of the District Judge,

1. The petition asserts a conflict with Calloway v. Hart, 146

F2d 103 (CCA 5). There is none. The Calloway Case held only

that, on'its facts, the question was for the jury. Here the question -

was submitted to the jury.

2

‘that there was no improper exclusion of any eligtble class

of persons in putting names into the box from which the

petit jury panel were drawn, was correct.”

The petition is remarkable for three things: (1) Mis-

statement of the case (a) in instances by selecting pnd

garbling only portions of the testimony deemed favoralle

to petitioner? and (b) in other instances by affirmative

mis-statement*, (2) avowed excursions outside the record’

2. The same rule, that all intendments must be made in favor

of the determination of the trial court, that applies to findings of

fact generally, applies to the finding on this issue.. (Thomas v.

Texas, 212 U.S. 278, 281, 53 L. ed. 512, 513.)

3 On the issue of negligence this’is particularly true of the

testimony of defendant’s ticket agents Forsythe and Wogan. of

policeman Sorenson, of the conductor Cosgrave, and of the brat:

man Sherman. The. treatment of their testimony is such as to

misrepresent it. :

The same is true of the testimony of the Clerk and tie Jury

Commissioner. This is dealt with below, in some detail, in justice °

et to them.

There is too muclr to give the detail here.

4. Here are a few examples: Petitioner was given no oppor:

tunity to state objections to proposed instructions (petition p. 2).

This is flatly contradicted by the record. (R 209, 968, .970, 972-

984) ‘Court: Do counsel desire to take any further exceptions’

Mr. Spivoeck (petitioner’s counsel): Nothing so far as plaintiff

is concerned.’’ (R 970) .

_ Misstatement of 28 USCA §413 (petition p . 35). It had been

pve out in fall in Appendix ‘A to ahaa s brief in the court

ow. ‘

Statements that respondent had been ‘ ‘informed”’ of petitioner's

mental condition (petition 3). This is a perversion of an allegation

in the answer, made on: information and belief. oe. ee

Petitioner did not -know the train was moving when be went

out the window. His own testimony shows he knew it had left

Reno .and was in motion. _(R 677, 669; cf. 635, 636).

The conductor would not have accepted petitioner as a passenger

if informed of his condition (petition 11). The condtictor’s test!

F ee mony: did not deal with petitioner, but with a hypothetical cas:

Petitioner looked drunk (petition pp. 10, 14). “Ofie witness who

saw petitioner on Sunday morning, over 8 hours before he jumps “ad

ey out the train window, said that he then looked@like a man who

eee 3 ;

and (3) complete failure to appreeiate that all questions

of fact -(determination’ of conflicts in the ‘evidence and

determigation of’ what inferences should or should not

be drawn) have been resolved by the triers of fact.

About 8:40 P.M. on Sunday, February 25, 1940, peti-

“tioner, his wife, and, a friend, Johnny Morris®, boarded

Train No. 9 at Reno, Nevada, to. go to San Francisco.

. The train left about 8:50. Twenty-five minutes: later, pe-

had been drinking and. was getting over a hang-over. (R* 734-737,

740) No one said petitioner looked drunk. In fact he was not

drunk. See below.

The signal to stop the train was given only after petitioner had

fallen (petition p. 12).° The testimony. of brakeman Sherman

squarely contradicts this (R 799, 803, 810, 813, 819, 822), and

was corroborated by that of passenger Buck (R 693-696).

The défendant ‘tadmitted’’ various things attributed to it (vari-

ous places in the petition).. The defendant admitted nothing of

the sort.. Its employees testified to the facts. ~*~

Forsythe and: Wogan knew plaintiff -was acting crazy (petition

- p. 40). Both testified they saw nothing abnormal about petitioner

‘ ~-he seemed normal— talked and acted coherently and rationally.

' (R 734-787, 740, 743, 745, 750, TY 759, 760, 744.)

5. Examples: ,

. . A statement attributed to Juror Gale of his relations to Mr.

‘McDonald, formerly president of respondent. There is no such

statement in the record. There could not be. Mr. MeDonald died

a year before this case went to trial.

*- A conversation with a juror in 1944, over a year after the case

‘was tried.

A reference of jury selection matters to the Attorney General.

_ This follows a pattern set by the attorney. for petitioner when _

~ loses a'ease. Fairly recently, having lost a matter before the U. S

Tax Court, he endeavored to have the presiding member removed.

» Assérted proceedings of the Central Council of Civil Clubs and

Saa Francisco’ Board of Supervisors. “The attorney for the peti-. .

tioner (who obyiously prepared the papers for petitioner’s signa-

ture) should haye stated his connection with the asserted pro-

ceedings—that he was a past president of this ‘‘eivie elub’’ and

‘that he instigated and took the lead in the proceedings referred to.

A statement attributed to Judge Bowen for which there is no

: Support in the record.

6. Neither. Mrs. Thiel nor exet is Was called as a witness.

ad «

: : 4

titioner, without warhing, “suddenly opened a wind

of the train and leaped’ out, while the train was in motion.

Petitioner, his wife, and Morris had been in Reno tiv

preceding week (R 512, 537, 642-644, 650, 651). . Petitioner

had been drinking and gambling. At places the record

indicates that he had his last drink on Friday, the 23,

at other places that he had something to drink on the

inorning of Saturday, the 24th ( R512, 644-649, 651, 652

654). It is clear that he had nothing-to drink for over 24

hours before he jumpéd-out the train window (R.651-654).

There is no evidence even tending to show. that he Wiis

wintoxicated when he boarded-the train or when he jumpe d

Petitioner testified in detail to all of his actionS durin ing

the week before the accident, and on the day of the ace

dent up to:the time he jumped from the ‘train. He sid ;

he was testifying from his own recollection, not from what

someone told him (R 663, 664). He claimed he had had,

hallucinations and was in fear of injury.* The ‘evidence

shows: He got up about 6:00 a.m. on the day of the acei-

dent, and walked around Reno alone, before sun-up.”

(R 655-657). His speech was normal, coherent and ra-

tional. He was fully oriented. He-appreciated and _re-

membered the details of his surroundings, who he was

with, where he was going, and that having run out of

money it was necessary to get some to obtain tickets. He

directed the obtaining of’ money by phoning to San Fran-

7. These characterizations dre petitioner’s. (R20, 500.)

8. But neither he nor any one else testified to any fact indicating

any mental disturbance, at least up to the very moment he. went

out the train window. See second paragraph of note 19 below.

9. This is certainly inconsistent with a claim of heing in fear

of injury from gangsters.

; 5 °

cisco and having it wired. There was no loud talking or

boisterous or unruly conduct. There was no gestieulation

or commotion. His appearance and movements were nor-

“mai. He required no assistance... Ie appreciated that he

was getting onsa, railroad train and hoarded ‘the train

willingly. He appreciated that he was on- a train, and

after it “left Reno, that it was in- motion.!°

On the day of tlie accident, petitioner was observed by

two tieketesellers, Forsythe and Wogan, by Sorenson, a

railroad police officer, and by passenger Rippetoe, peti-

tioner’s witness."! There was. tiothing about him abnormal

in Appearance or ‘conduct. He was neither ‘‘intoxicated”

nor ‘demented’? nor ‘‘erazy”’. | .

Petitioner, his wife, and Morris boarded the .train to-

vether, enterjng the second coach. After the train left

. Reno, and while it was i motion, petitioner, Morris and

Rippetoe went ahead to the smoker.'? Petitioner and

Morris sat together, petitioner next to‘the window, Morris

1 the aisle. Rippetoe took the seat just ‘ahead. About

: minutes out of Reno, the conductor came through the.

smoker, lifting tickets. Morris surrendered the tickets for

‘his’ party. The conductor had passed on a step or two.

“when petitioner, without warning, suddenly opened. the

window and jumped out, so fast that if was inpossible

for Rippetoe, Morris or the conductor to stop him. They

did, however, manage to grab his coat and hold him mo-

10., All this appears from petitioner’s own ‘rather extended

testimony, on byth direct.and cross examination,

ll. Forsythe (R730 et seq.). Wogan (R740 et seq.), Sorensen

(R761 et seq.), Rippetoe (R 703-714).

12. R 500, 501, 571-574, 666, 667,670, 706, 713-716, 795-798,

809, 816. — ;

‘ing was controlled (and it was)'’no tourniquet was neces-

6: eee

mentarily until he slipped from his coat." The head*brake-

man was riding at the rear of the smoker (R 667, 794 t

seq.). He immediately gaye a: stop signal and the train

brakes were applied at once? (R 799, 805, 310-815, S10.

' 822). His testimony was corroborated by that of passenger

‘Buck (R 692-696). The conductor testified that he got

hold’ of. petitioner’ s coat collar and held petitioner until

his coat tere and petitioner fell; that as Soon as petitioner

«fell, he gave a stop signal, but by that time the train was

ee already vomitig-to a stop (R 829, 847-861, 677, 700).

Petitioner was immediately put on a stretcher, place:

in the. baggage car and fushed to Truckee.!®> Dr. Anderson,

a physician called by petitioner, testified that if. the blecd- :

2

sary (R631), that time was better spent in getting peti

tioner to a doctor than in endeavoring to apply splints

(R 631),. and that ‘ ‘open wounds, if they do not come in

~ eontact with anything, are better left exposed to the a‘r

than bandaged with ‘material not known to be sterile «

(R 617-633). His testimony, ‘with. that of the other’ doe.

, a

a

13. B 423, 424, 500, 501, 574, 665; 670, 691, 708, 717-721, 799,

. 816, 817, 826,827, 843, 844.

14. ‘The coriduetor estimated that ‘petitioner was hanging out -

. the window only. ‘‘a few seconds’’. (R 43, 698-700.)

15. R 501, 593-595, 800-802, 830. 832, 855-857. At Truckee pr

titioner Was immediately given, by Dr. Bernard, Southern Pacitic

District Surgeon, such treatment as could be given with the megns *

available in a little: mountain hamilet, and was then rushed to the

‘hospital at Reno. Dr. Bernard saved his life. (R 171, 172, 442, .

612, 630 et seq., 786-789, 863 et seq., 873,.678, 789). All the doctors

agreed that had Dr.. Bernard attempted | to dperate at once the

result probably would have been fatal. (R 437, 438, 633, 864.)

The petition has some suggestion that petitioner was not ke)!

warm.. Extra heat-was. put on in the baggage car. He was not

. cold. (R -§90-592, 595.)

°16. RK 86, 855, 593, 867-870. Petitioner did not eullet from .*

loss.of blood. (R: 441, 786, 787, 863-866, 871-873.) ° ,

ake!

7

' tors; provide a complete negative to any claim of negligence

in failing to giye petitioner’ proper care.

What jetitioner’ s mental condition actually was;'? if

abnormal, the nature of the abnormality'’; ‘whether re-

spondent had notice of this ;'” whether respondent should

have accepted petitioner as a passenger, and, if it aceepted

him, whether it should have prov ided ain sian: 20 hav-

: 17. There i is no duty of spec is] precaution” unless the passenge r

‘‘ineapable of taking care of himself’? (Welch v. Spokane ete.

R. Co., 91 Wash. 260, 157 P. 679, 681), ‘Sin a helpless condition ”’

(Gates v. Bisso Ferry Co., 132 So. 829 (La. App:).), ina condition

of ‘‘helplessness or incapacity’’ (Louisville Ry. Co. v. Gregary’s

Adm’r, 141 Ky. 747, 133 S.W. 805), ‘‘unable to care for himself*’

(St, Louis-ete. Ry. Co. v. Adams, 163 S.W. 1029 (Tex. Civ. App.).)

18. According to petitioner he was in fear of harm by gang:

. sters. His mental attitude, on his testimony, was of.fearing harm

ever assuming it di d have notice ‘of his mental condition? A hat

and wanting to avoid it, not inviting it. (R 514-516, 574, 657, 663,

668, 672.) Compare Chicago ete. Ry. Co. v. Segre, 210 SW 654 (Te x.

Com’n of ‘App.).

‘19. Ht is not enough that there be some ‘disability. The carrier

must have actual knowledge of this before exercise ‘of added care

can be claimed. It: is under,no duty to examine. The doctrine of

imputed or implied notice has no application. (Fagerdahl v. North

Coast T. Co., 178 Wash. 482, 35 P2d 46; Watts v. Spokane etc. R.

Co., 88 Ore. 192, 171 P. 901, 906: S.P. Co. v. Buntin, 54 Ariz. 180,

' 94 P2a. 639; Pari is etc. Co. v. Robinson, 104 Tex. 482, 140 S.W, 434,

Knowledge acquired only by the fact of ace ident is too late anid

immaterialy (Welsh v. Spokane ete. R. Co., 91 Wash. 260, 157 P.

679, 681; Dokus v. Palmer, 130 Conn. 247, 33-A2d 315, 318.)

_. Knowledge of some unspecified disability is not enough to call

‘for added care. The carrier must know the precise disability claimed,

any. (Fogerdahl v. North Coast T. Co.,,sapra; &hicago ete. Ry.

Co. v. Sears, note 18.above; St. Louis etc. Co. v. idams, note 20

below; Watts v. Spokane ete. R. Co., s®pra; Welsh v. Spokane ete.

R. (o.; supra; S. P. Co. v. Buntin, supra; St. Louis- ete. R. Co, v.

Dobyns, 57 Okla. 643, 15, P. 735, 738.) - °

20. On petitioner’s theory, he was in fear’ of a non-existent

threat from non-existent persons. What, steps should respondent

have taken to protect him from a threat which did not in fact exist,

so that it can know what steps to take, before it is frien on to take

, s

ing in’mind, on both questions, that petitioner. was aceon

panied by his- wife anda male ‘companion, both of Witer

were apparently fully able to’ give any‘ care that might Ine

necessary ;2' whether any other attendant could have pi

vented petitioner from: going ‘ont the window when Rij,

petoe, Morris and, the conductor could not; whether the

traipy could havé- been’ stopped sooner and, ‘if it coul,

whether any assumed delay was negligence or cause|,

-injugy; and whether, in the circumstances of gmergency,

other steps should have been taken to care for plaintiff,

although “those ‘taken saved his life; all these questiin-

have been resolved: by the jury.

~The cases closest on their facts are Chicago'ete. Ry.

. Sears, 210 S.W. 684 (T ex. Coni’n App.) and St. Low

ete, Ry. Co, v. Adams, 163 SW. 1M (Tex. ‘Civ. App.

In both the passenger a we Both he'd

that as matter of law there could be'no recovery.

Shortly before the case went to trial, petitioner initiate |

an attack on the jury panel. Stripped of invective an!

could it reasonably anticipate would develop from a non-exist:

state of facts? (Compare Chicago ete. Ry. Co. v. Sears, note \>

above and St. Lowis etc. Ry. Co. v. Adams, 163 SW. 1029 (Tix

Giv. App.).)

A carrier ‘‘is bound to gnard only against thdse occurrences

which can be reasonably ahticipated”’ and a ‘‘reasonable man * * *

will neither neglect what he can foresee as ‘probable, nor pon his

4e5

' ' anzviety on events that are barely possible’’. (Atchison ete.

Calhoun, 213 US. 1, 9, 53 L. ed. 671, 675; Kansas City So. ‘Bye

v. Pinson, 23 F2d 247 (CCA 5).)

21. Where a passenger is accompanied by an apparently ¢.

petent attendant the carrier is under no duty to displace -t!

; tendant with another. (Gates v. Bisso Ferry Co,, note 17 alxix:

Boyd v. Alabama etc. Co., 111 Miss. 12, 71. So. 164 and 655; 0.

v. Minn. ete. R. Co., 438 N.D. 371, 175 N.W. 371. Cf. Fagerday’

v. North Coast T. Co., note 19 above; So. Ry. Co. v. Hayne, 2)

Ala, 186, 95 So. 879; Arnett v? Cod O. Ry. C6., 198 Ky, 742.215

SW 1040; L. d N. R. Co. v. Dyer, 152 Ky. 264, 153 SW 194.)

9 .

. as re, ;

epithet petitioner’s claim comes to this: There were sno

‘laboring’? people on the ‘jury panel.?*

Assuming that the negro exclusion cases extend to every

cconomi¢ group, ‘sociai class, religious sect, efe. to whieh

a party may claim to belong, end that petitioner is a mem- °

ber of ‘a claxs so distinet as to fall within. the assumed

extension of the rule, still, petitioner has not shown any

impropriety in, drawing’ the jury panel. a

To make his ‘point, petitioner must show that there had

wen ‘ta systematic and arbitrary exclusion’ of the clags

to which he belongs; an exclusion of otherwise eligible

jurors ‘solely becdiuse of their membership in that elass’’.

(Halew. Kentucky, 303 US. 316, 317, 82 1. ed. 1050, 1052.)

He was ‘required to show a ‘‘systematic or arbitrary

exclusion of; or discrimination. between,’’ persons of a_par-

ticular class. (Wong Yim. U.S., 118 F2d. 667 (CCA 9,—

cert. den. 313 U.S. O89, BOL. ed. 1544).) He was net en-

titled to have a jurymade up to suit him--He-had. no right

of inclusion on the panel of any particular person or classes

of persons. The right is only against” systematic and

arbitrary exclusion of qualified and non-exempt persons,

(Martin v. Texas, 200 U.S. 316, 320, 50 L. ed. 497, 499;

Thomas v. Texas, 212 U.S.°278, 281, 53 L. ed. 512, 513;

Virginia v. Rives, 100 U.S. 13, 25 L. ed. 667, 671; Neal rv.

Delaware, 103 U.S. 370, 394, 46 L. ed. pe 573; Brush v7

Kentucky, 107 U.S. 110, 117, 27 L. ed. 354, 357; Shibuya

- v. Gugiro, 140 US. 291, 297, 35 SL. ed. ny D183; Franklin v.

South Carolina, 218 U.S. 161,167; 54° 1. ed. 980, 985. )*9

22. In the court below the attack amounted to an attyek on the

integrity of the Clerk and Jury Commissioner,

23. A fortiori he is not entitled to a panel or jury made up of

given proportions of persons of’ various classes. Thomas rv Teras,

Virginia v. Rives and Wong Yim v. U. S., all cited in the body and

Beckett v. U. 8., 84 F2d 731, 732 (CCA 6).

10 r as

_ Those charged with getting up the panel cannot anticipat:

every class to which litigants will claim to belong,—eann i

know the make-up of litigants whose actions, may not \«!

have beén filed,—and construct a panel accordingly. For

thi reason, and for the reason that the rule i is not one of

inclusion, but is only one prohibiting arbitrary and si.”

tematic exclusion, it is a matter of no significance thi it

of a particular panel there may be no- members of. ry par- ‘

ticular class. (In adidition to the cases just cited ms also

Ruthenberg v. United States, 245 U.S. 480, 60 L. ed. 41°;

and Beckett v.U. 8., 84 F2d 731, 732 (CCA 6):),

If the requirem nts just noticed has been observed **tive

officials charged with choosing Federal jurors may ONCE:

cise some diseretion to the-end that’ competent jurors may

be called’’. (Glasser v. United States, 315. US. 60, 85, SH

L. ed. 680, 707; Walker y. United States, 93 F2d 383, 391

(CCA &—cert. den. 3084 .S, 644, 82 L. ed. 1103, reh’g. den.

303 ULS. 668, 82 L.. ed. 11 4), Cf. Franklin t v. South Car

lina, supra.) y. .

_ Petitioner had the burden of showing a systematic and

arbitrary exclusion of eligible talesmen solely because tiny

belonged to a particular class, Unless violation were *

pressly shown’? proper selection of the panel ‘‘may | -

taken. as sufficiently established by the presumptfon of

regularity’’. (Lewis v . United States, 279 US. 63, 73, 7 ia.

L. ed. 615, 619; Walker v. United States, supra.)?* Ani,

in addition, on appeal, where the matter was heard in ope!

court, on.testimony taken, the usual rule that determina

2 Ace. Carroll v U. 8. 16 F2d 951, 955 (CCA 2—eert. den. 27

a. 763. 71 L. ed. 880); Needham v: U. 8., 73 F2d 1, 2. oe. col ?

CCA ert. den. 294 U.S. 705, 79 L. ed. 1241) ; Kie v. U. 7h

1,

U

(¢

351, 357. (C.C. Ore.).

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‘ 11 ‘1

tion of questions of fact | Will not be veviowed, applies, :

and every intendment is in favor of the ruling of the trial

court. (Cf. Thomas v. Texas, supra.)

. The claims of showing now urged are (1), an affidavit .

of petitioner’s counsel and (2) testimony, at a hearing —

before the trial judge, given —— by the Clerk and

the Jury Commissioner. —

The affidavit of petitioner ’s ae must’ be disre-

garded. (1) The ‘affidavit is inherently defective. It is’

only hearsay, irrelevancies and unsupported conelusions.?®

(2) Objections to the affidavit were made but were not

ruled on because the affidavit was ‘never offered in evi-

dence?® (R 69-138). (3) In any event aitidavits- cannot be.

used to support’ a challenge to the array in the ‘alssence —

ofa stipulation. (Glasser v: U. 8.; . 315 U.S. :60, 87, 87 L.

ed? 680, 708; Martin v. Texas, 200 U.S. 316, 50 L.. ed. 497;

Smith v. Mississippi, 162 U.S. 592, 600, 40 ‘LL. ed. 1082,

1085; Manaux v. U. S., 264 F. 816 (CCA ~ There was

no- stipulation. ~ . , ‘

~~ The only testimony tadeens at thie hearing which had any

relevancy was that of the Clerk, his deputy, and the Jury

Commissioner. This showed how the panel -was gotten up:

From. city Directories were ‘taken the Trames of people

“who, from occupation and residence, it appears, would make —

‘intelligenit jurors (R85). With what organization or com-

25. Affidavits are subject to the usual rules of evidence. -Pan-

dolof v. U. 8., 286 F. 8, 20 (CCA %—cert. den. 261 U.S. 621, 67

L. ed. 831); Willis u. Lauridson;T61 Cal. 106, 108, 118 P. 530;

- Mason ®. San-Val etc. Co., 1 C2d 666, 672, 36 P2d 620; Bull v.

Power Co., 87 N. J. “Eq. 17.99 A. 111, 114; Union etc. Bk. y. Kol

penitsky, 125 N. J. Eq. 125, 4 A2d' 413,415; 2 C08. 987 ( AMidavits,

§28, a, (2)).

26. ° And’ so cannot be considered. Melde v. Regnolds, 120 Cal.

234, 52 P, 491.

12

‘pany they were associated did not enter into the selectins

(R86), they were ‘never selected because of ocenpatinn

(R 86)? and no attempt was tnade to select business OXGC-

' utives** (R96, %7). No names of persons known to du

disqualified were taken (R105). The names endeavor

to be avoided were those of people who were disqualified,

exempt, or who surely would be excused by the court (RS,

105, 106, 114).2* Laborers, or wage earners, or workiiz

men, were not left out as a class ;°" they were: taken, whiat-

ever the character of their work and whatever. their

» occupation, if they were employed ata monthly rate «1

Otherwise so situated that by serving they did not. suli-:

a financial logs which they could not afford (R87, Ss, Mi,

27. Occupation may be noticed as some guide to age. If a»

is working as a clerk for a department store, he is probably of! :

right age to serve, but ‘‘that is the only way that [ can recall 1 \

that the occupation would have anything to do with it’? (Rost. -

Of course, where there is ¢ connection with a firm known t) ©

* reputable, this knowledge is not disregarded; it is assumed thi »

person connected with a reputable firm is a reputable person (Ii:

28. Some business executives were selected, but so were 01!”

employees of business concerns. fn speaking’ of business men |”

reference wag not solely to executives (R 98). See note 33 be!

29. Among the classes specified as disqualified, exempt oF »

would surely be excused by the court were physicians, phar)

cists, railroad telegraphers, schoo! teachers, ministers, Stat® =: |

Federal officials and people in such classes. Compare Rawlins |

Georgia, 2Q1 U.S. 638, 50 L. ed. 899, quoted below.

30. Among the people avoided because they were always | \

cused by the court were certain ‘‘laborers’’ or ‘‘waye earners

‘working men’’; but only certain of them,—only those who work:

for a doily wage and for whom service would represent a 1):

financial loss and who, for this reason, were e se by the cour

. (R 87, 88, 89, 91, 110, 111). The testimony ‘aah ¢ it abundan's

clear that this statement applies only to certain working men «'

wage earners; to those who work at a daily wage, cannot fore

the daily wage and who, for this reason, are always excused by |

rt (R 87, 104-106, 111). Compare Ruwlins v. Georgia 201 |

T ed. 899, below.

ae , = «BB

109, 110).*! Indeed, the Commissioner testified that he had

-made a special effort to obtain the names ‘of people who

“were members, of labor unions (R110, 111, 313).

No attention was paid to ‘the ‘financial status—indeed,.

» this was not known (R106, 107, 108, 114, 1159. No atten-

tion was paid to the proportion of women, i.e., there was

. no attempt either to raise the proportion up or hold it:

dewn (R91, ef. 112), and no liserimination Was made

among women because’ of their husband’s oceupations

(R106, 107). There, have been negroes and Chinese on

the panels (R91, 92).

‘Now, has there been any purposeful exclusion of

negroes or Chinese? A. No. oe

Q. Has there been any purpeseful exclusion’ of

men who worked with tuei hands, just because they

worked with their hands? A. » Never. ,

Q. Or any exclusion of men of small salary, whether

by-day, or otherwise, simply because their salaries

—. were small?

A. Never. | | BA

(). ‘Has there ever been.any exclusion of any person .

simply because he was poor? A. Oh, no.

Q. Has there ever been any exclusion of any irfdi-

- vidual who worked at any particular trade, simply

because he worked at that trade?) A. No’? (R105,

104.)

—Q, As T understand vou, you paid no attention

whatever to whether the prospective, jurors -were

' 31.° A man was not left out who was a carpenter. He.might not

. bea day laborer, but on a monthly wage. That he was a carpenter

would not indicate that he was dependent on daily labor. A janitor

would be selected. Janitors have been on juries a number of times.

A man would not be left ott because he was a mechanic (RS7-89),

All wage earners and laboring people are not left out (R96).-1f |

a “er were listed as a laborer, he could serve if he.wanted to serve -——

(R110). : .

°

- (mee o

wealthy or poor, in fact-you knew nothing absolute! v

about their financial condition, is that correct? |

A. .I don’t know a thing about their financial con-

‘dition, wy re inl

Q. And ‘shave never attempted to make any selvc-

tion based on their financial standing? A. Never.

Q. And the same goes with respect to the women,

you have never attempted, to make any: selection of

women based on whether their husbands were engazed

in one line of endeavor or another line of endeavor!

' A. 'That is correct.

*Q. Or whetlier they were rich or poor? A. That

is correct. | |

Q. You just pick them as. they come? A. Yes

(R 107, 108:) ;

**

/

‘“*Q. Have you ever excluded or attempted to «\

clude any person or. class of persons because of {1

nature of ‘the work they do? A. No. —

Q. Or because of the amount of pay they receive?

A. No. oe ;

Q. Or because of their wealth? A. “No.” (RUG. |

_In-actual operation about 50% of the panel conld he

classified as business men or business people*? (connect!

- with or employed by** busines: concerns) and the otl"r

50%, more or less, belonged in other classes (R90, 91, 9

oy 109, 115, 119, 123).3* How a jury panel could be gotten

° 32. See note 28 above.

33. This.would include ‘*laboring’’ ‘eich pw ener by business

concerns large and small. R96, 109) ‘‘If you,mean by that that

I went out of my way. to select a large number of officers Gf con-

- panies, if that is what you mean n by an executive, I never have diy

. that. ?

34: The Commissioner testified : “*T have tried to keep away

from -the business end’’; that about ‘50% were ‘‘connected with

some business. concern probably ”’. See notes 28 and 33 above:

: 15

J . a. : P °

up without at least such a proportion of people connected

in-some capacity with business concerns, even large busi-

“ness coycerns, where the court is so located that travel

distance for.a juror to and from:-the court must be within

the metropolitan area of San Francisco, is not apparent.

The ouly persons ex@uded were those who were disquali-

fied, exempt, or who surdy would be excused by the Court

* on the ground of hardship. This practice is one expressly

: approved in Rawlins v. Georgia, 201 U.S. 638, 640, 50 LL. ed.

899, 900:

“The nature of the classes excluded was not such

as was@ikely to affect the conduct of the members .

as jury@en, or to make them act otherwise than those

who were drawn would act. The exclusion was not

the ‘result of race or class prejudice. It does not

even appear that ‘any ‘of the defendants belonged to

any of the excluded classes. The ground of omission,

no doubt, was that pointed out by the state court—

+ that the business of. the persons omitted was such

} that: either they would have been entitled to claim

exemption, or that probably they ‘would have’ been

excused. Even when p: “gous liable to jury duty under

the state law are excluded, it’is no ground for .chal-

Tenge to the array, if a sufficient number of unexcep-

tional persons are present.’’

The Clerk andthe Jury Commissioner proceeded in the

only way they. could proceed. 8To have a panel such as

that. for which appellant argues would impose the duty,

neither eontemplated: nor possible of fulfillment, of study-

op: op es *,°e * sO . P . .

ing évery litigant to know each shading of race, religion,

saeeniaaiesiiosanasteeantannacstenanancnenanainniinarintiete : — eeeieeeas ee eR

“*Q: In your selection, do you"omit from the jury list wage carners

and laborers? A: No.’’? (R 109.). A person listed-as a labor

would be selected. (R 110.).

. 16

political thought and occupation, and of then selecting like

jurors. It’ would - require a panel having every possi!)

shade of racial background, religious faith, political ¢

vietion, financial standing, education and training, ‘and

occupation and economic endeavor. If a railroad were. a

party it would be necessary to have people who were no

in- the shipper or passenger class. And if remote “Con

nections”? disqualify, then in an action in San ‘Franeiseo

against the Pacific Gas & Electric Company or the Tele-

phone Company, it would be impossible to get a jury. (But

see Roberts v. Public Service Co., 17 F. eee. 63 (NH).

Gf. U. S.v. W vod; 299 U.S. 123, 81 L. éd. 78.)

brain government calls for practical measures. If

tle measures are fairly conceived and honestly carried ont

no one can complain because they lo not fit exactly |.

personal peculiarities. Congress conceived the measles

and the Clerk and the J ury Commissioner fairly and |i

estly carried them out.

Since it is the method of. selection: and not the actual

composition of a particular. panel tliat is controlling,

\

time need be spent on this panel. But it is interesting tit

there was no showing that there was an exclusion from

the panel in question of persons of the type petition er

claims should have been included. The composition of this

panel was nvt shown, There was no evidence of it. All

_ that appeared, as, to the composition of the payel, was

‘ what appeared from the prospective jurors who happen:

to.be called into the box for this case. This is no = ice

-to cover petitioner’ s misstatements in this regard.- It “is

sufficient to call attention to the remarks of the trial ae

, made after the jury was impaneled (R494) and again at

roan -

a .

< E A é . .

F i .

. ° .

| | , a ACayaee.

the time he denied petitioner’s motion for new trial, when

he made a complete and careful analysis: of the jury

(R 308-312). Sueh connection as any juror had with re-

* spondent was not shown to be more ‘than that .he or the

concern with which he was connected was a passenger or.

shipper by railroad. Every juror who served was passed. g

for cause, Every challenge: for. cause interposed by peti-

tioner Was: sustained, some of’ them improperly we believe.

It is respectfully submitted-that the petition should be

denied. . + -

Dated at San Francisco, California,

September 10, 1945.

ARTHUR B, Dunne, - -

Altorney for Respondent.

/

Qtet