Magenau v. Aetna Freight Lines, Inc.

Mr. Justice Frankfurter, whom Mr. Justice Harlan and Mr. Justice Stewart join, dissenting.

The issues in this case have had a shifting history. Today the problem of the case appears to be cast into these questions: was the issue of decedent Ormsbee’s employment submitted to the jury and, if not, should it have been? But at trial the evidence massed on both sides was to prove or disprove that decedent was a trespasser. In the course of showing he was something other than a trespasser, petitioner introduced evidence which tended to prove that decedent was in fact a temporary employee of respondent, hired by the truck driver to aid in an emergency. Respondent countered by urging that the evidence introduced by petitioner, if believed, proved decedent was an employee of Aetna and therefore, under applicable Pennsylvania law, deprived petitioner of a common-law remédy against Aetna. The- trial judge, believing employment to be a question of law, reserved until after the verdict a ruling on the effect of the Penn*280sylvania Workmen’s Compensation Act, Purdon’s Pa. Stat. Ann., 1952, Tit. 77, §§ 22, 52, 462. And so, putting aside this question, and keeping the original issue regarding the status of decedent as a trespasser in mind, the judge framed one of the four interrogatories submitted to the jury to elicit its opinion whether decedent was or was not a trespasser. The jury found that he was not by answering the following interrogatory in the affirmátive:

“Under the evidence in this case, do you find that an unforeseen contingency arose which made it reasonably necessary for the protection of the defendant’s interests' that the driver Charles Schroyer engage the decedent Norman Ormsbee, Jr. to accompany him for the remainder of the trip?”

The jury also returned a general verdict for petitioner.

In his opinion refusing Aetna’s motions for a new trial or judgment notwithstanding the verdict, the -trial judge reasoned that the Pennsylvania Act did not bar petitioner’s recovery at common law because the nature of decedent’s employment did not, under the Pennsylvania decisions, bring him under the Workmen’s Compensation Act. 161 F. Supp. 875. The Court of Appeals disagreed With the trial judge’s interpretation of the interrogatory, of the Pennsylvania statute and of the decisions thereunder. Reviewing the jury’s verdict for decedent’s administrator, that court held that the affirmative answer to the interrogatory necessitated a finding that decedent • was an employee of Aetna, within the definition of that status in the Pennsylvania Act and that therefore the only remedy was under that Act. 257 F. 2d 445. In so doing, the court was applying to facts as found by a jury the law made applicable to the parties to this action by Erie R. Co. v. Tompkins, 304 U. S. 64, and the Rules of Decision Act, 28 U. S. C. § 1652.

*281Petitioner now asserts that our opinion in Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U. S. 525, required the jury in the federal courts to decide the. issue of employment and that the jury did not make that determination here. To agree with this second proposition we must either find that the Court of Appeals totally misinterpreted the answer of the jury to the interrogatory or that the rule stated in Byrd requires not only that disputed questions of fact be submitted to the jury but also that the' application of law to facts likewise resfe with the jury. The former ruling would deviate from the settled practice of this Court to accept the interpretation of proceedings below adopted by the Court of Appeals unless that interpretation is baseless.1 Moreover, the ruling of the Court of Appeals was based primarily on an interpretation of Pennsylvania law and not on an extrapolation from the jury’s finding. Judge Goodrich held that “[w]e cannot escape the conclusion that the [jury] finding that authorized the hiring of Ormsbee put him into the regular business of the defendant, namely, transportation of goods by truck. If that was not what he was doing, he had no business riding with Schroyer at all.” 257 F. 2d, at’448. Thus the Court of Appeals applied the jury-found facts to the court-interpreted statute and said that the Pennsylvania law barred a cómmon-law remedy. We should not review here the finding of the Court of Appeals on the meaning of tthe Pennsylvania statute. This Court has repeatedly deferred to decisions on local law reached by the lower, federal courts.2 What reason is there to *282deviate from that practice in this case? The meaning given to the Pennsylvania statutory language and to the cases interpreting it was the determination of three uncommonly experienced Pennsylvania circuit judges. Finally, no prior federal case would justify-.a ruling that in the federal courts application of law to fact is a jury function.3 Nor does historical analysis support the assumption that such was the case at the time of the adoption of the Seventh Amendment.4 Whether a given set of facts constitutes an employment relationship is a pure question of law and as such not within a jury’s province. The charge, interrogatory, and answer thereto, as reasonably interpreted by the Court of Appeals, do not permit the conclusion that issues were withheld from the jury which were within its sphere of power, duty, and capability.

But suppose it be correct to conclude that the Court of Appeals erred'in its opinion that the jury resolved all relevant factual inquiries. Still the petitioner has no case *283that should'prevail here. . For not only did the petitioner fail at trial to request the question of employment to be submitted to a jury, he himself stated during the course of the trial that employment was a question of law.5 And when the trial judge said that he believed that as a question of law it ought not to be submitted to a jury, the petitioner did not claim .otherwise.6 Indeed it was the respondent who requested that the question be submitted to the jury and who objected when this request was refused. I shall continue to believe it to be law in civil cases in the federal courts that, barring some extraordinary circumstances not here presént, failure to request a given issue to be submitted to a jury constitutes a waiver .of any right to such submission7 The least requisite for raising such failure on appeal is notice to the. trial court by way of an objection.8

Certiorari was granted upon a petition, which ■ urged that-the Court of Appeals had so ruled as to deprive petitioner of the right to a jury determination of employment status and thus that the case raised the same basic question: as that dealt with by this Court in Byrd. More particular consideration than could be expected to be given to the petition for certiorari9 has made it apparent *284that neither statement is correct. The briefs on the merits and oral argument made it inescapably clear that petitioner failed to present a case which qualifies for our consideration in the light of the historical development of our certiorari jurisdiction10 and the rule which we have-promulgated to guide its exercise.11 This is an ordinary diversity case turning solely on the application of Pennsylvaniá'law to a unique set of facts and involving no question which justifies review under our discretionary jurisdiction. When the Court has discovered, even after argument, that there existed no question suitable for this Court’s determination, certiorari has been dismissed as improvidently granted.12 The reasons for such a disposition of a case even after argument — action so often taken as fairly to be part of the settled practice of the Court— were thus expounded by Mr. Chief Justice Taft:

“If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that' it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing con*285flict of' opinion and authority between the circidt courts of appeal. The present case certainly comes under neither head.” 13

And so, since upon full consideration of this case it becomes clear that the complained-of error was probably not committed and that in any event petitioner is not in a position to assert it, due regard for the controlling importance of .observing the conditions for the proper, exercise of our discretionary jurisdiction requires that the writ of certiorari should be dismissed as improvidently granted.

See, e. g., Labor Board v. Pittsburgh S. S. Co., 340 U. S. 498, 502-503; Federal Trade Comm’n v. American Tobacco Co., 274 U. S. 543.

Railroad Comm’n v. Pullman Co., 312 U. S. 496, 499; Reitz v. Mealey, 314 U. S. 33, 39; MacGregor v. State Mutual Life Assurance Co., 315 U. S. 280, 281; Helvering v. Stuart, 317 U. S. 154, 162-163, modified on other grounds, 317 U. S. 602; Palmer v. Hoffman, *282318 U. S. 109, 118; Huddleston v. Dwyer, 322 U. S. 232, 237; Hillsborough v. Cromwell, 326 U. S. 620, 630; Steele v. General Mills, Inc., 329 U. S. 433, 438-439; Gardner v. New Jersey, 329 U. S. 565, 575; Francis v. Southern Pacific Co., 333 U. S. 445, 447-448; Estate of Spiegel v. Commissioner of Internal Revenue, 335 U. S. 701, 707-708; Propper v. Clark, 337 U. S. 472, 486-487; Ragan v. Merchants Transfer & Warehouse Co., 337 U. S. 530, 534; Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667, 674; United States v. Gerlach Live Stock Co., 339 U. S. 725, 755; Williams v. United States, 341 U. S. 97, 100; Sutton v. Leib, 342 U. S. 402, 411; Bernhardt v. Polygraphic Co., 350 U. S. 198, 204-205; id., at 209, 212 (concurring opinions); General Box Co. v. United States, 351 U. S. 159, 165; id., at 169-170 (dissenting opinion).

Cf. Ex parte Peterson, 253 U. S. 300, 310: “The limitation imposed by the [Seventh] Amendment .is merely that enjoyment of the right of trial by jury, be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with.”

See Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv. L. Rev. 669, 684-686 (1918).

“The Court: In other words, the finding of trespasser is a conclusion of law.

“Mr. Knox (attorney for petitioner): The' same as employees.” Transcript of Record, p. 173a.

“The Court: I don’t think it is necessary to have the jury find whether he was employed or not; I think that is a question for the law.”. Transcript of Record, p. 169a.

See, e. g., Pennsylvania R. Co. v. Minds, 250 U. S. 368, 375; Shutte v. Thompson, 15 Wall. 151, 164.

Fed. Rules Civ. Proc., 49, 51.

“We are not aided by oral arguments -and necessarily -rely in an especial way upon petitions, replies and supporting briefs. Unless these are carefully’ prepared, contain appropriate references to the record and- present with studied accuracy, brevity and clearness *284whatever is essential to ready and adequate understanding of points requiring our attention, the rights. of interested parties may be prejudiced and the court will be impeded in its efforts properly to dispose of the causes which constantly crowd its docket.” Furness, Withy & Co. v. Yang-Tsze Ins. Assn., 242 U. S. 430, 434.

See Dick v. New York Life Ins. Co., 359 U. S. 437, 447 (dissenting opinion).

Rules of the Supreme Court of the United States, Rule 19.

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387.

Id., at 393.