Gibson v. Lockheed Aircraft Service, Inc.

PETITIONER:Gibson
RESPONDENT:Lockheed Aircraft Service, Inc.
LOCATION:

DOCKET NO.: 42
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

ARGUED: Dec 05, 1955 / Dec 06, 1955
DECIDED: Feb 27, 1956

Facts of the case

Question

  • Oral Argument – December 05, 1955
  • Audio Transcription for Oral Argument – December 05, 1955 in Gibson v. Lockheed Aircraft Service, Inc.

    Audio Transcription for Oral Argument – December 06, 1955 in Gibson v. Lockheed Aircraft Service, Inc.

    Earl Warren:

    Number 42, Victor D. Gibson versus Lockheed Aircraft Service, Incorporated.

    Mr. Spillers, you may continue your argument.

    G. C. Spillers, Jr.:

    To pick out the thread where we left out yesterday, we have here Rule 51 which provides that before the jury retires, if the Court doesn’t give a requested instruction, you must tell him that you’re objecting to that particular instruction and giving the basis of the grounds, thereof.

    We have here a situation where the respondent, after the Court had refused, 19 requested instructions, presented by it, merely made this objection.

    I have no exceptions, except those which are covered by my requested instructions which were refused.

    Now, incidentally, the respondent in this case has never complained about the charge actually given by the trial court or has never contended that it was any wise, erroneous.

    Felix Frankfurter:

    When was the request admitted?

    G. C. Spillers, Jr.:

    If Your Honor please, I don’t actually know.

    I’ll say this that the first time —

    Felix Frankfurter:

    The record — the record shows.

    G. C. Spillers, Jr.:

    The record does not show when they were submitted.

    Felix Frankfurter:

    Well, the record shows, they’re dated October 2.

    G. C. Spillers, Jr.:

    Well, they were dated on the date of — I couldn’t say with — I’m sure they were submitted before the instructions were given.

    Felix Frankfurter:

    Before the instructions were given?

    G. C. Spillers, Jr.:

    Yes, sir.

    And after the evidence was in.

    Felix Frankfurter:

    There’s no doubt about that, is there?

    G. C. Spillers, Jr.:

    No sir.

    We never heard about the instructions until the Court announced that they had been requested he would give three of them at the close of his original charge.

    That’s the first time we ever heard about the instruction.

    Felix Frankfurter:

    Did the judge have before you —

    G. C. Spillers, Jr.:

    Yes, sir.

    Felix Frankfurter:

    — the request, specifically stated item by item.

    G. C. Spillers, Jr.:

    Yes, sir.

    Felix Frankfurter:

    And he denied it.

    G. C. Spillers, Jr.:

    Yes, sir.

    Felix Frankfurter:

    Before the jury was dismissed.

    G. C. Spillers, Jr.:

    Yes sir, except he gave three out of the 22.

    Felix Frankfurter:

    What I mean he chose it.

    G. C. Spillers, Jr.:

    Yes, sir.

    G. C. Spillers, Jr.:

    Originally, he had refused all of them, but on his own motion, after giving his original charge, reconsidered.

    And on his own motion gave three of them.

    Felix Frankfurter:

    So, it’s accurate of the state that he considered all the requests that he declined.

    G. C. Spillers, Jr.:

    It’s accurate to state that he at least read them.

    We’ll assume that’s —

    Felix Frankfurter:

    They could, presumably —

    G. C. Spillers, Jr.:

    Yes, sir.

    Felix Frankfurter:

    — pass judgment on that.

    G. C. Spillers, Jr.:

    Yes, sir.

    Now, in order to understand the problem presented here, which I believe amounts to this, either Rule 51 is a rule of substantial law, and it has a substantial meaning, or it’s a mere technicality.

    Now, if it’s a mere technicality, then, of course, it would not be a — a matter of grave concern to anyone whether or not, the Court’s applied Rule 51 or disregarded it through one guise or another.

    In order to understand the rule, I’d like to take the Court back and discuss its origin and the cases of this Court bearing on the question.

    And then, give our reasons as to why we believe the rule to be a rule of substance and not a mere technicality.

    Felix Frankfurter:

    Was the rule an innovating rule or a formulating rule?

    G. C. Spillers, Jr.:

    I don’t quite —

    Felix Frankfurter:

    And even — was this a — a creational, an inventing of the rules and for many adopted by this Court?

    Or did it merely put the new words under common practice and recognized practices and observed practice through the decision of this Court.

    G. C. Spillers, Jr.:

    It’s always been the rule of this Court until formalized by Rule 51, as far as I have been able to ascertain.

    Now then, the first case, there are only two cases of this Court that bear directly on the point here involved.

    In other words, that are directly on the point.

    The first case is Beaver versus Taylor in 93 U.S.

    In that case, the complaining party submitted eight requested instructions of the trial court, and the trial court refused them.

    He made a bear objection to the Court’s refusal to give his eight requested instructions, just said he objected.

    He also then accepted to the charge in this manner.

    He accepted to the charge, to so much of the charge of the Court as given, as was in conflict with, and variant from the several propositions presented by him.

    On appeal, this Court held as it’s already been suggested yesterday by Mr. Justice Minton that the entire series was presented as one request.

    And if anyone proposition was unsound, an exception to a refusal to charge the series cannot be maintained.

    All of the propositions presented were not sound, notably the fifth request should not have been complied with.

    In this case, the instant case, the court below held that 15 of the requested instructions were — were properly refused by the trial court.

    In addition, this Court said in the Beaver versus Taylor case, one object of an exception is to call the attention of the Circuit Judge to a precise point as to which it is supposed to be at error.

    G. C. Spillers, Jr.:

    And he may then there consider it and give a new and different instruction to the jury if in his judgment, it should be proper to do so.

    An exception on the form we’re considering, entirely defeats that object.

    Now, the second case is Jones versus East Tennessee Railway Company, which is a case of 157 U.S.cited in the brief.

    In that case, there was a request for six instructions and the Court gave two of them and denied the rest.

    And then a bill of exceptions, the complaining party, merely accepted the Court’s refusal to give its requested instructions as in the instant case.

    And this Court, citing the Beaver versus Taylor case said, “This exception was insufficient.”

    Now, then, those were the only two cases dealing with refusal of the trial court to give requested instructions.

    There are a number of cases by this Court which had to do with the taking of exceptions and making objections to the charge actually given.

    And to summarize what the Court has said rather than go into each of these cases, it appears from a study of the previous opinions of this Court enacted before Rule 51.

    I mean —

    Harold Burton:

    What was the last case of this Court that you’ve cited there?

    G. C. Spillers, Jr.:

    The last case, indirectly in point, we say is Jones versus East Tennessee V.& G.Railway Company, 157 U.S., 682.

    In summary of the position, that this Court has taken and with respect to the rule before its actual promulgation as Rule 51, it appears first.

    That in situations where no objection whatever is made to the charge or to failure give requested instructions, it’s held that the complaint will not be considered on appeal.

    Secondly, where there is an objection made to the charge given, or to the Court’s failure to give a requested charge, that likewise, the complaint will not be considered because you haven’t pointed out distinctly to the judge what the ground of the complaint is.

    And finally, there is a case of this Court that holds that after the jury has retired it’s too late to make any objection whatsoever to any and either one of the circumstances.

    Now, there is one other case which I will discuss at more length later.

    I just want to touch on it at this moment to say this.

    That’s the — the case of Atkinson versus United States.

    In that case, the Court — this Court held that it had inherent power in an extraordinary case and under unusual circumstances to consider a charge or requested charge, even though there had been no proper objection made.

    That is the only —

    William J. Brennan, Jr.:

    Is that — is that case in your brief?

    G. C. Spillers, Jr.:

    Yes, sir, it’s in my brief.

    Well, Your Honor —

    Felix Frankfurter:

    Is that the that’s been merged here, 297?

    G. C. Spillers, Jr.:

    It’s in 297 U.S., an opinion by Mr. Justice Stone.

    Felix Frankfurter:

    Was that after the rule?

    G. C. Spillers, Jr.:

    No, sir.

    That was just before the rule.

    Now, there’s only been one case —

    Felix Frankfurter:

    And by the which the rule used the language, used to — specifically, whatever (Inaudible)

    G. C. Spillers, Jr.:

    All right, sir.

    Now, this Rule 51 has only been before this Court on one occasion, and that’s the case of Weade versus Dichmann, Wright & Pugh, 337 U.S.

    In that case, it was a case where, at the close of the Court’s instructions, counsel stated, “We have no exceptions to the Court’s charge.”

    Then when the case got up here before this Court, they attempted to raise the question of the correctness of the instructions, and this Court held that under these circumstances error cannot be urged as to this point.”

    Felix Frankfurter:

    Well, that’s (Inaudible)

    G. C. Spillers, Jr.:

    No, this is — this is 337 U.S., Your Honor, Weade versus Dichmann, Wright & Pugh.

    And that’s the only case where Rule 51 has actually been previously considered by this Court as such.

    Now then, as to the reason for this rule, in the first place, this is a rule promulgated under order of this Court.

    It has the force of law.

    It’s an important rule because it’s likely to have application in every jury trial in the District Courts.

    The purpose of the rule is to ensure a speedy and correct determination of all issues before the trial court.

    And one point which I desire to stress very strongly is –is the fact that, it is to give the trial judge a last minute check on the correctness of his instructions and an opportunity to correct them if they’re wrong.

    It’s that last minute feature, I think, that cannot be over emphasized.

    Now, there is one distinction I want to make that I haven’t seen in the cases.

    But it occurs to me it’s very important.

    Most of the cases talk about the rule as being whether the — I mean, the — to request instruction as to whether the corrected — corrected — the requested instruction is correct as a matter of law.

    Oftentimes, though, in cases, the requested instruction, as a matter of abstract law, is simplicity personified and can cause the trial judge no difficulty, whatsoever.

    The real question that would be troubling the judge, in that kind of a case, is not whether or not, as an abstract point of law, the instruction is legally correct.

    It’s a question of, whether or not, the evidence justifies the giving of the instruction.

    It’s not enough to plead the defense and have an instruction requested upon that defense.

    It’s necessary for the judge to determine that evidence, if believed, would bear out that defense.

    If there is no evidence, the instruction must be properly refused.

    Now we submit, that in any case —

    Felix Frankfurter:

    No — no Court of Appeals thought ever to reverse, to cause an abstract question or abstract request or request for the abstract proposition of law, no matter how that an abstract and wasn’t given.

    That doesn’t help the jury in the cycle to be part (Inaudible)

    G. C. Spillers, Jr.:

    Yes, sir.

    I — I agree with Your Honor.

    But what I’m pointing out is this.

    That in the trial of any lawsuit in the District Courts, nobody knows the facts better than the attorneys.

    G. C. Spillers, Jr.:

    They’ve had a chance to prepare their own case often for months.

    By discovery procedures, they have an opportunity to ascertain a large amount of the evidence which will be offered by their opponents at the trial.

    As the trial proceeds —

    Felix Frankfurter:

    But their request is to deny it here of an abstract or legal basis.

    G. C. Spillers, Jr.:

    Yes, sir.

    That’s our contention.

    Felix Frankfurter:

    And I suppose you’ll also argue of your entitlement, that in any event, it should have been given.

    G. C. Spillers, Jr.:

    We —

    Felix Frankfurter:

    The contract couldn’t been inclusive.

    The (Inaudible)

    G. C. Spillers, Jr.:

    Well, perhaps that’s correct.

    We — we take the position first that the Court evaded Rule 51 by even considering.

    Felix Frankfurter:

    Yes.

    I understand that.

    But what if the lawyer doesn’t?

    G. C. Spillers, Jr.:

    In — in this case, since the lawyer knows the — the facts of the case and the evidence which is unfolded before his eager eyes, during the trial of the case, he will know more about the facts and the issues than the trial judge could possibly ever know.

    Now, a trial judge, in the trial of a case, may overlook an — an important or pertinent matter of evidence.

    It may slip his mind.

    And although at the end of the case, he maybe firmly convinced that he has a firm grasp upon the evidence, he may actually have a misconception of it, and what counsel should do.

    Stanley Reed:

    What do you think that lawyers should do here under the rule (Inaudible)

    G. C. Spillers, Jr.:

    What he should’ve done, would have taken up the — the request that he was sincerely — I mean, the — the request which he sincerely thought should have been given.

    And in an earnest manner, and in a manner which would leave the judge to believe that he’s serious about the matter of requested of instructions.

    Tell the judge — the — the judge what this request instruction is.

    And give to him a summary of the necessary evidence, briefly, which he says occurred in the trial, which would justify the giving of that instruction.

    Felix Frankfurter:

    Although it — it —

    He might have that even he offered the instruction in here, the judge appointed for if he is going to recover that.

    G. C. Spillers, Jr.:

    Yes.

    (Inaudible)

    G. C. Spillers, Jr.:

    No.

    Here’s the — here’s the point I’m trying to — to make.

    G. C. Spillers, Jr.:

    This instruction, most of them were very simple as far as the matter of law was concerned.

    It was a question really, as to whether they should — a few of them were erroneous as a matter of law and the court below so held.

    But as to some of these, the Court said, should have been given.

    They were abstract questions, abstract legal instructions, because the facts didn’t justify the given.

    There wasn’t any evidence there to support the giving of those instructions.

    And that — well, if there had been any, it was the duty of counsel to go ahead and tell the judge.

    Tom C. Clark:

    Against the time that was offered them at that time?

    G. C. Spillers, Jr.:

    At the close of the evidence.

    I mean at the close of the judge’s instructions where he —

    Tom C. Clark:

    As to the fact is that right (Inaudible)

    G. C. Spillers, Jr.:

    Well, I don’t know that he ever had any discussion at all.

    The record is absolutely bare of any colloquy between the trial judge and counsel for respondent in respect to the propriety of any of the 22 requested instructions.

    Tom C. Clark:

    (Inaudible)

    G. C. Spillers, Jr.:

    Yes, sir.

    Tom C. Clark:

    The judge affirmed evidences and took one into consideration and when he gave the instructions to the jury he’s eliminating the 21.

    It is a matter of the record confusion.

    G. C. Spillers, Jr.:

    Well there were 22 —

    Tom C. Clark:

    Thus the lawyer (Inaudible)

    G. C. Spillers, Jr.:

    No.

    No, sir.

    That didn’t happen.

    What happened was, as far as the record is concerned, all we know is that the respondent handed the — a sheet of instructions to the trial judge.

    And the Court then endorsed refusals on them.

    Whether there was any explanation given to the trial judge, we can’t say.

    Hugo L. Black:

    That has to be (Inaudible)

    G. C. Spillers, Jr.:

    Given my opinion.

    Felix Frankfurter:

    Mr. Spillers, let’s — let us avoid the — the bias of the undesirability of abstraction with regards to these questions, and let’s be concrete about this, please.

    G. C. Spillers, Jr.:

    Yes.

    Felix Frankfurter:

    The — the requests which were not given which the Court of Appeals thought should have been given, related to the problem of contributory negligence, do they not?

    G. C. Spillers, Jr.:

    Three of them did Your Honor.

    Felix Frankfurter:

    Well, let’s see —

    G. C. Spillers, Jr.:

    Yes.

    Felix Frankfurter:

    — if some — if some request vital to this litigation were the — were not given and should — should have been given then the Court of Appeals was right.

    And that now is the setting exactly in this case.

    Is that true?

    Three of them is enough.

    One of them would have been enough, if it — if it — both is essential to the litigation.

    Namely, whether the defendant has contributory negligence, should have been submitted to the jury in view of the course of the trial.

    Is that a fair statement?

    G. C. Spillers, Jr.:

    I would —

    Felix Frankfurter:

    That’s what the request was directed to him.

    That’s all I’m saying.

    G. C. Spillers, Jr.:

    Yes, sir.

    Felix Frankfurter:

    Very well.

    Now, that issue, that concrete confidence was tended in the answer very specifically.

    And that was the subject matter of extended examination and cross-examination at the trial.

    It wasn’t as though the request injected some new abstract legal questions.

    That’s what the litigation was about.

    That’s what the fight was about.

    And one reads this record.

    So, it wasn’t something new to the request, I suppose.

    These request put into words what was the issue throughout the trial.

    G. C. Spillers, Jr.:

    That — that is correct, Your Honor, as far as it goes.

    But nevertheless, when — when it came to a question of giving these supposed defenses, it was up to the Court to determine with the assistance of counsel, whether or not, the evidence justified the giving of the defense.

    Felix Frankfurter:

    But the question is, whether you did not have sufficient notice, as a matter of — of the discretionary judgment that belongs to the Court of Appeals and not to us.

    Whether there wasn’t sufficient notice given to the Court, to the District Court, without saying, to tell this man these words, I object, because you didn’t give the request.

    G. C. Spillers, Jr.:

    I appreciate Your Honor’s point.

    However, it’s our position here still that giving and making the — not a formal objection, but an actual objection in substance, rather form, at the close of the instruction, still has the last minute effect of allowing the judge to reconsider, which is something that’s very important.

    Felix Frankfurter:

    I — I understand how in our life we can appreciate the way to what you’re saying.

    But we ought not to discuss this question in abstract or on its own for a practical thing and as though you must do some words when you’re out of Court, one way or the other.

    Felix Frankfurter:

    That is what the rules are for.

    And the Rule 46 explicitly prevented from being so.

    Not 51, but 51 and 22.

    G. C. Spillers, Jr.:

    I’ll come to that in a moment, Your Honor, discussing the — whether or not they should be construed together.

    Assuming that the — your adversary had gotten up to the end of the judges charge and — and on to the formula I object to your not having given request so and so — so.

    That would suffice your judgment?

    G. C. Spillers, Jr.:

    If you mean merely saying I — of — instead of saying I object to the failure to give all of these charges, said you numbered them said, the instruction number 5, 6 ,7, I wouldn’t see any difference in that.

    That’s merely formal and technically adjustment.

    If you’ve just said I’d object to your giving or refusing to give the question number so and so, took and we chopped separately, would that that have sufficed?

    G. C. Spillers, Jr.:

    I would say that’s merely a formal objection and not an objection of substance as required by Rule 51.

    I think it —

    Felix Frankfurter:

    But must be argued all over again?

    Must we argue a request?

    I’ve known some of the ablest trial judges who refused arguments, who refuse to listen to arguments.

    That it’s a bore to request because they said if it requires argument and it isn’t sufficiently clear.

    G. C. Spillers, Jr.:

    I don’t — of course, the rules provide that if the judge won’t allow you to make your objection, you automatically have an exception.

    But, I don’t — it’s not necessary to make an extended argument, just a brief statement.

    Felix Frankfurter:

    Not much but — but the statement, is (Inaudible) put in the request that was submitted.

    That’s what the request for.

    And that’s why the rules require they’d be given in advance of the judge’s charge.

    As against the old method, the careless, sloppy method, whereby a trial judge made the charge, may counter that up and said I want Your Honor to charge this and Your Honor to charge that.

    That’s all how it was properly done.

    Because that was a nice word concluding the jury and rubbing out the impression the trial judge had made upon their mind.

    And now, the rules require that in good times, you submit your request which supposedly, tell the judge what you want, requires no elucidation thereafter.

    G. C. Spillers, Jr.:

    It seems inescapable to me, however, that if the question about the instructions is not the propriety of — of instructions as a matter of law, but whether or not, the facts justify them, but nevertheless, counsel should be required to state briefly to the Court what those facts were that would have justified the giving of the instruction.

    To clarify the Court’s mind, that he may have forgotten.

    He may have overlooked something.

    He may feel competent, he knows all about the facts, but he may in fact not know.

    And if that’s not at the last possible minute, costly appeals might be avoided.

    Costly retrials as a result of appeals might be avoided.

    G. C. Spillers, Jr.:

    And in addition of that, the rule is simple.

    That anyone can understand it.

    And it only takes a few minutes to comply with it.

    It’s not an onerous test.

    And it’s in fairness to the trial judge.

    Now, if the rule isn’t applied, it will mean that lawyers can hand to the judge a batch of them, request the instructions, 22 in this case.

    It might have been 44.

    Make no explanation to him except to say these instructions are self-explanatory on their face.

    And then, if he doesn’t give them, then just sit back and on appeal, argue for the first time the propriety of giving those instructions when they should have been argued with propriety before the trial judge.

    Now then, let’s consider how Rule 51’s been — been treated by the Courts of Appeal.

    There are 14 cases that we’ve discovered where there was no objection made to the refusal of the trial court to give requested instructions.

    And in those — those instances, the appellate court applied Rule 51 and said, they wouldn’t consider, whether or not, the instruction should or should not have been given in the absence of a proper objection.

    In 70 cases, there was no objection made at all to the Court’s charge actually given.

    And on those cases, the courts below held Rule 51 applied and they wouldn’t consider the propriety of the instructions actually given in absence of a proper objection under Rule 51.

    There are four cases in which — which are in point with this case.

    Where a bare objection just said, “I object to the Court’s failure to give requested instructions occurred, and no grounds of the objection were stated.”

    And it was held that Rule 51 precluded the consideration of that complaint or those complaints.

    And likewise, in 24 cases, where there was just a bare objection with the Court’s charge as being erroneous, but without any grounds pointing out to the judge wherein the judge erred, it was held that Rule 51 applied.

    Now, that’s 112 cases.

    And there’s been a couple of since then, in which Rule 51 has been applied.

    Now, in contrast to that, we have a — a few cases.

    And there are very few where these loopholes had been found in Rule 51.

    And the rule, in effect, actually evade.

    The first is, one Court held that where a charge is self-explanatory on its face that it automatically constituted the requested charge.

    And likewise, an automatic objection of the failure of the trial court to give that.

    Secondly, it’s been held by some of the courts that there’s even an erroneous requested and charged.

    That the Court, if the erroneous charge is somewhat self-explanatory, that it, nevertheless, constitutes an — an objection to the charge actually given or in itself requires the trial judge to search around and give a proper instruction upon the same subject.

    Third, there’s the idea that Rule 46 and 51 should be construed together, and that merely handing the trial judge your written requested instructions makes known to him the action which you desire the Court to take.

    And under Rule 46, automatically preserves an objection on appeal, the effect of which is to utterly nullify Rule 51.

    And finally, there is the theory advanced by some of the cases, that the Court on — or the appellate courts have an inherent power in an extraordinary case to consider the matter of instructions even in the absence of a proper objection under Rule 51.

    G. C. Spillers, Jr.:

    Now then, these points are well exemplified in the two cases cited by the Court of Appeals below in the instant case.

    They didn’t discuss Rule 51.

    They merely denied the motion for a — a petition for rehearing.

    And in a footnote, cited two cases without comment.

    The first of these was a prior decision of the Fifth Circuit itself, Lumbermens Mutual Casualty Company versus 2603.

    Now, in that case, it appeared that the defendant made only this objection.

    He said defendant accepts to the failure of the Court to charge defendants requested charge Number 6, which is about the same thing that happened in the instant case.

    And for charging Numbers 2, 3, 4, 8, 9, 10, 11, and 14 of the plaintiff’s special requested charges.

    In other words, he objected to the failure of the Court to give his requested instruction and objected to the Court’s charge as actually given.

    The Court first noted and this appeared to be an insufficient objection under Rule 51.

    But then it said this, “We think in view the full statement of the defendants requested instruction Number 6, which had been presented to the Court that these objections sufficiently complied with the requirements of Rule 51.”

    In other words, the requested instruction, on its face, was so clear that the Court had constituted a requested instruction and an automatic objection for the failure of the trial court to give it.

    Now —

    Did you make — did you make this point in the original argument before the Court of Appeals?

    G. C. Spillers, Jr.:

    The one that I’m making now?

    No.

    Did you object to — did you raise the Rule 51 point and object to consideration of this request to charge by the Court of Appeals?

    Or did it come up for the first time on your application for rehearing?

    G. C. Spillers, Jr.:

    It came up for the first time on rehearing, Your Honor.

    Felix Frankfurter:

    (Inaudible)

    G. C. Spillers, Jr.:

    No, sir.

    I didn’t try it here.

    Felix Frankfurter:

    (Inaudible)

    G. C. Spillers, Jr.:

    Well, I helped my father out.

    Felix Frankfurter:

    On this?

    G. C. Spillers, Jr.:

    Yes, sir.

    Sir?

    Felix Frankfurter:

    I beg your pardon?

    G. C. Spillers, Jr.:

    I say, my father tried the case on.

    He’s — had been interested only on the page.

    G. C. Spillers, Jr.:

    Now, the Court then, in this (Inaudible) case, proceeded to examine, defendants requested instruction Number 6, and then held that it was erroneous and properly refused by the trial court.

    As to the objections to the charge given, saying that two, three, four, eight, what not should’ve been given.

    The Court said, this has — this has absolutely failed to comply with Rule 51.

    And therefore, the objections to the charge given will not be considered.

    Although, the Fifth Circuit admitted that two of those requests — two of the instructions actually given by the trial court were erroneous.

    So, I don’t see that this case is much consolation to the respondent here.

    Now, secondly, the court below decided Montgomery versus Virginia Stage Lines, which is a case arising in the Court of Appeals from the District of Columbia.

    That was an interesting case.

    What occurred there was, the plaintiff woman, a passenger on an interstate bus, mounted the bus with heavy luggage.

    She took it back to her sit and tried to put it up on the top rack above her head over the objections of the driver.

    She rode along for a while and the thing finally fell off on her head and injured her.

    Fairly clear case of contributory negligence.

    There was a regulation of the Interstate Commerce Commission which provided that interstate carriers have to so stow baggage that it won’t fall off and hurt the passengers.

    The plaintiff requested an instruction along that line, but apparently, it was so inaptly drawn that it was erroneous.

    The trial court refused to give it.

    And there was no exception taken either to the charge or to the failure to give the requested instruction.

    On appeal, the case was reversed, the Court held first.

    Yet, whereas here, after conceding that the requested instructions was erroneous, yet, whereas here, the meaning of the request is reasonably apparent, and that subject matter is important and not sufficiently covered by the general charge.

    A court would not be justified in ignoring the request merely because it’s susceptible to such interpretation as to make its proposition not absolutely accurate.

    In other words, if you give the Court an erroneous requested instruction, it’s up to the trial court then to figure out what a proper instruction would be and given.

    The Court held further that Rule 51 and —

    Felix Frankfurter:

    That happens to be the burden to put on the District Court if it objects?

    Do you think it’s too heavy a burden in a (Inaudible) read your proper or proper request, I still think it’s a heavy a burden on you.

    G. C. Spillers, Jr.:

    Well, I don’t —

    Felix Frankfurter:

    To agree to a proper request that indeed that it contradicted a — a charge or a failure to make a charge, in this charge of the jury.

    G. C. Spillers, Jr.:

    I agree it’s a heavier burden, Your Honor.

    Felix Frankfurter:

    And yet — and yet the Court of Appeals got to say and went on that ground with this Court.

    G. C. Spillers, Jr.:

    I don’t agree with the — his — in the reason.

    Felix Frankfurter:

    All I’m —

    G. C. Spillers, Jr.:

    And it is —

    Felix Frankfurter:

    — all I’m suggesting is that — that the decision of that Court they did so, it connection with Rule 46 by saying a portion of the field and therefore —

    G. C. Spillers, Jr.:

    Yes, sir.

    Now, it takes us to the question of Rule 46.

    In this case, it was held that Rule 46 and 51 that should —

    Felix Frankfurter:

    (Inaudible) it was erroneous to decide on it.

    G. C. Spillers, Jr.:

    Yes, sir.

    Felix Frankfurter:

    Do you think that — that the the decision of the Court, let’s say, it was clearly let’s say that gave the district judge notice what they were talking about?

    And you must not include the explicit words to the explicit language, presumably federal judges are then are competent in the responsibility and come in courage to come in there.

    G. C. Spillers, Jr.:

    Perhaps that was his — in fact —

    Felix Frankfurter:

    (Inaudible)

    G. C. Spillers, Jr.:

    — perhaps that was in the back of his mind generally.

    Felix Frankfurter:

    Well that’s not an unfair assumption to make it as this establish exactly that —

    G. C. Spillers, Jr.:

    No, sir.

    But I — I have found that trial judges and — and even federal district judges are not infallible, and I think that —

    Felix Frankfurter:

    That a brain tickles nobody.

    G. C. Spillers, Jr.:

    [Laughs]

    Now, as far as Rule 46 and 51 are concerned, the rationale of the whole argument appears to be this.

    That under Rule 46, which provides formal exceptions to rulings or orders of the Court are unnecessary.

    Where at the time, the order, the ruling or order of the Court is made or sought, it’s made known to the Court the action which the party desires the Court to take.

    In other words, you can hand the judge a — a whole wrap of instructions, and at that point, you’ve done everything that’s not — that appears at page 12 of petitioner’s brief, the Rule 46.

    In other words, by merely handing the trial judge, a requested instruction you make known to him the action you desire him to take.

    It’s not necessary for you to make any explanation to him whatsoever.

    If he fails to give it and the instruction should have been given, you have an automatic exception, although, you have been of no assistance to the trial court in that connection.

    I can see that at least anybody can do, as far as requested instruction is concerned is to hand them to the trial judge.

    Now, if that’s sufficient under Rule 46, to preserve an objection, for the Court’s failure to give that instruction, then Rule 51 is a nullity.

    It’s a case of a general rule, governing over a specific rule which is contrary to all known statutory construction.

    Earl Warren:

    What is the general practice in your circuit, Mr. Spillers, on — on that subject?

    G. C. Spillers, Jr.:

    Do you mean on taking objections?

    Earl Warren:

    Yes.

    G. C. Spillers, Jr.:

    In the federal court?

    Earl Warren:

    Yes.

    G. C. Spillers, Jr.:

    They take them at length, Your Honor.

    They set out — that they — they say, I object to the certain subject, or certain instruction.

    And then you give the grounds of it.

    And the Tenth Circuit is seeing right down the line on that.

    (Inaudible)

    G. C. Spillers, Jr.:

    Well, he made what would amount to just a mere technical exception.

    And — in other words, he expressed no more than his displeasure, at the trial judge’s action, and with, of course, avail through it, that maybe will appeal the case and raise the question on appeal.

    But it was insistence of the trial judge, by pointing out why the instructions should have been given.

    And Rule 51 does say that you must state the grounds of your objection.

    Now finally, in the Montgomery case, the Court suggested that it had inherent power in an extraordinary case to review the request — the requested instructions and the instructions given on its own motion in the absence of a proper objection under Rule 51.

    Now, which of these reasons the Court employed to reverse the case or whether it decided to use them all is not clear from the opinion.

    But, by way of illustration of the importance of Rule 51, I think this case is a good example for this reason.

    I previously mentioned that there was a regulation of Interstate Commerce Commission that required public carriers to so stow away baggage as not to fall on passengers.

    But Court of Appeals for the District of Columbia in that Montgomery case admitted, in its opinion, that the matter of this Interstate Commerce Regulation — Commission Regulation had never been called to the attention of the trial judge.

    In other words, as far as we can see, the only injustice suffered by anybody in that Montgomery case was the trial judge who was confronted for the first time on appeal would (Inaudible) of Interstate Commerce Commission about which he probably was not aware.

    It’s not only a case of the Court in that in effect being charged with judicial notice of it, to mean, having to take judicial notice of it.

    He was charged with judicial notice of a regulation of a quasi-judicial body.

    And I dare say that there — there is no one within the hearing of my voice that could safely say that they know all these multifarious regulations by all of the governmental bodies.

    It’s a perfect example of the case where had counsel called on the attention as required by Rule 51 of the trial judge of the fact that this interstate commerce regulation, he could have been granted relief.

    Now then, one final point.

    On the question of whether or not the Courts have —

    Felix Frankfurter:

    The other side of it is — The other side of it is that — that I’m not to prevent something to present the theories as a result of this, there’s some responsibility under the trial judge particularly in the federal court with all its authority in ruling, indicting the jury on facts despite of the hierarchy to — not to dismiss a thing out of hand and ask counsel, why do you make this?

    What — well this is reason is flawed.

    And would then — maybe the counsel didn’t know of this regulation.

    This was the day before the federal registry.

    G. C. Spillers, Jr.:

    I — I suspect that that was actually the truth, and they picked it up and raised it for the first time on appeal.

    In contrary, to the whole setup of our judicial system where all questions of law in fact will be first be tried in the trial court, and not raised for the first time in an appellate court.

    Now, as far as —

    Felix Frankfurter:

    Mr. Spillers, let me ask you — we had a groping in that day of what was plain and reinvent the (Inaudible) that was all I know about the case, is that it was plain enough if there was any alert and in fact the responsible judge would — wouldn’t just say “No, I won’t give that.

    Felix Frankfurter:

    He — he stirred the problem.

    There’s some no responsibility on the district judge not disposing of this out of hand, without finding out what’s behind that inept formulation.

    G. C. Spillers, Jr.:

    Well, that puts quite a burden on a trial judge.

    It’s hard enough often to decide whether a proper instruction should’ve been given, much less an erroneous clear — clearly erroneous one, than if that should be refused, what would be the proper instruction?

    Felix Frankfurter:

    And on the other hand that the — the upside, the other way around it, if the case would be lost on — on what (Inaudible) plainly much is the fault of lawyers on technicality.

    G. C. Spillers, Jr.:

    Yes, sir.

    Felix Frankfurter:

    After all the point was raised, and because they didn’t raise them in the proper way, that was true in the old days, when — -when (Inaudible) every good hand was very willing to bid for use.

    If you don’t use that word, you’re out.

    G. C. Spillers, Jr.:

    Well, I — I think —

    Felix Frankfurter:

    That’s in the amount of (Inaudible) Court, legal procedure to implement your fair so as to include the litigant.

    G. C. Spillers, Jr.:

    Well as, Justice — Mr. Justice Cardozo once said, we’ve outgrown primitive formalism of the law when the word was the sovereign talisman and any slip would fail.

    But that was back in the days where all you had to say was, “I object.”

    But Rule 51 is the modern theory.

    It’s a rule of substance.

    It doesn’t want anybody just to say, ‘I object.”

    All it requires is that if you have an objection you tell the judge what you’re objecting about and why.

    Felix Frankfurter:

    The matter of substance is what you brought to the attention of the mind of the judge.

    That’s your matter of substance.

    If you haven’t, want anything to his mind, of course, not in his logic area.

    But if you had brought something to his mind and especially what have you brought to his mind and you think he wasn’t put on notice.

    And the manner of the formal words you put him on notice aren’t all on the record as I understand.

    G. C. Spillers, Jr.:

    Yes, sir.

    But on the other hand, to assume that matters are incidentally brought up during the trial that may or may not put the judge on notice —

    Felix Frankfurter:

    That’s right.

    G. C. Spillers, Jr.:

    — whether he actually was put on notice is a different question and, of course, this rule is simple and if it’s strictly enforced and applied, it’s easy to comply with and there won’t ever be any question about it.

    But otherwise, this Court is going to have to go back and search the entire record to see whether or not colloquies occurred between counsel in respect to a certain point of law as far back as a pretrial conference.

    Felix Frankfurter:

    That’s why I want you to have if you want the course of this litigation was that this record disclosed.

    The issue in its the request was denied improperly as the Court of Appeals found.

    For the question went to the heart of the litigation, namely, the contributory negligence of the plaintiff.

    That was the heart of the controversy.

    Felix Frankfurter:

    That’s what the answers tended as the issue — and that’s for — and that was the burden for you.

    Reading this record, there are pages and pages of pleadings with that act you have the same (Inaudible) getting suits and they’re getting suits Congress was with the lower court arbitrary primitively, for such a negligence in contributory nature — contributory negligence.

    G. C. Spillers, Jr.:

    Well —

    Felix Frankfurter:

    It isn’t just there’s been non of the — in other words, if — if you are right, that this was an incidental matter, but I don’t think it was incidental, it’s essential.

    G. C. Spillers, Jr.:

    Well, of course, I might answer, Your Honor saying this, that the Court gave many instructions on contributory negligence and the instructions which he actually gave here.

    Hugo L. Black:

    But what do you say about that?

    G. C. Spillers, Jr.:

    I think there are contributory —

    Hugo L. Black:

    You haven’t — you haven’t said that yet.

    I — I would.

    G. C. Spillers, Jr.:

    Yes.

    Oh, yes, sir.

    Hugo L. Black:

    — that I can see what you said about that.

    G. C. Spillers, Jr.:

    The Court gave, in our opinion, proper instructions on contributory negligence on the acts of contributory negligence which were supported by the issues and the evidence.

    Felix Frankfurter:

    The whole —

    G. C. Spillers, Jr.:

    He didn’t —

    Felix Frankfurter:

    — context was whether the request which the defendants asked, or a request considerably and you in the light of the evidence, and while one taken out of the charge.

    G. C. Spillers, Jr.:

    That’s right.

    Hugo L. Black:

    Well, are you taking your position that the jury was properly instructed on contributory negligence?

    G. C. Spillers, Jr.:

    Yes, sir, on all the issues that the evidence support.

    Hugo L. Black:

    And that even if these had been given, they were to have been mere interpreted that the — the jury was properly instructed on that subject?

    G. C. Spillers, Jr.:

    Well, I can’t go over all of them but let me take one case —

    Hugo L. Black:

    But is that your position?

    G. C. Spillers, Jr.:

    Yes, sir.

    For example, I’ll give you one example.

    There was — there was a request to instructions to the effect of whether or not, the plaintiff on the occasion and question failed to exercise ordinary care in attempting a landing with his wing flaps up.

    And that such failure was the approximate cause of the accident.

    And that if you find that your verdict should be to the defendant.

    Now, the Court instructed the jury, that one of the main issues that will be called upon to determine of whether or not Gibson’s injuries, resulted from negligent reconditioning of the aircraft by Lockheed, or whether due to poor or improper flying of the plaintiff at the time of making a landing in Carswell field.

    He further instructed the jury that it was a contention of Lockheed that Gibson’s injuries were due to the negligence of the plaintiff himself, in the manner of his flying, and attempted landing at Carswell field.

    In that he made no effort to estimate the proper and necessary speed to safely affect the landing in question.

    G. C. Spillers, Jr.:

    And finally, the Court told the jury, that if it found from the evidence, that the crash resulted from Gibson’s miscalculation of his landing approach that the plaintiff couldn’t recover.

    So I say it was amply covered by the instructions in addition.

    Felix Frankfurter:

    Well, now —

    G. C. Spillers, Jr.:

    Of course, there was no evidence that the flaps had anything to do with the accident.

    Felix Frankfurter:

    You didn’t — you didn’t brief this part.

    You’re not — in your brief, has this Court granted the petitions unrestricted.

    In your brief — in your brief is sustained or reversed the judgment on the ground that in any event the requested charge looked referring to these charges were not requested, were not given more properly if we get to it.

    You don’t — don’t think that in your brief, do you?

    G. C. Spillers, Jr.:

    Well, on the plaintiff, the thing which we discussed these four instructions between pages 26 to 33 of our brief, and we point out that the Court of Appeals below erred in holding that their appeal’s for the trial courts to give defendants requested instructions and so on and so on.

    Felix Frankfurter:

    Then you do and I’m wrong.

    You do (Voice Overlap) —

    G. C. Spillers, Jr.:

    Constituted a reversible error

    Felix Frankfurter:

    All right.

    G. C. Spillers, Jr.:

    Because they were properly refused by the counsel.

    Felix Frankfurter:

    I should say that.

    G. C. Spillers, Jr.:

    And we set out all the evidence and our opponents in this case have added nothing to what we’ve said in these pages on those particular instructions.

    Felix Frankfurter:

    You’re right about that.

    And we don’t get to the point, do we?

    G. C. Spillers, Jr.:

    Well, I think it would be a good opportunity because of the confusion that if you consider it since it’s up here because I think it really is an important thing, and there’s a quite of conflict in the courts below.

    There are minority of cases that —

    Hugo L. Black:

    Well, are you rejecting the suggestion that possibly that the case might be decided on the other point?

    G. C. Spillers, Jr.:

    No, sir.

    I’m just — I’d like to emphasize on both the points, sir, if Your Honor, please.

    Felix Frankfurter:

    I’m suggesting the conflict is very much less than your brief indicates.

    This one goes into the particularity of the indigent cases and that if I may suggest this for myself it’s very bad for this Court to lay down fixed rules for the account of the trial.

    Mr. Spillers, did you, one of the request of your adversary that’s submitted?

    Did you file a memorandum at the trial court in our position and the request?

    G. C. Spillers, Jr.:

    If — it doesn’t appear as a matter of record, but — so the Court will understand.

    These request the instructions, so I’m informed, I’m not — I wasn’t there, were presented to the trial judge.

    We never got a copy of them, or even know if they have been presented, until after the instructions, that the Court has been given.

    G. C. Spillers, Jr.:

    And then he mentioned that he’d received the request and would give three of them.

    And we still didn’t get a copy of it until they filed the petition for a writ for a new trial.

    You mean you don’t serve on your — on your practice down there?

    You don’t serve your adversary with the request that you’re making of the judge jury?

    G. C. Spillers, Jr.:

    Well, if the Court please.

    We don’t practice much in the Fifth Circuit.

    We do in the Tenth Circuit, but I don’t know what their practices down there, apparently are not.

    We, therefore, think that — oh, further point I want — would like to make.

    And that’s one — the question of whether or not a Court in an exceptional case should have the right to reverse a case on its own motion.

    And that’s the case I mentioned before of U.S.versus Atkinson 297 U.S., which is cited at page 38 of our brief.

    And that’s the — that was a case where no exception was taken to the charge.

    But then they complained on appeal and Judge — Mr. Justice Stone held the verdict of the jury will not ordinarily be set aside from error, not brought to the attention of the trial court.

    This practice is founded upon considerations of fairness to the Court and to the parties, and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.

    Then he made this statement, and I think this is the best exposition of when such an inherent power should be exercise to give it all and that’s it.

    In exceptional circumstances, especially in criminal cases, appellate courts in the public interest, 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 proceedings.

    Earl Warren:

    Mr. Cantey.

    Emory A. Cantey:

    May it please the Court.

    The question presented here is simply this.

    The petitioner urges upon this Honorable Court a construction of the rules of federal procedure that is rigid, inflexible, and undeviating.

    The respondent urges upon this Honorable Court a rule of construction that is in accord with the intent and purpose of the rule in order that justice might be done.

    We do not consider that this rule is a trap for the unwary.

    We do not consider that that is the purpose of its existence.

    The language of the rule is clear, but the intent and purpose of the rule is equally, is clear.Many cases in the lower court have written decisions on the intent and purpose of Rule 51.

    They all state the same thing.

    The purpose of Rule 51 is to preclude assignment of error that were not fairly and timely called to the attention of the trial judge.

    Now, this is a civil case of course, but with the indulgence of the Court I would say that it has some aspects of the criminal nature as far as I personally am concerned because we’re not trying with my client.

    The Fifth Circuit said that my client didn’t get a fair trial.

    I’m the one that’s being tried.

    I tried this case.

    Emory A. Cantey:

    And the argument of petitioner is, that I did not fairly and timely apprise the trial judge of the errors which I — that might be in his charge or of the instructions that I wanted him to make.

    The petitioner says that the rule is inflexible.

    You either comply with it or you’re lost.

    No matter that your client did not get justice, no matter that your client did not get a fair trial, but if you get caught in that trap, then, your client has no further recourse.

    Now, in urging upon this Honorable Court that they construe Rule 51 in accordance with its intention and purpose, at least I’m in good company.

    The intent and purpose of Rule 51 has been interpreted and written upon by the District of Columbia in the Virginia Stage case, in the Holland Tactics case, by the Second Circuit in Wright versus Farm Journal and the famous Sweeney v. United Kingdom.

    In the Third — Third Circuit in the case of Green versus Reddy, in the Fifth Circuit by the Case of Lumbermens versus Hutchins and the two Atlantic coastline cases.

    By the Sixth Circuit in Williams versus Powers, by the Seventh Circuit in Jacobs versus Fidelity & Deposit of Maryland, by the Eighth Circuit in (Inaudible), by the Ninth Circuit in Swiderski versus Moodenbaugh.

    None of the other Circuits have held otherwise.

    They are vacant.

    What I’m saying that those Circuits have construed Rule 51 by looking to the intent and purpose of the rule and have not when it became before them and says, “Rule 51 says this, that’s it, regardless of what may have happened at the trial.”

    Now, here is what happened at this trial.

    If we are going to construe this rule in accordance with its intent and purpose, which is the argument that I’m attempting to make.

    Here are the facts in the record that would show whether or not the trial judge in this case was fairly and timely advised of the matters which the Fifth Circuit said precluded my client from having obtained a fair trial in the trial court.

    In the first place, there were two main defenses as is obvious from the reading of our pleadings and as Mr. Justice Frankfurter has pointed out.

    There were specific acts of contributory negligence.

    And there was also pled the doctrine of volenti non fit injuria.

    In the first place at the pretrial conference, on the motion to strike, the doctrine of volenti was thoroughly discussed.

    And the Court refused at that time to strike it from the defendant’s answer.

    In the trial of the case, the evidence on contributory negligence in specific situations was testified too by many — many witnesses.

    One of the defenses which was pled was — had to do with the Texas law on custom.

    The — at the trial of the case, at the introduction of the evidence on custom, opposing counsel objected most vociferously.

    This is not in my brief and for that reason, I would like to indulge in through the course pointed out.

    On page 288 of the record, opposing counsel objected to evidence on custom.

    The Court said, “The objection seems to be well made, I will hear you, Mr. Cantey.”

    Your Honor this Company has been charged with performing their work carelessly had filed.

    In order to determine the standard of care to be used in this particular situation, it depends upon the standard of care of aircraft repairs and manufacturers and we are using the custom among the aircraft industry generally.

    I wish to show by this way, that the method used by this defendant were the same methods used by the air force and airline and aircraft manufacturers.

    Now, this is the point of law that says that it came up.

    I then stated then if that be negligence, according to law, they would have to prove that the whole examination was negligent.

    Emory A. Cantey:

    Now, I think that’s a misprint and means operation.

    As long as we were up to the custom in the aircraft industry.

    The Court then following that in the record, stated that he agreed with the opposing counsel and disagreed with me as to that proposition of law, but he would let it in as evidence.

    That is exactly one of the instructions that was requested by respondent, that proposition of law, that if it is a standard custom, you must prove the custom is negligent, which is the Texas law.

    And that is one of the instructions that was refused by the trial court and one of the instructions that the Fifth Circuit has said deprived my client of a fair trial.

    And before the case was fairly undertaken, the trial judge understood exactly the proposition of law that I was attempting to make.

    Now, —

    Hugo L. Black:

    May I ask you?

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    I — I’m —

    Emory A. Cantey:

    Mr. Justice Black.

    Hugo L. Black:

    — looking for that charge?

    Emory A. Cantey:

    Yes, sir.

    I would like to answer you on the charge (Voice Overlap) —

    Hugo L. Black:

    But I mean I’m looking at this charge —

    Emory A. Cantey:

    Yes.

    Hugo L. Black:

    — that you refer.

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    Is that the charge which you refer on page 383, cited in the — at footnote in Court’s opinion?

    That maybe — that — that struck me as a rather unusual charge there, that you didn’t ask for them to charge, that if the custom was the — if that was negligent but you asked them to charge as if they had discussed?

    Emory A. Cantey:

    Yes, sir.

    If the —

    Hugo L. Black:

    That unless they found, the custom was negligent.

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    Was it?

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    — negligence of a custom was under the party.

    Emory A. Cantey:

    Well, Your Honor that is based on a Supreme Court case in the State of Texas followed by a subsequent case.

    There are some arguments in the brief between counsel on it.

    There was then a third case the Compress versus Whittington case which is cited by my Brother here, in which he said it was overruled.

    Emory A. Cantey:

    But it was not overruled in my opinion.

    The latter case merely said that that doctrine of Taylor versus White, which a Texas Supreme Court case, should be confined to a particular situation which was, if the custom was universal and that fact was uncontradicted in the record then this doctrine applies.

    Now, we proved by many witnesses that the method employed by the defendant in this case was the same method.

    It’s a particular method called the “workbook method” that was used in the United States, Ireland, England, by all of the allied planes during World War II in their repair and maintenance basis and by the United States Government.

    Now, it’s — it’s our position that if they had offered one witness of any other aircraft repair in the world that used a higher standard of care, we would not have been entitled to this doctrine, this — this doctrinal —

    Hugo L. Black:

    How could a jury of (Inaudible) in that particular charge, how could a jury determine whether the custom was negligent?

    Now, they could determine whether — the — the first part of their charge whether the repair work in question was performed in accordance to standard custom.

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    But how then would they go further and decide whether that custom was negligent?

    Was there anything else in your charge which would have pulled them how to decide that issue?

    Emory A. Cantey:

    No, sir.

    I — perhaps I don’t understand you but I would think it would be this —

    Hugo L. Black:

    What it — what I meant was if — I don’t know whether you have it there now.

    But I’ve always — it’s always been a rule that charge must be complete in itself.

    It must not be the pleading or confusing or leave out a necessary element.

    Emory A. Cantey:

    Absolutely, sir.

    Hugo L. Black:

    And when you — this charge, which seem to me, would leave the jury up in the air as to when a custom was negligent or not are not negligent.

    Emory A. Cantey:

    Well, I think —

    Hugo L. Black:

    Particular charge.

    I —

    Emory A. Cantey:

    Perhaps so, but I — I think that the — the jury could find that, just the same as if the custom for the purpose of illustration had been the no inspection was had whatsoever.

    But we’d — we’d have come in there and say, “Well, that’s all right.

    Nobody else ever inspects airplanes.”

    Why didn’t the — the jury in applying the test of an ordinary prison man under the same and similar circumstances could have said, “Well, we think the custom is negligent.”

    Therefore, we could hold his defense.

    That I think is what this proposition of law is aimed at.

    Tom C. Clark:

    But you’ve made as a Coca-Cola case down there?

    Emory A. Cantey:

    The Coca-Cola case, sir?

    Tom C. Clark:

    I think if does (Inaudible)

    Emory A. Cantey:

    Yes, sir.

    Emory A. Cantey:

    And then you’ve let the (Inaudible)

    Tom C. Clark:

    What rule did the case then have?

    Emory A. Cantey:

    Sir?

    Tom C. Clark:

    What rule does that case might have?

    Emory A. Cantey:

    Well, if it’s a case that I’m — I think you referring to, Mr. Justice Clark, it’s the — the case on (Inaudible) which was pled by the plaintiff in this case in its original petition but which was stricken by the Court in a pre-trial conference and held by the trial court not to apply that the doctrine (Inaudible) did not apply in this situation and it was abandoned.

    It has never been raised in the appellate (Voice Overlap) —

    Tom C. Clark:

    I meant with reference as such.

    This case may seem (Inaudible)

    Emory A. Cantey:

    No.

    No, sir.

    I beg your pardon, Mr. Justice Clark.

    I’m not familiar with the Coca-Coal case on the custom.

    Tom C. Clark:

    I thought the Court held that the custom — proof of custom, of course, it was (Inaudible) but it wasn’t conclusive.

    Emory A. Cantey:

    Yes, sir.

    Now, I believe that it — that is correct.

    There is Coca-Cola case were they proved that they bottled their drinks just like everybody else and that that was a custom of bottling industry generally, beer companies, Coca-Cola companies, and the Court held that that was evidentiary.

    But that is, to get back to the proposition that I’ve just said and was referenced to Mr. Justice Black, it is limited.

    This old Taylor versus White Supreme Court case has now been limited to the particular situation.

    That is were you prove that that custom is at is universal and there is no testimony in the record denying it that there’s no — it stands uncontradicted in the record to see if — if they could put on any — any evidence.

    In this case, one — one witness, has said that if there was anybody in the world that you’ve been with a higher standard of care, our propositional law would have dropped out.

    We would not have been entitled to this because the Taylor versus White is limited to that.

    Earl Warren:

    Well, Mr. Cantey, as I read the record on page 288 and page 299, I don’t see that you ask this witness of what the custom was in the — in the industry.

    You say to the Court, “Your Honor, this company has been charged with performing their work carelessly (Inaudible)”

    Emory A. Cantey:

    Yes.

    Earl Warren:

    In order to determine the standard of care to be used in this particular situation, it depends upon the standard of — of aircraft repairs and manufactures and we are using the custom among the aircraft industry generally.

    I wish to show it by this witness that the methods used by this defendant were the same methods used by the air force and airlines and aircraft manufactures.

    Then your question, referring back just a few lines is this.

    And this is your own witness and employee of your own firm.

    Question “In view of your experience would you say that the operation that (Inaudible) for the repair and inspection of these airplanes, how did it compare with other methods used in the aircraft industry generally?”

    The answer is, “It is my honest belief that we have a maintenance setup there, a very high standard as compared with any other similar work that I have performed before.

    Earl Warren:

    Our help had experienced most of them in the jobs where we needed the experience and I think we had a well-organized maintenance crew there, Mr. Cantey.

    That is all, thank you.”

    Now, is that ask the custom that prevailed in the —

    Emory A. Cantey:

    No.

    Earl Warren:

    — in the industry?

    Emory A. Cantey:

    Mr. Chief Justice, that does not.

    But the record contains a lot of other testimonies that does.

    The three aircraft —

    Earl Warren:

    Well, that’s — those are the pages you pointed out —

    Emory A. Cantey:

    Right.

    Earl Warren:

    — to us.

    So, my — that’s the reason I read them.

    Emory A. Cantey:

    Well, your — Mr. Chief Justice, I pointed out that page 288 merely to show in connection with this Rule 51’s purpose that I had, that’s in the trial brought up my — my interpretation of the legal proposition that subsequently was given to the Court in the form of a requested instruction merely —

    Earl Warren:

    But this question and answer didn’t — wasn’t responsive to your statement about the — about the custom.

    You didn’t ask him about the custom.–

    Emory A. Cantey:

    But sir —

    Earl Warren:

    And he didn’t answer about the custom.

    Emory A. Cantey:

    No, sir, he did not.

    That witness did not at that particular instance.

    He did not.

    But my — and I say my —

    Earl Warren:

    So, goes all because you’ve said that that is all after —

    Emory A. Cantey:

    Yes.

    Earl Warren:

    — after he answered it.

    It looks though you were satisfied.

    Emory A. Cantey:

    Yes.

    Yes sir.

    I was with that witness.

    But I had referred to that particular part of the record merely to show that the judge knew early in the trial that what my proposition of law was and they are —

    Earl Warren:

    Where does the witness say what custom was among other — in the industry and so forth?

    Emory A. Cantey:

    Well,the — there were several witnesses on it, sir.

    There, that I’d say, the three aircraft inspectors from the United States Air Force testified it was the same as used in — by the Air — United States Air Force and other aircraft industries and in fact came from the —

    Earl Warren:

    All right.

    I’ll — I’ll find it for tonight.

    Emory A. Cantey:

    Yes, sir.

    I’m sorry I don’t have an index here but I — I can state to the Court, sir, that — that testimony is in there in the form that —

    Harold Burton:

    (Inaudible)

    Emory A. Cantey:

    Yes, sir.

    There —

    Harold Burton:

    (Inaudible)

    Emory A. Cantey:

    You say 307 Mr. —

    Harold Burton:

    357.

    Emory A. Cantey:

    Yes, sir.

    (Inaudible) was one of them.

    On 357, I asked this aircraft inspector, “How do — method used by Lockheed Aircraft Service had filed compare with others of your acquaintance?”

    And he says, “Almost identical.”

    And he had discussed earlier what his acquaintance was with the aircraft.”

    Is it used by other companies?”

    — on the bottom of page 357, “Yes, sir.”

    “And is it used by the Government itself, the same system?”

    “Very roughly.

    Yes, sir.”

    Earl Warren:

    Very roughly.

    Emory A. Cantey:

    Yes, sir.

    That’s not too good an answer [Laughter].

    But I — I think you’ll find the testimony in — in there, sir.

    So, now, if I may sir is that satisfactory to your discussion.

    Earl Warren:

    Well, you may proceed.

    Emory A. Cantey:

    I was —

    Felix Frankfurter:

    May — may I suggest to you —

    Emory A. Cantey:

    Yes.

    Felix Frankfurter:

    — this may be important.

    Emory A. Cantey:

    Yes.

    Felix Frankfurter:

    On the question that I know in Rule 51 was that whether the request were improperly denied.

    Emory A. Cantey:

    Well, sir —

    Felix Frankfurter:

    Is this not so?

    Emory A. Cantey:

    Yes, sir.

    It’s — it’s quite important and of course while I can’t turn to it right this minute, I know the testimony is in there, sir.

    And I’m — that’s why I’m confident of it.

    Felix Frankfurter:

    I — that’s not the answer to this though.

    All I’m saying is that — that —

    Emory A. Cantey:

    It is important.

    But it’s the —

    Felix Frankfurter:

    The judgment may be to — the judgment may be sustained by — I mean the arbitral use.

    Emory A. Cantey:

    Well —

    Felix Frankfurter:

    That is sustained by the following gives us on any ground.

    Emory A. Cantey:

    Yes, sir.

    I — I do understand that, sir.

    And I would certainly, like all the strings to my bow that I could have.

    I —

    (Inaudible)

    Emory A. Cantey:

    There’s — on page 241, a cross-examination by an adverse witness at the bottom of the page where I asked, “You have worked for several aircraft corporations, haven’t you?

    Just work for two of them?”

    “Yes, sir”

    It’s a Squawk sheet system, the customary method of determining the discrepancies between the flight crew and the ground crew?”

    That is a standard operational procedure in an air craft you have worked for?

    “Yes, sir.”

    Hugo L. Black:

    Did you ask any charge on the Squawk sheet system?

    Emory A. Cantey:

    Yes, sir.

    I think it’s one of the most —

    Hugo L. Black:

    You got in —

    Emory A. Cantey:

    — important charges — that was the key.

    Hugo L. Black:

    If that was the one — is that one of 135?

    Emory A. Cantey:

    Yes, sir.

    And one of the ones —

    Hugo L. Black:

    Which one was that?

    Emory A. Cantey:

    That was reversed.

    Hugo L. Black:

    Which one was that?

    Emory A. Cantey:

    That was the one where I asked if the plaintiff was negligent on the occasion of one of his test flights, not to be found by one of his test flights where the testimony showed that he — gas fumes were reported, and he admitted in his testimony that although gas fumes were reported to him, he did not report in the Squawk sheet and it was his sole and only responsibility to do so.

    And that was one of the requested instructions on negligence as the Fifth Circuit reversed it.

    Tom C. Clark:

    Is that what you call a discrepancy report?

    Emory A. Cantey:

    Yes, sir, discrepancy report.

    Harold Burton:

    And he report it direct?

    In other words, did he report it squarely?

    Emory A. Cantey:

    There is testimony in the record that he did, sir.

    Tom C. Clark:

    In other words, the report on the squawk sheet would just be an — about the recording of this oral report.

    Emory A. Cantey:

    Except for this, Mr. Justice Clark.

    The testimony showed that that was the procedure which was in use.

    And that was the — the way that this defendant knew of any defects obtained on the plane.

    And the — the Squawk sheets were introduced in evidence.

    And it was shown that on the day in question that he signed, that is the plaintiff, a squawk sheet which he had to do on each test flight in which he noticed a couple of other minor things and it was absent in gas fumes.

    For that purpose in my mind a little different light.

    And he — he himself rendered a record signed by himself a discrepancy report which did not disclose gas fumes which was —

    Harold Burton:

    Well, I haven’t read the whole record but I though that on the first flight test that he did report gas fumes —

    Emory A. Cantey:

    Yes, sir, he did.

    Harold Burton:

    — on the sheet?

    Emory A. Cantey:

    Yes, sir, he did.

    Harold Burton:

    And they worked on that and he had a second test and on the second test while he and some other people who testified, I think, they were on the tenth (Inaudible)

    Emory A. Cantey:

    Yes, sir.

    Harold Burton:

    — reported orally to somebody that was employed by Lockheed that there was gas and it had to be corrected.

    Emory A. Cantey:

    That — that’s what they said, sir.

    But on that second flight that there was a squawk sheet signed by him and that goes to the way of the testimony.

    And we feel that the jury should have been instructed on it, because we had implanted affirmatively and had raised it by the evidence and shown by cross-examination that he said that was the method that is employed and he didn’t sign it.

    And that he did fail to note it on the squawk sheet and that it was his responsibility to do so.

    Harold Burton:

    What number is that which — I mean your request?

    Emory A. Cantey:

    Sir, Number 11, sir.

    According to the —

    Harold Burton:

    (Inaudible)

    Emory A. Cantey:

    Instruction number 11.

    Harold Burton:

    Thank you.

    Earl Warren:

    (Inaudible)

    Hugo L. Black:

    What is the rule in Texas that that some charges like this generally?

    Can you pick out all part — particles of the evidence either party —

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    — ready for defendant.

    Say if you find so and so and if you find that negligence and if you find that approximately contributed to the injury that — can you split it up in — into parts like that on defective procedure?

    Emory A. Cantey:

    Yes, sir.

    In fact, in Texas, that’s — that procedure is indulged in, in the federal courts for acting universally due to the fact that Texas, the State of Texas, has a special issue submission in every case of negligence that’s tried in the State Court in Texas, is submitted on special issues which you have to — in which you have to split it out in the way you’re discussing, Mr. Justice Black.

    The — an ordinary automobile accident case on issues of damage and contributory negligence usually contains 40 to 50 special issues for that reason that each act of negligence are contributory negligence is divided up.

    Was this act negligence and was it approximate cause?

    Hugo L. Black:

    That you have a right — they have a right to do that in the Supreme Court of Texas to reverse this?

    It legal to know that trial judge may have a charged fully and completely — no practical — practical definition if you find any conduct at all —

    Emory A. Cantey:

    Well —

    Hugo L. Black:

    — that violates these rules.

    Emory A. Cantey:

    Yes.

    Mr. Justice Black, the judge does not charge that way in Texas.

    He cannot make any general charge.

    That would be reversible error in itself.

    He only submits to the jury a charge of special issues.

    He does not submit any type of general charge that is on the conduct generally except to define terms such as definition of negligence and definition of approximate cause.

    Hugo L. Black:

    But this — well, that’s what I meant.

    Emory A. Cantey:

    And the definition of (Voice Overlap) —

    Hugo L. Black:

    Now he — does he suppose of his own accord just to pick at different pieces of evidence charge if — that you find here and if you find this as negligence and (Voice Overlap) —

    Emory A. Cantey:

    Yes, sir.

    Now, that practice varies.

    Most plaintiff’s attorney prepare the charge in the state courts because a lot of times it’d be out in a small district where a judge won’t be expected to be an expert on some particular law that’s brought.

    And that many judges, however, won’t allow either party to assist to be making their charge.

    They want to do it themselves.

    So, it’s not enough standard in that respect.

    But I would say generally the — the plaintiff’s attorney assist the Court in the charge and the defendant’s attorney requests an issue, but it’s more or less what they use as a petition as the framework under what credit they take the petition which does allege specific acts of negligence.

    And then the judge sees that the evidence raised it, why didn’t he know that a special issue should be submitted on.

    And that’s the way it does in many cases in the District Court in Texas.

    The judge — the federal judge submits the case on the special issues with no general charge whatsoever.

    In the Northern District of Texas, I would say that most workmen compensation cases are submitted that way.

    They use practically the same system as in the state court.

    And they — they ask the jury to come back and find a special issue.

    Hugo L. Black:

    Who is the district judge in the Northern, I’ve forgotten?

    Emory A. Cantey:

    Well, it’s the presiding Judge is the — the Honorable T. Whitfield Davidson who tried this case.

    Hugo L. Black:

    That he tried this.

    Emory A. Cantey:

    Yes, sir.

    Now, if I may, I would like to pass on to just what happened in this case that Mr. Justice Harlan asked a couple of questions.

    I was — I did try the case myself and I — I think I do know and I do know what the practice is in the Fifth Circuit.

    And I think it’s important here.

    It is the practice in the Fifth Circuit for requested instructions to be submitted to the trial judge in federal courts before the judge prepares his charge for his aid in assistance in doing so.

    And it is also the custom at that time and the practice and was done in this case to submit copies to opposing counsel.

    The requested instructions, in this case, bare the same date as the last day of the trial.

    The trial judge advised this counsel and as to sometime during the trial of the case, he’ll say, “I would like to have you — the counsel’s requested instructions by noon tomorrow,” which means, of course, that that’s the point where he’s going to — to prepare his charge.

    And he wants the instructions there.

    And that was done in this case.

    And at the time that Judge Davidson prepared his charge, he had, with these — all of these requested instructions with him.

    Emory A. Cantey:

    And that — that’s obvious from the record because they were all signed by him and all noted and at the time that he gave his charge and then — and then immediately call for objections, that there was further discussion between counsel for the plaintiff and counsel and — and the trial judge which is very important in this case for this reason.

    The — the counsel for the petitioner was objecting to the fact that the judge was contributing too much on contributory negligence.

    And the judge pointed out to him and it’s in this record, “No, you misunderstood me.

    I read the defendant’s answer.

    You’ll note from the charge that first he reads the petition.

    Then he reads the answers which contained all of these charges and defenses.”

    And then, he charged the jury and he pointed out to petitioner’s counsel at that time, “No.

    I didn’t charge on all of these contributory negligence.

    I merely read the defendant’s answer to the jury.”

    And then, he —

    Hugo L. Black:

    What page is that?

    If you don’t know what it was?

    Emory A. Cantey:

    Well it’s right at the — in here I can turn to it very briefly, sir.

    Hugo L. Black:

    I don’t want to take your time.

    I’ll find it.

    378 is it?

    Emory A. Cantey:

    Then, well, that nor the portion I’m talking about is on page — yes, sir.

    378.

    And then the counsel for petitioner said, “Judge you — you’ve charged on the doctrine of volenti non fit injuria where assumption of the risk,” and which we had urged in this case.

    And the Judge says, “No.

    I have — again, I read that from the answer but I did not charge it.”

    And he goes on to say the trial court does, “I only gave four of the defendant’s specially requested instructions.”

    He knew what he was doing.

    He says, “I gave only four of them.”

    Now only — the only — the — of the four that he gave, there was only one that had to do with contributory negligence.

    Of the four that he gave, he gave unavoidable accident and he gave a charge that the defendant was not being sure and then he gave one about — they did touch on one picture of contributory negligence.

    But that whole discussion was there.

    And at the end of that discussion in which the judge demonstrated that he had — had read these charges and knew which ones he was given and what they applied to and understood what he was charging on — on contributory negligence, there wasn’t very much left for counsel for defendant to say except to make his formal exception to the refusal of the Court to give the requested charges.

    Now, I knew at that point that Judge Davidson knew — Judge — I knew that Judge Davidson knew that — that — all about these charges.

    That he had read them, studied them, and fully understood them.

    Emory A. Cantey:

    And Judge Davidson knew that I knew that when he called for my exception.

    Now — now, I’m — I’m just beyond arguing and I — I realize that.

    But I’ve spent considerable time in the Northern District of Texas.

    And I — I hope this Court would indulge me, if I say it may have been some number of years since the Honorable Members of this Court were engaged in the actual trial at a — at the trial court level.

    But I know that it’s composed of practical men and I know they’ll understand me when I make this statement that if I had — had continued after the judge had told me, “I’ve marked — refused the requested instructions that I did refuse.”

    If I had been — continued to orally lecture Judge Davidson on why his charge was defective and why I’m not respected in requesting the instructions should be given, I would have been trying his patience.

    Now, if that’s not a fair statement, well, it’s just this because you don’t know Judge Davidson.

    I — I think that I would have been trying patience.

    Earl Warren:

    Well is that true at the time when he asked if you had any exceptions to — to offer would — wouldn’t that invite some statement from you at that time instead of just saying —

    Emory A. Cantey:

    Yes, sir.

    Earl Warren:

    — “No.

    I only — only my — only my instructions, could you not have said then we — we feel that you have not adequately instructed the jury or followed our proposed instructions on subject of — of a contributory negligence or whatever it was.”

    Could you not have pointed it out then to the judge?

    Of course, you wouldn’t have tried his patience in answering his question, I hope.

    Emory A. Cantey:

    Well, Mr. Chief Justice Warren, I — I made that statement and I — and I’m sincere about it.

    That I feel that at that point I would have tried his patience by going any further.

    Of course, he didn’t gone over them and he read them before.

    Emory A. Cantey:

    Yes, sir.

    He had already discussed it and he had stated to me, “I have marked the “refuse” the ones I have refused.

    Now, the fact that what he meant, of course, was that he had signed his name, “T Whitfield Davidson” written on there accepted a rejection.

    Now, the mark is important in this case because when the — the term that Judge Davidson used, when I said I accept, was I have marked them.

    Now, marking those exceptions didn’t serve any useful purpose until the trial of that case at that point.

    The trial of the case at the trial court level didn’t have anything to do with these special requested instructions being marked “refuse” by the trial judge.

    The only purpose it could have had and it’s obvious that that’s what the judge meant was that he had marked them and signed them and ordered that the counsel could preserve it for review by a higher court.

    That’s the only purpose he could have of — for which he could have made that remark.

    And the purpose of Rule 51, as I have said, is to timely call to the attention of the trial judge anything that you might complain of in the higher court.

    Earl Warren:

    But what was his purpose in asking you that question?

    Emory A. Cantey:

    They’re very — I think that’s very easy to answer, Mr. Chief Justice.

    It — it would have been because of this reason.

    If my requested instruction had been covered by the charge that he didn’t give, in other words, if he had touched on them, maybe not to my satisfaction but where I knew that they were these particular acts of contributory negligence were discussed and in the main charge.

    Emory A. Cantey:

    Then if he had called for exceptions to the defendant and I had said, the defendant has no exception, it would have indicated to the judge that I felt that he had covered it in a charge and that I was waiving any exception to it.

    Now, Mr. Justice Black asked about the charge that the Court actually gave.

    The Court actually gave a –a charge that covered only one act of contributory negligence on the part of the plaintiff and the Circuit Court in the Fifth Circuit specifically states that in their opinion on page 384 of the record where the opinion of the Fifth Circuit is found.

    It says this, the only issue as to contributory negligence from the defendant’s standpoint which the Court presented was that of plaintiff’s miscalculation of his distance or the height from the ground.

    The charge as given only presented that one contributory negligence feature.

    And our whole case as Mr. Justice Black —

    Is there another one on page 377?

    Any other page, if you find from a preponderance of the evidence, the plaintiff Victor D.Gibson has testified with failure to use ordinary care and so forth?

    Emory A. Cantey:

    On page 377?

    Middle of the page.

    Emory A. Cantey:

    Yes, sir.

    That’s the second?

    Emory A. Cantey:

    Yes, sir.

    Those were the only two?

    Emory A. Cantey:

    I think so.

    I think perhaps the Fifth Circuit man may have been an error in that and I am, too, then in the — in the repeating here.

    But I —

    He also stated here what your defense was?

    Emory A. Cantey:

    Yes.

    I guess they sent three, four and five.

    Emory A. Cantey:

    Yes, sir.

    And then he pointed out in this discussion that after he asked for exceptions that all he was doing there was just reading the pleading and you’ll notice from the charge that, that’s the way he presses it when he’s reading it to the jury says, “I’ll — this is what the plaintiff contends and this is what the defendant contends.

    Now, I’m going to charge you this.”

    And there it began and only there it began in the Court’s charge.

    Now, may it please the Court, I know that this Court is — does not feel itself and should not feel itself too completely bound by decisions of the lower courts.

    But I — I do want to — to point this out, about the decisions that do exist on the question which we’re considering.

    There — there are some 120 decisions on Rule 51.

    And if you look at the circumstances of the case, because I think Mr. Justice Frankfurter observed awhile ago, you will find that they are not in disagreement.

    And I’d like to say this in reference to another question that was asked.

    This rule comes from Supreme Court Rule 8, as near as I can find it, which was a rule that said you couldn’t assign an objection to the charge unless the objection has pointed out the particularity of the error in the charge.

    Emory A. Cantey:

    And then when 51 was written, they added the part about requested instructions.

    And they said that’s also true about requested instructions.

    Now, that point is important to my mind for this reason.

    There is one group of cases that holds, if you make a blanket or formal exception to the charge, for instance, let’s say that the judge charged at length on the doctrine of last clear chance and the lawyer got up, and when he’s called for exception and then he says, “I — I object to Your Honor’s charge because there’s an incorrect charge on last clear chance.”

    There the — a number of cases that hold that that kind of an objection to the charge as given that the blanket of exception is not sufficient.

    And I agree.

    And I think that’s right because that doesn’t point out to the judge in what way the charge that he gave is wrong.

    There is another group of cases in which there were exceptions requested of the Court and no exception was taken when the time came, when the trial court called for them.

    That’s the case of (Inaudible) by Blair versus Collins.

    And there’s a number of cases that hold that that is not confirmed.

    And I have no quarrel with those cases.

    The third group of cases, is the one like the case here at bar, where there was requested instruction where the Court did know the point that counsel was making and understood it and an exception was taken to inform the judge that the point would be preserved for appeal.

    Now, when you divide the cases into those three groups and it seems to me it’s a — it’s a — that you’re not splitting hairs when you do that because there are three different situations.

    When you divide them into those three groups, there’s almost completely unanimity of opinion amongst the lower courts.

    And I think that the reason for that is apparently it’s because the lower courts have had no trouble in discovering the intent and purpose of this rule and given of — of that situation, you can apply the purpose of Rule 51 to it and judges don’t, I don’t think would ever disagree about it,.

    The — the — when you divide them into those different groups, there’s almost 98% accord in most all of the cases.

    Hugo L. Black:

    May I ask you a question to see if — I understood.

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    — you on that.

    Emory A. Cantey:

    Yes, sir, Mr. Justice Black.

    Hugo L. Black:

    I’m looking now at this part of the rule.

    It says, “No party may assign in their early giving.”

    Unless he does it fully and duly charged stating distinctly the matter to which he objects on the grounds that he had objected.

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    Are you saying that, that that’s limited to the older charge?

    Is that your idea about it?

    Is that the way it’s generally understood?

    Emory A. Cantey:

    No, sir.

    Hugo L. Black:

    According to your judgment?

    Emory A. Cantey:

    No, sir.

    Emory A. Cantey:

    I’m — I’m saying that there’s now — that’s — that’s a two (Inaudible) instructions that are in that rule.

    That they’re distinct — that they distinctly state the matter which you’re objecting to and to the ground.

    Hugo L. Black:

    That’s right.

    Emory A. Cantey:

    All right.

    I’m saying that if the Court gives a charge and you say or — or will say on the doctrine of last clear chance.

    And you get up and say, ” I object to the Court’s charge on the doctrine of last clear chance.”

    That that’s not sufficient because although it pointed out what you’re objecting to, that is the doctrine of last clear chance, it doesn’t give the grounds of your objections.

    It’s not — it’s — that’s not enough or because that just an objection to the charge as such.

    Hugo L. Black:

    Are you — are you saying that the charge alone without anything being said by the lawyer may be sufficient to comply with this part of your answer?

    Emory A. Cantey:

    Certainly, I am not.

    No, sir.

    I — a note to that.

    Hugo L. Black:

    Yes.

    Emory A. Cantey:

    Certainly not.

    You would have to do more than that, naturally.

    Hugo L. Black:

    What — well, what do you have to do in your judgment?

    I am not asking this in a hostile attitude because I — the common sense way seems to me to be a little different from the way this the language seems to sound.

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    But what do you say in your judgement, is sufficient to comply with this provision which requires something is rather surprising to me is it is required but it is here —

    Emory A. Cantey:

    It is.

    Hugo L. Black:

    — is when — when the instructions are asked before you can get any benefit from an assignment of error, you must first show that you have distinctly called the Court’s attention to it before they left which I suppose you would say, means more than just asking the charge.

    I — I’m — I was as I expected and the jury state, well all we did was to ask the charges.

    That settled it.

    That was enough but this seems to say more.

    Now, how do you comply with that in your judgment?

    Can you — without distinctly calling his attention to each separate charge and saying, well, you ought to give it for this reason?

    Can you get the benefit of it under this rule.

    And if so, how?

    Emory A. Cantey:

    All right, sir.

    I — I think in this way.

    Emory A. Cantey:

    The purpose of the rule, well, will — it’s dealt that to me.

    And I think you are talking about just the wording of it.

    Hugo L. Black:

    Oh, yes.

    Emory A. Cantey:

    You request an instruction on contributory negligence on the — in this case —

    Hugo L. Black:

    Just like what you have here.

    I want to know (Voice Overlap) —

    Emory A. Cantey:

    — only in this case, the — the failure of the pilot to turn around and come back to the field and note the discrepancy report when he — when he noticed gas fumes on the flight that caused this accident.

    And where he admitted in his testimony that his was the sole responsibility of doing that.

    All right.

    I request an instruction on that.

    Now, that instruction is merely an — an instruction on the proposition of law that if you have pled a defense and the evidence raises it, you’re entitled to an instruction on it to the jury if you request it.

    Now, that’s the standard proposition of law in the federal court.

    Now, I say that on that type of instruction where I asked for an instruction on that face of the case, that there’s no question but what the — the judge, the federal judge understands the proposition of law involved.

    Of course, as Mr. Justice Frankfurter says, there are men of — of some intelligence —

    Hugo L. Black:

    Well, I — I agree to that.

    Emory A. Cantey:

    — and that’s —

    Hugo L. Black:

    That’s what we have always been brought up to think.

    Emory A. Cantey:

    Yes, sir.

    [Laugh]

    Hugo L. Black:

    But, how do you get around the fact if this rule says that you must state it distinctly?

    Emory A. Cantey:

    Well —

    Hugo L. Black:

    Can you just rest on the fact if the charge itself ought to be enough to show a man with reasonable intelligence what you asked him?

    Emory A. Cantey:

    I think that the charge we have in mind in — in this case is in that category.

    Hugo L. Black:

    In other words, you think that just merely offering the charge is enough to comply with the provision that the rule should be concluded that way.

    That provision which says, that he must object and state distinctly the matter to which he objects?

    You think —

    Emory A. Cantey:

    Yes.

    Hugo L. Black:

    — he’s stating that by asking that written charge.

    Emory A. Cantey:

    Yes, sir.

    When I submit to him that written charge on that simple proposition where there’s no involved legal theory present at all, just a simple written instruction on the question of contributory negligence that eight witnesses have testified true at the trial.

    Emory A. Cantey:

    Then, I don’t think that judge needs any further education as to what — what the attorney that submitted that written instruction is asking for.

    Hugo L. Black:

    I would say that he doesn’t.

    But the question is, “Well, let’s comply with that rule, should it be construed as to say that there’s a —

    Emory A. Cantey:

    Well —

    Hugo L. Black:

    — “can you do it?”

    Emory A. Cantey:

    — that goes to my whole argument, Mr. Justice Black.

    If you are going to construe this rule rigidly and inflexibly, it does not.

    If you’re going to construe this rule in accordance with its intent and purpose, it most certainly does, because its intent and purpose is, that there won’t be errors assigned that were timely called to the attention of the trial judge.

    Felix Frankfurter:

    Mr. Cantey, it’s not without interest, at least to me, historically, that the phrases that because they’re often, they’re policies of Justice Black to tell you, state your fixed, it doesn’t matter before this is as I gather from reading Mr. Justice Stone’s opinion in U.S against Atkinsons 451 to be in existence that is that it’s indicated, you lay down the general rule with all of high points before that time, I believe goes on to say, namely, perhaps to have — they must be held it’s within the duty of the judge to put the issue with the jury.

    And then he goes on to say, it is substantial to that adopted by Rule 10, something that is one of the rules in the Court of Appeals for the Fifth Circuit —

    Emory A. Cantey:

    Yes, sir.

    Felix Frankfurter:

    That decision is very effective —

    Emory A. Cantey:

    Yes, sir.

    Felix Frankfurter:

    — which requires the party acceptance of the charge to state distinctly the federal matter.

    Evidently, that’s what is to me the — the current fray of the statement that he was doing as a friend of the rule that is put into Rule 51.

    Emory A. Cantey:

    And I think that might —

    Felix Frankfurter:

    It doesn’t carry, any weight if it was before the Court — specialize (Inaudible)

    Emory A. Cantey:

    I wouldn’t think so.

    I think that — that Rule 10, subdivision (1) of the Fifth Circuit is almost word per word of Rule 8 of the Supreme Court.

    It was, according to my investigation, was the basis for Rule 51 that we’re discussing here today.

    Hugo L. Black:

    That was my understanding about this —

    Emory A. Cantey:

    Saying to this —

    Hugo L. Black:

    — the Fifth Circuit before the — before this rule was adopted as applied to the older charge.

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    And the — it seems to me that the question here gets down to whether that can be limited to that under the language of the rule.

    And I —

    Emory A. Cantey:

    Well —

    Hugo L. Black:

    I do not say that as —

    Emory A. Cantey:

    Yes, sir.

    Hugo L. Black:

    — one who believed (Inaudible) that these rules have solved those problems of lawyers or the Court.

    Emory A. Cantey:

    Well, I would like to illustrate what you’re talking about and I — I by making this type of — of argument and I — I assure you it is not sufficient.

    And if in regard to some of the questions at least one them that Mr. Justice Harlan asked, “What — what would you do?”

    And Mr. Chief Justice also asked why I didn’t go farther.

    Well, this — this record is cold and its silent.

    And it’s lifeless.

    It does show that — that the — the judge called for exceptions at 4:45.

    It shows that he instructed both sides that he was going to adjourn that court at 5 o’clock.

    And when they called for exceptions from the defendant, that you can tell by the — what had transpired, it must have been pretty close to 5:00.

    Now, if I had objected and said, “Now, Your Honor I want to read the special instructions that you have refused over again, I will take the first one, special instruction number 1.”

    I think Judge Davidson would have said, “I have already read that.

    I understand what number 1 is and I have marked it refuse.”

    “Now — now judge I’ve got to comply with Rule 51 and I want to tell you why.”

    Mr. Cantey, “I have already told you that I have marked those refused that I did refuse and I don’t want to hear anymore about it.”

    Well, or the judge under Rule 51 I’ve — at that time he had said, “Mr. Cantey, you’re fined $50 for contempt of court” and I don’t think I would have gone any farther than that.

    Now, if that had happened and this is the reason I say that’s my position.

    It would be exactly the same situation that we’re talking about here if you’re going to adopt the argument that petitioner counsel is making here.

    It’s the same thing Mr. Justice Black is talking about.

    If that had happened this record would still not contain any literal compliance with the language of Rule 51.

    Hugo L. Black:

    May I say that I — I don’t know it has — it wouldn’t settle it at all, what’s in, under the old practice.

    There again if you didn’t tell the judge, you want to object and he cut you off, then, you could raise the objection in the upper court —

    Emory A. Cantey:

    (Inaudible)

    Hugo L. Black:

    — the same as though you had stated your objection.

    Emory A. Cantey:

    Rule 46 says that, but you must remember that petitioner’s argument in this case is and must necessarily be so, that Rule 46 is a general rule and that Rule 51 is specific.

    And that Rule 51 should not be construed in connection with Rule 46.

    He has to say that because of every case that’s construed — construed Rule 46 with 51 has interpreted 51 in the same way that I am asking this Court to interpret under these set of facts and even sets of facts that go far beyond mine.

    And so he necessarily has to make that — that type or argument.

    Mr. Cantey, what’s the posture of this case now?

    Emory A. Cantey:

    The posture, sir?

    What will happen if this Court affirmed?

    Emory A. Cantey:

    If this Court affirms the judgement of the Fifth Circuit, the case is — will be retried.

    Retried?

    Emory A. Cantey:

    Yes, sir.

    Tom C. Clark:

    Mr. Cantey, I wonder if I could revert to that question I asked you about you earlier.

    I want to see.

    Was there any conflict in testimony that this gas fume or descent of test flight was not actually according to Lockheed employees?

    Emory A. Cantey:

    Well, our — our only argument, for instance, if it was to a jury on the question that you’re asking is this — would be this.

    That — and was this.

    The testimony of — from the plaintiff’s witnesses were extremely vague.

    They said, “Well, didn’t you report the gas fumes?

    Well, we saw — we he saw him working on the plane down there and I think they were working on one of the wing sails and which is part of the fuel system and we told them, “We — we smell some gas fumes there, but I could see that you’re working on that part of the plane.”

    That was after the plane had been returned to Lockheed and after he was working on it.

    Whereas the evidence shows completely uncontradicted that there was a system and it was complied with in every instance, except this one time when he just failed to put it on the squawk sheet.

    If that was the method that was used and the plaintiff’s witnesses and include the plaintiff himself justified it and sure that was the method they used and sure I used them, and sure I signed the squawk sheet even on that day containing some other things.

    But, I don’t know why I — I didn’t put it on there because I thought, in fact, the testimony in the record is, “I thought it was on the squawk sheet.”

    And when he saw it at the trial court he says, “I’m surprised.

    I thought it was in the squawk sheet.

    ” That’s —

    Tom C. Clark:

    But there was no conflict of judgment although, it was actually brought to the occasion of the work.

    Emory A. Cantey:

    No.

    We had no word of it on that thing, sir.

    I believe my time is up.

    I —

    Earl Warren:

    Oh, your time — your time is not up yet, Mr. You will get five-minute signal from that white light —

    Emory A. Cantey:

    Oh, that —

    Earl Warren:

    — and the red light when your time start here.

    Felix Frankfurter:

    But there are no constitutional duties (Inaudible)

    Emory A. Cantey:

    I understand that, sir.

    And I — I will, somewhere between the two recommendations of that [Laughs] —

    Felix Frankfurter:

    Well you take it.

    Earl Warren:

    (Voice Overlap) —

    Emory A. Cantey:

    — we turn it off.

    Felix Frankfurter:

    I’m merely confused — entered in the Chief’s chronology.

    I don’t think we recommend it.

    Emory A. Cantey:

    That I —

    [Laugh]

    I won’t do that.

    Bring — I’ll bring up this other point the third in our brief.

    And I only touch on it that — to see the doctrine of volenti was relied on quite heavily by the defendant here, because we thought we had a perfect situation of it where the test pilot which was employed for that purpose gets in on the plane and gas fumes are noted.

    And he says, “Well, I guess I could have taken the plane back and had it rechecked, but I decided to go on.”

    And when he did, the plane crashed.

    And there’s no question, absolutely, but whether it applies in Texas, absent the master servant relationship.

    So, we pled it and we got all the testimony that we could.

    We requested instructions on it and the Court refused them.

    And the Fifth Circuit said that they didn’t rule on whether it was applicable or not because they said our instructions were not correct.

    Well, there were two instructions on volenti and both of them had been copied out of the Supreme Court decisions word per word and that’s where we made our mistake because by doing that, we got them below.

    It’s too general for the Fifth Circuit.

    And so, the Fifth Circuit said, “Well, they weren’t correct.

    So, we won’t rule on them.”

    But there are cases that I want to call the Court’s attention to, Montgomery versus Virginia Stage Lines and Fuller versus King and others that have held that well, that is one of the main issues of the case.

    And I think that the doctrine of — of volenti in this case certainly is one of the main issues.

    That’s one of the main issue.

    That if an instruction is requested and although that instruction is not absolutely correct, if it’s sufficient to call to the Court’s attention, the doctrine you want, why then, if the Court is in error in not giving it, why it’s reversible error.

    And Mr. Justice Minton, when he was — in the Seventh Circuit, wrote an opinion in O’Donnell versus Elgin explaining just exactly advocating the doctrine that I’m advocating now and had done much better language than I could.

    And we think that this case should be reverse and — and we should be given an opportunity to go to the jury on the doctrine of volenti non fit injuria which would denied us in the trial of this case.

    And although our instruction was not absolutely correct according to the Fifth Circuit, which is only meant but they said so, why it was sufficient, clearly to call the Court’s attention to one of the main questions in the case.

    And therefore, we would like to bring that up.

    Now, in closing, I — well, to borrow us some language from an abler counselor that I am which expresses, I think, very clearly the — the doctrine of the rule of — of construction that we’re urging on this Court in this case.

    And with the indulgence of Mr. Justice Black, I’d like to read this language from the case of Hormel versus Helvering, which is exactly the argument that I have so poorly attempted to make here today.

    Rules of practice and procedure are devised to promote the ends of justice, not to defeat them.

    They are rigid and undeviating, judicially declared practice under which Court of Review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy.

    Emory A. Cantey:

    Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.

    The Fifth Circuit has said that my client did not get a fair trial.

    And if this Court, this Honorable Court wishes to lay down some rule for the future guidance of lawyers practicing in this country, I submit that does not alter the fundamental justice of my client’s position.

    They did not get a fair trial and they are entitled to one and their attorney who made the mistake was following the plain rules of his own circuit, the plain decisions of the Fifth Circuit in his conduct.

    And for that reason, we very respectfully urge the Court to affirm the decision of the Fifth Circuit.

    Thank you.