Heider v. Michigan Sugar Co.

PETITIONER:Heider
RESPONDENT:Michigan Sugar Co.
LOCATION:El Paso Natural Gas Co. Headquarters

DOCKET NO.: 48
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 385 US 362 (1966)
ARGUED: Dec 08, 1966
DECIDED: Dec 12, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – December 08, 1966 in Heider v. Michigan Sugar Co.

Earl Warren:

Number 48, Herbert Heider, Administrator, Petitioner, versus Michigan Sugar Company.

Mr. Pillon.

Gregory M. Pillon:

Mr. Chief Justice, may it please the Court.

Earl Warren:

That is the way you pronounce your name.

Gregory M. Pillon:

Yes.

Earl Warren:

Pillon.

Gregory M. Pillon:

Yes.

On December 21st, 1958, two small children, David Heider, age 8 and James Heider, age 12, went upon the defendant’s property.

At that time the defendant — respondent, Michigan Sugar Company maintained several acres of ponds.

These ponds were connected up by an overflow pipe.

The temperature at the time was 12 degrees below zero and the — around the overflow pipe chemicals and the action of the water create a foaming area that resemble snow.

This froze and the rest of the pond was solid ice except around the overflow pipe where this area built up a foamy, snowy substance that itself was frozen and but was not solid underneath.

These two boys and their little dog, a water spaniel, went upon the tenants property, became entrapped in this condition.

This dangerous, distracted condition maintained by the respondent, Sugar Company, and they were drowned.

An action was brought in the Circuit Court, Saginaw County to recover for their death.

The jury in the case of David Heider, it turned a verdict in the amount of $125,000 and the judge in the companion case, James Heider because of different measure of damages returned a judgment $41,000.

A case — a motion for a new trial was filed by the respondent except for a certain reasons and grounds for appeal.

The motion was denied.

An appeal was taken to the Supreme Court of the state of Michigan.

With all this procedure, so far there has been no complaint but then completely outside of the record to the Supreme Court of the State of Michigan, the respondent Michigan Sugar Company in its brief on appeal brought forth to the attention of the Supreme Court an endeavor to bring forth to the attention of the Supreme Court a statute known as Public Act 201 of the Public Acts of the State of Michigan in the year 1953 claiming that this statute affected the case.

Is that the real reason for that, or there is the (Inaudible)?

Gregory M. Pillon:

That was the denial of the equal protection of law, that’s in the —

But based it on (Inaudible) of that statute (Voice Overlap) —

Gregory M. Pillon:

That’s correct.

(Inaudible)

Gregory M. Pillon:

That’s correct.

Do you think the reliance of that statute to be a (Inaudible) —

Gregory M. Pillon:

Well, the statute itself — our contention is first of all that I’ve never been — had an opportunity or my day in court in relation to that statute.

Does that mean to say (Inaudible) —

Gregory M. Pillon:

That’s right.

Gregory M. Pillon:

And second of — the second major point is that the statute as construed by the Supreme Court denies equal protection because it’s an invidious discrimination against a child, against the children in this case.

Both of the —

Gregory M. Pillon:

Both those questions —

(Inaudible)

Gregory M. Pillon:

Well this is the — this will have to — this is a question that I’d like to bring to the attention of the Court.

Now —

(Inaudible)

Gregory M. Pillon:

What happened isn’t — when it was raised the objection that was made to the statute was that — it’s not an orderly procedure.

You’re completely outside the record.

You can’t raise it.

It’s not proper to raise it at this time.

That was the basic premise that we went on because the only error — the only basis upon which counsel claimed not prior raising the statute was that he just failed to find the statute before.

Potter Stewart:

Well, isn’t the — but the — do you have to plead the existence of a local statute in your pleadings, in your defense?

Gregory M. Pillon:

Well —

Potter Stewart:

In Michigan?

Gregory M. Pillon:

Its —

Potter Stewart:

Its part of the law, isn’t it?

Gregory M. Pillon:

Sure, it should pleaded —

Potter Stewart:

Just as the — just like —

Gregory M. Pillon:

Right.

Potter Stewart:

Just like discovering a new decision —

Gregory M. Pillon:

That’s right.

Potter Stewart:

— in your research, isn’t it?

Gregory M. Pillon:

Well, the statute that was — should’ve been met in the trial court with statute.

Potter Stewart:

But it wasn’t because of the —

Gregory M. Pillon:

It wasn’t and we brought —

Potter Stewart:

And you answered in inadvertence of the counsel.

Gregory M. Pillon:

That’s right.

And there was —

Potter Stewart:

But —

Gregory M. Pillon:

— and no prior Supreme Court case in Michigan that ever granted the –that ever considered a statute raised at the 11th hour outside of an orderly procedure in the absence of some special or unusual circumstances.

Potter Stewart:

Well what if it — what if instead of a statute this has been a decision of the Michigan Supreme Court in 1953 and that counsel for the defense because of their negligence or inadvertence haven’t discovered it until after the end of the trial and during the preparation of their case in appeal, would there be anything wrong with your case citing it?

Gregory M. Pillon:

There’s nothing wrong with citing it.

Potter Stewart:

I mean, and let’s the —

Gregory M. Pillon:

The error —

Potter Stewart:

— if it’s an imaginary court decision of mine said exactly what this statute said that as in the law of Michigan, if you’re on somebody else’s land for the purpose of hunting or fishing or trapping then the owner is liable to you only for — he’s not liable for two year for simple negligence.

Gregory M. Pillon:

No.

The answer is that I should have an opportunity to have my day in court to prove in fact for example that little David, age 8, he’s physically incapable of setting a trap, owned no traps and never did trap.

I should — I certainly should’ve had the right to be confronted with it at the trial level.

Byron R. White:

Well then (Voice Overlap) — why didn’t you have that right already?

Gregory M. Pillon:

It was never — the statute was never brought to the attention of the trial court by the defendant.

Byron R. White:

Oh, I know but it was your — but the plaintiff is suppose to prove their case —

Gregory M. Pillon:

Oh —

Byron R. White:

— and if at that — at the time your case had closed the defense had gotten up and move to dismiss on the grounds that you hadn’t made out yet — you hadn’t made out a case, you had failed to prove the consideration.

Namely, the consideration required for the statute.

Gregory M. Pillon:

Well —

Byron R. White:

I were to think — I would have — if the statute, if that were brought, I think he’d been out of court.

Gregory M. Pillon:

Well that’s the point, is this statute applicable or not?

I never had —

William O. Douglas:

How many judges at this Supreme Court in Michigan remanded for a dismissal?

Gregory M. Pillon:

Well two — this —

William O. Douglas:

This —

Gregory M. Pillon:

There are two judges —

William O. Douglas:

The judgment just says, remanded for proceedings consistent with the opinion.

Gregory M. Pillon:

Well —

William O. Douglas:

And I haven’t been able to add up all the —

Gregory M. Pillon:

I haven’t been able to quite understand what happened yet.

William O. Douglas:

Well at least, (Voice Overlap) —

Gregory M. Pillon:

There are eight judges and two of them said, “Send it back and dismiss the case —

No cause of —

Gregory M. Pillon:

— because it failed to prove it, no cause of action.”

No cause of action.

Gregory M. Pillon:

Three of the judges said, “Go back and dismiss the case and the complaint because you failed to state a cause of action.”

Three other judges said that under that — I did state a cause of action.

William O. Douglas:

Well you — under this judgment as I see it, you’re not precluded for getting a new trial under this —

Gregory M. Pillon:

Oh, yes.

William O. Douglas:

— under this new statute, are you.

Gregory M. Pillon:

Oh, I am precluded.

Five to three.

Gregory M. Pillon:

I am precluded because we count heads, there’s five — against five, said I should lose, and three said I should win.

William O. Douglas:

But you can’t amend an —

Gregory M. Pillon:

No.

The statute of limitations is right.

Gregory M. Pillon:

The statute of limitations is right and my point is this is that —

William O. Douglas:

But you can’t amend because you — you can amend, you can get a new trial.

Gregory M. Pillon:

Oh, I can amend, I can amend.

The problem is that basic rate fundamentally a person is entitled to a day in court.

And this is a statute that should have been raised by the defense as a — in a proper manner in a trial court so that I have an opportunity to be met with.

So I could — if you look at the actual facts like David never owned traps, he couldn’t physically set a trap, he’d never come within the statute.

And if you look at the fact that there was no eye witnesses to this case, there was — I mean no eye witnesses to the boys being on the land at the time of their death and their drowning.

This present fact questions under the statute.

What was James doing on the land at that time?

But the Supreme Court by its very actions has taken this statute and apply it retroactively to whatever facts were shown or to the pleadings and have barred me without ever giving us an opportunity to have our day in court in relation to the statute.

Now —

Abe Fortas:

Well, you allege didn’t you that James Heider, a minor son of plaintiff, Herbert Heider, that they set out to muskrat trap (Inaudible) on this day.

Gregory M. Pillon:

I didn’t say nowhere in the pleadings or in the record.

Is there any statement that at the time of the death the boys were actually trapping upon the land of the Michigan Sugar Company.

Abe Fortas:

When this happened, on the 21st day of December?

Gregory M. Pillon:

21st day of December.

Abe Fortas:

Well, look what this paragraph says, paragraph 27 on your declaration on page 4, they set out muskrat trapping.

Gregory M. Pillon:

That’s right.

But as I — my answer to you Mr. Justice Fortas is this.

Is that first of all, if I had been met with the statute I could’ve distinguished the — at least what David was doing as compared to what James was doing out of — there’d been constructive effort made but in addition to that you’re reading what — in interpreting the — my declaration, three of the judges said that I state that they were trapping on a land, three of the judges say I don’t state that I was trapping on the land.

Abe Fortas:

You said since on — its James who is 12 years old.

Gregory M. Pillon:

Yes.

Abe Fortas:

With his brother David who was 8 years old?

Gregory M. Pillon:

Right.

Abe Fortas:

And a dog, the declaration didn’t say how old he was, set out muskrat trapping.

Gregory M. Pillon:

But on the other hand to come under the statute there had to be muskrat trapping on that particular land at that particular time.

That’d be the first point that I’d like to make.

Now, it seems to me what’s really happened here is that when you’re prepared to have a trial in a court it’s done in a — suppose to be done in an orderly fashion.

I presented pleadings, issues and we set forth the basis and had a trial.

The defendant, the respondent, Michigan Sugar Company put in a general denial, pleaded contributory negligence to the minors and the parents that after warning was given not to use the premises and that they had lack of knowledge that minors were upon the premises.

We tried the case upon those issues and those — that basis and then what happen is the defendant is permitted to raise a statute out of orderly proceedings and what does he do?

He get — he binds the petitioner by his actions to his pleadings and to the record that he made in the trial court.

But the defendant is permitted or the respondent, Michigan Sugar Company was permitted by the action of the Michigan Supreme Court to revoke every bit of pleadings, every word that he ever uttered said before.

Now this — isn’t it — let’s put this question to you to understand what you are saying, (Inaudible).

Having filed (Inaudible) the Michigan Supreme Court said, how is it not a matter of defense.

Once it appeared that these people were trap — trapping, there was no jurisdiction in the lower court to entertain such an action based on ordinary negligence.

Gregory M. Pillon:

Well, three of them said that.

But two of them said —

What about the other two?

Gregory M. Pillon:

The other said that I failed to prove facts to take me outside the statute and therefore I entered a judgment of no cause of action.

In other words, I never was met with the statute on the lower court.

(Inaudible) is there anything that this is not a matter of defense, it’s a matter of the state law, it’s a matter of — you’re not having a showing a cause of action of which under either view of the two or the three judges, if you can go to the trial court, dismiss the case.

Gregory M. Pillon:

Well —

Potter Stewart:

Well, that raised no cause of action —

Gregory M. Pillon:

Well that’s —

Potter Stewart:

And I remember from my experience in the Court of Appeals with the Sixth Circuit is rather a peculiarly Michigan phrase and it’s used often when there is just insufficient evidence and so on, isn’t it?

Gregory M. Pillon:

Right.

Gregory M. Pillon:

In this phraseology, actually the only thing that that statute changes is the degree of proof, it doesn’t eliminate a cause of action at all.

Now, if I may say a word about equal protection here.

William J. Brennan, Jr.:

May I ask you before you do that.

Gregory M. Pillon:

Sure.

William J. Brennan, Jr.:

I take it even if the sugar company hadn’t come upon the statute, if one of the judges had, you’d still be here, you would have the same result, wouldn’t you?

Gregory M. Pillon:

If I’ve been met with the statute in the lower court, I wouldn’t —

William J. Brennan, Jr.:

Oh no, no, —

Gregory M. Pillon:

Well, suppose —

William J. Brennan, Jr.:

Suppose you and your adversary overlooked it but I remember the Supreme Court had come upon it.

Gregory M. Pillon:

Alright —

William J. Brennan, Jr.:

Let’s suppose, it’d be the same result?

Gregory M. Pillon:

I’d still be here because the Supreme Court by its very action would have been depriving me of my day in court because this is what I’m complaining about.

William J. Brennan, Jr.:

That’s what I was thinking.

So it’s not so much that the defendant for the first time raised this in the Supreme Court as it is that the Supreme Court relied on it all.

Gregory M. Pillon:

Relied on it all and then so can bound me by a record and bound me by a pleading relieving the defendant from or the Michigan Sugar Company completely from their — every word they ever uttered and then to my complete surprise dismiss the case.

I mean, if they sent it back for new trial I could understand.

I’d have a chance to show that David wasn’t trapping and that if James was, that’s a fact question because nobody saw them at the time they died.

And — but now let’s go on to this question of the equal protection, the — under the — many times I just said your passed statutes, they don’t really change laws.

An adult trespasser in the State of Michigan before this statute was passed could recover against a landowner only for gross negligence or willful or wanton misconduct.

On the other hand under the common law of Michigan as developed by the (Inaudible) case in which at least 40 states in the union have adopted the theory of the protection of the minor.

We have in the common law of Michigan that provides that if a child because of his immature years goes upon the land of another that there can be a recovery for ordinary negligence upon a showing that the landowner has knowledge or should know that the children are there and he maintains a dangerous condition.

And this doctrine was enunciated even by this Court under the attractive nuisance doctrine beginning with a turntable case.

Now, the effect of the Supreme Court’s interpretation by applying this statute to these two immature children is saying that as to a child the only effect the statute has is to a child.

The only effect it has is to the immature child that it discriminates against the immature child in relation to the other immature child who was upon the property.

In other words if in fact one boy had a slingshot to go hunting with or a fishing pole to go fishing with and he took a friend along with him and they both drowned under identical circumstances at the same place at the same time.

The little boy with the fishing pole cannot get a recovery as the court applied this statute except by proving gross negligence or willful or wanton misconduct.

But the other boy who didn’t have the fishing pole with him, he can recover for ordinary negligence and this is a peculiar thing by — in tradition interpretation —

Byron R. White:

I know, but even they were a pair of adults under the statute, the same result would follow?

William J. Brennan, Jr.:

If there’s a pair of adults then no adult can recover except for gross negligence or willful or wanton misconduct.

No adult can recover — a trespassing adult can’t recover for ordinary negligence but every child in the State of Michigan can recover, a trespassing child can recover for ordinary negligence except those few insignificant children who may hunt, fish or trap and their — believe me, if they go out with a slingshot to get a bird or they’ve got a home made fishing pole which every boy has to classify them in the same category as the adult hunter, fisher or trapper is that it seems to me invidious and especially so when we have a rule protecting little children so that any other child of the same 8 year old — any other 8 year old child can recover for ordinary negligence.

Did you present this argument in the Supreme Court?

Gregory M. Pillon:

Oh yes, it’s in the briefs.

Then what — I mean to the — your State Supreme Court (Voice Overlap) —

Gregory M. Pillon:

Yes, in the petition for rehearing.

(Inaudible)

Gregory M. Pillon:

Yes, yes.

And the reason is this is that the statute had never been — let me say a few words here about the question of the timely raising of the federal questions because somehow opposing counsel has interjected this in here saying that the federal questions weren’t timely raised and the answer to that problem is this is a — it seem to me beyond reasonable to anticipate that a Supreme Court would act in an unconstitutional manner.

In Dombrowski versus Pfister in 380 U.S. 479, you laid down the doctrine that — it’s generally assumed that state courts and prosecutors will act in a constitutional manner.

Now, the problem is that in — it would seem futile to me to say to a court before it renders a decision, don’t do it in an unconstitutional manner.

Until there’s an actual constitutional violation I can’t raise the question.

This statute had never been interpreted before.

It was completely out — raised outside of a record and has a very serious question, even the respondent admits at his brief on page 24, that’s a very serious question whether the court was even going to entertain the statute.

Then when the court accepts the statute completely out of procedural order then in — applies it in an unconstitutional manner only then can I raise the federal questions and I think that the case of Saunders versus Shaw is a case that’s directly in point on this issue.

It covers both the issues, timely raising the federal question in an action of the Supreme Court denying you a day in court —

Byron R. White:

I understand —

Gregory M. Pillon:

And —

Byron R. White:

And that your opponent raised it in his brief in the Supreme Court.

Gregory M. Pillon:

He never raised it in — he raised it in his brief in the Supreme Court.

Byron R. White:

And you had a chance to respond to that in the Supreme Court.

Gregory M. Pillon:

Which I did.

And no — I beg you pardon, I’m confused from — do you mean the Supreme Court of Michigan or this Supreme Court?

Byron R. White:

Supreme Court of Michigan.

Gregory M. Pillon:

Alright, now the respondent what?

Byron R. White:

The respondent raised the statute in the Supreme Court of Michigan.

Gregory M. Pillon:

I don’t have —

Byron R. White:

In his brief there, did he?

Gregory M. Pillon:

He put in his brief but I don’t say — I don’t believe he raised it in the Supreme Court.

It was completely out of an orderly procedure.

Byron R. White:

Well, I know but if he put it in his brief anyway, then you’d a chance to respond to that brief?

Gregory M. Pillon:

Yes.

Byron R. White:

And you — and your argument was to the Supreme Court that the statute should be unavailable to him at this point since he had never raised it in the lower court?

Gregory M. Pillon:

That was one thing.

Byron R. White:

And so — and you could’ve gone on and said further more it would be unconstitutional for the Supreme Court to rely on that here.

Gregory M. Pillon:

Well, if the Supreme Court was going to rely on it and they had sent — and they’d reverse to send me back for a new trial, there wouldn’t be a constitutional infringement.

I’ve never expected them to act in an unconstitutional manner.

That’s — I couldn’t ask him not to act in an unconstitutional manner.

Byron R. White:

I know but he asked them to dismiss the case.

Here, the respondent asked them to dismiss.

He just didn’t ask for a new trial.

Gregory M. Pillon:

He asked him to reverse the case with or without a new trial.

The last thing I’d expect them to do is reverse the case without a new trial where you never had an opportunity to have your day in court in relation to the trial — in relation to —

Hugo L. Black:

Why didn’t you do that?

Gregory M. Pillon:

Oh, I didn’t have to.

Well, first of all the object of a trial is to give to each side a fair orderly proceeding when if this statute had been raised in the lower court by the respondent.

Hugo L. Black:

Which they didn’t raise?

Gregory M. Pillon:

Which they didn’t raise then at that time I could have amended my pleadings if necessary or if I thought it was necessary.

I could have — in a trial of the case shown that little David, age 8, was physically incapable of trapping and he never trapped and he doesn’t even come within the statute.

As far as James is concern while he own traps and he was on the land at the time of his death there were no eye witnesses so it’s a fact question whether in fact at that time he was trapping.

But I’d never had this opportunity, it’s been — the doors been closed down.

Hugo L. Black:

Well, were – you’d view it to think – to know that in fact it could be used in the upper court?

Gregory M. Pillon:

The — I say that the statute — it’s a peculiarly worded statute but it really only changes the degree of proof, it doesn’t eliminate a cause of action.

It really changes the degree of proof and I say it’s a matter of defense that it should have been asserted so I wouldn’t be taken by surprise.

He could’ve waited until a trial was all over then try to put a statute on.

Say look instead of done something different.

The question is, it’s to — that’s the object of raising him so you have an opportunity to have an orderly trial.

That’s why he should have raised it and to show an affirmative — it’s an affirmative defense.

I’d like to reserve my — the rest of my time.

Earl Warren:

Mr. Plotkin.

Harry M. Plotkin:

Mr. Chief Justice, may it please the Court.

The usher of the case here presents two problems.

Harry M. Plotkin:

One, did the petitioner raise the federal question that he is urging before Your Honors now at — in the appropriate time?

Secondly, if he did not, is there any merit to the points that he does raise?

I should point out to the court that we are urging that in our brief that he did not raise the federal questions in the appropriate time.

I should point out that in the opposition for petition for certiorari where we should have raised this point, our point was not raised.

We were not counsel at that stage.

When we came in we thought that this was a jurisdictional problem and we do raise it at this late stage of the game.

We do think it’s appropriate for the court to consider this time on behalf of the respondent we apologize for not raising it to you at the time when a petition for certiorari was before you.

The facts are very simple.

At the trial the case was tried on the assumption that this was the case of ordinary negligence.

When judgment was entered for the plaintiff and it was convened for the court, I’ll refer to the parties, this plaintiff and the defendant because they then interchange our position when they’d come to the Michigan Supreme Court.

But when judgment was — for the plaintiff the defendant appealed to the Michigan Supreme Court.

In the Michigan Supreme Court for the first time it called attention to Act 201.

Act 201 on the face of it deprives the court below of jurisdiction that provides that there’s no cause of action shall arise when people are upon the lands of another for the purpose of hunting, fishing or trapping unless there’s either compensation paid or unless the occupier of the land is guilty of gross negligence or wanton and willful misconduct.

In the brief before the Michigan Supreme Court the question was specifically raised and we have incorporated as an Appendix A to our brief in this Court the portion of our brief raising this point in the portion of the plaintiff’s brief and required thereto.

We specifically raised the question, whether the Court of Appeal — whether the Supreme Court could consider Act 201 as dispositive even though it had not been raised in the court below?

We raises the question, we brief to point — we specifically pointed out that under the cases that we cited that while normally it look — the — an appellate court would not consider a point for the first time when raised there when it had not been raised below.

That it was a matter — that the court could consider and that if it were a case like the instant one where there was a statute which removed the cause of action as one that court should consider.

More or less we point that moreover we pointed out that as we interpreted the statute it was not a matter of defense for the defendant to raise but was a matter of the cause of action of the plaintiff and therefore it was something that the plaintiff should have addressed himself to.

The defendant —

This is in (Inaudible)

Harry M. Plotkin:

The plaintiff then filed its reply brief.

We filed the first brief.

In his reply brief he addressed himself specifically to the points that we had raised.

We had set forth a number of state authorities to the point that the state as a matter of state law can’t — the state Supreme Court can’t as a matter of state law consider the matter.

Plaintiff disagreed.

He cited a number of state cases to the fact of the Michigan Supreme Court could not or should not consider the matter.

He disputed our contention that the statute was a matter of — for the plaintiff’s responsibility, he said it was a matter for the defendants responsibility to plea.

The matter was at issue.

Neither one of us should raise any federal question up to that point which — that as a matter of state law, Michigan can’t consider it.

He said as a matter of state law, Michigan cannot consider it.

Harry M. Plotkin:

The Michigan Supreme Court then proceeded by five to three vote to rule that the statute could be considered that it was a matter that was a responsibility of the plaintiff and that on that basis the plaintiff had not made out a cause of action and that the matter should be reversed without a new trial.

I should point out that —

Hugo L. Black:

It hadn’t been raised in the lower court?

Harry M. Plotkin:

Pardon me?

Hugo L. Black:

If it had been raised in the lower court could the other side have proceeded there enough to get into court?

Harry M. Plotkin:

Well, on the basis of the facts as developed by the plaintiff, I don’t think so because all of the evidence that we refer to our brief is evidence that he brought out on direct examination.

Facts of facts, you don’t — it wasn’t a question that we have surprised them by bringing up something that affected this — there is De Facto were on opposition.

All of the facts were brought out.

He alleges in his complaint that the children were out trapping.

In his opening statement to the court he said the children were out trapping.

In his opening statement to the jury he made the same thing.

As a matter of fact if you’ll look at page 20 — 30 of our brief —

Earl Warren:

What page?

Harry M. Plotkin:

Page 30 of our brief, the blue colored brief.

It’s significant that even after we had raised this point of our Act 201 and its applicability.

And defendant — the plaintiff then filed his reply brief.

You will notice we quote there from, he himself in stating the facts says, “On December 21, 1958, James Heider, age 12 and David Heider, age 8 1/2 and their cocker spaniel drowned while trapping for muskrats and minks on the defendants property.

Everything that was before the court, the facts as he had developed, the admissions he had made, the statements he made.

The statement he had made to the Supreme Court even after he saw our contention was that —

Byron R. White:

Excuse me Mr. Plotkin —

Harry M. Plotkin:

Yes.

Byron R. White:

— was there evidence of in the trial record that these children were in fact hunting, fishing, or whatever it is that makes them pleasant?

Harry M. Plotkin:

Yes.

We have collected in our brief at pages 28 —

Byron R. White:

28?

Harry M. Plotkin:

Yes, and 29, a summary of the evidence as developed by the plaintiff which pretty clearly indicated that they were out for the purpose of trapping.

Abe Fortas:

Well Mr. plotkin, the other question under the statute is whether these deaths were cause by the gross negligence or willful and wanton misconduct in the Michigan Sugar Company in the way that it kept this place.

Harry M. Plotkin:

Yes.

Abe Fortas:

So that presumably or although I agree, the declaration and the statement of counsel for the plaintiffs cited the boys were there muskrat trapping but if this matter had been an issue, there were those who have been an issue, the question of whether the deaths were caused by the gross negligence or of the Michigan Sugar Company —

Harry M. Plotkin:

The declaration —

Abe Fortas:

— so that the issues aren’t —

Which is settled?

Harry M. Plotkin:

No.

The declaration specifically stated — in the plaintiff’s own declaration that there was a lack of ordinary care on the part of the defendant.

And under the cases that we have cited under — other Michigan Supreme Court cases when the plaintiff states his declaration in such a manner he is not entitled to go to the jury on the question of whether in addition there were gross negligence.

Abe Fortas:

Well, it depends on who has the burden of pleading and going forward under this particular statute.

Harry M. Plotkin:

Yes.

Abe Fortas:

He is proceeding in the common law, some other statute that requires only negligence and the question is whether he had to make it to this statute as a submission — proceeding in this cause of action.

Harry M. Plotkin:

The Michigan Supreme Court in interpreting this statute said that the burden was on the plaintiff, at least five judges said so.

I’ m not sure the three other judges disagreed.

I think the other three judges thought that the statute was not applicable and therefore never reached this point.

But five judges specifically indicated that was his burden that he failed to do it on the question as to whether he could or could not amend, he has never asked the — even the Michigan Supreme Court believe to amend either in his original argument or in his application for rehearing.

He’d never ask and now what if they would have granted leave to amend the note, I don’t know.

The Supreme Court does have authorities to permit him to do it but even to this day that request was never made to the Michigan Supreme Court.

When the Michigan —

Abe Fortas:

Why would he ask them to amend?

I don’t think he had some to do with the reverse.

Harry M. Plotkin:

He — him — yes.

I think —

Hugo L. Black:

And then amend in the court below.

Harry M. Plotkin:

He could either asked them for — to give permission to amend in the court below or to reverse when the instructions permit him to amend.

The question was never raised.

The question was never raised by the plaintiff.

Hugo L. Black:

But he did raise the question (Inaudible) —

Harry M. Plotkin:

I’m sorry.

Hugo L. Black:

Or between (Inaudible) —

Harry M. Plotkin:

He did what?

Hugo L. Black:

He did present the quest — the same question in the Supreme Court of Michigan he is presenting to us now, doesn’t he?

Harry M. Plotkin:

Only on the application — the petition for rehearing, he’d —

Hugo L. Black:

Yes, —

Harry M. Plotkin:

Yes.

Hugo L. Black:

— after they had ruled.

Harry M. Plotkin:

After they have ruled on this point, but even then he didn’t ask for leave to amend or even then he didn’t even ask for a new trial.

He then —

Hugo L. Black:

I don’t understand why he should ask them for leave to amend?

Harry M. Plotkin:

Well, or to remand to the court below with permission to leave to amend.

The fact remains is that the —

Hugo L. Black:

But he didn’t — he asked for it to be remanded back so he could try it over, didn’t he?

Harry M. Plotkin:

No, he asked for an affirmance of the judgment.

Hugo L. Black:

(Inaudible)

Harry M. Plotkin:

He never counted — he never count — we asked for the court to reverse either with or without a new trial and the Supreme Court of Michigan reversed without a new trial because under —

Hugo L. Black:

So on his motion for rehearing, what did he ask?

I don’t —

Harry M. Plotkin:

Well, another — the part attached thereto, the part that’s reprinted in the record does not show that he ask for anything.

What he contended, he attached affidavits which show that he — that the younger of the two Heider boys was not in fact capable of trapping and that he wanted the opportunity to show that.

Hugo L. Black:

Wanted the others (Inaudible) to show that?

Harry M. Plotkin:

Yes, yes.

Hugo L. Black:

So he didn’t raise the —

Harry M. Plotkin:

At the application for rehearing in the state just to one of the boys is not to the other.

The Michigan Supreme Court refused to — disposed of that without opinion on the five-to-two vote and the matter then came here.

William J. Brennan, Jr.:

That’s right.

Harry M. Plotkin:

Now, here he raises both substantive due process and procedural due process.

Substantive due process he says that Act 201 is unconstitutional.

That point was never raised before the Michigan Supreme Court until the application for rehearing.

He was clearly on notice when we filed our original brief that we are going to rely on Act 201.

We specifically called the courts attention to it and at that point when he argued to the court he never gave him any indications that Act 201 was substantively unconstitutional.

Hugo L. Black:

Was that his equal protection argument?

Harry M. Plotkin:

That’s his equal protection argument, yes.

On that he waived — clearly he was on notice and if he had a substantive constitutional point he should’ve raised at that point.

He raised it for the first time on petition for a rehearing and we contend that that’s too late.

Harry M. Plotkin:

He also on the petition for rehearing raised for the first time the question that the Michigan Supreme Court that somehow rather acted unconstitutionally by relying on Act 201 when it had not been raised in the trial court.

All contentions on that point up to that stage of the proceeding had been as a matter of state law, there’s been no federal constitutional law point raised at all.

Both parties had addressed themselves to that contention as a matter of state law.

The Michigan Supreme Court disposed of it as a matter of state law and then the matter was — first raised on an application for rehearing to the Michigan Supreme Court which disposed of it without writing an opinion.

Under the case that we have cited in our brief which says, it is too late to raise a constitutional law, a federal constitutional law point at the stage of petition for rehearing.

Now, we recognize in the cases we cite that there are two exceptions to that principle.

One is where the federal constitutional point is raised for the first time on petition for a rehearing and the state court does in fact in disposing that petition for rehearing consider the federal constitutional points.

That did not happen here.

The cases are very clear that where the State Supreme Court refuses to write an opinion but just disposes a petition for rehearing without an opinion that the fact that the petitioner raises at that stage is too late.

There’s a second line of a case that we are — where it create an exception, there are the case of Saunders v. Shaw and the Brinkerhoff case that we cite.

These are the cases where there are supervening circumstances that petition that could not have reasonably anticipated which result in petition or not raising the constitutional point until the petition for rehearing stage.

And the Brinkerhoff case illustrates that point very well.

It’s almost a case of entrapment or almost of sandbagging to use a colloquial expression.

In that case, an attack had been made on the constitutionality of attacks.

The — when the taxpayer lost, he took the matter of Supreme Court.

In the Supreme Court of the state, the Supreme Court of the State said that the taxpayer did not exhaust his administrative remedies because he had not applied to an administrative tribunal for the purpose of asking relief on this very point.

Now, it so happen that prior to the Brinkerhoff in the lower court, the decisions of that same Supreme Court have held that the administrative remedies were not in fact available to a taxpayer.

The Supreme Court of the State in Brinkerhoff overruled its earlier opinion and said, “We were wrong.”

The administrative proceeding is in fact available to a taxpayer and you are out of court because you didn’t resort to that administrative remedy.

Well, clearly this was a denial of due process.

There, a taxpayer didn’t follow an administrative proceeding that was not available to him.

As a matter of fact in Brinkerhoff, the court itself — this Court made clear that had there not been a prior opinion of the state courts specifically holding that the administrative remedy was not available, in other words had the question been undecided up to that point, then the taxpayer would run the risk of making up his mind of interpreting the state law as to whether the administrative remedy was or was not in fact available to him.

And if he guessed wrong on that, the Supreme Court of the State could throw him out for failure to exhaust administrative remedy.

What the — what this Court said in Brinkerhoff was that would the — that where the Lower Supreme Court, whether the Supreme Court of the State have previously — explicitly held that the remedy was not available it could not and the very opinion reversing that earlier opinion come back and say, “But we were wrong before.

We reversed it.

The administrative remedy is in fact available and we’re throwing you out for not addressing yourself to it.”

It therefore appears to be very clear to us that neither at the exception is available and that this constitutional problem are therefore not properly before the court.

On the merits and the argument on the merits really blend very much with the procedural arguments except on sections with due process.

Assuming that he is entitled to raise for the first time the substantive due process question here, it is our contention that there’s no merit whatsoever.

It seems to us that this is a very reasonable classification for the state to him — to engage in.

Harry M. Plotkin:

The state can say that people who are on the lands of the other for the purpose of hunting, fishing and trapping are a different class of people and that therefore the law can be different with respect to them than it is to people who are there for purposes, say, of swimming.

Abe Fortas:

But why is that?

What’s the difference?

Harry M. Plotkin:

Well —

Abe Fortas:

Why shouldn’t there be one rule of negligence about people who are going to the land of another for swimming and another one if they go to the land of another for practice?

Harry M. Plotkin:

Yes.

We have set forth in our brief a collection of statutes in some 30 states which have attempted to address themselves to this very problem.

There’s no legislative history in Michigan which explains what the Michigan Supreme Court have in mind.

There are in other cases where the same statute has been enacted, legislative declarations to the effect that one of the purposes of such a statute is to encourage landowners to permit their private lands to be utilized for hunting, fishing and trapping.

We cite a law review article in — it was contrary being to the effect that apparently —

Abe Fortas:

That’s a curious way to do it, isn’t it?

Harry M. Plotkin:

Well, it may very well be and maybe if we were legislators, we would not do it this way.

Abe Fortas:

No, I’m not asking that when I said some other curios things that assume that the legislators did it for that purpose?

Harry M. Plotkin:

Well, seven legislators have specifically said they did it for that purpose in enacting a statute similar to the —

Abe Fortas:

Was it the same thing here with respect to this legislation?

Harry M. Plotkin:

No, there is no legislative history in Michigan itself on that point.

But we think where 30 states have adopted a legislation of this type and where seven of those legislators have indicated that this is the purpose.

We think that this is a valid legislative purpose and is not such invidious discrimination that you ought to strike it down.

Just as a matter of digression, it’s interesting to know that the plaintiff says that this is a change to the common law of Michigan.

As a matter of fact Michigan until 1957 was one of the stricter of the common law states which held that the rule of trespasses was applicable even to minors as well as to adults.

It since has changed probably not as completely some of the other states but it has changed somewhat.

But it’s interesting that in 1953 when this statute was enacted the common law was still in effect even for minors, that even minors under the Michigan common law were not entitled to protection when trespassing on the land of another unless except for — as against gross negligence.

So there weren’t even change in the common law.

But in any event under the cases that this Court we have cited, this Court has held that the state — that the states in the railroad cases can enact statutes that when even they’re applicable to children of five or seven preclude them from recovering for — being injured when on the land of a railroad.

And those statutes have been upheld by this Court.

On a procedural point again we don’t — we think normally, it wasn’t timely raised but that there is no real point involved.

Two, it would’ve been better procedure had we — had the statute been called to the trial court’s attention.

I don’t say that the fault was any more ours than that of the plaintiff.

As lawyers I think both sets of lawyers owed it to the court to know about the statute.

But in any event —

Hugo L. Black:

To know about what?

Harry M. Plotkin:

To know about the existence of the statute.

It had been — the statute had been enacted before the accidents occurred and before this cause of action was filed.

It was the responsibility of both sets of lawyers to know it.

The fact remains that it — at an appropriate stage of the proceeding it was called to the attention of the Michigan Supreme Court.

The points were adequately briefed there by both sides.

The very contentions that petitioner ultimately raised were urged to the Michigan Supreme Court.

They we re fully considered by the Michigan Supreme —

Abe Fortas:

Why do you say that the lawyer for any respondent had been — know about the existence of the statute, is there anything in the record to that effect?

Harry M. Plotkin:

Yes, in his — for the respondent, you mean, for Michigan Sugar?

Abe Fortas:

Yes.

Harry M. Plotkin:

Yes.

In his opening brief to the Michigan Supreme Court, he called the attention to it and specifically have a statement in it to the effect that he apologized to the court for the fact that he had just discovered the existence of the statute in preparing his brief to the Michigan Supreme Court.

William J. Brennan, Jr.:

Well, actually he didn’t — still, he — where he found it, referenced to it in some law review article (Voice Overlap) —

Harry M. Plotkin:

That’s right, yes, and entered it so that there’s — the explicit statement of counsel to the effect that he found it there for the first time.

Hugo L. Black:

What would you had — still call that to the attention of the trial judge, would this trial had been a different one?

Harry M. Plotkin:

I would think not.

I would think that had the counsel for the defendant at the close of the plaintiff’s case called the attention of the court to Act 201 and move for a directed verdict on the basis of Act 201 —

Hugo L. Black:

But suppose he hadn’t waived it — into this case.

Well, he finally cut it off — suppose if (Inaudible) known about it and he had known that this was (Inaudible), you wouldn’t have known about it and the other side have known about it, wouldn’t this has been an entirely different trial?

Harry M. Plotkin:

I think had they known about at that stage the court would’ve dismissed the complaint and then there would’ve been a question whether they could in fact plead a good cause of action on the facts that they have —

Byron R. White:

Well, under the statute —

Harry M. Plotkin:

— under the statute.

Byron R. White:

— at least there would’ve been a request for instruction to the jury to find gross negligence, wouldn’t it?

Harry M. Plotkin:

No, when the complaint is not — and unless they amended the complaint under Michigan practice, under the case we have cited, you do not instruct the jury on gross negligence when the complaint itself simply refer (Voice Overlap) —

Byron R. White:

Well, there would’ve been an amendment?

Harry M. Plotkin:

Pardon?

Byron R. White:

You say the trial — you say it’s — it has then called the attention of the trial judge and both counsel had then known about it, don’t you think there had — there would’ve been amendment to the complaint or some attempt to rely on gross negligence?

Harry M. Plotkin:

It — with — they’ve — whether they would’ve attempted to amend or not, I don’t know.

It’s significant that two of the five judges who reversed that that as a matter of law there wasn’t even enough evidence to show ordinary negligence.

Harry M. Plotkin:

So whether —

Hugo L. Black:

Well, I thought —

Harry M. Plotkin:

Pardon?

Hugo L. Black:

I thought it was — in this for example, neither one of them knew about that statute.

It was a very material statute and certainly — and could result in concluding the case for the plaintiff.

Suppose the plaintiff had known of that and you have known but — into the fact and all — just in evidence, they were to amend their complaint and sued on the other basis?

Harry M. Plotkin:

Well, I think it’s extremely likely that they would have amended, yes.

Hugo L. Black:

Of course they would.

Harry M. Plotkin:

Yes.

Hugo L. Black:

And what you have is the case was decided without him — knowledge of it, nobody — you didn’t say anything about it.

You say you didn’t know it at that time.

But you didn’t say anything about it and you got up to the court and then you raised it.

Harry M. Plotkin:

Yes.

But under a statute —

Hugo L. Black:

And there — at the trial — in the trial on the issue that they could have tried and them having — been known at the beginning.

Harry M. Plotkin:

They have been — if they have been so deprived, they’ve been deprived by their own conduct in overlooking the statute.

Now, maybe a State Supreme Court in a different state would —

Hugo L. Black:

But it seems to be rather natural for them to do it and you only cited in the law review articles.

Harry M. Plotkin:

Well, I don’t know why Michigan — why two sets of Michigan lawyers overlooked the statute that had been on the book for several years.

I mean —

Abe Fortas:

Do you personally were not (Voice Overlap) —

Harry M. Plotkin:

No, no.

Abe Fortas:

I think you have made that clear.

Harry M. Plotkin:

We have not become counsel on this case until the petitions — until the brief on the merits were filed.

So whether we would’ve done better, that’s easy for us to say we would’ve but we were not counsel in the case and clearly both sets of counsel should’ve known about it and it seems to me that a statute which is the responsibility which the Michigan Supreme Court has held is irresponsible, the plaintiff to plea.

When they didn’t, the Michigan Supreme Court said, “You haven’t — not done so, you’re out of the court.”

Abe Fortas:

Well, the sum total of the result is getting it without regard to whether illegal or decided whether it’s (Inaudible).

Is it tried on the basis that they didn’t know anything about — couldn’t win on it in — on the basis on what’s construed on that statute and this people have been knocked out of the trial on the — for that purpose.

Harry M. Plotkin:

They plead — they pleaded facts that had they known the statute — they pleaded facts that on the way they pleaded and the facts as they developed made it impossible for them to win.

Nobody’s — nobody entrapped them on the —

Byron R. White:

(Inaudible) by this Court, didn’t you?

Harry M. Plotkin:

Pardon?

Byron R. White:

It may be they pleaded to the prove the facts so — going with the statute (Inaudible) — is that so far as you — do you really mean to say that they didn’t do — they get to — how about gross negligence?

Harry M. Plotkin:

Well, the Michigan Supreme Court —

Byron R. White:

I know the Michigan Supreme Court read this present record —

Harry M. Plotkin:

Yes.

Byron R. White:

— as saying that there was no gross negligence.

Harry M. Plotkin:

Well, all I can say is and I’m not a practitioner in Michigan but from reading their cases they are a strict court even though finding ordinary negligence.

They find as a matter of law that whether in other cases would be a clear case of ordinary negligence to — at least one the title go to the jury.

They direct verdict for the defendant.

Michigan I think is a strong defendant state in this area of law rather than the plaintiff’s state.

And two of the judges thought that as a matter of law there was no ordinary negligence.

When you read some of the other cases, the court directs verdict on ordinary negligence in this type of situation.

Now, it’s just pure — it’s a pure conjuncture how they will come out but this is a defendant’s minded court on negligence matter.

Thank you Your Honor.

Earl Warren:

You have a couple of minutes left Mr.–

Gregory M. Pillon:

I appreciate it (Voice Overlap) —

Earl Warren:

— Pillon if you wish.

Gregory M. Pillon:

I’ve — just like to say this that if I’ve been met with the statute in the lower court, had been brought to anybody’s attention the pleadings could’ve been amended.

I could’ve shown three things, one, that David himself owned no traps, couldn’t physically even set a trap so he wouldn’t — couldn’t be a — possibly be a trapper and we could cover for ordinary negligence for David.

And as for James, James owned traps and he was trapping.

There was no eye witnesses when he died on that land at that time then it was a question whether he was trapping on that land and that should’ve been a jury question.

But in any event I could have gone ahead and even claimed as far as James is concern, gross negligence, namely that that they had such dangerous condition, they knew that many people came upon their land, a couple of (Inaudible) sign of warning.

They could’ve prevented this in showing that there was really a trap.

I should’ve — had that opportunity, but again this illustrates that really equal protection is denied to this children because why should two children, David and James, why should David go on the land and be able because he’s not trapping but going along with his brother, recover for ordinary negligence.

And his brother, who has a trap and is going to set a trap on that land have to prove gross negligence.

Why should it be two standards for two children dying at the same time at same place —

The trouble is that the —

Gregory M. Pillon:

— engaged in —

— Supreme Court of Michigan said that the statute applies to both of them.

Gregory M. Pillon:

And that’s why it’s invidious because applied the statute as I said under the common law of Michigan, children could recover for ordinary negligence.

When they applied the statute for the little child, the immature child when they say that he is the hunter, the fisher, the trapper, that’s in my opinion, is an invidious discrimination.

Thank you kindly for your attention.

Earl Warren:

We’ll adjourn.