Mercer v. Theriot – Oral Argument – April 22, 1964 (Part 2)

Media for Mercer v. Theriot

Audio Transcription for Oral Argument – April 22, 1964 (Part 1) in Mercer v. Theriot

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Earl Warren:

Mr. Brumfield, you may continue your argument.

H. Alva Brumfield:

May it please the Court.

I would like to reserve my 11 minutes, I believe I have —

Earl Warren:

You — you may —

H. Alva Brumfield:

— enough for rebuttal.

Earl Warren:

You may Mr. Brumfield.

H. Alva Brumfield:

Thank you — thank you sir.

Earl Warren:

Mr. Loeb.

Stanley E. Loeb:

Thank you.

Mr. Chief Justice, members of the Court.

Mr. Brumfield has stated the facts of the case and I would like to pick up in the discussion of the Dick versus New York Life Insurance Company decision, which as Mr. Justice Goldberg pointed out, has left open the question of whether the sufficiency of evidence is — could be measured by state law or by federal law.

That might be an open question but in the same decision, there is found the falsity of statement that under the area rule, presumptions and burden of proof in the diversity case are substantive in the matters of state law.

And the law of Louisiana, the substantive law of Louisiana presumes that a motorist or everybody else obeys the law.

There is no presumption of negligence, presumption as it — just to the contrary.

And the decisions of our Supreme Court are clear that in a case of this kind predicated on Article 2315 of our Civil Code which is cited on the first page of respondent’s brief in a footnote puts upon the plaintiff the burden of proof of all the elements necessary to establish liability.

In a case like this where there was no witness to the accident, the first element of proof is that this — the defendant was a party to the accident.

And the second element, which had — the defendant was negligent.

Now, this case, after the jury found for the plaintiff was appealed to the Court of Appeals for the Fifth Circuit and Chief Judge — then Chief Judge Hutcheson wrote the opinion for the Court.

And he carefully avoided reference to any State decision in arriving at the conclusion that the evidence was not sufficient to support the verdict, number one.

And second, that the record was literally thought with reversible error.

Apparently, the reversible error question is not before Your Honors.

It was not raised in petitioner’s brief and I comment it in respondent’s brief, that such was the case on page 14.

I — the comment is made that petitioner has not discussed in her brief the holding of the Court of Appeals on the first appeal that there was reversible error.

But —

Hugo L. Black:

But that would be before us anyhow, would it not?

Stanley E. Loeb:

I believe so.

I believe it’s before you.

Perhaps I used the wrong word Mr. Justice Black.

It’s before you, the whole case is before you but I meant that the issue hasn’t been raised in petitioner’s — either petition or in their brief in this particular case.

The problem now seems to be directed toward the mandate of the Court of Appeals in the first appeal.

Stanley E. Loeb:

And it is as Mr. Brumfield has pointed out a most unusual mandate.

And it seems to me that this Court’s attention was attracted by the mandate in its respect to the Seventh Amendment.

With the permission of the Court, I will read the mandate.”

Because however, evidence as distinguished from rumor and speculation as to the why and how of the death of plaintiff-decedent and as to the responsibility of the defendant for it, may have been or maybe discovered.

We order the judgment reversed and the cause remanded with directions to enter a judgment for defendant.

Unless plaintiff, within a time and under considerations to be fixed by the district judge, makes a satisfactory showing that on another trial, evidence of sufficient probative force to justify submission of the case to the jury will be open.

In which case, the judgment shall be for a new trial.”

So what the Court of Appeals did was to remand the case to the District Court to allow the plaintiff to make out to the satisfaction of the district judge, with Judge Wright, that on another trial she could produce evidence of sufficient probative force — force to take the case to the jury.

Now, what happened was, plaintiff timely filed an appropriate motion for a new trial and in support of that motion and on the order of the District Court, some nine or 10 depositions were taken including the depositions of some of the witnesses who had testified on the trial.

In addition to that, there was an ex parte report from an accident technician or purported accident technician which was all submitted to Judge Wright.

Judge Wright considered the motion and the evidence submitted in support of the motion in light of the mandate and ruled that there was nothing in the evidence submitted in support of the mandate to — to support the conclusion that on another trial there would be probative evidence that could go to the jury.

Therefore, he refused the new trial.

Plaintiff asked for a rehearing and the rehearing was granted.

The argument was heard.

And if the Court please, that was when I came into the case.

My predecessor, who is Mr. Robert G. Hughes, was elected to the bench after the case was tried and after the case was argued and after the Fifth Circuit had ruled on it.

And I came into the case when he was elevated to the state bench and picked it up at the second — at the first rehearing, the second argument on the motion for a new trial before Judge Wright.

Judge Wright again considered and refused a new trial.

Thereupon, plaintiff appealed again to the Court of Appeals seeking review and getting review of Judge Wright’s rulings.

That case was argued to a panel of the Court and a few weeks thereafter, counsel were notified that the panel would submit it to the whole court en banc and additional briefs could be submitted, that was done and the whole Court considered the matter and rendered the opinion in the second appeal affirming Judge Wright’s refusal of a new trial by a divided court, five-to-four with Chief Judge Reeves filing a dissent.

In his dissent, it’s leveled with the Seventh Amendment and that raises in my mind the notion that that is the crux of this case whether the mandate, the original mandate, has done violence to the Seventh Amendment, because I know this Court is busy and has not concerned itself with the particular facts of a particular diversity suit.

But the — the Seventh Amendment feature of the case is the important one as I see it.

Now, in the Slocum case, this Court speaking through Mr. Justice Van Devanter said in 19 — I think 1930 that, “Everything of a phiso — philosophical nature concerning the Seventh Amendment which could be said at that time had been said.

And there was little to be added to it.

That the Seventh Amendment restricted the scope of appellate review to the — that is in — in federal court, to the common law as it existed in 1791, which interpreted means that where the suf — insufficiency of the evidence is grounds for a reversal.

The Court could grant a new trial and nothing more.”

That was the rule of common law in effect in 1791.

Now, it is quite apparent that the mandate which I just read does not order a new trial, nor does it deprive the plaintiff of their rights guaranteed by the Seventh Amendment because in the case of Gasoline — and it’s cited in my brief, Products Company versus Champlin which is 380 — 283 U.S. 494.

This Court held that the Seventh Amendment guarantee did not restrict the appellate courts to the procedure of the common law of 1791.

And the opinion says, “We’re not concerned with form, we’re concerned with the substance of the Amendment.”

Stanley E. Loeb:

And the modern practice even then, was not to be circumscribed because of just blind adherence to the old forms.

Now, in 1960, when this case was remanded, it was remanded with — and thought in mind that the Federal Rules of Civil Procedure provided the mechanics, the tools whereby the District Court could ascertain in advance of another trial whether the judge would be constrained to direct the verdict at the close of the plaintiff’s testimony.

And that’s exactly what happened.

The plaintiff had unrestricted opportunity and did produce all of the witnesses he could possibly find.

Those witnesses, as counsel told you in his argument, testified — well Officer Prudom (ph) said it.

And Officer Prudom (ph) testified that Officer Gidrey (ph) said it and it was a hodge-podge of conflicting rumor, speculation and guess work.

The whole record is here, the original depositions of those witnesses are in the record.

And on the second appeal, the — which even the dissenting opinion of Judge Reeves pointed out that it was just a conglomerate mass of hearsay which would be inadmissible.

However, Judge Reeves thought that there was one piece of evidence there that was sufficient to take the case to the jury.

And that was apparently the reason for his dissent.

But —

Potter Stewart:

What do — what — what piece of evidence was there?

Stanley E. Loeb:

It was a two — a statement by one of the policemen concerning what he saw at the scene and what he said he saw at the scene of the accident.

Potter Stewart:

What he himself had seen.

Stanley E. Loeb:

He himself, concerning some track — track marks.

But of course he had no way of knowing what vehicle made the track marks.

Potter Stewart:

Alright.

Stanley E. Loeb:

But except for that one piece of evidence which this — the patrolman said he saw.

The rest of it is merely speculation.

Arthur J. Goldberg:

Assuming Mr. Loeb —

Stanley E. Loeb:

Yes, sir.

Arthur J. Goldberg:

— we were (Inaudible)

Stanley E. Loeb:

There is no question about that.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

Well sir, that had been an open question since the Dick decision and I believe that I’m not going to evade your question, Mr. Justice, but I believe whatever standard that might be applied in this case, be it state or federal, and reading of the record and of the opinion of the Court of Appeals in the first opinion, will immediately show that a remand was necessary.

There was no evidence at all to support the verdict.

And beyond that, there were many instances of reversible error.

Byron R. White:

Well you don’t say then the wrong — you don’t question but what the Court of Appeals used the right standard in reviewing the case.

Stanley E. Loeb:

Oh, they did.

They did sir.

Stanley E. Loeb:

They used the right standard.

And whatever standard they might have used, it would have been the same.

I doubt that the federal standard —

Byron R. White:

Well, there is no (Voice Overlap) —

Stanley E. Loeb:

— if there’d be one.

Byron R. White:

Well, there is no Louisiana standard to the —

Stanley E. Loeb:

I think there is and I would differ with the counsel there.

There is because whereas all appellate courts have the power, the constitutional power in our state constitution to review findings of fact by the trial — by — by the finders of fact, judge or jury.

There still is a standard of sufficiency of the evidence to support a finding of fact, be it a verdict or finding of fact by a judge.

And it’s a very real standard.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

No difference.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

No different from the standard in any other state because counsel properly told you that our state law of torts is the general — it has no gimmicks in it.

Arthur J. Goldberg:

And no different from the federal standard in reviewing it.

Stanley E. Loeb:

If Your Honor please, I don’t know what the federal standard of review is.

I don’t know whether there is a separate standard.

In the Dick case, Mr. Chief Justice left the question open and —

Byron R. White:

Well for example, does the Louisiana have that thing called (Inaudible)?

Stanley E. Loeb:

No.

I would say no.

Byron R. White:

That’s placed insufficient evidence —

Stanley E. Loeb:

Sufficient evidence.

Evidence of such property force as would cause man of intelligence do differ.

That seems to be the standard in Louisiana and if there be a federal standard, Mr. Justice White I suggest that that would apparently be it.

Potter Stewart:

Mr. Loeb —

Stanley E. Loeb:

Yes sir.

Potter Stewart:

Is — doesn’t it remain true in Louisiana and as I understand it uniquely in Louisiana that an appellate court, even if it might find that the evidence were sufficient to support a particular finding of fact could — would still have the power to say, nonetheless, we think that the preponderance of the evidence shows the facts to be just the opposite and we therefore are so find.

Stanley E. Loeb:

That is correct.

Potter Stewart:

So to that extent, you don’t — you’re not limited by efficiency of the evidence standard as are the federal courts and are — as are the courts of all the other states to the best of my knowledge, isn’t that correct?

Stanley E. Loeb:

I — I’m afraid that that is stated in such a way Mr. Justice that it —

Potter Stewart:

I didn’t mean to be unfair.

I’m really —

Stanley E. Loeb:

It’s difficult to answer.

Potter Stewart:

You — you —

Stanley E. Loeb:

The —

Potter Stewart:

— rephrased my question anyway.

Stanley E. Loeb:

Well, as the — the appellate courts do have the power to find facts different from the — that — those facts found by the trier of fact.

Potter Stewart:

And — and may I interrupt to ask —

Stanley E. Loeb:

(Voice Overlap)

Potter Stewart:

— do they have that power even if it’s assumed that there might be sufficient evidence to support the triers of findings.

Stanley E. Loeb:

I didn’t get that.

That they have the power regardless, they have the power.

Potter Stewart:

Yes.

Stanley E. Loeb:

But, there is the uniform rule established by the jurisprudent that the power will never be exercised except in case of palpable error.

Now, if there’s no error shown by the record, the — the appellate courts under the jurisprudence and the recent jurisprudence of Louisiana Supreme Court.

The — under that rule, which is firmly established, the appellate courts shall not interfere with the finding of fact unless there is apparent error on the part of the trier of fact.

So you do have a rule, a very real rule, which is adhered to.

Now, of course, in Louisiana we have four Circuit Courts of Appeal, the intermediary courts and one Supreme Court.

Now, I don’t mean to tell you that every case where one of the Circuit Courts of Appeals might undertake to reverse a jury or — or a judge — trial judge.

That in every case there is palpable error that the Court thinks so because they are — they are bound, they did — the Courts of Appeal are bound by the decisions of our Supreme Court on the Circuit.

So we do have a rule and I doubt as I say it again, except for the scintilla rule which I don’t know whether that constitutes a federal rule or not.

Potter Stewart:

Well, I suppose it would —

Stanley E. Loeb:

It might and it would — excuse me sir.

Potter Stewart:

Excuse me sir.

Stanley E. Loeb:

It might at a Workmen’s Compensation situation.

Potter Stewart:

I was — because that’s a — you rephrase the question I was going to ask you.

I suppose if — if the federal rule were to be found in the Federal Employers’ Liability Act cases, for instance and that is — it might differ somewhat at least from the — the rule as to the sufficiency of the evidence standards and — and in the (Voice Overlap) —

Stanley E. Loeb:

It certainly would.

Potter Stewart:

— in the United States.

Stanley E. Loeb:

It certainly would.

And if — of course we were trying in the state court a Jones Act suit.

Potter Stewart:

Yes.

Stanley E. Loeb:

An FELA case.

Potter Stewart:

Yes.

Stanley E. Loeb:

The scintilla rule would apply.

The —

Potter Stewart:

I know, that’s ever been —

Stanley E. Loeb:

I don’t —

Potter Stewart:

— verbalized that way.

Stanley E. Loeb:

I don’t know.

Potter Stewart:

I agree with you that —

Stanley E. Loeb:

But certainly the —

Potter Stewart:

(Voice Overlap)

Stanley E. Loeb:

The burden — the extent of proof necessary would not be as great and that — incidentally, that is apparent in this record and in the briefs and the cases cited by the petitioner, their mostly FELA cases.

But even this Court in an FELA case and the Moore case, Moore versus the Chesapeake and Ohio Railroad, reviewed the effect — Justice — Fifth Circuit did here and found there was no evidence to support the — the verdict of the jury.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

Not only of a — they exposed to, they are bound to by — by our civil code and by the decisions of the Supreme Court.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

I would — oh yes.

Except — except for that instance which was very important because the correction didn’t occur until long after.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

Correct, Judge Wright correctly stated the law of Louisiana on — on negligence.

Arthur J. Goldberg:

Your argument therefore (Inaudible)

Stanley E. Loeb:

Please —

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

Yes sir.

And then it takes us to the mandate whether the mandate —

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

Where — where there was a proper disposition of a case.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

No sir.

Arthur J. Goldberg:

(Inaudible)

Stanley E. Loeb:

That’s correct.

That is correct and since Mr. Justice Goldberg has stated my point, I will thank Your Honors for your attention.

Earl Warren:

Thank you.

Mr. Brumfield.

H. Alva Brumfield:

Mr. Chief Justice, as was pointed out by Mr. Justice Goldberg the — the real issue in this case is whether there was substantial evidence from which the jury could reasonably conclude that the defendant killed Byrd (ph) Mercer.

Now, in — in viewing the entire record, it is our position that there is that evidence in this record regardless of — of the depositions and other steps that were taken like the report from the accident analyst and the deposition of witnesses that didn’t appear at the trial.

Irregardless of that, the evidence as educed on the trial with the merits of this case before the jury was sufficient to — to make a jury question to be submitted to the jury.

There was a conflict in the evidence.

There were denials by the defendant.

There were — there was testimony to the fact that he was not telling the truth.

There were circumstances, there were physical evidence, there were photographs, there was a timing, there were all of these — the evidence from which a jury could draw inferences and wherever you have that situation as I appreciate the countless decisions handed out by this Court that where you have a conflict of evidence and you — you have it at that stage where the jury can draw inferences and arrive at a decision and reach a decision as to the fact then that should be submitted to the jury and as a jury question.

Byron R. White:

Well, what would the –And then on —

There may be evidence here that — that the defendant ran over somebody and that even that he ran over this person who was killed, what’s the evidence — what’s the evidence, any evidence that meant that he was negligent in so do — that he was negligent in so doing it.

H. Alva Brumfield:

Well — well with — with the man walking down the road, on the shoulder of the road, we had a right to be —

Byron R. White:

Well, how do you know he was there?

H. Alva Brumfield:

Sir?

Byron R. White:

How do you know he was there?

H. Alva Brumfield:

Because his body was found there and he was last seen alive at the wharf, he’s going his way home.

He was going to walk home and not ride.

Byron R. White:

But the finding in there doesn’t mean he was hit there and that he was walking there.

H. Alva Brumfield:

But with the — with the evidence as shown by the photographs of the tire marks, his position as he was lying there on the shoulder of the road, the — the blue coloring on the car that struck him —

Byron R. White:

Oh yes, but that’s just evidence that he was — that he was struck but what about the negligence of the driver of the truck?

H. Alva Brumfield:

Now — now, the negligence —

Byron R. White:

Well, the evidence that — you have this a — is that his wheels were off — were over on the shoulder?

H. Alva Brumfield:

Over on the shoulder of the road and you have the deceased there.

That it — that if you prove that, say that you had a witness that was out there in that swamp and saw Theriot drove — drive off onto the shoulder of the road as Mercer was walking along on the shoulder of that road, that would be direct proof of negligence under the law of Louisiana.

Because he wasn’t keeping a proper lookout and because he had the last clear chance if nothing else, even if — if the deceased was negligent himself in walking along on that dark road.

The duties is up on the driver of the vehicle in Louisiana to keep his car on a proper control to see what he should’ve seen, to see all — to be able to stop his car within the range division of his lights and by not doing that then that would be a preponderance of the evidence showing negligence, which negligence was approximate cause of his death.

Byron R. White:

You think in Louisiana, you can show somebody run over somebody else on a — on a deserted road that — that evidence of negligence.

H. Alva Brumfield:

If he ran off of the — off of his lane of traffic, of the — the asphalt portion of the highway and ran into a pedestrian on the shoulder of the highway as his back was to the driver of the automobile that would be absolute passive evidence of negligence without any question.

Hugo L. Black:

Suppose he was being tried criminally for that offense?

H. Alva Brumfield:

For negligent — homicide?

Hugo L. Black:

In view that he him right at that place.

And he claims — he claims that the he didn’t — he was very careful, could they draw any inference in the fact that he fled after he could —

H. Alva Brumfield:

Yes sir.

The — the inference of the fact that he hit and run is a — is a — is an inference that can be drawn.

And — and of course in a civil case as Your Honor knows, he — you don’t have to prove it beyond a — a reasonable doubt as it if — it was a criminal case.

But here, you — you’re not bound with that just by preponderance of the evidence and —

William J. Brennan, Jr.:

How about the evidence to be (Inaudible)?

H. Alva Brumfield:

I — I didn’t hear you.

William J. Brennan, Jr.:

What — there’s some evidence that this defendant had been drinking, did you tell —

H. Alva Brumfield:

Oh, there was uncontradicted evidence, he — the defendant admitted himself that he had been drinking all afternoon.

He — he didn’t admit to the number of — of the drinks that he had — that he — that the bartender served him but he did admit that he had been drinking there all afternoon.

William J. Brennan, Jr.:

Did the jury draw any inferences of the — driving from that —

H. Alva Brumfield:

Yes sir, under the influence of liquor, yes sir, that in itself.

There’s many in the — instances where the negligence is — is presumed.

I’m making a left hand turn and — and passing a car on a bridge is all — all types of situations where presumptions can be drawn and inferences where a fact situation is produced.

Hugo L. Black:

What evidence was the connection of the facts the way they ran, I wonder if —

William J. Brennan, Jr.:

The — the fact that the body, I’m looking at the photographs if I had them here, Your Honor could show, you see the body lying there in the direct line —

Hugo L. Black:

(Voice Overlap) — did they show a straight line?

William J. Brennan, Jr.:

Straight line deviated from the asphalt onto the shoulder and then back on to the asphalt.

Hugo L. Black:

(Inaudible)

H. Alva Brumfield:

(Inaudible)

H. Alva Brumfield:

Off of it, some about two of three feet off of the asphalt portion of the highway.

Byron R. White:

Is this a dirt (Inaudible)?

H. Alva Brumfield:

It’s a grass, it was grass.

Byron R. White:

There was no footprint?

H. Alva Brumfield:

No, but the tire tracks are shown in the grass itself.

The grass was rather high and they were still there, went — in the next morning when the photograph of the body was taken as shown in these photographs, the — the tire track.

Byron R. White:

Well, I take it, what the evidence shows is that the — well, it seems to show that somebody was hit and if he was hit, he must have gone up on the hood.

H. Alva Brumfield:

He must have been.

The right — and you see it all fixed because he’s walking on the right hand side of the road and the car is coming from his back and the right fender and the right headlight was what was damaged and the right portion of the hood.

So when that body hit the fender and headlight hit the body, it slipped him apparently because when he went right on over the — the — there’s a big dent in the hood near the windshield as the body was clipped — clipped over.

Byron R. White:

So, he must — then he drove off to the side then?

H. Alva Brumfield:

And then either clipped or just flipped all away over, of course you can’t tell but the — but with the body landing, it was right faced down and the tracks are right there.

So when he flipped, he’s riding the path.

Byron R. White:

(Inaudible)

H. Alva Brumfield:

He could very well have —

Byron R. White:

(Inaudible)

H. Alva Brumfield:

He couldn’t have stayed there.

It knocked him off to the end of the ditch but it — but apparently it just — they flipped him over and he landed right in the tracks and the pool of blood was there as one of the deputies who investigated was found right in the — in the truck itself.

Hugo L. Black:

Was there any kind of paint on his clothes of any kind?

H. Alva Brumfield:

Mr. Justice Black, he had this overall zone with blue denim and the — the officers who took the scrapings of it, that was in the dented part of the — of the hood, took the scrapings off, he said there was a poor slack like — like it was a fabric.

And then — and of course analysis of — and a laboratory would have proved indefinite but his testimony was as an investigating officer was that it came from the blue denim of his overalls and I don’t think there’s any —

Hugo L. Black:

But what the —

H. Alva Brumfield:

— question about that.

Tom C. Clark:

That was the part of this dispute.

H. Alva Brumfield:

And that was what was destroyed and we had the skulduggeries as Judge Reeves call it in the — in the destruction of this evidence which brought all of this invalid but — but I — that — this pinpoints to me the — the greatness of a jury trial and — and where the determination of the facts where you have sufficient evidence produced, where the circumstance, physical or by eyewitness to have that determinative facts, be a judge or jury to see these witnesses and hear them and not make a determination of fact from a cold record.

Because it’s — it’s just not the same and — and just like Judge Wright said, when he denied the motion for a new trial in this case after the verdict came in from the jury, he says no one who sat through this case and heard these witnesses could come to no other conclusion but that what the jury did.

And then when he came back down and after it was remanded with his mandate and after it went through these other depositions trying to find some evidence that had been destroyed by this someone — one pointing to the other.

Judge Wright made this statement and I — I would like to read it for you because to me that — even if he had tried this case without a jury, there had been no — no question of what decision he would have rendered because here’s what he said.

There isn’t any question in my mind that that there was a denial of justice in this case.

There isn’t any question in my mind either that Paris Theriot killed this man.

H. Alva Brumfield:

Now, how can you have a miscarriage of justice in the state court before a jury and a judge and still have a miscarriage of justice in the Fifth Circuit Court of Appeal for the defendant.

Arthur J. Goldberg:

(Inaudible)

H. Alva Brumfield:

Had he changed his mind and he —

Arthur J. Goldberg:

(Inaudible)

H. Alva Brumfield:

Right judge and I — I beg Judge Wright, has said, I — he — he was on the impression that — that the mandate provided that — that the plaintiff had defined additional evidence.

And of course Judge Wisdom in his decision says that that’s the only interpretation of it.

But — but if the case had been retried and resubmitted on the exact evidence, there was educed at the first trial, the decision would still have been the same.

And that’s the reason we are here now and asking this Court to reverse this case and render and that is restore the jury of verdict as there is no need for a new trial in this case.The evidence has been educed.

Thank you very much.

Earl Warren:

Yes.