Mercer v. Theriot

PETITIONER:Mercer
RESPONDENT:Theriot
LOCATION:Alabama State Capitol

DOCKET NO.: 336
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 377 US 152 (1964)
ARGUED: Apr 22, 1964
DECIDED: May 04, 1964

Facts of the case

Question

  • Oral Argument – April 22, 1964 (Part 2)
  • Audio Transcription for Oral Argument – April 22, 1964 (Part 2) in Mercer v. Theriot

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

    Earl Warren:

    Number 336, Wanda Mercer versus Paris Theriot.

    Mr. Brumfield.

    H. Alva Brumfield:

    Yes, sir.

    Mr. Chief Justice and may it please the Court.

    This is a death action brought by a widow for the death of her husband who was killed on Grand Isle which is on the shoreline of the State of Louisiana, the action being brought under Article 2315 of our Civil Code which is our death action statute.

    It was brought in the federal court on the ground of diversity of citizenship as the widower is a citizen of the State of Texas.

    A jury trial was held and the jury rendered a verdict in favor of the widow.

    The facts of this case briefly stated, the deceased, (Inaudible) Mercer was an offshore worker, working out in the Gulf of Mexico and he lived in a trailer on Grand Isle and he go to and from his work out in the Gulf by boat.

    He came in, docked on Grand Isle — that docked there on December the 18th, 1955 at approximately 7 o’clock of that evening.

    As a rule, he would ride with coworkers who drop him off with his trailer where he lived with his wife.

    But on this night, he decided to not ride with his coworkers and he would walk home, it’s about four miles to the East.

    There’s only one road on Grand Isle being Highway 1.

    He was found on the right hand side of the road on the shoulder of the road the next morning, 6:00 or 6:30 am, faced down some two or three feet from the asphalt portion of the highway on the shoulder of the road, dead.

    There were tire marks showing that on the shoulder of the road, at and near his body, a — a pool of blood in the tire mark on the shoulder of the road and he was severely injured, his legs were broken, liver, spleen ruptured, spine chord injury, skull fracture, brain damage resulting in his death as shown by the coroner’s report.

    There were no eyewitnesses to this accident that caused his death.He wore a — a denim overalls of blue.

    The — when he — when his body was found, the investigative officers were notified and they came to the scene and made some pictures of the body there on the shoulder of the road which pictures are introduced into evidence and are before the Court here.

    The officers also made an — an investigation and determined that there was a man that had been on the island as they would call it down there, in a bar, a fisherman’s bar wharf and drinking scotch and water all afternoon.

    This man was Paris Theriot and he owned an automobile agency and he came down there to sell, the owner of the business there, an automobile which he did consummate the sale that afternoon, drinking scotch and whiskey during the course of the afternoon.

    And he left the bar at about 7:30 of that night, 7 pm.

    It was foggy and rainy, drizzly evening.

    Immediately, the officers — he became the suspect and the officers went to his — where he lived, he got a home on Grand Isle as well as in Golden Meadow, Louisiana.

    And they went up to Golden Meadow and found him and asked him if he’d been on the island and he first denied that he hadn’t — hadn’t been there at all but then he later admitted that he had been there.

    And they asked him where his car was and he pointed out to it across the bar there.

    And the officers got the car and made some pictures of it in an investigation, examination of the automobile and found that the right rim of the headlight was missing.

    That the front fender was dented on the front and that there was a dent on the hood of the automobile, about near the windshield and that in this denture — indentations on the automobile, there was a blue coloring.

    And so the officers took scrapings of this coloring which was fabric-like and matched according to the testimony of the officials, the — the denim overalls that this deceased was wearing.

    Mr. Theriot was then asked if he had washed his car and he denied that he had, although he — he said that it always been washed every morning but this morning, it hadn’t been washed.

    Yet the officers found some powdery — powdery substance, one of them described, it looked like Old Dutch Cleanser on the automobile indicating that it had been washed.

    The officers also found a towel — stuff behind the seat cover behind the back — the front seat up between the seat and the seat cover of a brown substance which appeared like blood.

    They put the car on a rack and found underneath the car some hairy substance and — and blood under the steering mechanism, underneath the car.

    H. Alva Brumfield:

    Putting all of those bits of evidence and envelops for marking, they took it to the courthouse of Jefferson Parish for it to be taken to the laboratory for testing.

    All of these evidence disappeared.

    The only thing that remained was these photographs that were made by the investigating officers showing the deceased and the car itself.

    Faced with this evidence as to the damage to his automobile, confronted with that, he was asked by these officers.”

    Well, how did that happen?”

    His answer to them was, “Well, I hit a cow.”

    And then they kept pressing him about that and then he changed the story and said, “No, I ran into a truck before I went down to Grand Isle, I was going along the road and ran into rear of a stake body truck.

    And I damaged my car that way and a piece of wood fell out of the truck and hit my car and I ran off the road but I came back on the road.”

    So the officers took him out there to the scene where he said he had this wreck before he went to Grand Isle and asked him to point out where it was.

    And the officers testified that if he had — there’s no marking there at all of showing a car going off the road.

    He — he estimated 100 — a 150 feet, he went off the road but there’s no tire marks at all showing that the car had — any card had gone of the road.

    And had there been a car that — going off the road at that point, it was so soggy and mud — muddy that the car couldn’t have gotten out itself and it would have been pulled out.

    But yet, he stuck to that story.

    Potter Stewart:

    His story was that he had had this — this had happened on his way from Golden Meadow after Grand Isle, back there?

    H. Alva Brumfield:

    No.

    It happened on — on the way up to the bar before he started down to the Grand Isle, it — around noon that Sunday.

    Potter Stewart:

    That Sunday, that same day.

    H. Alva Brumfield:

    Yes.

    Potter Stewart:

    But —

    H. Alva Brumfield:

    It wouldn’t — and then he went on to Grand Isle after he had this — bumped into the back end of this truck.

    Potter Stewart:

    That was his story before (Inaudible) —

    H. Alva Brumfield:

    Yes.

    Potter Stewart:

    — on — on his — and — and then later, he went over to Grand Isle to —

    H. Alva Brumfield:

    To sell this automo —

    Potter Stewart:

    (voice overlap) about selling the automobile.

    H. Alva Brumfield:

    That’s right, sir.

    But on this — on the trial of this case, the — the demeanor, the alibis, the change of story of this — of this suspect, of this defendant is all important in this case and — and was a determinant factor of the jury reaching the decision that it did in my opinion.

    An additional factor, this man sold his business, interest in — in his partnership of this automobile agency to his brother.

    About seven days after this — Mercer, the deceased here was found.

    Potter Stewart:

    Was it brought before the jury that some of his evidence had disappeared that they’ve been collected by the officers?

    H. Alva Brumfield:

    It was all — of course it was brought before the — for the jury by the — all of the officers were put on the stand and they were asked, “Where was this evidence?

    Here we can resolve this thing without any question at all.”

    And — and they all testified, of course that it — that it had disappeared.

    They didn’t know what happened to it.

    And the — and the — one of the state of — officers who investigated this was asked a question on cross examination that was there, a payoff and he stated that he heard that there was.

    Potter Stewart:

    Who — who asked that question, defence counsel?

    H. Alva Brumfield:

    No, I asked that question —

    Potter Stewart:

    You asked (Voice Overlap).

    H. Alva Brumfield:

    — on direct examination, I mean on cross examination without any objection and the — and the attorney representing the defendant who is not Mr. Loeb here —

    Potter Stewart:

    Yes.

    H. Alva Brumfield:

    — didn’t — went into it farther on these questions of payoff.

    And it was just generally rumored that there had been a payoff and the rim never did show up.

    And I — I’ll — I’ll go into that a little later with regard to the mandate, try to carry out the mandate of the Fifth Circuit Court of Appeal after the case went up to the Fifth Circuit.

    Potter Stewart:

    Except for the general rumor of a payoff that was testified to?

    And except for the testimony that the evidence had disappeared, was there anything more specific as to how or where or to whom it had been — the evidence had disappeared?

    H. Alva Brumfield:

    Well, Judge, I took the — the depositions of all — all of these officials over again, even after the trial.

    And one officer would — would say, “I heard that (Inaudible) was paid $10,000 to hide this rim and destroy the evidence.”

    And then take the — (Inaudible) deposition, he would deny it and say, “No, I heard that the Officer Dolph (Inaudible) got the $10,000.”

    So it was just one to the other, accusing each other of getting the $10,000 but all denying it.

    And — and that was what we were —

    Potter Stewart:

    All agreeing that there had been evidence which had disappeared.

    H. Alva Brumfield:

    All agreeing.

    There’s no question about that.

    The — they all agreed that the evidence was gathered and it had — and it all disappeared.

    And the only — and the reason as I say that the pictures didn’t disappear because an officer had the negatives in his home.

    And I found out about the pictures and got copies of the prints made from these negatives which prints are in the evidence here before — before the Court.

    And — and with — with that, the circumstances, as I’ve outlined generally here, the jury rendered a verdict for the plaintiff.

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    Yes.

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    Yes.

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    No it didn’t, Judge — Mr. Justice Goldberg, the — our basic tort law is in one article of the Civil Code, Article 2315 which uses the word “fault” — he — to cause it by damage by fault but is synonymous with the Court’s inter — that is being negligence.

    And the — and the general principles of negligence of the law is the same in Louisiana as all the rest of the states.Of course, we come — we base it on our Napoleonic code but it — rather than the common law.

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    No, by preponderance of the evidence, the proximate cause, all of those terms, we have the same there.

    We have a comparative negligence in our code but the — the courts have adopted the common law rule and of — of contributory negligence rather than comparative negligence.

    Other than that, we are pretty well in line, the only — the only difference we have with regard to trying negligence cases down in Louisiana is we don’t have a infective civil jury trial in our state because the appellate court can do what the Fifth Circuit Court did here and that was, make its own determinations of fact and substitute its determination of fact for that of the jury.

    And that’s the reason wherein we have the diversity of citizenship.

    We bring our cases in the federal court in order to get an effective jury trial.

    Potter Stewart:

    Its —

    H. Alva Brumfield:

    But —

    Potter Stewart:

    Excuse me.

    H. Alva Brumfield:

    Yes.

    Potter Stewart:

    Go ahead.

    It —

    H. Alva Brumfield:

    Where the only state in the union that allows that.

    Potter Stewart:

    Which allows what?

    H. Alva Brumfield:

    The — the appellate court to substitute its own findings of fact for that of the —

    Potter Stewart:

    It — it’s in effect the trial de novo of the facts.

    H. Alva Brumfield:

    It’s the trial de novo on appeal, yes.

    Potter Stewart:

    In your state system.

    H. Alva Brumfield:

    Yes sir.

    Potter Stewart:

    But you don’t get it, do you?

    Going to the — and the reason you — you’ve — if you have diversity of citizenship that a plaintiff will go on to the federal court as to avoid that in the federal system.

    H. Alva Brumfield:

    That’s exactly right and that’s the reason I brought it here.

    But then I was faced with the — this reversal in the — by the Fifth Circuit with a — with a mandate that is unparalleled.

    I haven’t been able to find any precedent for the type of mandate that was attached to the remand and reversal in this case in the — in the entire jurisprudence of this Court or any other state.

    Tom C. Clark:

    Well, do I understand it correctly that Louisiana law (Inaudible)?

    H. Alva Brumfield:

    Well, we have the framework for it.

    H. Alva Brumfield:

    The procedure for it was there are few, the jury trials in the state court in civil matters.

    And many of the jurisdictions — I’ve tried the first jury trial for — in a civil matter that’s ever been tried in the history of the — the whole district.

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    No, they just — they just — make its own finding —

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    From the Cole record.

    And that’s the reason you have so few jury trials in the state court in Louisiana.

    (Inaudible)

    H. Alva Brumfield:

    I brought it in — in the forum of the federal jurisdiction in order to get an effective jury trial.

    Potter Stewart:

    And this is the —

    Tom C. Clark:

    And you suggest —

    Potter Stewart:

    Excuse me — the usual thing to do, isn’t it?

    H. Alva Brumfield:

    That’s the usual thing to do.

    For example, we can file a suit direct against the insurance company —

    Potter Stewart:

    (Inaudible)

    H. Alva Brumfield:

    — without naming the insured and this Court has upheld in the landmark decisions insofar as we are concerned in Louisiana.

    Mr. Chief Justice Warren, the organ of one of those decisions upholding the — that statute.

    Arthur J. Goldberg:

    Do you interpret the (Inaudible)

    H. Alva Brumfield:

    No — no, I would — it may have influenced it, Mr. Justice Goldberg, because of course —

    Byron R. White:

    (Inaudible)

    H. Alva Brumfield:

    Sir?

    Byron R. White:

    Then it should’ve been (Inaudible)

    H. Alva Brumfield:

    And — and it shouldn’t — shouldn’t have been.

    Byron R. White:

    (Inaudible)

    H. Alva Brumfield:

    Because we and the — we and the federal court here and the rules with regard to the sufficiency of the evidence is laid down by this Court in — in countless decisions that where you have a — a conflict in evidence and — and inferences may be drawn by that conflicting evidence by a jury and the jury makes that decision then the decisions of this Court is in fact that that jury verdict stands.

    And that it is not permissible for the appellate court, the Circuit Court to substitute or make a redertermination or to weigh the evidence in order to — to make a determination of the facts itself.

    And often times, in many decisions of this Court, you have upheld the jury verdict even though if you were called upon to make that decision of finding the fact, you wouldn’t have — have made the same finding of fact.

    And I think that — that’s true in the diversity cases of Mr. — either Justice Goldberg in one of a case that I found that — that is as close to this as — as any case that — was the Dick case versus New York Life.

    Mr. Chief Justice Warren was the organ of the Court, a question of — of whether or not on a — on a policy it was an accidental death or suicide and a — the shot of a gun going off and — and the jury found that it was an accident, not suicide.

    In — and the Court of Appeal reversed it and this Court reinstated that jury verdict by — by stating that there was a sufficiency of evidence to — to support that finding of the jury.

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    Yes.

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    Well, that’s true.

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    It — that’s —

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    Yes —

    Arthur J. Goldberg:

    (Inaudible)

    H. Alva Brumfield:

    The federal standard when it should be and I know this many —

    Potter Stewart:

    But — but you’re saying that so far as the right to a trial de novo in a Court of Appeals goes, that’s been settled (Inaudible) — that if — once you’re in the federal courts, you don’t get that.

    H. Alva Brumfield:

    You don’t get that —

    Potter Stewart:

    No.

    H. Alva Brumfield:

    — in the federal court.

    And — and the sufficiency of the evidence rule, you’d have to use the federal rule on that because we just don’t have one in Louisiana, and that’s just what it amounts to.

    Hugo L. Black:

    (Inaudible)

    Potter Stewart:

    I see what you mean.

    Hugo L. Black:

    But I think that there were — had held that in a case a long time ago that even where facts were determined by the jury in a state court, that case gets moved over here that this Court is bound to respect the verdict of that jury —

    H. Alva Brumfield:

    Yes, sir.

    Hugo L. Black:

    — when it — the regular standard.

    Yes, sir — Judge, that’s exactly right.

    And cannot upset it —

    H. Alva Brumfield:

    We cannot upset it.

    And — and that is the — the position that that we take here and — and when the — and when the — the Fifth Circuit Court of Appeal remanded this case that attached to it a mandate to go out and — and find some — some evidence that would support a jury verdict and have a — some sort of a hearing before the trial judge and then he would decide whether or not that should be at — a trial by jury.

    I — I just — I was frustrated in — excuse me.

    Earl Warren:

    We’ll recess now Mr. —