Smith v. Butler

PETITIONER:Smith
RESPONDENT:Butler
LOCATION:Mapp’s Residence

DOCKET NO.: 313
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: State appellate court

CITATION: 366 US 161 (1961)
ARGUED: Mar 27, 1961 / Mar 28, 1961
DECIDED: Apr 24, 1961

Facts of the case

Question

  • Oral Argument – March 28, 1961
  • Audio Transcription for Oral Argument – March 28, 1961 in Smith v. Butler

    Audio Transcription for Oral Argument – March 27, 1961 in Smith v. Butler

    Earl Warren:

    Number 313, Bert Smith, Petitioner, versus J. Turner Butler et al., Trustees.

    Mr. Frates.

    William S. Frates:

    Mr. Chief Justice, may it please the Court.

    The petitioner is here asking this Honorable Court to set aside a final judgment for the respondent, reverse the opinion of the Florida District Court of Appeals and reinstate the jury verdict for the petitioner in a Federal Employers’ Liability Act case which he recovered after a several day of trial.

    The petitioner was a railroad employee, was given a so-called “field test”.

    He was or suffered personal injuries, received a jury verdict which was taken away from him by the Florida Court of Appeals.

    The issue to the petitioner seems to be whether or not the manner, method and motive in giving an alleged field test, which resulted in personal injury to the petitioner, states an issue under the Federal Employers’ Liability Act or as a grievance under the Railway Labor Act which what — is what the Florida Appellate Court determined.

    The Florida Appellate Court held and I quote, “That there was no justiciable issue at least under the Federal Employers’ Liability Act that could be raised as to the propriety or the right of the railroad to give a test.

    And if the petitioner will agree, he had a remedy for such grievance under the Railway Labor Act, completely ignoring a fact, that the Railway Labor Act provides no remedy for personal injury.

    Petitioner contended in his complaint that the railroad was liable in the following respects, in negligently and unlawfully requiring the plaintiff to participate in such a field test and two, in negligently allowing the servants, agents or supervisors to conduct such a test which resulted in a personal injury to the railroad employee.

    The Florida court states in its opinion that there could be no issue under such allegation and made some statement about a reasonable safe place to work which we felt had no application.

    In 1956, Bert Smith, flagman on the Florida East Coast, weighed 262 pounds.

    This was lower than his average weight.

    His previous weight had been sometimes in the 300.

    He was 61 years of age.

    He was five foot and three.

    He was and is a legend on the Florida East Coast Railroad.

    He is a man who knew all the roads and had never received a demerit in 30 years — 37 years of service as a bagger and a flagman.

    Potter Stewart:

    Suppose his nickname was Tiny usually is.

    William S. Frates:

    It’s his colleague’s language, sir.

    Potter Stewart:

    Yes.[Laughter]

    William S. Frates:

    In September of 1956, a railroad supervisor asked Smith to retire.

    He was on the train and get ready to go to Jacksonville.

    Mr. Smith advised him that he had two or three more years of good service and he refused to retire.

    He was then ordered to take an alleged physical fitness test.

    This was the first term in the history of this railroad that anybody in his capacity had ever been requested or ordered to take this type of test.

    The railroad had been in existence since 1896.

    The railroad or the supervisors of the railroad admittedly the bias of test that it knew Smith, in his physical condition, could not pass.

    It was a walking a mile down the tracks on a hot humid Florida day.

    There had been very little change in Smith’s physical conditions for a period of several years.

    William S. Frates:

    Short time before this incident occurred, he had been to the Flagler Hospital in St. Augustine, had been certified as being fit for his duties as flagman.

    He and his representatives went to the — my opposed for this test was sent out and they protested in right time at that time.

    One of their protestations was that this test had never been given before that heretofore the chief surgeon of the medical department had always been a person to arbitrate a man’s physical fitness.

    Mr. Smith started the test, walking down the tracks.

    He was accompanied by four other men.

    It was obviously he couldn’t pass this particular test.

    He failed three times.

    As a result of the fall, he became totally and permanently disabled to work on the railroad and his ability to walk was greatly impaired.

    He’d had arthritis from 1942.

    And as a result of this fall, his arthritic condition in his knees was aggravated and there was no dispute that he was permanently and totally disabled.

    Evidence was induced at the trial with secured, jury could and indeed fully that the so-called test that this railroad and device had no relation to Smith’s duties as a flagman.

    And I’ll wish to go into the evidence at this time because the jury decided in that particular issue but this particular area which he worked had a block system.

    The medical department had always — before this been an arbitrator of this issue.

    The medical department just a few days before this had certified this man has able to handle this particular job.

    He had performed — he had been performing his duties on supervision for years in the present physical condition and he had never been reprimanded or received any demerits.

    We also contended at the trial and currently, the jury believed us that this was a test devised solely to get rid of Bert Smith.

    This was only time in the history of the railroad and it was not in conflict to any courts with any of the rules of the railroad.

    The Florida court in its original position or opinion precluded us from raising the issues and it confined it solely to, did they give him a reasonable safe place to conduct this test.

    That just nullified the whole action as we saw it because they precluded us from establishing the manner in which the test was given, the method, the motive whether or not the test had any relation to his duties which the jury believe that he didn’t.

    In fact, there’s a medical department heretofore and certified his fitness.

    In fact, that the medical department under testimony of a chief surgeon will we brought at the trial that he had testified that Bert Smith was qualified to perform the duties of a flagman, that this was also pointed out to these men in their original letter that they protested too when they started the test.

    The fact that Bert Smith’s physical condition prevented him from performing this test, this was something — this was a test that it was obvious to anybody that Bert Smith would never pass this test.

    He fell and of course a part from the arthritis became seriously injured and was rushed to a hospital.

    Earl Warren:

    What was the character in the claim over which they took him Mr. Frates —

    William S. Frates:

    Mr. Chief Justice, it was a roadbed on the main line of the Florida East Coast Railroad.

    There are some evidence that it was a very rough terrain and evidence characterizing it as being the worst possible place on the railroad for this test to be given.

    William J. Brennan, Jr.:

    But I think the basis of liability on this account, if that were the case, (Inaudible)

    William S. Frates:

    No, sir.

    We feel, Mr. Justice Brennan, that this was all part of the negligent manner and method, the place.

    Now, the Supreme Court of Florida did say that the reasonable safe place in which to work was the issue.

    William S. Frates:

    We contend that that particular item was out of the case but the terrain of place they stay fit for him to perform his task went to the motive, went to the manner.

    I think we could have gone back and possibly tried this case under — whether too many rocks there.

    But that was not the issue in this case and we felt not the major issue in this particular case.

    The petitioner has never contended but the railroad couldn’t give proper and reasonable test.

    We admitted that an induced evidence at the trial that the supervisors could relieve men at a time when he was unable to perform his duties.

    We stated at the trial and in our appellate procedure and showed that the supervisor had the authority that any time they felt that a man could not perform his duties, all they have to do was take him off the train and then have him certified either as being qualified or not qualified by the medical department.

    But that this attempt to pick out a test that they knew he could not pass under conditions that he knew he could not pass, circumventing completely the medical department, was solely an attempt to get rid of him.

    We admitted that the railroad should be concerned with safety but they not use — should not use safety as a guidance to preclude a man from performing the job in the same manner that he performed it for years.

    John M. Harlan II:

    Could you state what your understanding is, what the Florida court held?

    William S. Frates:

    Yes, sir.

    And I think the trial judge, when we went back the second time, stated that you could not contest — we could not contest the propriety or the right of the railroad to give this test.

    When we went back on a pretrial and the second time when we proferred the evidence, the trial judge rule that we couldn’t go into anything about the manner how the test was given, the medical department, his physical condition, all of those things that we felt that were material and relevant to the issues, the Florida Appellate Court by its opinion and particularly by the word propriety precluded us from going into.

    They said that propriety and right to give the test, the Webster’s New International Dictionary, the second edition, defiance propriety as being proper or fit in, the appropriateness or the correctness.

    We contend, and of course we say it was a jury issue, that this was an improper test, it was a nonreasonable test.

    It had no correctness and it had no appropriateness in relation to his duty.

    Charles E. Whittaker:

    Well, did the Florida Supreme Court ever determine the question of whether, under the first two assignments, there could be negligence?

    William S. Frates:

    They said there could not be negligence.

    I said —

    Charles E. Whittaker:

    I thought they merely said that was not a justiciable issue.

    William S. Frates:

    They said there was not a justiciable issue, Your Honor, and that if he had a grievance, then obviously his grievance was his injury.

    If he had a — a grievance, he should then go to the Railroad Adjustment Board.

    Charles E. Whittaker:

    Well, it makes all the difference to me.

    I understood that your — you have several assignments of negligence.

    William S. Frates:

    Yes, sir.

    Charles E. Whittaker:

    And the first two assignments were in negligently requiring the field test and second, negligently allowing the field test.

    Now, I understood that the Florida court did not determine the issue of whether or not that conduct could be negligence but on the contrary, he said it was not a justiciable issue in this FELA case but that it was redressable if — at all, only before the Labor Adjustment Board.

    Am I wrong about that?

    William S. Frates:

    Well, Your Honor, I think that they said there was no justiciable issue at least under the FELA but that’s where we say they’re so wrong.

    Charles E. Whittaker:

    Well, suppose —

    William S. Frates:

    Excuse me, sir.

    Charles E. Whittaker:

    They never did determine that question, did they?

    William S. Frates:

    Yes, sir.

    Charles E. Whittaker:

    Or did they?

    William S. Frates:

    Yes, sir.

    Charles E. Whittaker:

    Well, I —

    William S. Frates:

    In our opinion — in our opinion, they precluded the fact that this test could be negligently given.

    Hence, they said that propriety or the right of this test was a grievance which should be submitted to the Railroad Adjustment Board and of course —

    John M. Harlan II:

    You mean, in the sense of power you’re prescribing this.

    William S. Frates:

    No, sir.

    Your Honors, this man had already been — been injured.

    This was a personal injury that he had sustained.

    There was no remedy.

    There was no right or regrets that this man did have gotten, if he had gone to the Railroad Adjustment Board, what would his recourse have been?

    Nothing.

    They might have ruled at that time that the test was not a proper test, was not a reasonable test as they put in their reports as shown by the respondent’s brief, but there is no authority.

    Now, we have cited cases in our brief where the unreasonableness of a test for requiring a person to go to additional stress and strain, knowing that condition, are negligent acts and can be compensated.

    The trial judge, Mr. Justice Harlan, when we went back to determine what we could prove in this case, said, “The only thing that you can possibly show in this case is whether or not he had a reasonably safe place to work.”

    Nothing else, nothing about the medical department, nothing about his physical condition, nothing about the motive of these particular cases, and we say these were all acts, wrongful acts that this was an abuse of a right to give a man test, and when we abuse a right, then there is a negligent act that springs from that.

    Hugo L. Black:

    Suppose they — suppose they discharge him on this account, then that would —

    William S. Frates:

    Mr. Justice —

    Hugo L. Black:

    — that would’ve gone up to the —

    William S. Frates:

    Mr. Justice Black —

    Hugo L. Black:

    — Board, wouldn’t it?

    William S. Frates:

    — I –I don’t think there’s any question that had he started or refused to take the test even though he protested.

    And they discharged him, it would have been — been of a Railway Labor Adjustment Board act.

    Hugo L. Black:

    Then what — what — then what you’re claiming is that they put him to work and put him out to work that he had to obey —

    William S. Frates:

    Yes, sir.

    Hugo L. Black:

    — then he was injured.

    William S. Frates:

    Yes, sir.

    Hugo L. Black:

    And I suppose they had ordered him, that had been a part of his work that in this condition, he should run a mile and a half.

    Hugo L. Black:

    Could he have sued on the FELA on that?

    William S. Frates:

    Yes, sir.

    In our opinion — in our opinion he could that — he didn’t have to take the chance, sir.

    We feel under the humanitarian philosophy of refusing to take the test and being fired and then take his case back to the Railroad Adjustment Board to see whether he was reinstated.

    They told him to take the test, he protested, he took the test, he was then injured and he had no remedy and he would have no remedy for that injury —

    Hugo L. Black:

    Did the Court —

    William S. Frates:

    — unless it is under the FELA.

    Hugo L. Black:

    Did the Court charge anything about refusing the verdict on the count of contributory negligence in his taking the test?

    William S. Frates:

    Yes, sir.

    Hugo L. Black:

    Was that submitted to the jury?

    William S. Frates:

    Yes, Your Honor, it was.

    It was submitted, the trial judge.

    This very issue was submitted to the trial judge and he overruled this contention because he said again that you can’t have a wrong without a remedy.

    You can’t say — and it’s a jury issue, of course the railroad and they have in their present brief attempted to argue that this was a necessary and proper test.

    We say that was a jury question.

    They resolved that question in favor of the petitioner.

    Hugo L. Black:

    Suppose — suppose it was — suppose it’s necessary and proper that they give him a test, what is the contention is to why he’s injured in taking the test that wouldn’t be under the FELA?

    William S. Frates:

    Sir, I have never understood how it could be anything when a personal injury was involved but on Federal Employers’ Liability Act does for itself.

    Charles E. Whittaker:

    How do you explain this language from the opinion?

    This is what I was referring to.

    There was no justiciable issue at least under the Federal Employers’ Liability Act that could be raised as to the propriety or right of the appellant to give the test.

    William S. Frates:

    Yes, sir.

    Charles E. Whittaker:

    Now then, does not that say we’re not determining the issue of negligence on these assignments but are holding instead?

    Well, it doesn’t present the justiciable issue under the Act?

    William S. Frates:

    The reason I said that, sir, if — is because they said this was an issue if he was agreed that the only grievance he had was an injury, that should go to the Railroad Adjustment Board and that’s where we say they’re so wrong.

    They are not saying that — that he — that it was or was not negligence.

    Charles E. Whittaker:

    Well, here’s — I thought this was a point in your favor for I think the court in Florida has a right to say what or is negligence and what is not but I think it has no right to say that he doesn’t have power to use the question.

    William S. Frates:

    Sir, that’s exactly what they said.

    Charles E. Whittaker:

    Now, they said one of the other now which was it.

    William S. Frates:

    Well, they said if you interpret it and frankly, I had difficulty with this paragraph as to what they mean but they said they reversed the jury verdict which was submitted on the negligent issue and said this in effect is not an issue of negligence to go to the jury under the FELA test because there isn’t any issue of negligence before the Railroad Adjustment Board as I understand.

    Charles E. Whittaker:

    Well, I would that the Florida Court would have to determine the issue of whether or not negligence here was charged.

    And they have the power to decide that question but they had no power to refuse to hear it.

    Now, did they refuse to hear it?

    William S. Frates:

    They took his verdict away on the basis of two allegations of negligence and said you can even raise that, so they precluded it from us and I say, yes they did take that away from him.

    I’m sorry, sir, that I can’t clarify but I have been —

    Hugo L. Black:

    What was —

    William S. Frates:

    — I am having difficulty with this for some time.

    Hugo L. Black:

    What was done with discharge of negligence furnishing a dangerous and unsafe location to conduct the field test?

    What was done with that?

    William S. Frates:

    That was — those, Mr. Justice Black, were abandoned on the second proper of testimony because we felt as I stated that all of this — the place and all of these things related to number one and two, we had a clear ruling on number one and two.

    We were anxious to get this case to this Court because we felt that it was an improper decision and we didn’t want to complicate it by going back and retrying it on an issue that we thought was covered by one and two.

    Hugo L. Black:

    Does one and two all you had on the last the trial?

    William S. Frates:

    Yes, sir.

    Yes, sir, one and two.

    Hugo L. Black:

    Do you have anything here as to the first trial?

    William S. Frates:

    Yes, sir.

    We have it the whole first trial.

    Hugo L. Black:

    As the whole first trial.

    William S. Frates:

    The whole at first trial —

    Hugo L. Black:

    What were your charges there and what was done?

    William S. Frates:

    The charges there were — were the — the complete charges and the respect of — of every allegations.

    Hugo L. Black:

    As to furnishing the dangerous and unsafe location to conduct the field test.

    William S. Frates:

    Yes, sir.

    Hugo L. Black:

    What they hold about that in that case?

    William S. Frates:

    In that case, as they came back and said that the only issue in this case in the first opinion was to whether or not the railroad had furnished him a reasonably safe place to work.

    Hugo L. Black:

    Well, did they mean the — the test was a part of his work? Did they treat it as a part of his work?

    William S. Frates:

    Sir, I — I don’t know what they meant by that opinion.

    The — the trial judge, well, he went back the second time in interpreting the opinion and his comments are shown on page 345 and 346 thought they didn’t — our interpretation was that they did —

    Hugo L. Black:

    Do you consider that the — if you have presented to us the error that you claimed there was error and what the Court did the first time.

    William S. Frates:

    Excuse me, sir?

    Hugo L. Black:

    First — first reversal.

    William S. Frates:

    Yes, sir.

    Hugo L. Black:

    How?

    Potter Stewart:

    Mr. Frates, I didn’t quite understand your answer to what Justice Black’s question.

    Hugo L. Black:

    Where have you presented this question?

    Where have you presented that question?

    William S. Frates:

    Your Honor, I think we have presented that question in — in the entire — the entire record — excuse — excuse me, sir.

    The entire record is predicating in getting — the entire record, the first and the second trial here before to this Court.

    I might add that what happened in this particular case, the first trial went to the Appellate Court.

    It was reversed.

    We then took the record.

    We proffered that record to the trial judge on the second trial and said we’re going to stand on these two issues instead of going two or three or four day trial with the same issues with proper.

    He accepted the proper, but ruled at that time, that under the issues or under the opinion of this Court, that we could not introduce that evidence.

    And the only thing that we could show was whether or not they had picked a reasonably safe place to give a test not the right to give a test, but the prior to give a test, the manner or the motive, only the place.

    Hugo L. Black:

    Well, your — your question presented here is whether the Florida Appellate Court error that posing railroad employers sustained personal injury about performing an alleged physical fitness test, whether this provision of the Railway Labor Act precluded him from claiming that the giving of such a test under the facts and circumstances of this case was an act of negligence.

    Is that’s your question you presented?

    William S. Frates:

    Yes, sir.

    Hugo L. Black:

    You present that on — do you think that brings up person adequately or the trial the first time?

    William S. Frates:

    Yes, sir.

    We felt that it did and the — the record actually in the second trial is exactly the same as the first trial with a few statements eliminated about took place.

    Hugo L. Black:

    Just as quite a different trial where you are presenting to us merely, the charge of negligence.

    Now, it’s not the charge of negligence but calling it a charge of negligence if whether they had a right to make him undergo to this test.

    That’s one thing.

    Another question, which seems to be included in the one you presented is whether if the negligently and required him to take that test in a negligent manner.

    William S. Frates:

    Yes, sir.

    Hugo L. Black:

    That’s covered by the Act.

    William S. Frates:

    Yes, sir.

    Our position is exactly, sir.

    Charles E. Whittaker:

    What have you to say, Mr. Frates about disposition at the second trial on first case for whatever reasons, the Supreme Court of Florida reversed in the mandate holding that — you didn’t have the cause of action at least cognizable before them on your assignments one and two, am I right?

    William S. Frates:

    Yes, sir.

    Charles E. Whittaker:

    Alright.

    Now then, you then said that the second trial, our whole position in this case is that requiring this fellow to take this test and conduct this thing was the negligence in the case and the violation of the Federal Employers’ Liability Act.

    William S. Frates:

    Mr. Justice Whittaker, that statement in the railroad brief is taking completely out of context.

    The reading of the transcript in those notes show that we were concerned about these two items and that was not the disposition of —

    Charles E. Whittaker:

    My question really is this.

    What have you say about the first judgment being the law of the case?

    William S. Frates:

    Sir, that’s a question that — and frankly, I’m not in the position to — to give you a satisfactory answer on that because I don’t understand this opinion and I haven’t understood this opinion or — or what it means.

    We know what it meant when they reversed the case and we know what it meant to the trial judge he was going to try at the second time that under these two issues, where the man was injured, we could not proceed under what we felt was the real heart of this particular lawsuit.

    The right and the manner which they gave this test issue.

    Sorry, I cannot answer your question.

    Mr. Justice Stewart I think you —

    Potter Stewart:

    Yeah, I think you’ve answered my question.

    Thank you very much.

    John M. Harlan II:

    What — and what reliefs, supposing you — we agree with everything you’ve said, now what relief do you think you’re entitled to, from on it?

    William S. Frates:

    Well, sir, I think that, first the —

    John M. Harlan II:

    Is there anything more here that in if — we should agree with you that the FELA does cover a — actually negligence of this kind and it goes back for trial, isn’t it?

    William S. Frates:

    No, sir.

    I feel that this Court would have the authority to say that this was a negligent action or injury that came within Title 51, Federal Employers’ Liability Act and that you could reinstate the rational burden of the Court.

    William J. Brennan, Jr.:

    On the ground of the proofs, no one challenges deficiency of the proofs to sustain the allegation.

    Just in fact, they alleged a cause of action of the FELA.

    William S. Frates:

    That’s exactly right.

    Hugo L. Black:

    Have you — have you decided the case we had determined years ago that Justice Rutledge wrote, verdict was set aside in Missouri and then it was tried again, brought up.

    And we actuate on the basis of the Court’s erred in the first verdict, judgment was set aside in the first case?

    Have you cited that?

    William S. Frates:

    No, sir, Mr. Justice Black, I don’t think that is in our briefs.

    Of course, if I may say enclosing, it appears to us that we come down to a basic proposition and we respectfully submit to this Court that unless this final judgment is set aside and the jury verdict reinstated that the petitioner will has sustained an injury or a wrong for which there is no remedy.

    We don’t feel that our system of jurisprudence could warrant such a possession.

    Thank you, gentlemen.

    Earl Warren:

    Mr. Wahl.

    Harold B. Wahl:

    Mr. Chief Justice, may it please the Court.

    Harold B. Wahl:

    The trouble with my good friend Bill Frates is that he had a perfectly good complaint with eight allegations of negligence and six of them covered this case.

    He elected, however, to travel on the first two which then alleged negligence under the Federal Employers’ Liability Act.

    The Supreme Court of Florida called his attention to that.

    They send him back and said, “Try your case under your allegations of negligence.

    You haven’t alleged any negligence under your first two counts.”

    He goes back on the retrial.

    And on the retrial, he gets up on his hind legs and says, “I’m going to stick to my guns.

    I abandoned all these allegations if the Court says constitute allegations of negligence.

    And I’m going to be stubborn.

    I’m going to be like an ostrich to stick my head in the sand, and I’m going to continue to insist on the two that are not even good and with that happened to it.”

    John M. Harlan II:

    Oh, why — why didn’t he allege — allege a cause of action of negligence if that was the first two counts?

    Harold B. Wahl:

    Alright.

    You misread them, Mr. Justice.

    You’ll see at the record on page 1, he starts out by saying that in 1956, when he was employed as a trainman on the main line of the Florida East Coast, he was directed to have a field test.

    Now, there’s certainly enough to negligence by fit, so far, particularly says he concedes that he is entitled to be given a reasonable field test.

    Then what’s his first allegation?

    That on such and such a date, the defendant was negligent (a) in negligently and unlawfully requiring the plaintiff to participate in such a field test.

    Well, there’s nothing wrong there.

    He doesn’t say in an improper field test, in a negligent field test, in a wrongful field test.

    He just says the field test.

    And he himself has conceded that a reasonable and proper field test is alright.

    So, that — that’s the reason they threw that one out because he didn’t allege any negligence under (a).

    I repeat again.

    If he had said that we gave him an improper field test, a negligent field test —

    John M. Harlan II:

    Well, was it — when we say in negligent, we’re requiring the plaintiff to participate in the field test, was (Voice Overlap) —

    Harold B. Wahl:

    In such — well, he’s got to say that we — some allegation, there was something wrong with the test because he himself concede that we’ve got the right to give him a test.

    So his allegation is he’s got to say something.

    He does say further on that.

    This isn’t inadvertent pleading, getting further down that he does say what he needs.

    Then in number B, he says in negligently allowing his servants, agents or supervisors to conduct such a field test.

    Harold B. Wahl:

    Now, he doesn’t say that they negligently conducted the field test.

    He doesn’t say they conducted an improper test.

    He just says that it was wrong to conduct the test.

    And the Supreme Court of Florida says that since the only way you can sue under the Federal Employers’ Liability Act, at least that’s the way we understand it, is to allege negligence that there was no justiciable negligence allowing those two counts.

    The Court said that Mr. Frates misled the jury by prejudicial argument and got them off from side issues, and they reversed the case.

    It should go back and be tried on grounds (c) through (h) which specifically alleged negligence.

    Now, gentlemen, this is right in Court matter to us.

    And I hope you don’t get up on the side tracking.

    He’s got six perfectly good driving of negligence.

    Potter Stewart:

    You made now for the trial, isn’t it?

    Harold B. Wahl:

    Well, Your Honor, I’m sorry, I can’t help but he had a chance —

    Potter Stewart:

    Well, I just asked the question —

    Harold B. Wahl:

    That —

    Potter Stewart:

    — as a matter, whether or not he can (Voice Overlap)

    Harold B. Wahl:

    He — he stuck his head to his heels in the ground and to allege judge, I’m going to stick, and I’m not going to try on this other ground which the judge said he had a perfect right to do.

    Trial judge made it very clear that he had a right to go to the jury on this up.

    Now, let’s freeze this up.

    William J. Brennan, Jr.:

    May I ask you this.

    Harold B. Wahl:

    Yes, sir.

    William J. Brennan, Jr.:

    On the first two, to — what approves the Court an allegation of the time you say that you might have made, namely —

    Harold B. Wahl:

    I would think —

    William J. Brennan, Jr.:

    — that that was been an improper field test or let the — which —

    Harold B. Wahl:

    I do not —

    William J. Brennan, Jr.:

    — conducted improperly or so forth.Did it approve actually to introduce at the trial so that the basic courts (Voice Overlap) —

    Harold B. Wahl:

    Not in my judgement.

    William J. Brennan, Jr.:

    But did you take —

    Harold B. Wahl:

    Not in my judgement.

    William J. Brennan, Jr.:

    — did you take any exception to the evidence that were actually introduced?

    Harold B. Wahl:

    Well, I didn’t try the case, but I —

    William J. Brennan, Jr.:

    Well, was — were any objections made on this Court you’re now making as to the first two allegations —

    Harold B. Wahl:

    I can’t answer that.

    William J. Brennan, Jr.:

    — that those do not set up (Inaudible)?

    Harold B. Wahl:

    I cannot answer that.

    I cannot answer.

    All I can say is that our position is, and the Supreme Court of Florida agreed with us, that those allegations don’t constitute allegations of negligence.

    Now, getting down to (c) through (h), and you’ll see that he’s adequately covering himself.

    My friend Mr. Frates is a good pleader.

    Look what he says in the next.

    In negligently furnished in the plaintiff a dangerous and unsafe location at upon which to engage in such a field test.

    There, he gets in all about this horrible place in the right of way which is then is on our main line, and I don’t think it would be quite that bad.”

    (D) In negligently furnishing, he made dangerous and unsafe place at upon which to work, (e) In failing to use ordinary care and providing the plaintiff a reason and a safe place to work, (f) In failing to provide him with a reason to be safe.”

    Now, listen to (g), and (g) gets down to the manner in which the test was conducted, “In negligently failing to provide the plaintiff with proper equipment and safeguard.”

    And that’s why he’s kicking about.

    He says he didn’t give him a test in the proper fashion.

    There, is his allege.”

    In negligently —

    Potter Stewart:

    And how — that — that was left opened.H was left opened, wasn’t it, also for (Voice Overlap)

    Harold B. Wahl:

    And in failing to provide adequate supervision and instruction governing authority.

    So all that happened to him —

    Potter Stewart:

    Then I — I just have some — I perhaps didn’t express myself very well.

    Harold B. Wahl:

    (Voice Overlap) —

    Potter Stewart:

    Did the trial judge, on the second trial, say, “Yes, you can try — prove anything you want under (h)?”

    Harold B. Wahl:

    He certainly did.

    He says you — you prove anything you want to under (c), (d), (e), (f), (g), (r), (h), plus another one he brought.

    At the second trial, he drawn up an allegation that we were negligent in giving them field test knowing the plaintiff’s bad physical condition.

    And he abandoned that one on the field.

    Potter Stewart:

    But that was also left opened in employer’s rule, was it?

    Harold B. Wahl:

    He — he abandoned that so I doubt the case.

    (Inaudible) on the field that he abandoned that one because he wanted to stick to the first two but there’s no —

    William J. Brennan, Jr.:

    But the Court of Appeals didn’t leave (h) open, did it?

    Harold B. Wahl:

    Certainly, it did.

    William J. Brennan, Jr.:

    I thought that — but what this mean when it — the Court of Appeals speaks about safe place to work was the only thing opened?

    Harold B. Wahl:

    Oh, they said that — it didn’t say this.

    The real issue, well, of course, (Voice Overlap) —

    William J. Brennan, Jr.:

    Was whether the appellee provided a reasonably safe place for appellee to work or perform the duties assigned to him, and that’s what governed by (c), isn’t it?

    Harold B. Wahl:

    Well, that — they said that’s the real issue, but they still left opened to him everything except one and two.

    Mr. Frates had never had any misapprehension, neither is anyone else.

    The only thing that was (Inaudible) was (a) and (b).

    William J. Brennan, Jr.:

    (A) and (b).

    Harold B. Wahl:

    He had (c) down to (h).

    And he just said he was not (Inaudible).

    Now —

    Hugo L. Black:

    Well, the Court rendered judgment, did it not, on the basis of a performer?

    Harold B. Wahl:

    The Court said that sends you to crime to travel under (c) through (h) and since you insist on trying to travel on two issues which the Appellate Court has said, “Don’t allege negligence under the Federal Employers’ Liability Act.”

    I have no alternative but to correct judgment, yes.

    But the judge made a —

    Hugo L. Black:

    I understand — I understand that condition.

    I’d like to get to — tomorrow morning if you’ll talked on that.

    If the Court said in its opinion, the trial court entered judgment under the authority of our prior opinion in this case.

    Harold B. Wahl:

    That’s right.

    Hugo L. Black:

    And with result is now, as I understand it, under this judgment, the judgment against them is affirmed and your argument is that that ends the case.

    Harold B. Wahl:

    Correct.

    Hugo L. Black:

    Now, what I would like to know tomorrow, if you will, why didn’t the Court correct to enter order judgment under the authority of the five decisions of the case?

    That question is not here in connection with whether he could not have appealed in the first time because it was not a final judgment.

    Harold B. Wahl:

    Well, I don’t get your question.

    Hugo L. Black:

    The — the first judgment was reversed — was reversed and remanded, was it not —

    Harold B. Wahl:

    Yes.

    Hugo L. Black:

    — to the — on the ground of errors?

    Harold B. Wahl:

    Yes, sir.

    Hugo L. Black:

    That was not held appealable afterwards.

    Harold B. Wahl:

    That’s right.

    Hugo L. Black:

    So that the plaintiff was compelled to go back and they entered a judgment on the basis of the first judgment.

    Harold B. Wahl:

    That’s right.

    Hugo L. Black:

    Why do we not have gave before us the question as to whether the first judgment?

    Harold B. Wahl:

    Well, I’m in candor and compel to say you do have it before you.

    I know you’re trying to keep myself for anybody else.

    You do have it for you.

    But what the Florida court held is what so obvious from the plain reading of the English language that my friend Mr. Frates brought up an excellent complaint with six excellent allegations of negligence but unfortunately, he had two that didn’t allege in — in their field.

    Hugo L. Black:

    I think I — I think I understand your point.

    I think —

    Harold B. Wahl:

    Yes.

    Hugo L. Black:

    — it’s a pretty strong point.

    Harold B. Wahl:

    Well, I — coming to you, Mr. Justice Black, I [Laughter] might happy to hear.

    Felix Frankfurter:

    You mean you have both.

    Harold B. Wahl:

    I hope that will — I get the opinion that I’m still going to be.

    Felix Frankfurter:

    You mean have both.

    You have both.[Laughter]

    Earl Warren:

    We’ll recess now, Mr. —