SMITH v. BUTLER

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Argument of William S. Frates

Chief Justice Earl Warren: Number 313, Bert Smith, Petitioner, versus J. Turner Butler et al., Trustees.

Mr. Frates.

Mr. 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.

Justice Potter Stewart: Suppose his nickname was Tiny usually is.

Mr. William S. Frates: It's his colleague's language, sir.

Justice Potter Stewart: Yes.[Laughter]

Mr. 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.

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.

Chief Justice Earl Warren: What was the character in the claim over which they took him Mr. Frates --

Mr. 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.

Justice William J. Brennan: But I think the basis of liability on this account, if that were the case, (Inaudible)

Mr. William S. Frates: No, sir.

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.

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.

Justice John M. Harlan: Could you state what your understanding is, what the Florida court held?

Mr. 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.

Justice Charles E. Whittaker: Well, did the Florida Supreme Court ever determine the question of whether, under the first two assignments, there could be negligence?

Mr. William S. Frates: They said there could not be negligence.

I said --

Justice Charles E. Whittaker: I thought they merely said that was not a justiciable issue.

Mr. 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.

Justice Charles E. Whittaker: Well, it makes all the difference to me.

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

Mr. William S. Frates: Yes, sir.

Yes, sir.

Justice 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?

Mr. 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.

Justice Charles E. Whittaker: Well, suppose --

Mr. William S. Frates: Excuse me, sir.

Justice Charles E. Whittaker: They never did determine that question, did they?

Mr. William S. Frates: Yes, sir.

Justice Charles E. Whittaker: Or did they?

Mr. William S. Frates: Yes, sir.

Justice Charles E. Whittaker: Well, I --

Mr. 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 --

Justice John M. Harlan: You mean, in the sense of power you're prescribing this.

Mr. 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.

Justice Hugo L. Black: Suppose they -- suppose they discharge him on this account, then that would --

Mr. William S. Frates: Mr. Justice --

Justice Hugo L. Black: -- that would've gone up to the --

Mr. William S. Frates: Mr. Justice Black --

Justice Hugo L. Black: -- Board, wouldn't it?

Mr. 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.

Justice 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 --

Mr. William S. Frates: Yes, sir.

Justice Hugo L. Black: -- then he was injured.

Mr. William S. Frates: Yes, sir.

Justice 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.

Could he have sued on the FELA on that?

Mr. William S. Frates: Yes, sir.

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 --

Justice Hugo L. Black: Did the Court --

Mr. William S. Frates: -- unless it is under the FELA.

Justice Hugo L. Black: Did the Court charge anything about refusing the verdict on the count of contributory negligence in his taking the test?

Mr. William S. Frates: Yes, sir.

Yes, sir.

Justice Hugo L. Black: Was that submitted to the jury?

Mr. 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.

Justice 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?

Mr. 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.

Justice 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.

Mr. William S. Frates: Yes, sir.

Justice 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?

Mr. 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.

Justice 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.

Mr. William S. Frates: Sir, that's exactly what they said.

Justice Charles E. Whittaker: Now, they said one of the other now which was it.

Mr. 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.

Justice 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?

Mr. 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 --

Justice Hugo L. Black: What was --

Mr. William S. Frates: -- I am having difficulty with this for some time.

Justice 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?

Mr. 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.

Justice Hugo L. Black: Does one and two all you had on the last the trial?

Mr. William S. Frates: Yes, sir.

Yes, sir, one and two.

Justice Hugo L. Black: Do you have anything here as to the first trial?

Mr. William S. Frates: Yes, sir.

We have it the whole first trial.

Justice Hugo L. Black: As the whole first trial.

Mr. William S. Frates: The whole at first trial --

Justice Hugo L. Black: What were your charges there and what was done?

Mr. William S. Frates: The charges there were -- were the -- the complete charges and the respect of -- of every allegations.

Justice Hugo L. Black: As to furnishing the dangerous and unsafe location to conduct the field test.

Mr. William S. Frates: Yes, sir.

Yes, sir.

Justice Hugo L. Black: What they hold about that in that case?

Mr. 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.

Justice 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?

Mr. 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 --

Justice 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.

Mr. William S. Frates: Excuse me, sir?

Justice Hugo L. Black: First -- first reversal.

Mr. William S. Frates: Yes, sir.

Justice Hugo L. Black: How?

Justice Potter Stewart: Mr. Frates, I didn't quite understand your answer to what Justice Black's question.

Justice Hugo L. Black: Where have you presented this question?

Where have you presented that question?

Mr. 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.

Justice 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?

Mr. William S. Frates: Yes, sir.

Yes, sir.

Justice Hugo L. Black: You present that on -- do you think that brings up person adequately or the trial the first time?

Mr. 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.

Justice 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.

Mr. William S. Frates: Yes, sir.

Justice Hugo L. Black: That's covered by the Act.

Mr. William S. Frates: Yes, sir.

Yes, sir.

Our position is exactly, sir.

Justice 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?

Mr. William S. Frates: Yes, sir.

Justice 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.

Mr. 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 --

Justice Charles E. Whittaker: My question really is this.

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

Mr. 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 --

Justice Potter Stewart: Yeah, I think you've answered my question.

Thank you very much.

Justice John M. Harlan: 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?

Mr. William S. Frates: Well, sir, I think that, first the --

Justice John M. Harlan: 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?

Mr. 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.

Justice William J. Brennan: 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.

Mr. William S. Frates: That's exactly right.

Justice 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?

Mr. 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.

Chief Justice Earl Warren: Mr. Wahl.

Argument of Harold B. Wahl

Mr. Harold B. Wahl: Mr. Chief Justice, may it please the Court.

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."

Justice John M. Harlan: Oh, why -- why didn't he allege -- allege a cause of action of negligence if that was the first two counts?

Mr. 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 --

Justice John M. Harlan: Well, was it -- when we say in negligent, we're requiring the plaintiff to participate in the field test, was (Voice Overlap) --

Mr. 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.

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.

Justice Potter Stewart: You made now for the trial, isn't it?

Mr. Harold B. Wahl: Well, Your Honor, I'm sorry, I can't help but he had a chance --

Justice Potter Stewart: Well, I just asked the question --

Mr. Harold B. Wahl: That --

Justice Potter Stewart: -- as a matter, whether or not he can (Voice Overlap)

Mr. 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.

Justice William J. Brennan: May I ask you this.

Mr. Harold B. Wahl: Yes, sir.

Justice William J. Brennan: On the first two, to -- what approves the Court an allegation of the time you say that you might have made, namely --

Mr. Harold B. Wahl: I would think --

Justice William J. Brennan: -- that that was been an improper field test or let the -- which --

Mr. Harold B. Wahl: I do not --

Justice William J. Brennan: -- conducted improperly or so forth.Did it approve actually to introduce at the trial so that the basic courts (Voice Overlap) --

Mr. Harold B. Wahl: Not in my judgement.

Justice William J. Brennan: But did you take --

Mr. Harold B. Wahl: Not in my judgement.

Justice William J. Brennan: -- did you take any exception to the evidence that were actually introduced?

Mr. Harold B. Wahl: Well, I didn't try the case, but I --

Justice William J. Brennan: Well, was -- were any objections made on this Court you're now making as to the first two allegations --

Mr. Harold B. Wahl: I can't answer that.

Justice William J. Brennan: -- that those do not set up (Inaudible)?

Mr. 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 --

Justice Potter Stewart: And how -- that -- that was left opened.H was left opened, wasn't it, also for (Voice Overlap)

Mr. Harold B. Wahl: And in failing to provide adequate supervision and instruction governing authority.

So all that happened to him --

Justice Potter Stewart: Then I -- I just have some -- I perhaps didn't express myself very well.

Mr. Harold B. Wahl: (Voice Overlap) --

Justice Potter Stewart: Did the trial judge, on the second trial, say, "Yes, you can try -- prove anything you want under (h)?"

Mr. 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.

Justice Potter Stewart: But that was also left opened in employer's rule, was it?

Mr. 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 --

Justice William J. Brennan: But the Court of Appeals didn't leave (h) open, did it?

Mr. Harold B. Wahl: Certainly, it did.

Justice William J. Brennan: I thought that -- but what this mean when it -- the Court of Appeals speaks about safe place to work was the only thing opened?

Mr. Harold B. Wahl: Oh, they said that -- it didn't say this.

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

Justice William J. Brennan: 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?

Mr. 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).

Justice William J. Brennan: (A) and (b).

Mr. Harold B. Wahl: He had (c) down to (h).

And he just said he was not (Inaudible).

Now --

Justice Hugo L. Black: Well, the Court rendered judgment, did it not, on the basis of a performer?

Mr. 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 --

Justice 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.

Mr. Harold B. Wahl: That's right.

Justice 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.

Mr. Harold B. Wahl: Correct.

Justice 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.

Mr. Harold B. Wahl: Well, I don't get your question.

Justice Hugo L. Black: The -- the first judgment was reversed -- was reversed and remanded, was it not --

Mr. Harold B. Wahl: Yes.

Justice Hugo L. Black: -- to the -- on the ground of errors?

Mr. Harold B. Wahl: Yes, sir.

Justice Hugo L. Black: That was not held appealable afterwards.

Mr. Harold B. Wahl: That's right.

Justice Hugo L. Black: So that the plaintiff was compelled to go back and they entered a judgment on the basis of the first judgment.

Mr. Harold B. Wahl: That's right.

Justice Hugo L. Black: Why do we not have gave before us the question as to whether the first judgment?

Mr. 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.

Justice Hugo L. Black: I think I -- I think I understand your point.

I think --

Mr. Harold B. Wahl: Yes.

Justice Hugo L. Black: -- it's a pretty strong point.

Mr. Harold B. Wahl: Well, I -- coming to you, Mr. Justice Black, I [Laughter] might happy to hear.

Justice Felix Frankfurter: You mean you have both.

Mr. Harold B. Wahl: I hope that will -- I get the opinion that I'm still going to be.

Justice Felix Frankfurter: You mean have both.

You have both.[Laughter]

Chief Justice Earl Warren: We'll recess now, Mr. --

Print this transcript Transcript: 

Argument of Harold B. Wahl

Chief Justice Earl Warren: -- Bert Smith, Petitioner, versus J. Turner Butler et al., Trustees.

Mr. Wahl, you may continue your argument.

Mr. Harold B. Wahl: Mr. Chief Justice, Gentlemen of the Court.

In response to some questions which were raised yesterday afternoon, I would like to point out that if the clause of the plaintiff's case in the trial of the court below, a motion for a directed verdict was made on the ground --

Justice William J. Brennan: (Inaudible) the second trial?

Mr. Harold B. Wahl: The first trial.

The second trial, of course, was merely a profit.

A -- there are number of motions were made, but included in them were a motion for directed verdict on the ground that no actionable negligence under the Federal Employers' Liability Act had been proved.

There was another motion to strike all testimony as to the right to give the test to Smith.

There was a third motion to strike those allegations from the complaint, which dealt with the right to give Smith the test.

So you can see that all the fundamental issues in the case were properly raised by motion.

At the close of plaintiff's case, the judge took those motions under advisement.

The motions were renewed at the end of all of the testimony, and then they were brought up again after the verdict in the form of a motion for judgment, notwithstanding the verdict.

They were brought up for the fourth time in a motion for new trial.

So certainly, if the trial judge had ample opportunity to do what we think he should have done.

And when this got to the appellate court, the appellate court pointed out that the trial court had had ample opportunity to consider all these questions and they reversed it.

And remanded the case for a new trial for doing what they said he should have done, which was to give a new trial limited to the last six allegations of negligence in the complaint.

I hope I pointed out --

Justice John M. Harlan: Could I ask you to --

Mr. Harold B. Wahl: Yes, sir.

Justice John M. Harlan: -- explain because I don't understand it yet, what the basis of your Supreme Court's opinion in dismissing the two -- the three --

Mr. Harold B. Wahl: Was -- that they --

Justice John M. Harlan: -- the two causes of action.

Mr. Harold B. Wahl: They didn't allege --

Justice John M. Harlan: I can't understand it.

Mr. Harold B. Wahl: -- the -- the -- it was our District Court of Appeal and the certiorari was denied --

Justice John M. Harlan: Yes, yes.

Mr. Harold B. Wahl: -- by our Supreme Court.

Justice John M. Harlan: Yes.

Mr. Harold B. Wahl: The Court held that allegations A and B of the complaint did not allege actionable negligence under the Federal Employers' Liability Act.

Justice John M. Harlan: You mean as a matter of state pleading or as --

Mr. Harold B. Wahl: Well, I think that's probably has something to do with it because if you look further on down, you'll find in allegations C through H.

There is alleged, the fact that he wasn't given a place -- safe place to work.

There's alleged that the test wasn't conducted properly, wasn't properly supervised and all that sort of thing.

They held that as a matter of law, the mere right to give a test was not negligence or the deprivation of that right was not negligence under the Federal Employers' Liability Act because everybody has conceded, including counsel for the plaintiff that this Board, that the railroad had the right to give a reasonable test.

And the complaint didn't say that the test was not reasonable.

Justice John M. Harlan: What -- what comment have you got to the suggestion that the Supreme Court's opinion can be read -- could be read or the appellate court's opinion could be read, is saying that although there was a sufficient pleading under Florida law of negligence in the requirement of the test, nevertheless and because of the Railway Labor Act, that kind of negligence, so they're not actionable under the FELA.

Mr. Harold B. Wahl: All I can say to that is that there are six allegations of the complaint, which clearly give him the cause of action for the thing he wants.

Justice John M. Harlan: But you (Voice Overlap) --

Mr. Harold B. Wahl: And I don't think it's up to this Court or us, to try to read in to some mirky language in Sections A and B of the complaint or in the opinion and try to figure out that it means something else.

All this Court is concerned with is whether the right result was reached.

And the right result was reached because he was remanded for a trial on those issues which alleged negligence under the Federal Employers' Liability Act and where he was entitled to a trial.

And he was only deprived to the trial on those issues which did not constitute negligence under the federal act.

Now, Mr. Justice Harlan, that's about all I can say about it --

Justice John M. Harlan: You would --

Mr. Harold B. Wahl: -- on that particular aspect.

Justice John M. Harlan: You would agree that the opinion of the appellate court's a little mirky.

Mr. Harold B. Wahl: I am afraid it is, but after all when you win a case and you win it on the right basis, if the court uses some dicta or some mirky language, you don't go back and say, "Judge, let's change this around a little, because he may change it and end up ruling for (Inaudible)."

Justice John M. Harlan: I sympathize to that.

Mr. Harold B. Wahl: Now, let me impress upon the Court if I may.

The factual context in which the appellate court held that this motion for -- that this motion should've been granted and that there wasn't a cause of action stated as to the right to give the test.

In the first place, these are the undisputed facts.

Now, these are the facts that were before the Court at the end of the plaintiff's case and this is what the appellate court was dealing with.

We had mystified by fire Smith, the trainman, who had reduced from 327 to slightly under 300 pounds, but he was still a pretty hefty customer.

He was in his early 60s and according to the testimony of one of the witnesses, his condition was such that he couldn't even step up from the ground and get on the lower step to get into the coach.

He had to get a stool or something and stand on that and then get into the coach.

Now, the trainman's chief job as everybody admits, is to protect the rail of the train in case of emergency.

Fortunately, only too rarely, do we have a rear-end collision, but rear-end collisions or terrible vengeance.

And when there is some breakdown in the railroad mechanism and the rear of the train needs protection, that's what this man was on there for, to go back on sufficient distance to flag or put a fusee or put a torpedo.

Now, imagine having a man of those dimensions and those qualifications charged with that dreaded responsibility on a passenger train, loaded with people.

Now, there's not neither is there any question that it takes about a mile for passenger train to stop at such a -- in such a manner, as not to endanger the passengers.

There's no dispute about that when he's making the maximum speed which on the Florida East Coast, is 79 miles an hour.

Now, we can stop him sooner than that.

We stop one sooner than that a few weeks ago to avoid hitting a truck and we put 92 passengers in the hospital.

Now, it's to provide for the safety of the passengers that the train has to be stopped in a reasonable manner and that takes a mile.

There's no dispute about that.

Now, Smith himself testified that on prior occasions, he had gone back a mile or more to protect the train under circumstances where it was his duty to go back and protect.

On top of that, his counsel, my good friend, Bill Frates adverted to that fact in his argument before the jury.

And on top of that, the appellate court opinion, whatever else it may have wrong with it, is might good on this point, it also calls attention to the fact that he had to go back a mile.

Now, under those circumstances, with the man on the train almost entirely for the purpose of protecting of the railroad in the event of a mechanical failure or something happening which required the train to be protected.

Justice Hugo L. Black: (Inaudible)

Mr. Harold B. Wahl: What would be a reasonable test as to whether the man was able to perform his duties?

Can you think of any of the test on earth other than seeing if he could walk him off and that is the terrible, unrighteous, awful test that they are complaining about here.

We simply told Mr. Smith that because of your physical condition, he doesn't look to us like you're able to perform your duties.

And Smith said, "Well, I've just been up the hospital.

The doctor says I'm in good shape."

So we said, "Well, we still think that you order retirement."

He says, "No, I won't keep on."

So we said, "Alright, then you take a test."

Smith said, "He wasn't going to retire, he was going to take that test."

So, we put him out on a mile of the railroad in Dave County, the same county where Miami is, we didn't take him off to the jungle somewhere, as people of entity.

We had to get him off where there weren't any crossings or anything like that, whether there's straight mile of track.

And who was started out on the test?

Five people, two people from the railroad, Smith and he didn't bring one union chairman with him.

He brought two, so five of them started out.

The two railroad people walked long and unleashing pace, they made the mile in 19 minutes.

The two union chairmen, tried to be as good they could to their fat friend and slowed it down as much as possible, but they made the mile in 23 minutes.

What happened to -- just to file the fact, he never did make it [Laughter].

It took him 32 minutes to make 3000 feet and he couldn't go any further, as one of his own human chairman testified, he failed with utter exhaustion.

Justice Charles E. Whittaker: He went 3000 feet?

Mr. Harold B. Wahl: 3000 feet, in 32 minutes.

Now, suppose you were a passenger on that train with your wife and your children and there were some mechanical failure, where about that trainman had to go back and protect you from another approaching train, how would you like your lives to be in the hands of a man who couldn't even walk a mile?

And you could only make 3000 feet in 32 minutes and it was in such shape at the end of that time, that he had to be taken to the hospital.

Is that an unreasonable test, gentlemen of the Court?

You can see why.

My friend, Mr. Frates, wanted to try the case on the basis of bias and prejudice as the appellate court said he did, rather than get down to the merits of this case and you can see why it was reversed.

Justice Charles E. Whittaker: Do you understand, if I may ask, the first two assignments of negligence under paragraph (5) of the complaint record 2, to charge negligence in the manner of conducting (Voice Overlap) --

Mr. Harold B. Wahl: No, sir.

Justice Charles E. Whittaker: -- or negligence in requiring any test at all.

Mr. Harold B. Wahl: Right, your last comment is the right one.

There's no torturous reading of that language can -- that can make A and B say that there was a test given in a negligent manner.

He doesn't say that.

He doesn't say we gave an improper test.

Justice Charles E. Whittaker: Well, he doesn't say in those assignments.

He does in later assignments.

Mr. Harold B. Wahl: He's -- does later on.

And the Court said that as to those later ones and I call your petition particularly the (c), (g) and (h), he had a right to a jury trial, but he said, he didn't want a right to a jury the trial.

Justice Charles E. Whittaker: He did what?

He didn't want it.

Mr. Harold B. Wahl: He said when it came back the second time and this -- the appellate court had said, "You go back and try it as to your allegation (c) through (h)."

His attorney, Mr. Frates, told the Court, "We don't want the trial on those issues.

We're going to stand on our right on (c), on (a) and (b) and we abandoned all the remaining six allegations."

Justice Tom C. Clark: Where is that -- where is that in the record?

Mr. Harold B. Wahl: Well, there's no dispute about it.

I can dig it out for you, but Mr. Frates will freely concede that he abandoned the last six allegations and remain -- rested on the first two.

There isn't just no dispute about that if you want me to --

Justice Tom C. Clark: By the Court --

Justice John M. Harlan: Page 337.

Mr. Harold B. Wahl: Thank you, sir.

Justice Tom C. Clark: By the Court, they call it testimony if they construed the first two in the manner -- in the manner in which you said to be it.

Mr. Harold B. Wahl: Well, Judge, you see, the -- the Court that took all the testimony was the Court the first time that gotten reversed.

They did all that before they were reversed.

Justice William J. Brennan: But you didn't object as I recall it.

I haven't read all this (Voice Overlap) --

Mr. Harold B. Wahl: Well, all I can say is you instead --

Justice William J. Brennan: (Voice Overlap) --

Mr. Harold B. Wahl: -- I didn't try the case, but --

Justice William J. Brennan: Just let me ask you.

Mr. Harold B. Wahl: Yes, sir.

Justice William J. Brennan: I don't find in -- anything from (c) to (h) an allegation in the form that Mr. Justice Whittaker put it to you, namely, an allegation that negligence in the manner of conducting (Inaudible).

Mr. Harold B. Wahl: Well, Judge, I can only read to you, "In negligently failing to provide the plaintiff with proper equipment and safeguards in performance of his duties and in the participation in such a field test."

Justice William J. Brennan: But that doesn't say anything about negligence in the manner of conducting it necessarily, does it?

Mr. Harold B. Wahl: Well, in performing --

Justice William J. Brennan: Unlike the other things besides that, but in any event, what I'm trying to get to is why isn't this evidence taken or pages of it, without objection, that evidence which went to the manner of conducting a test?

Mr. Harold B. Wahl: All I can say is that at the end of the plaintiff's case, we move to strike all testimony on the question of the right to give the test and move to strike allegations (a) and (b) from the complaint, which on the Board knows is sufficient.

Justice William J. Brennan: Which you did -- well, I -- I thought -- I thought you made the motion for direct --direction of verdict.

Mr. Harold B. Wahl: We did that too.

Justice William J. Brennan: Initially on the ground of its insufficiency.

Mr. Harold B. Wahl: That's right.

Justice William J. Brennan: But when it was introduced, that is the evidence going to the manner in which the test was conducted.

Am I correct that there was no objection on the part of defense counsel to its introduction?

Mr. Harold B. Wahl: Not at that time, no, sir.

At the end of the case which under Florida law was sufficient, those --

Justice Felix Frankfurter: Mr. Wahl.

Mr. Harold B. Wahl: Yes, Mr. Justice --

Justice Felix Frankfurter: Justice Whittaker asked you whether you could read allegations (a) and (b) under paragraph (5) as alleging negligence in regard to the manner in which the test was pursued.

Mr. Harold B. Wahl: I said no, just as emphatically as I know how to say it --

Justice Felix Frankfurter: I --

Mr. Harold B. Wahl: -- Mr. Justice.

Justice Felix Frankfurter: I heard you that's why I'm asking the question --

Mr. Harold B. Wahl: Yes, sir.

Justice Felix Frankfurter: -- I'm about to ask.

You said you couldn't read it that way.

That isn't the question whether you could.

Mr. Harold B. Wahl: You can either.

Justice Felix Frankfurter: The question that is in -- in point either Mr. Wahl.

The question is whether your Court of Appeals read it that way --

Mr. Harold B. Wahl: No, sir.

Justice Felix Frankfurter: -- or should have read it that way or could've read it that way under the Federal Employers' Liability Act (Voice Overlap) --

Mr. Harold B. Wahl: I say its contortionist attempt to read language that isn't there, to attempt to put any such construction in those paragraphs particularly when the later paragraphs spell out that same proposition.

Justice Felix Frankfurter: May I -- may I repeat my question?

Mr. Harold B. Wahl: Yes, sir.

Justice Felix Frankfurter: It seems to be the question is whether what your Court of Appeals did, not what you think it could've done or shouldn't have done or wasn't allowed to do.

Either in fact, it construed (a) or (b) as going to the negligent manner of conducting the test or to that Court, not of any us including you, whether that Court construed it in the first place, as not going to the manner of the test, but to giving any test.

And secondly, whether that was an allowable construction by that Court, the state court of the federal act, those seem to me to be the crucial question.

Mr. Harold B. Wahl: Mr. Justice Frankfurter, all I can say is what I have said before, is that I don't think that Court did or that Court could read into that language, any complaint as to the manner in which the test was conducted.

Justice Felix Frankfurter: And by saying it, that Court could not, you mean, that no construction placed by this Court under their proper standing of the Federal Employers' Liability Act, could so construe that allegation?

Mr. Harold B. Wahl: Yes, sir.

Justice Felix Frankfurter: You have to go as far as that.

Mr. Harold B. Wahl: Yes, sir.

Justice Felix Frankfurter: Because --

Mr. Harold B. Wahl: While whether I have to go that far or not --

Justice Felix Frankfurter: I think you --

Mr. Harold B. Wahl: -- but in answer to your question, I answered in the affirmative.

Justice Felix Frankfurter: I think you do if I may so because a state court cannot give an allegation in a Federal Employers' Liability complaint, such a construction as to be unreasonable or unfair and thereby, frustrate the Act, --

Mr. Harold B. Wahl: Well --

Justice Felix Frankfurter: -- so that what the -- the construction by a state court of a complaint under the Federal Employers' Liability Act is not conclusive upon this Court, if by such construction whether willful or not and I'm not suggesting willfulness, if it gives a strain construction to an allegation on the Federal Employers' Liability Act by that process, it can't repeat the Act.

Mr. Harold B. Wahl: Mr. Justice Frankfurter that all sounds good, but if you'll just read paragraph (3) (c) through (h) of the same paragraph, you'll see that he properly alleged the things that are involved here and there wasn't any necessity to try to get strain constructions of some language up above, when it's clearly stated down below.

Justice Felix Frankfurter: That's another way of saying that your Court of Appeals number one, construed one and two merely to charge a cause of action because of submitting, compelling the man to be submitted --

Mr. Harold B. Wahl: Right.

Justice Felix Frankfurter: -- to a test.

Mr. Harold B. Wahl: Right.

Justice Felix Frankfurter: And two, that as a perfectly allowable, indeed you say a required construction with those --

Mr. Harold B. Wahl: Yes.

Justice Felix Frankfurter: -- allegations.

Mr. Harold B. Wahl: Certainly allowed --

Justice Felix Frankfurter: Alright.

Mr. Harold B. Wahl: -- certainly.

Now, as to the -- there's been a lot of talk here as to the kind of test and that this be able to something unusual and different.

The record is replete with the fact that tests were given everyday on the railroad as to fitness and efficiency.

And the man's own union chairman, one of those two fellows that took the 23 minutes to counsel off a little way, testified that the only kind of test that you could give a man under these circumstances was the kind of test that he was given.

That's at pages or -- or 114, 115, 126 to 128.

Our position is --

Justice Felix Frankfurter: Why do you make -- may I break in again?

Mr. Harold B. Wahl: Yes, sir, Mr. Justice Frankfurter.

Justice Felix Frankfurter: What do you make of the statement of counsel for the plaintiff?

Mr. Harold B. Wahl: Sir?

Justice Felix Frankfurter: What do you make of the statement by counsel for the plaintiff at the first trial on page 277?

"Now, gentlemen, there was never -- there was never any other test given to anybody on this railroad like the one they gave Bert Smith."

Mr. Harold B. Wahl: Well, what he's --

Justice Felix Frankfurter: What is your comment on that?

Mr. Harold B. Wahl: My comment on that was that he tried to pick out that we hadn't had before of Mr. Five by Five and hadn't -- had to take him out and see whether or not, how long it took him to walk a mile and whether he could walk a mile or not.

This particular of a trainman to do this particular thing, that's correct, but we had had test everyday --

Justice Felix Frankfurter: What -- the same kind of walking test for a mile?

Mr. Harold B. Wahl: Yes, we had not had that occasion to do it before, because we hadn't had it.

He's going to appreciate, Mr. Justice Frankfurter, particularly if you ride railroads that it couldn't be a very happy situation --

Justice Felix Frankfurter: And I almost exclusively (Voice Overlap) --

Mr. Harold B. Wahl: -- or I'd say, it wouldn't be a very happy situation.

The very -- many of our employees couldn't walk a mile when the -- their whole duty involved walking a mile to protect the rail of the train.

As a matter of fact, they had to walk two hours.

They got to walk a mile down and a mile back.

But is --

Justice Felix Frankfurter: What kind of testing had you given to other people?

Mr. Harold B. Wahl: All sorts of tests.

Justice Felix Frankfurter: Well, does the record show that?

Mr. Harold B. Wahl: Its -- it indicates generally that test were given everyday as to the efficiency and ability of the men to perform their jobs.

I don't recall there was any detail as to the kind of test.

Justice Charles E. Whittaker: Mr. Wahl --

Mr. Harold B. Wahl: Yes, Mr. Justice Whittaker.

Justice Charles E. Whittaker: -- I wonder if it isn't possible or necessary to observe that the counsel for the plaintiff took the view what the second trial that counts -- that assignments one and two of paragraph (5) tried something different than the remainder when he said, they -- record 337.

In other words, 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 Employees' Liability Act.

Mr. Harold B. Wahl: No question about it.

He realized he couldn't get in anywhere other ways.

So his whole theory was that it was negligence per se under the Federal Employers' Liability Act to give this man a test.

That was the theory on which he tried it and he was -- the lower court was reversed for permitting to try it on that theory, because as he conceded yesterday, before the bar of this Court.

Of course, the railroad has gotten the right to give reasonable efficiency test.

Justice Charles E. Whittaker: All I'm saying -- I'm suggesting is -- is not a matter of construction by plaintiff's counsel that assignments (a) and (b) were different than the others.

Mr. Harold B. Wahl: Oh I -- I don't think there's any doubt with what I don't agree with Frates in his construction, thus Mr. Frates told him.

That's not the Court and that's the way he did construe it.

He's argued all along that he had a right to try the case on the theory that it was negligence per se when they gave him a test.

Chief Justice Earl Warren: Mr. Wahl, how -- how long had this man been carrying all of this excess weight to the --

Mr. Harold B. Wahl: For a considerable period of time.

Chief Justice Earl Warren: What do you mean by considerable period of time?

Mr. Harold B. Wahl: Many years.

Chief Justice Earl Warren: Any -- any number of years that you have in mind?

Mr. Harold B. Wahl: Oh, I'd say a considerable number of 15, 20, 25 years.

In fact, the doctor said it was equivalent to carrying 125 pounds around on his back.

Chief Justice Earl Warren: And -- and he had apparently taken off considerable weight at this particular time, so he'd been much heavier before that?

Mr. Harold B. Wahl: No question about that, Your Honor.

Chief Justice Earl Warren: But he ever has been given a test of this kind in all those 25 years?

Mr. Harold B. Wahl: No, he had not.

What had --

Chief Justice Earl Warren: How -- what does the record show --

Mr. Harold B. Wahl: The record --

Chief Justice Earl Warren: -- anything about why -- why it was done at this particular time?

Mr. Harold B. Wahl: Well, I think what happened was that a new man was put in -- a new train master was put in charge of this division.

And regardless to the errors that his predecessors have committed, when he came along and saw Mr. Five by Five couldn't even stand up and get on the lower step of the coach without put -- put under it.

He figured that the man could not safely protect the rail of the train and that's what it brought this up.

Chief Justice Earl Warren: Is that in the record?

Mr. Harold B. Wahl: Yes, sir.

Chief Justice Earl Warren: That -- that's --

Mr. Harold B. Wahl: No question about that.

That the new train master who came in, the new man incidentally, Mr. Smith, just gotten out of the hospital and come back.

He'd have a whole lot other trouble.

And he came back from the hospital claiming it was alright to go back to work and had a certificate from the doctor.

But the train master after he came back from the hospital saw him walking around and he just was afraid to entrust the lives of his passengers to that man without being sure that the man could perform his duties and protect the rail of the train.

I figure that question was going to come up but just because they made errors in the past, can maybe to risk passengers' lives by having a trainman who couldn't protect the rear of the train properly.

That isn't going to be in the defense.

If some -- if some train plows into rear of another and a whole lot of people are killed and hurt, regardless of our mistakes in the past, it's our duty to have safety at the present time.

Justice John M. Harlan: What page is that on the jury that you referred to --

Mr. Harold B. Wahl: About Mr. --

Justice John M. Harlan: -- the Chief Justice, yes.

But you told the Chief Justice as to the reason for giving --

Mr. Harold B. Wahl: Well, I have to hunt through here, but I'll be glad to get it and give it to the Court.

There's no dispute about the fact that Clark was a new train master and that when Clark when came on the job, he apparently tried the remedy some of the defects of his predecessors.

Justice Hugo L. Black: Was there any new evidence offered at the second trial of the --

Mr. Harold B. Wahl: No, sir.

Justice Hugo L. Black: -- submitted on --

Mr. Harold B. Wahl: Mr. --

Justice Hugo L. Black: -- the old evidence.

That's (Voice Overlap) --

Mr. Harold B. Wahl: In fact, I'm glad you asked that question because that gives me a chance to get him out of the point that the red light kept --

Chief Justice Earl Warren: Well just --

Mr. Harold B. Wahl: -- me off.

Chief Justice Earl Warren: -- just take this point.

Mr. Harold B. Wahl: Yes, sir, but I mean it to answer it, I have to do that.

At the second trial, Mr. Frates attempted to proffer, although the Supreme Court had limited the trial to the last six issues.

All of the testimony on the first trial which embraced the last six and the first two issues, which of course was improper.

And no additional testimony was proffered.

Now at the second trial, he did get in an additional allegation as to the railroad knowing this man was sick and couldn't he put him on, but he abandoned that allegation on appeal.

Does that answer your question Mr. Justice Black?

No testimony was put on at the second trial other than to proffer.

Justice Hugo L. Black: All I ask -- all I ask was, if all this evidence that you have in here, evidence that you give on the first trial --

Mr. Harold B. Wahl: Right.

Justice Hugo L. Black: -- they reversed the case.

Mr. Harold B. Wahl: Yes, sir.

And no new testimony of any kind was put on the second trial.

Argument of William S. Frates

Mr. William S. Frates: May it please the Court, so little time and if you'll pardon me, I'll talk rapidly.

Just --

Justice Felix Frankfurter: Would you mind just -- would you mind just answering one question, which I think this case a little being answered very explicitly.

Mr. Wahl said that at the second trial, you abandoned then -- the last six allegations.

Is that true or not true according to the record?

Mr. William S. Frates: Your Honor, we abandoned six allegations because the Court and I would like to read that.

That is one of the things I want to point it out, held that those allegations and the railroad counsel agreed and I agreed, dealt with only with a reasonable safe place to work.

The other two dealt with the giving up the test.

The Court held under the opinion that I'm reading from page 332 that this was a pretrial part of the proceedings.

That on retrial, we are not going to be able to go into the propriety or impropriety of giving this particular test, although I did it, the original trial admit evidence on that fact and I felt that it was a question.

However, I have been reversed.

Justice Felix Frankfurter: That's a very different thing from saying that you were in the compulsion, in the first place, your answer that you did abandon -- that those six allegations from (c) through (a) -- or not before the Court in the second trial, is that right?

Mr. William S. Frates: That is right, sir.

Justice Felix Frankfurter: Now, secondly, those allegations from (c) to (h) do not merely deal with the safe place, (g) -- certainly (g) was very different things and merely a safe place.

In other words, (c) to (h) cannot repetitive.

Mr. William S. Frates: Your Honor, the Court held and may I read from 341, "But I would sure entered an order and this was discussing all of the remaining allegations on the pretrial before they were abandoned which was later on."

And here's what the appellate court said discussing those items and I refer to page -- page 340 and 341 in a discussion, a pretrial discussion, in trying to determine the issues in this case, over here on 340, "The remaining allegations were discussed."

Then the Court said, "But I would sure enter my order that I would sustain an objection to any testimony offered or proffered, which had to do with the grievance of the employed as the propriety of the right of being given this particular test on the basis of this opinion."

The evidence --

Justice Felix Frankfurter: Well, the propriety of giving a test is a very different thing from the safe conditions under which a test is given.

Mr. William S. Frates: Your Honors, the propriety goes to the actual method and manner, as I read here yesterday.

The Court said and the trial court said, "I refute --

Justice Felix Frankfurter: Then you ought to be -- then you ought to have gone, if I may say so, to your Supreme Court and to this Court because the Court improperly shut you off from making a case which you alleged.

Mr. William S. Frates: Your Honor, we relied -- we relied on the fact that this Court, the lower court and the appellate court said that all of the evidence relative to the manner and method of this case -- test was not admissible.

Justice Felix Frankfurter: Where did it say the manner and method?

Where did it say the method?

Mr. William S. Frates: Your Honor, it said the propriety --

Justice Felix Frankfurter: Well, the propriety means that isn't proper, not that the conditions, under which it was done, were not proper.

Mr. William S. Frates: Your Honor --

Justice Felix Frankfurter: They're very different things.

Justice Hugo L. Black: I understood you to say that you said the propriety of this particular test.

Mr. William S. Frates: Thank you, Justice Black.

That was the question, the propriety whether or not this was a proper -- proper test.

Justice Felix Frankfurter: In other words, that everything that you alleged from (c) to (h), he said he wouldn't let you make proof of, but you could make proof of under (a) and (b).

Is that what you're saying?

Is that what you're saying?

Mr. William S. Frates: Yes, sir, as far as --

Justice Felix Frankfurter: Where is that phrase, that you could make proof of that what you sought to prove from (c) through (h) by proving it under (a) and (b)?

Where is that in the record?

Mr. William S. Frates: No, sir.

It says that the other -- the other elements in the record show that the Court said that those are reasonable safe place to work.

We still stand on the fact of the negligent given test, which was a jury issue and the Court said that all the evidence in relation to that test, sir, was inadmissible and that's what the trial court held.

We could not put an isle of evidence about this test in -- before under any of this counsel and --

Justice Felix Frankfurter: Did you --

Mr. William S. Frates: -- they ruled that in the first case.

Justice Felix Frankfurter: Did you make any of objections to a ruling which you -- I understand you to say was made, that you couldn't prove the allegation from (c) through (h)?

Did you object to that ruling that the Court wouldn't let you make proof from (c) through (h)?

Mr. William S. Frates: No, sir.

No, sir, because the Court had said that they wouldn't permit any evidence.

Justice Felix Frankfurter: Yes, but you can object when the Court denies you something and you think the denial is wrong, the normal rudimental thing is to object to a wrong ruling not to yield to it.

Mr. William S. Frates: Yes, sir.

But I also did yield to one and two which said that the issue of this test was not a triable issue and we rely on that and didn't yield on -- on that issue.

And that is the whole basis of this case.

There has never been any contention by the railroad until here that the manner and the method of giving this test, their whole brief, their question say, "This was a proper test."

We say it was not a proper test, that this was a jury issue as to whether an improper, an unreasonable test became a -- a jury question under the FELA.

Justice John M. Harlan: What you're saying in effect is that it made allocation negligence for the railroad to give any test however appropriate.

This test may have been in normal circumstances to a man who weighed X number of pounds and by whom they had this -- has knowledge, is that the theory of your case?

Mr. William S. Frates: That's one theory.

We also say that there is an issue as to whether or not this test was a reasonable test under the circumstances.

And that was the jury, whether it was a proper test, whether it had any relations to -- to his duty, whether that this was a test designed to get rid of him.

All of which evidence was adduced at the trial in which the jury believed.

And the jury believed that there was no requirement to go back a miles.

That was an issue.

Justice Charles E. Whittaker: Well, Mr. Frates, are those not the assignments that you abandoned?

Mr. William S. Frates: No, sir.

No, sir.

No, sir.

The only assignment that has been abandoned, the only thing that we could've shown is shown in the record by the Court, was to show that the erring where this man walks was a reasonably safe place under the circumstances.

That's the only fact that we could have proven as shown in the pretrial evidence and the rulings of the Court.

That was the only evidence we could and that wasn't the major issue in the case.

Thank you, gentlemen.