GROSSO v. UNITED STATES

Argument of Kenneth N. Kripke

Chief Justice Earl Warren: Number 12, Sandra Lee Neely, etcetera, petitioner versus Martin K. Eby Construction Company.

Mr. Kripke.

Mr. Kenneth N. Kripke: Mr. Chief Justice Warren, may it please the Court.

Neely versus Eby Construction Company is a diversity tort case arising out of the United States District Court for Colorado.

In that Court, the plaintiff Neely, who is your petitioner here obtained a jury verdict of the amount of $25,000.00 which is the maximum obtainable under the Colorado Wrongful Death Act.

The trial judge denied the various motions for directive verdict, judgment notwithstanding verdict new trial and in that posture, the defendant Eby appealed to the United States District -- United States Court of Appeals for the Tenth Circuit and that Court reversed and remanded with directions to dismiss.

It was from that order that this matter was brought to this Court.

In order to --

Justice William O. Douglas: But here often they're very limited grant, isn't it?

Mr. Kenneth N. Kripke: Well, Your Honor, I don't know.

In the petition for writ of certiorari, the petitioner brought to the attention of the Court the interplay of the Seventh Amendment to the United States Constitution Rule 38 of the federal rules and Rule 50 with its recent amendments.

The petitioner in that petition said that she did not concede for a moment that the Court of Appeals was correct on its dismissal in its interpretation of the facts of that case as the Court recounted them from the cold record.

Justice William O. Douglas: But we didn't -- as I understand that, we didn't take that part of the case, didn't we?

Didn't we take the question of merely it's whether or not the Court of Appeals had the right to send it back directing a dismissal not leaving any options before the District Court act or amendment through the pleadings or --

Mr. Kenneth N. Kripke: Well, Mr. Justice Douglas, I'm not sure whether it was so limited.

I don't think the directive said so in so many words.

Justice William O. Douglas: The reason that I asked you is that your brief reads as if you assume that the whole case was here.

We set them to determine was enabled right in reversing the first place because you asked for reinstatement of the judgment.

Mr. Kenneth N. Kripke: Yes, sir, I did.

Yes.

Your Honor -- Your Honors, in order to try to describe the --

Justice Byron R. White: Mr. Kripke, the Court did (Inaudible).

Mr. Kenneth N. Kripke: No sir, not that I know of.

Justice Byron R. White: That in addition to all the others.

Mr. Kenneth N. Kripke: Yes, sir.

Yes, sir.

In order to try to orient the Court on what is a rather unfamiliar fact situation, the petitioner attached to her brief on the merits some exhibits.

There are four photographs and also a Polaroid photograph or copy of one which was a drawing on the blackboard in the trial.

These are all of the exhibits which were admitted on the issues of liability.

There are -- the reasons that these --

Justice William O. Douglas: What bearings do those held from these limited questions that we held?

Mr. Kenneth N. Kripke: Well, Your Honor, I think it becomes very clear with a study of the factual background of the case that the Court of Appeals misinterpreted the facts from the cold record.

Justice William O. Douglas: Well, I thought that that isn't here.

That we just have the question of the construction of the rule, the scope of their power, maybe I'm wrong but that's the way I read our grant.

Mr. Kenneth N. Kripke: Yes.

I would be willing Your Honor to limit my remarks to this problem of the application of rule of the Amendment 7 to the power of the Court of Appeals to dismiss and terminate what has been a jury verdict.

I think that the facts and misinterpretation of the facts illustrates as clearly as anything I can think of Your Honor, why the Seventh Amendment was enacted in the first place.

Mr. -- if I may I --

Chief Justice Earl Warren: Yes, go ahead.

Mr. Kenneth N. Kripke: -- give some historical background.

Mr. Neely was an engineer employed in a missile silo construction program at Elizabeth, Colorado.

It was necessary for him to make some measurements from some counterweights if I may explain the --

Justice William O. Douglas: I'll be burnished to myself knowing what the history of the Rule 50 is and provisions and --

Mr. Kenneth N. Kripke: Alright.

I'll go directly to that then.

The Seventh Amendment to the United States Constitution says of course that the -- that no court may review facts which have -- no federal court may review facts which have once been tried to a jury except according to the common law.

Now, there have been various allusions and interpretations of this before Rule 50 came into existence.

Back in 3 Peter as early as that, there was the Parsons case which has been referred to in the briefs wherein it was stated that under the common law --

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