1. The motion of respondent to recall the judgment of this Court
in this case is granted, and the judgment is amended to provide for
a remand of the cause to the Court of Appeals for further
proceedings. Pp.
351 U. S.
183-184.
2. The original order entered by the Court in this case, 350
U.S. 898, is deemed erroneous, and it is recalled in the interest
of fairness. P.
351 U. S.
184.
3. Even when a petition for rehearing has been denied, Rule
58(4) of the Rules of this Court, barring consecutive and
out-of-time petitions for rehearing, does not preclude a motion to
correct the kind of error involved in the Court's original order in
this case. P.
351 U. S.
184.
4. This cause is not moot, though the judgment has been paid. P.
351 U. S.
184.
350 U.S. 898, judgment recalled and amended.
PER CURIAM.
Respondent filed a motion to recall and amend the judgment in
the above-entitled cause, 350 U.S. 898, for the purpose of
remanding the cause to the United States Court of Appeals for the
Second Circuit for further proceedings. Prior to the filing of this
motion, and after the District Court denied an application for a
stay of execution, the judgment was satisfied, but petitioner was
informed that respondent intended to pursue its remedies
notwithstanding payment of the judgment.
The motion of respondent to recall the judgment is granted. It
is ordered that the certified copy of the judgment
Page 351 U. S. 184
sent to the District Court be recalled and that the judgment be
amended so as to provide for a remand of the cause to the United
States Court of Appeals for the Second Circuit for further
proceedings.
Boudoin v. Lykes Brothers S.S. Co.,
348 U. S. 336; 350
U.S. 811; Rule 58(4), Supreme Court Rules.
We deem our original order erroneous, and recall it in the
interest of fairness. Similar relief was requested by respondent in
a petition for rehearing, denied in 350 U.S. 943. Rule 58(4) bars
consecutive and out-of-time petitions for rehearing. The
Boudoin case, however, concerned a motion to recall a
judgment that asked for almost identical relief. Yet, if it had
been considered a petition for rehearing, it was filed out of time.
The grant of the motion in the
Boudoin case shows that
Rule 58(4) does not prohibit motions to correct this kind of
error.
Compare, as to mootness,
Bakery Drivers Union v.
Wagshal, 333 U. S. 437,
333 U. S. 442;
Dakota County v. Glidden, 113 U.
S. 222,
113 U. S. 224.
The problems that may arise from demand for repayment are not
before us.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, and MR. JUSTICE CLARK join, dissenting.
In the interest of fairness, we would not remand this case to
the Court of Appeals. Cahill brought this action under the Federal
Employers' Liability Act [
Footnote
1] to recover for injuries sustained while working as a
railroad brakeman. He was hurt on a busy highway which had railroad
tracks running down its center. While flagging traffic behind a
train stalled on these tracks, Cahill was struck by a truck which
started up suddenly. His complaint charged that the railroad was
negligent in sending him to work in such a dangerous place without
proper
Page 351 U. S. 185
warning or instructions. The jury found for Cahill, and awarded
him damages. The railroad asked the Court of Appeals to reverse
Cahill's judgment on two grounds: (1) there was insufficient
evidence to permit submission of the case to the jury; (2) the
trial judge erroneously admitted evidence of prior accidents at the
scene of Cahill's injury offered to show the railroad's negligence
in failing to warn him of dangers such as had brought about those
accidents.
The Court of Appeals reversed on the ground that there was not
sufficient evidence to support the verdict. 224 F.2d 637. Having
taken this action, the Court of Appeals expressly stated that it
did not find it necessary to pass on the alleged error in admitting
the evidence of prior accidents. Cahill then asked us for
certiorari. On November 21, 1955, we granted his petition and
reversed the Court of Appeals' judgment, thereby reinstating the
judgment of the District Court. 350 U.S. 898. MR. JUSTICE REED
dissented. MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON, and MR.
JUSTICE HARLAN expressed the view that certiorari should have been
denied; they did not participate in the decision on the merits.
[
Footnote 2] In a timely
petition for rehearing, the railroad called our attention to the
fact that its objection to the evidence of prior accidents had
never been passed on by the Court of Appeals, urging that we
reconsider our judgment and modify it to the extent necessary to
remand the cause to the Court of Appeals to pass on the question it
had left undecided. This Court denied the petition for rehearing.
350 U.S. 943.
The railroad's present "motion to recall" presents precisely the
same contention which was raised in its petition
Page 351 U. S. 186
for rehearing. We are asked once more to remand the case to the
Court of Appeals for the Second Circuit for that court to determine
whether there was error in admitting the evidence of prior
accidents. Thus, the "motion to recall" turns out to be a petition
for rehearing of a former petition for rehearing. Or, in somewhat
plainer language, the motion to recall turns out to be a second
petition for rehearing. But Rule 58(4) of this Court declares that:
"Consecutive petitions for rehearings, and petitions for rehearing
that are out of time under this rule, will not be received." What
is in fact a second petition for rehearing should not be received
simply because it is labeled a "motion to recall."
There can be no possible doubt that a proper way to raise the
sort of question here presented is by filing a petition for
rehearing. Our records are filled with proof of this. The latest
example is our action in
Union Trust Co. v. Eastern Air Lines,
Inc., 350 U.S. 962. We granted relief in that case of
precisely the same kind that the railroad here asked us to grant in
its petition for rehearing, and asks us again to grant in its
"motion to recall." There is nothing new about granting the relief
here requested in response to a petition for rehearing. Upon one
occasion MR. Justice Bradley, speaking from the bench, said:
"It ought to be understood, or at least believed, whether it is
true or not, that this Court, being a Court of last resort, gives
great consideration to cases of importance and involving
consequences like this, and there should be a finality somewhere.
This custom of making motions for a rehearing is not a custom to be
encouraged. It prevails in some States as a matter of ordinary
practice to grant a rehearing on a mere application for it, but
that practice we do not consider a legitimate one in this Court. It
is
Page 351 U. S. 187
possible that, in the haste of examining cases before us, we
sometimes overlook something, and then we are willing to have that
pointed out, but to consider that this Court will reexamine the
matter and change its judgment on a case, it seems to me, is not
taking a proper view of the functions of this Court. . . .
[
Footnote 3]"
This was an early recognition of the appropriateness of a motion
for rehearing to raise points that have been overlooked. Thus,
assuming that the point raised here was overlooked originally, it
was correctly raised in the first petition for rehearing, and that
should end the matter if this Court's Rule 58(4) is to be
followed.
Mr. Justice Bradley dealt with the problem of successive
petitions for rehearing in
Williams v. Conger,
131 U. S. 390.
There, the litigant claimed that a clerical error had been made in
an opinion. A rehearing was asked on that ground, but was denied.
The Court concluded that "no modification of the judgment was
required, and no rehearing was necessary or called for. . . ." 131
U.S. at
131 U. S. 391.
Later, the same request was again made. Mr. Justice Bradley,
speaking for the Court, expressed its strong lack of patience at
the "persistent renewal of the application . . . , especially upon
the same reasons, once overruled. . . ."
Ibid. One would
judge from the tone of the opinion in that case that the Court
would not have reached a different result had the second motion for
rehearing been labeled a "motion to recall the judgment."
Page 351 U. S. 188
Our action in
Boudoin v. Lykes Bros. S.S. Co., 350 U.S.
811, does not justify the Court in granting this motion to rehear a
petition for rehearing formerly denied. In that case, Boudoin
appealed from a judgment of the District Court in his favor,
claiming: (a) the amount of damages awarded him was inadequate; and
(b) the term of maintenance determined by the trial court was
insufficient, and should be extended and increased. The Court of
Appeals undercut both of these alleged errors by holding that
Boudoin was entitled to recover nothing at all. We reversed.
348 U. S. 348 U.S.
336. Boudoin filed no petition for rehearing. He did ask us to
amend our judgment so that the Court of Appeals could adjudicate
the question of the amount of damages, and we granted that motion.
But our action there is not comparable to the action requested
here. Had we denied Boudoin's motion, and had he filed a later
motion of the same kind, I suppose we would not have considered it
a second time. But here, the Court is asked to review its judgment
of reversal a second time. The substance of the pleadings, and not
their labels, should govern our action. We should not grant what
is, in effect, a second petition for rehearing unless the Court is
willing to admit that it is refusing to give the rule against
successive petitions for rehearing its literal meaning. There are
strong arguments for allowing a second petition for rehearing where
a rigid application of this rule would cause manifest injustice.
Cf. Hormel v. Helvering, 312 U. S. 552,
312 U. S.
556-559. But this is no such case.
We have never held that, in every instance where the Court of
Appeals has failed to decide a point, we must remand the cause to
that Court. Such a rigid rule would be most undesirable, and would
bring about interminable delays, with most unjust results. In
Delk v. St. Louis & S.F. R. Co., 220 U.
S. 580, a suit for injuries under the Safety Appliance
Act, this Court, after reversing the
Page 351 U. S. 189
Court of Appeals on the question, went on to decide a second
question which the Court of Appeals had expressly left undecided.
MR. JUSTICE HARLAN, speaking for the Court, said:
"As the case is here upon certiorari to review the judgment of
the Circuit Court of Appeals, this court has the entire record
before it, with the power to review the action of that court, as
well as direct such disposition of the case as that court might
have done. . . ."
220 U.S. at
220 U. S. 588.
[
Footnote 4] More recently, in
O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.
S. 504, this Court again decided a question left
undecided by the Court of Appeals. MR. JUSTICE FRANKFURTER,
speaking for the Court, said:
"In this instance, however, we have a slim record and the
relevant standard is not difficult to apply, and we think the
litigation had better terminate now. Accordingly, we have ourselves
examined the record to assess the sufficiency of the evidence."
340 U.S. at
340 U. S. 508.
At least where there are unsubstantial points left undecided below,
this Court should not remand the case for consideration of those
points.
Certainly there is no error asserted here that justifies sending
this case back to the Court of Appeals. The error claimed relates
to the admissibility of evidence concerning prior accidents.
Cahill's case against the railroad was based in large part on the
failure to give him proper instructions before sending him to work
in a dangerous place when he had never done such work before. This
made the railroad's knowledge of the danger of highway traffic at
that location highly relevant in proving the railroad negligent.
What better proof could there
Page 351 U. S. 190
be than the fact that the railroad knew there had been repeated
accidents at the same location of the kind that brought about
Cahill's injury? No fair system of evidence would exclude such
testimony when issues are raised like those involved here. As Mr.
Justice Field, speaking for the Court, said in
District of
Columbia v. Arms, 107 U. S. 519,
107 U. S.
525:
"The frequency of accidents at a particular place would seem to
be good evidence of its dangerous character -- at least, it is some
evidence to that effect. [
Footnote
5]"
We are told in this case that the railroad has already paid the
judgment. For all we know, that judgment was paid directly to
Cahill. It is the general rule that voluntary payment of a judgment
amounts to accord and satisfaction.
Thorp v. Bonnifield,
177 U. S. 15,
177 U. S. 18-19.
Payment under duress is, of course, a different matter. We do not
know whether this judgment was paid under duress. It is true, there
is a statement in respondent's brief that it informed petitioner of
its intention to pursue whatever remedies it had notwithstanding
payment of the judgment. And the brief also states that the
District Court declined to agree to a stay of execution. This
statement is certainly not sufficient to show the kind of duress
that ought to justify setting aside the payment of a judgment.
[
Footnote 6] Even if the facts
alleged were sufficient,
Page 351 U. S. 191
the question should be tried as one of fact before this Court
takes the drastic action of trying to make a plaintiff pay back
money that he has received under an order of this Court.
Dakota
County v. Glidden, 113 U. S. 222.
[
Footnote 7] If such summary
action as here requested can be taken with reference to a judgment
paid only a few days ago, why could it not be taken with reference
to a judgment paid a year ago? [
Footnote 8] Yet the Court, without investigating these
problems, summarily grants the motion to recall and remands the
case to the Court of Appeals.
I think the Court should deny this motion.
[
Footnote 1]
35 Stat. 65 as amended 45 U.S.C. § 51
et seq.
[
Footnote 2]
See Carter v. Atlanta & St. A.B. Ry. Co.,
338 U. S. 430,
338 U. S.
438-439;
Schulz v. Pennsylvania R. Co.,
350 U. S. 523,
350 U. S. 527,
and cases there cited.
[
Footnote 3]
Charles Evans Hughes, The Supreme Court of the United States
(1928), 71-72.
See also Frankfurter and Landis, The
Business of the Supreme Court at October Term, 1931, 46 Harv.L.Rev.
226, 237:
"Of course, to deny a rehearing may conceivably be only an
obstinate adherence to error. But surely, barring very exceptional
circumstances, a rehearing implies a serious lack in the
adjudicating process, a failure in mastering either the record, or
the pertinent legal considerations that govern the issues. . .
."
[
Footnote 4]
See also Harriman v. Northern Securities Co.,
197 U. S. 244,
197 U. S. 287;
Lutcher & Moore Lumber Co. v. Knight, 217 U.
S. 257,
217 U. S.
267-268;
Lamar v. United States, 241 U.
S. 103,
241 U. S.
110-111;
Camp v. Gress, 250 U.
S. 308,
250 U. S. 318;
Langnes v. Green, 282 U. S. 531,
282 U. S.
536-539;
Story Parchment Co. v. Paterson Parchment
Paper Co., 282 U. S. 555,
282 U. S.
567-568.
[
Footnote 5]
See also the interesting discussion and cases cited in
2 Wigmore, Evidence (3d ed. 1940), § § 252, 458.
And see
Notes: 65 A.L.R. 380, 81 A.L.R. 685, 128 A.L.R. 595, and cases
there cited.
[
Footnote 6]
"Where a party pays an illegal demand with a full knowledge of
all the facts which render such demand illegal, without an
immediate and urgent necessity therefor, or unless to release his
person or property from detention, or to prevent an immediate
seizure of his person or property, such payment must be deemed
voluntary, and cannot be recovered back. And the fact that the
party, at the time of making the payment, files a written protest
does not make the payment involuntary."
Union Pac. Railroad Co. v. Commissioners, 98 U. S.
541,
98 U. S.
543-544.
See also Little v. Bowers,
134 U. S. 547,
134 U. S.
554-558.
[
Footnote 7]
"But this courts is compelled, as all courts are, to receive
evidence
dehors the record affecting their proceeding in a
case before them on error or appeal."
113 U.S. at
113 U. S. 225.
See also Wood-Paper Co. v.
Heft, 8 Wall. 333.
[
Footnote 8]
The expiration of a Term of this Court is apparently no longer
relevant.
See 28 U.S.C. § 452.