417 F.2d 526 (5th Cir. 1969), 27439, Huth v. Southern Pac. Co.

Docket Nº27439
Citation417 F.2d 526
Party NameJames Leo HUTH, Plaintiff-Appellee, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellant.
Case DateOctober 07, 1969
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 526

417 F.2d 526 (5th Cir. 1969)

James Leo HUTH, Plaintiff-Appellee,



No. 27439

United States Court of Appeals, Fifth Circuit.

October 7, 1969

Page 527

Fred B. Wagner Brownsville, Tex., John F. Heard, Baker, Botts, Shepherd & Coates, Houston, Tex., for Southern Pacific Co.

Thomas G. Sharpe, Jr., Hardy & Sharpe, Brownsville, Tex., for plaintiff-appellee.

James Leo Huth, in pro per.

Before JOHN R. BROWN, Chief Judge, THORNBERRY and MORGAN, Circuit judges.

JOHN R. BROWN, Chief Judge:

The sole question in this diversity case is whether a private contract between the Texas Highway Department and the Railroad 1 imposing on the Highway Department the duty to maintain the Railroad's right of way over a public highway crossing has the effect of absolving the Railroad from damages sustained by a member of the public as a consequence of a condition resulting from improper maintenance. On a jury verdict on special interrogatories 2 finding that the Railroad had a 50-foot right of way which it failed properly to maintain and that such negligence caused Huth's injuries, the Trial Court entered judgment against the Railroad. We agree and affirm.


Before getting to the merits, it is appropriate to make a few brief comments about the method used to dispose of this appeal. This is done to acquaint the Bar of this Court, the Federal Judiciary across the nation, scholars and others interested in judicial administration with the continued operation of the process of judicial screening of cases before calendaring. Essentially it is to update our experience since the full discussion of the procedure in Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I.

As there outlined, the system works this way. Every case upon the filing of the last brief (or expiration of time in which to file briefs) is referred to one of four standing panels composed of Judges in active service of the Fifth Circuit. The case is judicially screened by Judges. This results in a classification as one of four categories. Class III is for limited oral argument (15 minutes) with notice to the Bar on the face of the printed Court calendar. 3 Class IV is for full argument allowed under FRAP (30 minutes). Class II, as the Court denominates them in its daily operations, covers those cases in which the Court has determined that the case is of such a character as not to justify oral argument. On the Court making such determination, the parties are notified in writing that the case has been put on the Summary Calendar. See Fifth Circuit Rule 18, Appendix, Murphy, supra, at 812. Class I, now small in numbers, covers frivolous cases. The parties are notified that the case is on the Summary Calendar prior to the time any opinion is filed.

As we pointed out in Murphy, supra 409 F.2d at 806, for a case to go on the Summary Calendar there must be unanimous action of the panel members, and in disposing of it, the decision must likewise be unanimous.

The experience of the Court has been both informative and productive. The figures covering the first six months of 1969 (January-June) plus the few days in 1968 (December 13-31, 1968) are revealing. Although it is too early to tell for a certainty the extent to which

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the Summary Calendar practice enhances the productivity of Judges and the Court, the fact is that in the fiscal year just closed, during the last six months of which we had the Summary Calendar, our output was markedly increased and more than kept up with our ever expanding increase of input. 4

In the judicial screening process itself, the number of Summary II cases has steadily increased 5 to an overall adjusted basis of approximately 32.7%, and the judicial classification both in percentages 6 and numbers 7 continues with evenhandedness across the full spectrum of our varied, but continuously growing, docket. And the experience since July 1, 1969, indicates that this rate will be maintained, if not increased. 8

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The utility of the screening process and the Summary II classification is not limited to increasing output to match or overcome continuous growth in input. Another substantial virtue-- especially in these days and times of great public concern about the length of time it takes for a case to get tried in a trial court until the appellate process is finally wound up-- is expedition in actual disposition. There is no time lag at all from the time the last brief is filed (or the time for filing expired) until the case is assigned to a panel. The case goes immediately to the panel in regular routine. Likewise, there is no time lag between that date and the time it would ordinarily go on a printed calendar for argument. And there has been a marked reduction in the time from the moment the last brief is filed until the Court's opinion is filed and released. The reduction in time for transmission of the case to a panel has been reduced by almost 300%. In final output, the time from filing of the last briefs until final decision has been reduced nearly 50%. 9 And opinions come out continuously in large number whether the Court is holding sessions or not. 10

Not only has the procedure demonstrated its administrative utility, but, more important, our experience in a judicial technique never before tried in such depth or width has given us a feeling of confidence in the trustworthiness of the system in achieving the goals of our cherished Anglo-American adversary case-and-controversy system. Every step in the process calls for judicial selectivity-- judicial selectivity in the light of arguments pro and con made on behalf of the parties under the full briefing assured by FRAP.

In this process of discriminating selectivity, the Court, in its continuing self-education from cumulative experience in the shaping of this new judicial tool, strives to meet both the literal demands and, more important, the underlying spirit of F.C.C. v. WJR, The Goodwill Station, Inc., 1949, 337 U.S. 265, 274-277, 69 S.Ct. 1097, 1103-1104, 93 L.Ed. 1353, 1360-1361.

There the Court, rejecting the Court of Appeals' holding that oral argument is required to satisfy the Constitution, said, 'Taken at its literal and explicit import, the Court's broad constitutional ruling cannot be sustained.' Any such conclusion, the Court went on, 'would require oral argument upon every question of law * * * regardless of whether the legal question were substantial or insubstantial; of the substantive nature of the asserted right or interest involved; of whether Congress had provided a procedure, relating to the particular interest, requiring oral agument or allowing it to be dispensed with * * *.' And then declining to explore the administrative consequences of any such holding, the Court declared,

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'It is enough to say that due process of law, as conceived by the Fifth Amendment, has never been cast in so rigid and all-inclusive confinement.'

The Court then proceeded to emphasize the discriminating nature of the problem. 'On the contrary, due process of law has never been a term of fixed and invariable content. This is as true with reference to oral argument as with respect to other elements of procedural due process. For this Court has held in some situations that such argument is essential to a fair hearing, Londoner v. Denver, 210 U.S. 373, (28 S.Ct. 708), 52 L.Ed. 1103, in others that argument submitted in writing is sufficient. Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 911, 80 L.Ed. 1288 (1295). See also Johnson & Wimsatt v. Hazen, 69 App.D.C. 151, 99 F.2d 384; Mitchell v. Reichelderfer, 61 App.D.C. 50, 57 F.2d 416.'

It then characterized the Court of Appeals' holding as 'in conflict' with its rulings 'that the right of oral argument as a matter of procedural due process varies from case to case in accordance with differing circumstances, as do other procedural regulations. Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised.'

The Court warned against undertaking to 'generalize more broadly than the particular circumstances require upon when and under what circumstances procedural due process may require oral argument.' That is not a matter for indiscriminate application. 'It is rather one for case-to-case determination, through which alone account may be taken of differences in the particular interests affected, circumstances involved, and procedures prescribed by Congress for dealing with them.' F.C.C. v. WJR, supra, at 337 U.S. 274-277, 69 S.Ct. 1103-1104, 93 L.Ed. 1360-1361.

Every step on the way is a delicate judicial judgment. In approximately 63% Of the cases (see notes 5 and 8, supra) the Court judicially determines that from the nature of the case, its class, its complexities, the public significance of the issues, or a variety of other factors, the case calls for oral argument, either limited or full. For the remaining 37% The same judicial judgment for each case is that oral argument is not required. The care with which that critical judgment is exercised is magnified by the system's requirement for a double unanimity-- (1) at the time of classification as a Summary II and (2) in the decision. 11

Obviously this Court, made up of exlawyers seasoned by courtroom combat, must be the first to recognize that in making this delicate case-by-case judgment for or against oral argument it can-- as in every other type of ruling-- make an error. Happily, under our system the Court rests easier since any such error, or the claim of one, is open to review. And the fact that 60 to 65% Of the cases are calendared for oral argument attests to our conviction that oral argument is at times required. The differences arise with respect to a particular case, and the rule of dual unanimity and automatic reclassification...

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