Gore v. American Motorists Insurance Co.

• Decision Date: 27 May 1971
• Docket Number: No. 29604.,29604.
• Citation: 441 F.2d 10
• Parties: Willis L. GORE, Mrs. Jennie Downs, Mrs. Janet McCain and Mrs. Edith Gill, Plaintiffs-Appellants, v. AMERICAN MOTORISTS INSURANCE CO., Hon. John J. McKeithen, Hon. Jack P. F. Gremillion, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 10 (1971)

Willis L. GORE, Mrs. Jennie Downs, Mrs. Janet McCain and Mrs. Edith Gill, Plaintiffs-Appellants, v. AMERICAN MOTORISTS INSURANCE CO., Hon. John J. McKeithen, Hon. Jack P. F. Gremillion, et al., Defendants-Appellees.

No. 29604.

United States Court of Appeals, Fifth Circuit.

April 8, 1971.

Rehearing Denied May 27, 1971.

Ralph Brewer, Baton Rouge, La., for plaintiffs-appellants.

Robert E. Leake, Jr., Hammett, Leake & Hammett, New Orleans, La., for American Motorists Insurance Co.

Jack P. F. Gremillion, Atty. Gen. of La., Kenneth C. DeJean, Asst. Atty. Gen., Baton Rouge, La., for remaining defendants.

Before BROWN, Chief Judge, and WISDOM and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiffs appeal from a judgment of the district court granting the motion of American Motorists Insurance Company to dismiss for failure to state a claim upon which relief could be granted. We affirm.

The plaintiffs first filed suit against American Motorists Insurance Company in 1964 in a Louisiana state court seeking to recover under the provisions of a fidelity bond or policy that had been issued by the company. The trial court rendered judgment for the plaintiffs in the amount of $14,500 plus statutory penalties and attorneys' fees. The Louisiana First Circuit Court of Appeals, however, reversed the judgment of the trial court on the ground that the plaintiffs were barred by their failure to bring suit within the prescriptive period provided in the policy. See Gore v. American Motorists Ins. Co., 225 So.2d 627 (La.Ct.App.1969). The Supreme Court of Louisiana refused to grant the plaintiffs' petition for writ of review or certiorari. See Gore v. American Motorists Ins. Co., 227 So.2d 596 (La.1969).

The plaintiffs then instituted this suit in the United States District Court for the Eastern District of Louisiana. In their complaint they alleged that the action of the Louisiana First Circuit Court of Appeal and the Supreme Court deprived them of rights guaranteed by the United States Constitution and prayed that the federal district court reinstate their state trial court judgment. Specifically, the plaintiffs argued that review by the Louisiana Court of Appeal of questions of fact as well as law, provided for in Article 7, § 29 of the Louisiana state constitution,¹ deprives them of their Seventh Amendment right to trial by jury,² which is protected against state encroachment by the Fourteenth Amendment. Accordingly, they also prayed that the federal district court permanently enjoin all Louisiana appellate judges from re-examining any fact found by a trial court in a civil case. Implicit in the plaintiffs' argument of course is their view that the decision of the Louisiana First Circuit Court of Appeal reversing their trial court judgment was based on such a redetermination of the facts.

The question of the constitutionality of Louisiana's system of appellate review of civil cases is an interesting one. At the present time there are pending before a three-judge court in the Eastern District of Louisiana some eight cases consolidated under the style of Melancon v. McKeithen, Civil Action Number 3390, each presenting precisely that question. Indeed, the plaintiffs invited the district court to consolidate their case with that group. This the district court wisely declined to do, for to decide this case it is not necessary to reach the plaintiffs' constitutional argument.

It is apparent from a review of the record that the Louisiana First Circuit Court of Appeals and the Supreme Court in no way disturbed any of the trial court's fact findings. The decision of the First Circuit Court of Appeals was based solely upon its construction of certain terms in the insurance company's fidelity policy.³ The construction of contracts — that is, the process of determining the legal effect of language — is of course a function of the court not the trier of fact. Williams v. Humble Oil & Refining Company, 5 Cir. 1970, 432 F.2d 165, 179; 3 A. Corbin, Contracts § 554. In their petition for writ of review or certiorari the plaintiffs seemed to recognize as much, for they argued merely that the First Circuit Court of Appeals' construction of the policy conflicted with the established jurisprudence of the Supreme Court. Since the plaintiffs are thus not persons aggrieved by the system, they are in no position to challenge here the Louisiana Court of Appeals' review of facts.

Moreover, since we can perceive of no constitutional objection that could be lodged against appellate review of the lower courts' conclusions of law, we must agree with the district court that ...