Thiel v. Southern Pac. Co., 21780.

• Decision Date: 28 August 1946
• Docket Number: No. 21780.,21780.
• Citation: 67 F. Supp. 934
• Court: U.S. District Court — Northern District of California
• Parties: THIEL v. SOUTHERN PAC. CO.

67 F. Supp. 934

THIEL v. SOUTHERN PAC. CO.

No. 21780.

District Court, N. D. California, S. D.

August 28, 1946.

COPYRIGHT MATERIAL OMITTED

Allen Spivock and Philander B. Beadle, both of San Francisco, Cal., for plaintiff.

A. B. Dunne, of San Francisco, Cal., for defendant.

HARRIS, District Judge.

Plaintiff has filed herein a notice of motion for an order: "(a) Striking out or quashing the entire jury panel for the `July Term, 1946', which is to be used for trial of this action, now set for September 10, 1946; (b) Directing the Clerk and Jury Commissioner of this Court to select a new panel which will be a fair, democratic cross-section of the community without discrimination in favor or against any one group or class of citizens because of their wealth, occupation, sex or race; and (c) Directing the `parts of the district' of this Court from which `jurors shall be returned' `so as to be most favorable to an impartial trial.'"

In support of the motion, movant filed a purported affidavit of Attorney Allen Spivock. This affidavit was not offered or received in evidence. In all events the plaintiff can rely only on the showing made by the evidence ore tenus. It is incumbent on the moving party to introduce, or to offer, distinct evidence in support of the motion; the formal affidavit alone, even though uncontroverted, is not enough. Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 680, 708.

Before taking up the several asserted grounds in support of the motion, and in order to appreciate this more recent attack upon the jury system in this court, the history of the litigation should be given:

On December 30, 1940, plaintiff brought an action against the defendant, Southern Pacific Company, for damages in the sum of $250,000 for injuries resulting from a leap from a train. The complaint in substance and effect alleged that plaintiff was "out of his normal mind" on February 25, 1940; that, before accepting plaintiff as a passenger, defendant was informed that he was "out of his normal mind" and therefore should not be accepted as a passenger or else should be guarded; that defendant, Southern Pacific Company, nevertheless accepted plaintiff as a passenger, left him unguarded and when he leaped failed to stop the train before he fell to the ground; that defendant's conduct constituted alleged negligence and caused plaintiff's alleged injuries.

The action was originally instituted in the Superior Court of the State of California, in and for the City and County of San Francisco. On petition of the defendant it was removed from that court to the District Court of the United States for the Northern District of California. The defendant answered, and in substance and effect denied that plaintiff was "out of his normal mind;" denied that said defendant was informed that plaintiff was "out of his normal mind" and therefore should not be accepted as a passenger, or else should be guarded; and denied that defendant was guilty of any negligence, and affirmatively alleged that plaintiff's injuries were caused by his own negligence; as a separate defense it was alleged that his injuries were attributable to his own negligence.

Plaintiff filed a written demand for a jury trial in the District Court, and thereafter moved said Court to remand the action to the Superior Court. The motion was denied. Thereafter, disregarding the refusal to remand, plaintiff attempted to prosecute the action in the said Superior Court. Defendant applied for, and after a hearing, obtained from the District Court a judgment enjoining such prosecution. The judgment was affirmed. 9 Cir., 126 F.2d 710. Certiorari to review the decision was thereafter denied. 316 U.S. 698, 62 S.Ct. 1295, 86 L.Ed. 1767.

The action was thereafter assigned to trial in the District Court. A panel of prospective jurors was drawn, and the jury was thereupon and thereafter impaneled. On November 5, 1942, plaintiff challenged the array — the panel of prospective jurors drawn as aforesaid. The challenge was overruled. Thereafter plaintiff amended his complaint alleging in substance and in effect that defendant was negligent in failing to give him first aid treatment and medical attention at the scene. These allegations were denied.

Thereafter plaintiff moved the Court to strike his demand for a jury trial. The motion was denied.

Trial of the action was commenced on November 24, 1942. After the jury was impaneled and sworn plaintiff challenged the twelve jurors comprising it. The challenge was overruled and the trial proceeded. At the close of the evidence plaintiff moved the Court for a directed verdict; the motion was denied. The jury thereafter returned a verdict for the defendant, Southern Pacific Company. Plaintiff thereafter moved for a new trial, and also moved to take depositions; both of said motions were denied. Judgment was entered for the defendant.

Plaintiff prosecuted his appeal, Thiel v. Southern Pacific Company, 9 Cir., 149 F.2d 783, and therein specified as error the overruling of his challenge to the array. The challenge was based in substance and effect on practically, if not all, the same grounds urged in the motion before this Court. The judgment was affirmed in its entirety.

On certiorari review was had before the Supreme Court of the United States "limited to the question of whether petitioner's motion to strike the jury panel was properly denied." Thiel v. Southern Pacific Co., 66 S.Ct. 472; Id., 66 S.Ct. 984, 985.

The Supreme Court, speaking through Mr. Justice Murphy, held, in effect, that the intentional exclusion of daily wage earners from the jury list required the reversal, regardless of whether the plaintiff was prejudiced by the wrongful exclusion or whether he was one of the excluded class, even though the jury which actually decided the factual issues was found to contain at least five members of the laboring class.

Mr. Justice Frankfurter and Mr. Justice Reed, dissented. The Court said, in part:

"It is clear that a federal judge would be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship. But that fact cannot support the complete exclusion of all daily wage earners regardless of whether there is actual hardship involved. Here there was no effort, no intention, to determine in advance which individual members of the daily wage earning class would suffer an undue hardship by serving on a jury at the rate of $4 a day. All were systematically and automatically excluded." 66 S.Ct. 984, 987.

It was not claimed before the Supreme Court that the District Court Judges for the Northern District of California, with the approval of the Circuit Court Judges, designed racial, religious, social, or economic discrimination to influence the makeup of jury panels, or that such unfair influence infused the selection of the panel, or was reflected in those who were chosen as jurors. Nor was there any suggestion that the method of selecting the jury was an innovation. The challenge went to a practice adopted in order to deal with the special hardship which jury service entailed for workers paid by the day. What was challenged, in short, was not a covert attempt to benefit the propertied but a practice designed, wisely or unwisely, to relieve the economically least secure from the financial burden which jury service involves under existing circumstances. 66 S.Ct. 984, 988.

Several other grounds raised and presented by petitioner (plaintiff herein) were in substance and effect identical with those presently urged. They were given no mention in any of the Justices' opinions.

With that historical background of the case established, it is now proper to refer to the more recent events.

On Thursday, June 6, 1946, in the District Court of the United States for the Northern District of California, Southern Division, before Hon. Louis E. Goodman and Hon. Michael J. Roche, the matter of the selection of master trial and grand jury panels for July, 1946 Term of Court came on regularly to be heard at the hour of 4 o'clock P.M., in compliance with Section 276, as amended, of the Judicial Code, 28 U.S.C.A. § 412. At that time the Court announced that it was deemed advisable to hold a session so that there could be a public drawing of the jurors.

The hearing was duly noticed in "The Recorder" of Thursday morning, June 6, 1946. The "Recorder" is a newspaper of general circulation and the official organ of the court. Carl W. Calbreath, Clerk of the Court, and William C. Mikulich, the Jury Commissioner, were called to testify with respect to the manner of drawing the jurors. The Clerk testified in substance: That he and the Jury Commissioner collaborated in the selection of the names that were placed in the box; that the box contained 484 names; that the sources were three — the list of registered voters of the Counties of San Francisco, San Mateo, Alameda and Marin; the city directories of San Francisco and Oakland; and the telephone directories of other cities in the counties named. That he went to the Deputy Registrar of Voters of San Francisco and obtained a list for the year 1943, thence to the County Clerk in Oakland and obtained a complete list of the Alameda County registered voters down as far as Hayward for the year 1944; thence to Redwood City and obtained a list of registered voters for San Mateo County as far south as Redwood City and this side of the range of mountains; also that a list of the registered voters of Marin County was obtained; that approximately 50% of the names placed in the box were secured from the lists of registered voters; and that the remaining 50% were derived from the city directories of San Francisco and Oakland, and the telephone directories of cities in the other counties named.

After satisfying the Court that the sources of the names were such as "to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly...