# Johnson v. United States (333 U.S. 46)/Dissent Frankfurter

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Frankfurter
United States Supreme Court
333 U.S. 46
Johnson v. United States (333 U.S. 46)
Argued: Dec. 10, 1947. --- Decided: Feb 9, 1948
Mr. Justice FRANKFURTER dissenting in part.
What is this case? It is a suit by the petitioner, a seaman, for an injury sustained while working on a vessel owned and operated by the United States. Under existing law the United States is liable only if it failed in its duty of exercising reasonable care in safeguarding its employees-the United States is liable, that is, only if it was negligent. And it is up to the plaintiff to prove such negligence.
What is the plaintiff's claim here? It is that while the petitioner and a fellow seaman named Dudder were working together in an operation known as 'rounding in' blocks to bring two blocks of a block and tackle together, somehow or other a block fell and struck the petitioner, who was operating on a deck below Dudder, on the head. The claim is that the block which hit petitioner was negligently released by Dudder and that the United States is responsible for Dudder's negligence. (The 'fellow servant rule' is not a defense under the Jones Act which authorizes this suit. 38 Stat. 1185, as amended, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688.) There were no witnesses to this happening besides Dudder and Johnson. The only sources of knowledge for ascertaining what actually happened-whether fault lay with Dudder or Johnson or with nobody, as the law determines fault-were the accounts which Dudder and Johnson might furnish and such inferences as human experience could reasonably draw from the occurrence itself.
What evidence does the record disclose? Of the two available witnesses only one testified. That was the petitioner. It is accurate to state, therefore, that his version of what immediately preceded the injury was uncontradicted. But it is no less true that he was unable to furnish any evidence bearing on the cause of the happening. His testimony has not established that it was the carelessness of Dudder that caused the block to fall out of Dudder's hand rather than a careless jerk of the rope by himself which caused such release. Dudder was available as a witness but he was not called. The United States in fact had Dudder's deposition taken before the trial, and it was placed at Johnson's disposal. Neither party, for reasons of its own, called Dudder as a witness or introduced his deposition.
What conclusions are to be drawn from the facts as they were developed at the trial? It is not the business of this Court to conduct the trial of a case or, even where a case is technically open here on the facts, to sit in independent judgment on the facts. If a case like this is to be allowed to come here at all, we sit in judgment on the proceedings in their entirety. This is a proceeding in Admiralty tried by a judge and not a jury. The trial judge, who heard the testimony and who was in the best possible position to weigh what he heard and saw, died before he gave his view of the testimony. By agreement, the cause was then submitted for judgment by another district judge on the basis of the cold record. He decided for the petitioner. The United States then appealed to the Circuit Court of Appeals for the Ninth Circuit. Three other judges on the basis of the same dead record reversed the district judge. 160 F.2d 789. The result is that on the issue whether the United States is liable because one of its employees was negligent-that is, whether Duddr in fact carelessly let the block slip out of his hands-one judge said yes, and three judges said no.
What is the applicable law? My brethren say the circumstances speak for themselves in establishing Dudder's negligence. This means that the three judges below should have found, and this Court must now find, that the record proves that the injury can only be explained by Dudder's carelessness-for the petitioner, it deserves repeating, must have established Dudder's carelessness in order to hold the United States liable. I agree that if the rule of res ipsa loquitur determines this case, the scope of that rule is found in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, reaffirmed last term as a 'decision which cut through the mass of verbiage built up around the doctrine of res ipsa loquitur.' Jesionowski v. Boston & M.R. Co., 329 U.S. 452, 457, 67 S.Ct. 401, 404. But these two sentences are a vital part of the Sweeney case: 'Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.' 228 U.S. at page 240, 33 S.Ct. at page 418, 57 L.Ed. 815. Therefore, even if the rule of res ipsa loquitur is here relevant, it should not by itself sustain a finding for the petitioner, 'for the reason that in cases where (it) does apply, it has not the effect of shifting the burden of proof.' 228 U.S. at page 238, 33 S.Ct. at page 417, 57 L.Ed. 815. Since we cannot tell from the record how the injury to the petitioner occurred-it certainly was not established why the block fell-I cannot escape the conclusion that petitioner failed to sustain his burden of proving by a fair preponderance of the evidence that his injuries were attributable to the respondent's negligence. Cf. the Jesionowski case, supra, 329 U.S. at page 454, 67 S.Ct. at page 402.
But I do not believe that res ipsa loquitur is applicable here. It is, after all, a 'rule of necessity to be invoked only when necessary evidence is absent and not readily available.' See Cooley, Torts, 4th Ed., § 480. Here the evidence as to the cause of petitioner's injuries was admittedly available, and it would seem to follow that since what actually happened could have been adjudicated, it should have been adjudicated. Therefore, I would affirm the judgment of the court below but modify its mandate so that there may be a new trial on this issue and an adjudication based upon an adequate determination.
While a court room is not a laboratory for the scientific pursuit of truth, a trial judge is surely not confined to an account obviously fragmentary, of the circumstances of a happening, here the meagre testimony of Johnson, when he has at his command the means of exploring them fully, or at least more fully, before passing legal judgment. A trial is not a game of blind man's buff; and the trial judge-particularly in a case where he himself is the trier of the facts upon which he is to pronounce the law-need not blindfold himself by failing to call an available vital witness simply because the parties, for reasons of trial tactics, choose to withhold his testimony.
Federal judges are not referees at prizefights but functionaries of justice. See Herron v. Southern Pac. Co., 283 U.S. 91, 95, 51 S.Ct. 383, 384, 75 L.Ed. 857; Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321. As such they have a duty of initiative to see that the issues are determined within the scope of the pleadings, not left to counsel's chosen argument. See New York Cent. R. Co. v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 73 L.Ed. 706. Just as a Federal judge may bring to his aid an auditor, without consent of the parties, to examine books and papers, hear testimony, clarify the issues, and submit a report, in order to 'render possible an intelligent consideration of the case by court and jury,' Ex parte Peterson, 253 U.S. 300, 306, 40 S.Ct. 543, 545,6 4 L.Ed. 919, and in so doing has the power to tax the expense as costs 'necessary to the true understanding of the cause on both sides,' Whipple v. Cumberland Cotton Co., Fed.Cas.No.17,515, 3 Story 84, 86, he has the power to call and examine witnesses to elicit the truth. See Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 470, 86 L.Ed. 680. He surely has the duty to do so before resorting to guesswork in establishing liability for fault.
Dudder's account of what happened surely could supplement Johnson's as a basis for recreating the events which led to Johnson's injury. Neither party saw fit to use his available testimony. Instead of entering judgment for the party who had the burden of proof and did not meet it, the trial judge should at least have called Dudder as the court's witness. As Judge Sibley observed in a case where witnesses who knew what actually happened had not been called to testify: 'We think the interests of justice would be served by a new and more orderly trial, which can easily be managed * * *. Williams and Batson (the witnesses) certainly know the truth of the things in dispute. If neither party will risk calling a witness who knows important facts, it is in the power of the court to call and examine such a witness, in the interest of truth and justice, allowing both parties the right of cross-examination and impeachment.' Chalmette Petroleum Corporation v. Chalmette Oil Distributing Co., 5 Cir., 143 F.2d 826, 828, 829.
Three courts and thirteen judges have now passed on this case when in good reason a situation like this ought never to get into court at all. The crux of the difficulty is that an industrial injury such as the petitioner suffered is as to interstate railroad employees and seamen still determined by the archaic law of negligence instead of by a just system of workmen's compensation. Occurrences like the one now in controversy are inherent in industrial employment and to make liability depend on a finding of 'negligence' is to pursue unreality. England abolished negligence as the basis of liability fifty years ago. The States, long laggards in making law conform to the actualities of industry, have now, with only a single exception, supplanted the outmoded liability for fault by a rational system of workmen's compensation laws, and Congress has enacted compensation laws for the District of Columbia, federal employees, and for longshoremen and harbor workers. 'It is reasonable that the public should pay the whole cost of producing what it wants and a part of that cost is the pain and mutilation incident to production.' Holmes, J., in Arizona Employers' Liability Cases, 250 U.S. 400, 433, 39 S.Ct. 553, 561, 63 L.Ed. 1058, 6 A.L.R. 1537. But so long as Congress sees fit to have liability for injuries by railroad employees and seamen based solely on proof of fault, it is not for this Court to torture and twist the law of negligence so as to make it in result a law not of liability for fault but a law of liability for injuries.
One cannot be unmindful that 'the radiating potencies of a decision may go beyond the actual holding.' Hawks v. Hamill, 288 U.S. 52, 58, 53 S.Ct. 240, 242, 77 L.Ed. 610. Lower courts read the opinions of this Court with a not unnatural alertness to catch intimations beyond the precise ratio decidendi. A decision like this exerts an influence, however unwittingly, well calculated to lead lower court judges to avoid reversals by deciding compassionately for the plaintiff in these negligence cases confident that such decisions are not likely to be reviewed here.
I would have the cause remanded to the District Court for further proceedings in conformity with this opinion.
Mr. Justice JACKSON and Mr. Justice BURTON join in this dissent.

## Notes

* ↑ Petitioner testified:
'Q. Now, when you were standing there just before the accident, in the last thing you knew before the accident happened, what were you doing? A. I was coiling the line on the well deck or the Maccano deck.
'Q. Standing up or bending over? A. I was bending over.
'Q. Then what happened? A. That is all I remember.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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