# Dick v. New York Life Insurance Company/Concurrence Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
United States Supreme Court
359 U.S. 437
Dick v. New York Life Insurance Company
Argued: Jan. 12, 1959. --- Decided: May 18, 1959
Mr. Justice STEWART, concurring.
I concur in the judgment, believing that the district judge correctly followed applicable North Dakota law in submitting this case to the jury. Not having been a member of the Court when the petition for certiorari was granted, 357 U.S. 925, 78 S.Ct. 1370, 2 L.Ed.2d 1369, I consider it inappropriate now to express a view as to the wisdom of bringing here a case like this.
Mr. Justice FRNKF URTER, whom Mr. Justice WHITTAKER, joins, dissenting.
On several occasions I have stated the reasons for my adherence to the traditional practice of the Court not to note dissent from the Court's disposition of petitions for certiorari. Different considerations apply once a case is decided.
Establishment of intermediate appellate courts in 1891 was designed by Congress to relieve the overburdened docket of the Court. The Circuit Courts of Appeals were to be equal in dignity to the Supreme Courts of the several States. The essential purpose of the Evarts Act was to enable the Supreme Court to discharge its indispensable functions in our federal system by relieving it of the duty of adjudication in cases that are important only to the litigants. The legislative history of the Evarts Act demonstrates that it was clear in 1891, no less than today that litigation allowed to be brought into the federal courts solely on the basis of diversity of citizenship is rarely of moment except to the parties. The Act provided, therefore, that in diversity cases 'the judgments or decrees of the circuit courts of appeals shall be final.' In a provision which Senator Evarts referred to as a 'weakness' in the Act, this Court was given the discretionary power to grant certiorari in these cases, to be exercised if some question of general interest, outside the limited scope of an ordinary diversity litigation, was also involved.
Any hesitance which Senator Evarts may have felt was not justified by the early history of use of this certiorari power. The Court, mindful of the reasons for the restriction, so long and eagerly sought by the Court itself, on its obligatory jurisdiction, and faithful to the complementary obligation imposed upon it by its newly conferred power to control its docket, exercised the greatest restraint and caution in granting certiorari in cases resting solely on diversity of citizenship.
Time and again in the years immediately following the passage of the Evarts Act this Court stated that it was only in cases of 'gravity and general importance' or 'to secure uniformity of decision' that the certiorari power should be exercised. Mr. Justice Brewer explained the Court's wariness in granting certiorari in terms of the purpose of the Act:
'Obviously, a power so broad and comprehensive, if carelessly exercised, might defeat the very thought and purpose f t he act creating the courts of appeal. So exercised it might burden the docket of this court with cases which it was the intent of congress to terminate in the courts of appeal, and which, brought here, would simply prevent that promptness of decision which in all judicial actions is one of the elements of justice.'
In order to justify the establishment of the Circuit Courts of Appeals it was necessary to view certiorari as
'a power which will be sparingly exercised, and only when the circumstances of the case satisfy us that the importance of the question involved, the necessity of avoiding conflict between two or more courts of appeal, or between courts of appeal and the courts of a State, or some matter affecting the interests of this nation in its internal or external relations demands such exercise.'
These considerations have led the Court in scores of cases to dismiss the writ of certiorari even after oral argument when it became manifest that the writ was granted under a misapprehension of the true issues. Cases which raised as their sole question the sufficiency of evidence for submission to a jury were not regarded as complying with the standards necessitated by the purposes of the Evarts Act for limiting the power of review by certiorari.
To strengthen further this Court's control over its docket and to avoid review of cases which in the main raise only factal controversies, Congress in 1916 made cases arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., final in the Courts of Appeals, reviewable by this Court only when required by the guiding standards for exercising its certiorari jurisdiction. The Senate Report which accompanied this bill to the floor of the Senate suggested that this change would allow the Supreme Court more time for 'expeditious determination of those (cases) having real substance.'
In 1925 Congress enacted the 'Judges' Bill,' called such because it was drafted by a committee of this Court composed of Van Devanter, McReynolds, and Sutherland, JJ. At the hearings on the bill these Justices and Mr. Chief Justice Taft explained the bill and also the Court's past practice in respecting the limitations of its certiorari jurisdiction. These authoritative expositions and assurances to Congress, on the basis of which Congress sharply restricted the Court's obligatory jurisdiction, admit of no doubt, contain no ambiguity. Mr. Chief Justice Taft said:
'No litigant is entitled to more than two chances, namely, to the original trial and to a review, and the intermediate courts of review are provided for that purpose. When a case goes beyond that, it is not primarily to preserve the rights of the litigants. The Supreme Court's function is for the purpose of expounding and stabilizing principles of law for the benefit of the people of the country, passing upon constitutional questions and other important questions of law for the public benefit. It is to preserve uniformity of decision among the intermediate courts of appeal.'
The House Report, in recommending to the House of Representatives passage of the bill, stated the matter succinctly:
'The problem is whether the time and attention and energy of the court shall be devoted to matters of large public concern, or whether they shall be consumed by matters of less concern, without especial general interest, and only because the litigant wants to have the court of last resort pass upon his right.'
Though various objections to certain jurisdictional changes worked by the bill were voiced on the floor of the Senate, even critical Senators recognized the great difference between the Supreme Court and other appellate tribunals. Thus Senator Copeland:
'The United States Supreme Court is one of the three great coordinate branches of the Government, and its time and labor should, generally speaking, be devoted to matters of general interest and importance and not to deciding private controversies between citizens involving no questions of general public importance.'
In correspondence between Senator Copeland and Mr. Chief JusticeTaf t, the latter wrote: 'The appeal to us should not be based on the right of a litigant to have a second appeal.'
This understanding of the role of the Supreme Court and the way in which it is to be maintained in observing the scope of certiorari jurisdiction, are clearly set forth in a contemporary exposition by Mr. Chief Justice Taft of the purposes of the Judiciary Act of 1925:
'The sound theory of that Act (Act of 1891) and of the new Act is that litigants have their rights sufficiently protected by a hearing or trial in the courts of first instance, and by one review in an intermediate appellate Federal court. The function of the Supreme Court is conceived to be, not the remedying of a particular litigant's wrong, but the consideration of cases whose decision involves principles, the application of which are of wide public or governmental interest, and which should be authoritatively declared by the final court.'
Questions of fact have traditionally been deemed to be the kind of questions which ought not to be recanvassed here unless they are entangled in the proper determination of constitutional or other important legal issues. In Newell v. Norton, 3 Wall. 257, 18 L.Ed. 271, Mr. Justice Grier stated the considerations weighing against Supreme Court review of factual determinations: 'It would be a very tedious as well as a very unprofitable task to again examine and compare the conflicting statements of the witnesses in this volume of depositions. And, even if we could make our opinion intelligible, the case could never be a precedent for any other case, or worth the trouble of understanding.' 3 Wall. at page 267. And he issued this caveat: 'Parties ought not to expect this court to revise their decrees merely on a doubt raised in our minds as to the correctness of their judgment, on the credibility of witnesses, or the weight of conflicting testimony.' 3 Wall. at page 268. In Houston Oil Co. of Texas v. Goodrich, 245 U.S. 440, 38 S.Ct. 140, 62 L.Ed. 385, certiorari was dismissed as improvidently granted after it became apparent that the only question in the case was the 'propriety of submitting' certain questions to the jury and this 'depended essentially upon an appreciation of the evidence.' 245 U.S. at page 441, 38 S.Ct. at page 141. Testifying before the Senate Judiciary Committee in hearings concerning the Judges' Bill, Mr. Justice Van Devanter related a similar incident. The proper use of the discretionary certiorari jurisdiction was on a later occasion thus expounded by Mr. Chief Justice Hughes:
'Records are replete with testimony and evidence of facts. But the questions on certiorari are questions of law. So many cases turn on the facts, principles of law not being in controversy. It is only when the facts are interwoven with the questions of law which we should review that the evidence must be examined and then only to the extent that it is necessary to decide the questions of law.
'This at once disposes of a vast number of factual controversies where the parties have been fully heard in the courts below and have no right to burden the Supreme Court with the dispute which interests no one but themselves.'
What are the questions which petitioner here presses upon us? The petition for certiorari sets forth as the questions presented: (1) was petitioner deprived of her constitutional right to a jury trial guaranteed by the Seventh Amendment? (2) did the Court of Appeals refuse to follow North Dakota law as it was required to do under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188? If this case raises a question under the Seventh Amendment, so does every grantedmot ion for dismissal of a complaint calling for trial by jury, every direction of verdict, every judgment notwithstanding the verdict. Fabulous inflation cannot turn these conventional motions turning on appreciation of evidence into constitutional issues, nor can the many diversity cases sought to be brought here on contested questions of evidentiary weight be similarly transformed by insisting before this Court that the Constitution has been violated. This verbal smoke screen cannot obscure the truth that all that is involved is an appraisal of the fair inferences to be drawn from the evidence. Chief Judge Magruder has expressed the common sense of the matter:
'If an appellate court is of the view that the trial judge made an error of judgment in withdrawing a case from the jury, or in entering judgment for the defendant notwithstanding a plaintiff's verdict, a reversal (by a Court of Appeals) is no doubt called for; but we cannot see that anything is gained by blowing up that error of judgment into a denial of the constitutional right to a jury trial as guaranteed by the Seventh Amendment.'
Petitioner's insistence that the Court of Appeals ignored or acted at variance with the law of North Dakota is disproved by the citation and discussion of the relevant North Dakota decision in the opinion below. See 252 F.2d 43, 46. The test of sufficiency applied by the Court of Appeals below is the same test which petitioner asks us to apply, and is the test established by the North Dakota Supreme Court in Svihovec v. Woodmen Acc. Co., 69 N.D. 259, 285 N.W. 447. 'Our conclusion,' the opinion below announced, 'is that the infliction of two wounds in succession, one in the left side in close proximity to the heart, and the other in the head, cannot be reconciled with any reasonable theory of accident, and that, under the evidence, the question whether the death was accidental was not a question of fact for the jury.' 252 F.2d 43, 47. Thus, as the record was interpreted by the Court of Appeals the evidence fell short of the requirements of North Dakota law for submission to a jury. It might be noted that its interpretation of the record would have required the same result were federal law to determine sufficiency. We have held that '(w)hatever may be the general formulation, the essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.'
Alike in Congress and here it has been repeatedly insisted that a question like that raised by petitioner-was there sufficient evidence for submission to a jury-is not proper for review in this Court. The circumstances in the type of situation before us are infinite in their variety. Judicial judgments upon such circumstances are bound to vary with the particularities of the individual situation. The decision in each case is a strictly particular adjudication-a unique case since it turns on unique facts-and cannot have precedential value. Of course it is of interest, perhaps of great importance to the parties, but only as such and not independently of any general public interest.
The considerations that demand strict adherence by the Court to the rules it has laid down for the bar in applying for the exercise of the Court's 'sound judicial discretion' in granting a writ of certiorari are not technical, in the invidious sense of the term. They go to the very heart of the effective discharge of this Court's functions. To bring a case here when there is no 'special and important' reason for doing so, when there is no reason other than the interest of a particular litigant, especially when the decision turns solely on a view of conflicting evidence or the application of a particular local doctrine decided one way rather than another by a Court of Appeals better versed in the field of such local law than we can possibly be, works inroads on the time available for due study and reflection of those classes of cases for the adjudication of which this Court exists.
The conditions that are indispensable for enabling this Court adequately to discharge the duties in its special keeping cannot be too consciously and too persistently kept in mind. The farreaching and delicate problems that call for the ultimate judgment of the Nation's highest tribunal require vigor of thought and high effort, and their conservation, even for the ablest judges. Listening to arguments, examining records and briefs, analyzing the issues, investigating materials beyond what partisan counsel offer, constitute only a fraction of what goes into the judicial process of this Court.
For one thing, the types of cases that now come before the Court (as the rpesent United States Reports compared with those of even a generation ago bear ample testimony) require to a considerable extent study of materials outside the legal literature. More important, however, the judgments of this Court are collective judgments. Such judgments presuppose ample time and freshness of mind for private study and reflection in preparation for discussion at Conference. Without adequate study there cannot be adequate reflection; without adequate reflection there cannot be adequate discussion; without adequate discussion there cannot be that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions. It is therefore imperative that the docket of the Court be kept down so that its volume does not preclude wise adjudication. This can be avoided only if the Court rigorously excludes any case from coming here that does not rise to the significance of inescapability in meeting the responsibilities vested in this Court.
Adjudication is, of course, the most exacting and most time-consuming of the Court's labors; it is by no means the whole story. In 1925 the Congress, by withdrawing all but a few categories of cases which can come to the Court as a matter of right, gave to the Court power to control its docket, to control, that is, the volume of its business. Congress conferred this discretionary power on the Court's own urging that this was necessary if the proper discharge of the Court's indispensable functions were to be rendered feasible. The process of screening those cases which alone justify adjudication by the Supreme Court is in itself a very demanding aspect of the Court's work. The litigious tendency of our people and the unwillingness of litigants to rest content with adverse decisions after their cause has been litigated in two and often in three courts, lead to attempts to get a final review by the Supreme Court in literally thousands of cases which should neverrea ch the highest Court of the land. The examination of the papers in these cases, to sift out the few that properly belong in this Court from the very many that have no business here, is a laborious process in a Court in which every member is charged and properly charged with making an independent examination of the right of access to the Court.
Every time the Court grants certiorari in disregard of its own professed criteria, it invites disregard of the responsibility of lawyers enjoined upon the bar by the Court's own formal rules and pronouncements. It is idle to preach obedience to the justifying considerations for filing petitions for certiorari, which Mr. Chief Justice Taft and his successors and other members of the Court have impressively addressed to the bar year after year if the Court itself disregards the code of conduct by which it seeks to bind the profession. Lawyers not unnaturally hope to draw a prize in the lottery and even conscientious lawyers who feel it their duty, as officers of the Court, to obey the paper requirements of a petition for certiorari, may feel obligated to their clients not to abstain where others have succeeded. No doubt the most rigorous adherence to the criteria for granting certiorari will not prevent too many hopeless petitions for certiorari from being filed. But laxity by the Court in respecting its own rules is bound to stimulate petitions for certiorari with which the Court should never be burdened.
Therefore, ever since Congress, in 1891, established the Courts of Appeals as the customary tribunal for final adjudication of the class of cases to which the present belongs, this Court has, as a rule, been resolute in guarding against abuse of its closely restricted discretionary certiorari jurisdiction. Due regard for our practice and for the vital jurisdictional principle which underlies it, compels the conclusion that this writ of certiorari should never have issued.
However, if we are to review facts, we must establish and adhere to a rational standard of review. In so doing we cannot ignore the relevance to this task of the many expressions of the impropriety of such review. If it is unwise for this Court to grant review of cases turning solely on questions of fact, how much less wise to undertake to reassess the record in disregard of the reasoned assessment of the evidence by the Court of Appeals.
'The same considerations that should lead us to leave undisturbed, by denying certiorari, decisions of Courts of Appeals involving solely a fair assessment of a record on the issue of unsubstantiality, ought to lead us to do no more than decide that there was such a fair assessment when the case is here, as this is, on other legal issues.
'This is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fair-minded judges could find it tilting either way.'
It is the staple business of Courts of Appeals to examine records for the sufficiency of evidence. To undertake an independent review of the review by the Court of Appeals of evidence is neither our function nor within our special aptitude through constant practice. Such disregard of sound judicial administration is emphasized by the fact that the judges of the Court of Appeals are, by the very nature of the business with which they deal, far more experienced than we in dealing with evidence, ascertaining the facts, and determining the sufficiency of evidence to go to a jury. If due regard be paid to the weighing of conflicting evidence and inferences drawn therefrom by these experienced judges, can it be fairly said that there was no reasoned justification for their conclusion and that their judgment was baseless? If not, we should leave undisturbed the judgment below. After all, we are reviewing the judgment of the Court of Appeals, and it is its judgment that must be subjected to the rule of reason. Comparison of the Court of Appeals' opinion with the record made at the trial manifests scrupulous deference to the local law of North Dakota, as pronounced by its Supreme Court, and unmistakable care by the Court of Appeals in considering all the evidence and the inferences which the evidence reasonably yields. Whether we agree or disagree with its evaluation of the evidence, a tolerant judgment can surely not conclude that it does not represent a fair, judicial determination. If we are to consider the merits of the case, I would affirm the judgment of the Court of Appeals.

## Notes

* ↑ E.g., State of Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562; Bondholders, Inc., v. Powell, 342 U.S. 921, 72 S.Ct. 319, 96 L.Ed. 688; Chemical Bank & Trust Co. v. Group of Institutional Investors, 343 U.S. 982, 72 S.Ct. 1018, 96 L.Ed. 1372; Rosenberg v. United States, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 687.
* ↑ Act of March 3, 1891, 26 Stat. 826 (commonly known as the Evarts or Circuit Courts of Appeals Act).
* ↑ H.R.Rep. No. 1295, 51st Cong., 1st Sess. 3.
* ↑ Ibid.
* ↑ See 21 Cong.Rec. 3403-3405, 10220-10222; 22 Cong.Rec. 3585.
* ↑ Ibid.
* ↑ 26 Stat. 828.
* ↑ 21 Cong.Rec. 10221.
* ↑ 26 Stat. 828.
* ↑ See the expressions of the necessity of restraint in granting writs of certiorari which the Court voiced in Lau Ow Bew, 141 U.S. 583, 12 S.Ct. 43, 35 L.Ed. 868; In re Woods, 143 U.S. 202, 12 S.Ct. 417, 36 L.Ed. 125; Lau Ow Bew v. United States, 144 U.S. 47, 12 S.Ct. 517, 36 L.Ed. 340; American Construction Co. v. Jacksonville, T. & K.W.R. Co., 148 U.S. 372, 13 S.Ct. 758, 37 L.Ed. 486; Forsyth v. City of Hammond, 166 U.S. 506, 17 S.Ct. 665, 41 L.Ed. 1095; Fields v. United States, 205 U.S. 292, 27 S.Ct. 543, 51 L.Ed. 807; United States v. Rimer, 220 U.S. 547, 31 S.Ct. 596, 55 L.Ed. 578. On March 27, 1893, two years after the enactment of the Evarts Act, the Court could write that only two petitions for certiorari had been granted. American Construction Co. v. Jacksonville, T. & K.W.R. Co., supra, 148 U.S. at page 383, 13 S.Ct. at page 763.
* ↑ See cases cited, note 10, supra.
* ↑ Forsyth v. City of Hammond, 166 U.S. 506, 513, 17 S.Ct. 665, 668.
* ↑ Id., 166 U.S. at pages 514-515, 17 S.Ct. at page 669.
* ↑ In Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 879, after listing some sixth relevant cases, this Court said:
* ↑ See Houston Oil Co. of Texas v. Goodrich, 245 U.S. 440, 38 S.Ct. 140, 62 L.Ed. 385. In Lutcher & Moore Lumber Co. v. Knight, 217 U.S. 257, 267-268, 30 S.Ct. 505, 509, 54 L.Ed. 757, the Court said: 'The great purpose of the act of 1891, however, to which all its provisions are subervient, is to distribute the jurisdiction of the courts of the United States, and thus to relieve the docket of this court by casting upon the circuit courts of appeal the duty of finally deciding the cases over which the jurisdiction of those courts is by the act made final. The power to issue certiorari in accordance with the act, in its essence, is only a means to the end that this imperative and responsible duty may be adequately performed.'
* ↑ Act of Sept. 6, 1916, § 3, 39 Stat. 727.
* ↑ S.Rep. No. 775, 64th Cong., 1st Sess. 3. See also H.R.Rep. No. 794, 64th Cong., 1st Sess. 3.
* ↑ Act of Feb. 13, 1925, 43 Stat. 936.
* ↑ For a summary of the history of the bill see Frankfurter and Landis, The Business of the Supreme Court, 273-280. The authors also analyze the Act. Id., at 280-294.
* ↑ Hearings before the Committee on the Judiciary of the House of Representatives on H.R. 10479, 67th Cong., 2d Sess.; Hearing before a Subcommittee of the Senate Committee on the Judiciary on S. 2060 and S. 2061, 68th Cong., 1st Sess.; Hearing before the Committee on the Judiciary of the House of Representatives on H.R. 8206, 68th Cong., 2d Sess.
* ↑ Hearings before the Committee on the Judiciary of the House of Representatives on H.R. 10479, 67th Cong., 2d Sess. 2. Writing for the Court in Magnum Import Co. v. Coty, 262 U.S. 159, 163, 43 S.Ct. 531, 532, 67 L.Ed. 922, Mr. Chief Justice Taft said: 'The jurisdiction (to review decisions of the Courts of Appeals) was not conferred upon this court merely to give the defeated party in the Circuit Court of Appeals another hearing.'
* ↑ H.R.Rep. No. 1075, 68th Cong., 2d Sess. 2.
* ↑ 66 Cong.Rec. 2755.
* ↑ Id., at 2920.
* ↑ Taft, The Jurisdiction of the Supreme Court Under the Act of February 13, 1925, 35 Yale L.J. 1, 2 (1925).
* ↑ Hearing before a Subcommittee of the Senate Committee on the Judiciary on S. 2060 and S. 2061, 68th Cong., 1st Sess. 31.
* ↑ Printed in S.Rep. No. 711, 75th Cong., 1st Sess. 40.
* ↑ Smith v. Reinauer Oil Transport, Inc., 1 Cir., 256 F.2d 646, 649.
* ↑ Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458.
* ↑ Rule 19, Rules of the Supreme Court of the United States, 28 U.S.C.A.
* ↑ In the last three Terms of Court preceding the current Term there were filed, respectively, 1,382, 1,473, and 1,407 petitions for certiorari on the appellate and miscellaneous dockets.
* ↑ 'We have to consider the certiorari because it was only after effort that we got a bill passed that makes an appeal to our court dependent upon our discretion in many cases in which until lately it was matter of right. Let it ever be understood that the preliminary judgment was delegated, I should expect the law to be changed back again very quickly with the result that we should have to hear many cases that have no right to our time; as it is we barely keep up with the work.' Mr. Justice Holmes, writing under date of August 30, 1929, to Sir Frederick Pollock, 2 Holmes-Pollock Letters (Howe ed. 1941) 251.
* ↑ Labor Relations Board v. Pittsburgh S.S.C.o., 340 U.S. 498, 502-503, 71 S.Ct. 453, 456, 95 L.Ed. 479. See also National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 409-410, 7 S.C.t. 824, 832, 96 L.Ed. 1027; McAllister v. United States, 348 U.S. 19, 24, 75 S.Ct. 6, 9, 99 L.Ed. 20 (separate opinion).
* ↑ The Circuit Judges who decided this case have had the following judicial experience:
* ↑ See Federal Trade Commission v. American Tobacco Co., 274 U.S. 543, 47 S.Ct. 663, 71 L.Ed. 1193.
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