Omaha daily bee., 1909-10-12
BURNAM NEVER SAW BRIEF
Jays Hot Shot at Supreme Court Was
Fired by Dunn.
jokes AT CITING FOR CONTEMPT
Rather startlinE 90 Return from
-Four Weeks Vacation and Meet
such an Order" He says,
In JocuIar Vein.

After being away four weeks enjoying
the pleasures Of a vacation, It is rather
startling 20 find myself cited for con-
tempt OF the supreme court" said City At
torney Burnam. with a smile. Speaking
seriously, though, / think 1 never saw
that brief, because Mr.. Dunn had charge
Of the Robinson case and handled It all
through"
The brief in question, that has been sup
pressed by the supreme court, or at least
removed from the public files OF the court,
is a document of fifty pages. 1t is entitled
Brief and Motion Appellant for Rehear-
Ing" In tho case wherein Anna ]. Robin
son had secured a verdict for t1,640 against
the city OF Omaha. which verdict was sus-
tanned 10 the supreme court. with Judges
Letton and Barnes dissenting.
Examinations shows that the brief writ
ten aud submitted by Assistant City Attor-
ney Dunn IL quite caustlc. After quoting
a sentence from the decision Of the supreme
court, which was written by Judge Rose,
the city's brief says:
This would seem to show tina Mr.. JUS
tice Rose started out without understand
ing or having clear in his mind what the
complaint OF the plaintiff was, or just
what negligence was charged against the
city" 20 "
Further on, the brief says:
Il am not aware, OF course, where Mr..
Justice Rose has been in the habit Of see
ing and using sidewalks, nor where he OBJ
tanned the Information which enabled him
to become a sidewalk expert"
Hot shot for the Court.
IT appears TO me, that the writer OF
the opinion felt that the exlgencles Of the
case we're such that he was at liberty
to ignore all OF the evidence in the case
except that favorable to the plaintiff. .
" And 1t would seem that courts ought
not TO deem II thir duty to place a strained,
unfair and unreasonable construction upon
testimony To sustain a verdict obtained
by perjury ana fraud."
Again. Mr.. Justice Rose read the record
by some peculiar method of his own,
through which he discovered a good deal
that was not tthere."
And the brief then quotes the exact
language OF testimony on which the SUI
preme court opinion Is based, holding that
the Justice writing the opinion based 1t
on Ghe isolated answer to one question,
ignoring all other testimony.
Does . mere speculation, opinion or
guess. -" : constitute evidence upon
which a jury may base a finding and
verdict2 If Mr., Justice Rose thinks so,
It might profit him to read the opinions
Of this and other courts cited In our
former briet.'
III this court Is ready to enter upon the
task of revolutionizing the law in that
proof is no longer necessary. and that all
that is required to rob a city or befoul a
name is a probability drawn as a con-
%clusion from an opinion based on nothing,
a., ..a,rN Iaa GN.H.
start"
Is Rose to be Sustained.
Another pointed query by the assistant
city attorney is: Let me ask the court
whether or not Mr.. Justice Rose is to
be sustained In, the proposition that a YER
dict is supported, by sufficient evidence
which is based solely upon the opinion of
the plaintiff as to the essential fact in
the cRse?"
Mr.. Dunn goes extensively into the evil
dence and quotes many decisions sustain
/. Ing the city's contention that the verdict
was Outrageous" He holds that the su-
preme court decision is based solely on
the answer to one question, dragged from
the witness under a command to answer
a question in a particular way, which the
witness half a dozen times denied know
ing anything about and in the brief Sc
we're language is used in traversing this
assertion very fully,
Speaking Of the language used In the
supreme court opinion at one point, 'And
the plaintiff might have done 30. too
stepped safely onto a sidewalk). except
for the tipping of the walk, IL altogether
probable, the Dunn brief comments:
Good Lord, yssl Most any old thing ID
probable, But how about proof win Mr..
Justice Rose direct the attention Of this
court to q decision by any court in the
land, or to the language OF any text
writer holding that verdict may be sus-
tained, which IL based upon the proba-
bility that the defect complained of
caused the injury? Let me say. further
more that Mr.. Justice Rose found none,
and that the decisions here cited, which
he saw fit to ignore. state the rule az
recognized by every court that has ever
passed upon the question"
The brief then cites a line Of decisions in
similar cases, with the comment before or
after each one, mr.. Justice Rose says
this is not the law.1''