Morris v. Uhl & Lopez Engineers, Inc.

• Citation: 442 F.2d 1247
• Decision Date: 06 July 1971
• Docket Number: 77-70.,No. 64-69,64-69
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: Troy S. MORRIS and the Travelers Indemnity Co., Appellants, v. UHL & LOPEZ ENGINEERS, INC., Appellee. UNITED STATES of America, Appellant, v. UHL & LOPEZ ENGINEERS, INC., and Gottlieb Contracting, Inc., Appellees.

442 F.2d 1247 (1971)

Troy S. MORRIS and the Travelers Indemnity Co., Appellants, v. UHL & LOPEZ ENGINEERS, INC., Appellee.

UNITED STATES of America, Appellant, v. UHL & LOPEZ ENGINEERS, INC., and Gottlieb Contracting, Inc., Appellees.

Nos. 64-69, 77-70.

United States Court of Appeals, Tenth Circuit.

May 4, 1971.

Rehearing Denied July 6, 1971.

Sterling F. Black, Los Alamos, N. M. (Paul A. Phillips, Albuquerque, N. M., on the brief), for appellant Morris.

James C. Hair, Jr., Washington, D. C. (William T. Ruckelshaus, Asst. Atty. Gen., Victor R. Ortega, U. S. Atty., and Alan S. Rosenthal, Atty., Dept. of Justice, on the brief), for appellant United States.

Frank H. Allen, Jr. and John R. Cooney (Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N. M., on the brief), for appellee Uhl & Lopez Engineers, Inc.

Before LEWIS, Chief Judge, JOHNSEN, Senior Circuit Judge^* and HOLLOWAY, Circuit Judge.

JOHNSEN, Senior Circuit Judge.

These two appeals — one by Troy S. Morris and the other by the United States — are from three separate judgments as incidents in a suit instituted by Morris against the United States and against Uhl & Lopez Engineers, Inc. We reverse in the appeal of Morris, affirm one of the judgments in the appeal of the United States, and reverse as to the other.

Morris' amended complaint sought damages against the two defendants, on a separate cause of action as to each, for personal injuries sustained by him when an electric utility pole on which he was engaged in working broke off at its base from internal decay.

Morris was an employee of Gottlieb Contracting, Inc. Travelers Indemnity Co., the compensation carrier of Gottlieb, made payment to Morris of the benefits provided by the New Mexico Workmen's Compensation law, and it was accordingly joined subrogationally as plaintiff with him in his complaint and also as appellant with him in his appeal. This aspect, however, need not and will not be alluded to further.

Morris' claim against the United States was one under the Federal Tort Claims Act, predicated on allegation that the United States, as owner of the pole and the land on which it stood, constituting a part of the Los Alamos, New Mexico, facilities of the Atomic Energy Commission, was liable for the negligence of the Commission in having permitted him to climb and work on the pole, when it knew or should have known that the pole was latently so weak and defective as to be unsafe, and in having failed in these circumstances to give notice or warning to him. The electric-line tasks in which Morris was engaged were being done under a contract between his employer, Gottlieb, and the Atomic Energy Commission, and it was on this basis that he claimed to have the status of a business invitee of the Commission in his climbing and working on the pole.

Morris' cause of action against Uhl & Lopez was predicated on a claim of failure also on its part to have given him notice or warning of the unsafe condition of the pole. Its duty in this regard was alleged to exist from its having had a previous contract with the Commission to make a survey and report on the condition of a portion of the Commission's electric facilities, which included the pole here involved; from its having found on the examination and testing engaged in by it that the pole had undergone such internal decay as to prompt it to make recommendation to the Commission that the pole should be replaced; from its further having entered into another contract with the Commission for inspection and supervision by it of the work to be done under the Gottlieb contract; and from this contract having contained a provision that Uhl & Lopez "shall take all reasonable precautions in the performance of the work under this contract to protect the health and safety of employees and of members of the public to minimize danger from all hazards to life or property * * *".

As indicated, replacement of the pole was not to be done under the Gottlieb contract. That contract, however, called for some line work to be done upon the pole, and it was this work in which Morris was engaged at the time the pole broke. Replacement of the pole was made a part of some rehabilitation work which was to be done because of Uhl & Lopez's previous report and recommendations, under a contract between the Commission and another contractor.

Morris' cause of action against Uhl & Lopez was made the subject of a separate trial without a jury, on which the court made findings that Uhl & Lopez had been guilty of negligence in failing to notify Morris of the unsafe condition of the pole; that Morris, however, had also been guilty of negligence contributing to the accident; that such contributory negligence barred him under New Mexico law from any right to recovery; and that dismissal therefore was required to be made of his cause of action against Uhl & Lopez. It is this judgment of dismissal which is the subject of Morris' appeal.

Prior to the Uhl & Lopez trial, the United States entered into an agreement of compromise and settlement with Morris of his cause of action against it. It thereafter made payment to him of the sum of $20,000, without admitting thereby any liability or fault, in release of all claims which could exist against it on account of the accident and also against any other persons except Uhl & Lopez; had approval made of the settlement by the court; and had dismissal entered by Morris, with prejudice, of his cause of action against it. It then filed a cross-claim for indemnity from Uhl & Lopez of the $20,000 which it had paid. Additionally, it impleaded Gottlieb Contracting, Inc., as a third party defendant, making claim of a right to indemnity also from Gottlieb.

The court made summary dismissal of both of the claims for indemnity. It is these dismissals which are the subject of the appeal taken by the United States.

I.

APPEAL BY MORRIS

(A)

Before dealing with Morris' appeal on its merits, it is necessary to dispose of a motion by Uhl & Lopez for dismissal of his appeal on the ground that the notice of appeal filed was premature and therefore not effective.

Morris had filed notice of appeal after entry of the judgment against him on the Uhl & Lopez trial and after denial had been made by the court of his subsequent motions for a reopening of the case or for a new trial thereof. At that time, however, dismissal of the cross-claim of the United States against Uhl & Lopez and of its claim on third-party complaint against Gottlieb had not yet occurred. Because no order had been entered under Rule 54(b), F.R.Civ.P., making the judgment against Morris separably final, Uhl & Lopez moved in this Court to have the attempted appeal dismissed for lack of jurisdiction. This Court entered an order authorizing the trial court to entertain a motion to have the Morris judgment given separable finality, but it expressly retained "jurisdiction of the cause for all other purposes". Before any motion was so made, the court entered the judgments of dismissal referred to, disposing of the two indemnity claims, thereby terminating all aspects of the litigation and leaving all judgments in the case subject to the right of appeal. Morris did not file another notice of appeal, but proceeded on the basis of the notice previously filed and in reliance upon the order of this Court retaining jurisdiction.

In our view, the notice of appeal had capacity in the circumstances to provide jurisdictional basis that would entitle this Court to refuse, as it did, to make dismissal of the appeal out-of-hand and to allow the notice to ripen into full effectiveness as to the rendered judgment, since it seemed apparent that the judgment would remain unchanged in its form and content; that its lack of technical formal finality would become dispelled in natural course and within a not undue period of time; and that no prejudice could result to any one from so dealing with the notice.

If any elements or events might thereafter intervene which could cause the notice to become defeasant in its jurisdictional hold, the Court could then engage in appropriate dismissal in relation to it. It may incidentally be observed that such a treatment of the notice does not involve a violation of the provision of Rule 26, F.R.App.P., that "the court may not enlarge the time for filing a notice of appeal". It should be added that the soundness of this viewpoint finds support in United States v. Arizona, 346 U.S. 907, 74 S.Ct. 239, 98 L.Ed. 405, reversing the judgment in 206 F.2d 159 (9 Cir. 1953); Eason v. Dickson, 390 F.2d 585 and other Ninth Circuit decisions; Markham v. Holt, 369 F.2d 940 (5 Cir. 1966); and Keohane v. Swarco, Inc., 320 F.2d 429 (6 Cir. 1963).

We accordingly hold that this Court properly could refuse at the time to dismiss the appeal on the notice that was filed; that it had the right to continue the notice in effect, to retain jurisdiction of the appeal thereunder in the natural ripening of the judgment into formal finality, and to deal with the merits of the appeal thereon unless intervening elements or events should give defeasance to the effect or application of the notice; and that the present renewed motion of Uhl & Lopez for dismissal therefore should be and hereby is overruled.

(B)

Proceeding to the merits of Morris' appeal, the only question which it is necessary to discuss, in view of the result we reach, is whether the court's finding that Morris had been guilty of contributory negligence was legally erroneous in having been made upon the basis that Morris had failed to comply with the safety standards and recognized practices of the industry, when the evidence could not be said to show expressly that these recognizedly had application to situations of successive or secondary pole mountings, such as here involved on the part of Morris, but they were merely testified to as having application to a pole mounting by a lineman in general and hence in our opinion only...