Pierce v. Cook & Co., Inc.

• Decision Date: 24 June 1975
• Docket Number: No. 97-70,97-70
• Citation: 518 F.2d 720
• Parties: Claudiatte PIERCE, as surviving widow of Teddy Joe Pierce, Deceased, for herself and Letitia Pierce, minor child of Teddy Joe Pierce, Deceased, Plaintiffs-Appellants, v. COOK & CO., INC., Defendant-Appellee. Stephen ELLENWOOD, a minor under the age of 21 years, who sues by Judson Ellenwood, as next friend, Plaintiff-Appellant, v. COOK & CO., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 720

518 F.2d 720

Claudiatte PIERCE, as surviving widow of Teddy Joe Pierce, Deceased, for herself and Letitia Pierce, minor child of Teddy Joe Pierce, Deceased, Plaintiffs-Appellants, v. COOK & CO., INC., Defendant-Appellee.

Stephen ELLENWOOD, a minor under the age of 21 years, who

sues by Judson Ellenwood, as next friend, Plaintiff-Appellant, v. COOK & CO., INC., Defendant-Appellee.

No. 97-70.

United States Court of Appeals, Tenth Circuit.

Submitted May 1, 1975.

Decided June 24, 1975.

Kent C. Phipps, Phipps, Johnson & Holmes, Ponca City, Okl., for plaintiffs-appellants.

Page Dobson, of Rhodes, Hieronymus, Holloway & Wilson, Oklahoma City, Okl., for defendant-appellee.

Before LEWIS, Chief Judge and BREITENSTEIN, HILL, SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Plaintiffs-appellants have moved for relief under Rule 60(b), F.R.Civ.P., from a judgment of this court. The problem is that the same vehicular accident has produced divergent results in federal and state courts. We grant the motion and remand the case to the district court with directions.

Edwards, the owner and driver of a tractor-trailer combination, was hauling wheat for defendant-appellee Cook. On January 11, 1968, Edwards' rig collided on an Oklahoma highway with a car driven by Ted Pierce. Pierce was killed and passengers in his car were injured. Claudiatte Pierce brought suit in an Oklahoma state court for herself as surviving widow of Ted and for their minor daughter Letitia. Similar state suits were brought against Cook by Stephen Ellenwood and Mike Davis, passengers in the Pierce car.

On the motion of defendant Cook each case was removed to federal court on diversity grounds. The Mike Davis case was dismissed by the federal court on the motion of the plaintiff. It was later refiled in state court by co-guardians of Mike, a minor. The guardianship maneuver apparently destroyed diversity and prevented removal.

The federal district court granted defendant Cook summary judgment on the ground that under the Oklahoma decision in Marion Machine, Foundry & Supply Co. v. Duncan, 187 Okl. 160, 101 P.2d 813, the shipper, Cook, was not liable for the torts of the independent contractor, Edwards.

Claudiatte Pierce and Ellenwood appealed. They conceded the effect of the Marion Machine decision and argued that, because of the Motor Carrier Act, 49 U.S.C. § 301 et seq., federal common law controlled. We held that the Motor Carrier Act did not indicate a congressional intent to supersede state tort law with respect to liability of a shipper, and concluded that Oklahoma law controlled. Pierce v. Cook & Co., 10 Cir., 437 F.2d 1119.

In the Mike Davis case the Oklahoma state court gave summary judgment for Cook on the basis of the Marion Machine decision. The case then went to the Oklahoma Supreme Court which specifically overruled Marion Machine and said, Hudgens v. Cook Industries, Inc., Okl., 521 P.2d 813, 816:

"Where there is foreseeable risk of harm to others unless precautions are taken, it is the duty of one who is regularly engaged in a commercial enterprise which involves selection of motor carriers as an integral part of the business, to exercise reasonable care to select a competent carrier. Failure to exercise such care may create liability on the part of the employer for the negligence of the carrier."

The court remanded the case for jury trial. The case was then settled favorably to the plaintiff.

The Tenth Circuit decision became final in January, 1971. The Oklahoma Supreme Court decision became final in May, 1974. In November, 1974, Claudiatte Pierce and Ellenwood filed the pending Rule 60(b) motion for relief from judgment.

The first question is the propriety of consideration of the motion by the court of appeals. Movants seek relief as a matter of law from a judgment of this court. This is not a case like Wilkin v. Sunbeam Corporation, 10 Cir., 405 F.2d 165, cert. denied 409 U.S. 1126, 93 S.Ct. 940, 35 L.Ed.2d 258, where a motion was filed in the court of appeals for leave to file in the district court a Rule 60(b) motion on the grounds of newly discovered evidence and fraud. Saying that the district court was in a better position to decide the issues presented, we held that the motion was unnecessary. The procedural problems involved have been the subject of much discussion. Compare Wilkin with Brady v. Beams, 10 Cir., 132 F.2d 985, 986, cert. denied 319 U.S. 747, 63 S.Ct. 1032, 87 L.Ed. 1702; National Brake & Electric Company v. Christensen, 254 U.S. 425, 430, 41 S.Ct. 154, 65 L.Ed. 341; and Butcher & Sherrerd v. Welsh, 3 Cir., 206 F.2d 259, 262, cert. denied 327 U.S. 799. Because our judgment is final and mandate issued, the trial court could well believe that it is without power to determine a legal question contrary to the decision of the court of appeals. Accordingly, we shall consider the motion.

Rule 60(b) provides that a court may grant relief from a judgment on five stated grounds and then says: "(6) any other reason justifying relief from the operation of the judgment." The one-year limitation provided in the rule does not apply to (6).

A Rule 60(b) motion is addressed to the sound discretion of the court. Caribou Four Corners, Inc. v. Truck Insurance Exchange, 10 Cir., 443 F.2d 796, 799 and cases there cited. Quoting 7 Moore Federal Practice at p. 308 (1950 ed.), Radack v. Norwegian America Line Agency, Inc., 2 Cir., 318 F.2d 538, 542, says that Rule 60(b) gives the court a "grand reservoir of equitable power to do justice in a particular case." The court goes on to say that "the rule should be liberally construed when substantial justice will thus be served." Ibid.

An adjudication must at some time become final. We recognized this principle in the Collins litigation. There, the plaintiffs attacked the constitutionality of a Kansas statute and lost. Collins v. City of Wichita, Kansas, 10 Cir., 225 F.2d 132, cert. denied 350 U.S. 886, 76 S.Ct. 140, 100 L.Ed. 781. A year later in an unrelated case the Supreme Court held the Kansas statute unconstitutional. Plaintiffs then sought Rule 60(b)(6) relief which we denied, Collins v. City of Wichita, Kansas, 10 Cir., 254 F.2d 837, 839, saying, (1) "in extraordinary situations, relief from final judgments may be had under Rule 60(b)(6), when such action is appropriate to accomplish justice," and (2) "(a) change in the law or in the judicial view of an established rule of law is not such an extraordinary circumstance which justifies such relief." Collins differs from the instant case in that there the decisional change came in an unrelated case. Here it came in a case arising out of the same accident as that in which the plaintiffs now before us were injured. The question is whether we have here an extraordinary situation justifying Rule 60(b)(6) relief.

Our attention is called to no case considering the situation before us. Plaintiffs were forced into federal court by Cook's removal of their state court actions on diversity grounds. They lost because state law controls and the Marion Machine decision defeated their claims as a matter of law. Another party, exercising a stratagem not shown to be available to these plaintiffs, obtained the reversal of the Marion Machine decision and a settlement thereafter.

Research has disclosed only one case considering divergent results from a common vehicular accident and it afforded relief to the previously unsuccessful party. Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 86 S.Ct. 153, 15 L.Ed.2d 21, was concerned with a claim for death benefits under the Longshoremen's and Harbor Workers' Compensation Act. Two men were killed in the same accident. An award made by the Department of Labor to the survivors of one of the men was set aside in the United States District Court for the Southern District of Florida. The Fifth Circuit affirmed. United States v. Pan American World Airways, Incorporated, 5 Cir., 299 F.2d 74. The Supreme Court denied certiorari, 370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 499, and on October 8, 1962, denied rehearing, 371 U.S. 856, 83 S.Ct. 17, 9 L.Ed.2d 93.

The survivors of a second man killed in the same accident litigated in the Eastern District of Virginia and lost but the Fourth Circuit reversed and upheld the right to recover. Pan American World Airways, Incorporated v. O'Hearne, 4 Cir., 335 F.2d 70.

The survivors of the first then went back to the Supreme Court in 1965 with a petition for rehearing. The Supreme Court granted the rehearing, granted certiorari, and reversed the Fifth Circuit court of appeals. In so doing, it said, 382 U.S. at 27, 86 S.Ct. at 154:

" * * * since, of those eligible for compensation from the accident, this petitioner stands alone in not receiving it, 'the interests of justice would make unfair the strict application of our rules.' "

The reasons for relief in the instant case are more compelling than those in Gondeck. There two federal courts differed as to the construction and application of a federal statute. We are concerned with an action in which federal jurisdiction depends on diversity. In diversity jurisdiction cases the results in federal court should be substantially the same as those in state court litigation arising out of the same transaction or occurrence. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 74-75, 58 S.Ct. 817, 82 L.Ed. 1188; Guaranty Trust Co. v. New York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079; Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 14 L.Ed.2d 8; and Merchants Transfer & Warehouse Co. v. Ragan, 10 Cir., 170 F.2d 987, 991, aff'd 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520. Here they were not.

The unusual combination of events which have occurred make the situation extraordinary. The federal courts in which plaintiffs were forced to litigate have given them substantially different treatment than that received in state court by another injured in the same accident. The...