652 F.2d 893 (9th Cir. 1981), 79-3361, Palmer v. United States

Docket NºC.A. No. 79-3361, D.C. No. 77-2546.
Citation652 F.2d 893
Party NameLowell PALMER, Plaintiff, v. UNITED STATES of America, Defendant. UNITED STATES of America, Third-Party Plaintiff/Appellee, v. Donald Paul FISHER, Third-Party Defendant/Appellant.
Case DateAugust 07, 1981
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 893

652 F.2d 893 (9th Cir. 1981)

Lowell PALMER, Plaintiff,

v.

UNITED STATES of America, Defendant.

UNITED STATES of America, Third-Party Plaintiff/Appellee,

v.

Donald Paul FISHER, Third-Party Defendant/Appellant.

C.A. No. 79-3361, D.C. No. 77-2546.

United States Court of Appeals, Ninth Circuit

August 7, 1981

Argued and Submitted March 6, 1981.

Page 894

John Porter, Riverside, Cal., for plaintiff.

William B. Spivak, Asst. U. S. Atty., Los Angeles, Cal. (argued), for defendant; Frederick M. Brosio, Jr., Chief Asst. U. S. Atty., Andrea Sherian Ordin, U. S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Page 895

Before CHAMBERS and FARRIS, Circuit Judges, and BILBY, [*] District judge.

FARRIS, Circuit Judge:

On November 16, 1975, Lowell Palmer was injured after being struck by an automobile driven by an employee of the United States. At the time of the accident, Palmer had been standing in a public highway directing traffic around Donald Fisher's automobile, which moments before had been disabled after colliding with another vehicle that had attempted a left turn off the highway. Fisher, who later admitted having had an alcoholic beverage prior to his collision, had left the scene of the accident prior to the time Palmer was struck by the government vehicle.

On June 11, 1977, Palmer brought suit against the government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1976), seeking damages for negligence. The government impleaded Fisher as a third-party defendant under Federal Rule of Civil Procedure 14, demanding "indemnity" in the event that the government was held liable to Palmer. Both Palmer and Fisher made timely demands for a jury trial. On July 17, 1978, the district court issued a pretrial conference order, setting out the issues to be litigated. No mention of the demands for jury trial was made in this order. Trial began on November 29, 1978; the civil minutes entry for that day prepared by the deputy clerk clearly indicated that no jury had been impaneled. During the trial, neither Palmer nor Fisher objected to the court's apparent failure to rule on the jury demands.

At the close of the trial, the district court found that the negligence of both the government and Fisher had contributed to the injuries sustained by Palmer. Under California's doctrine of comparative negligence, the court held the government responsible for 30% and Fisher responsible for 70% of the negligence causing Palmer's injuries. Damages were determined to be $88,600.00. Because the government was the only named defendant in the plaintiff's action, the court ordered the government to pay the entire sum to Palmer. It then held, in accordance with the doctrine of comparative partial indemnity announced by the California Supreme Court in American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 578 P.2d 899, 146 Cal.Rptr. 182 (1978), that the...

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37 practice notes
  • Tucker v. Cascade General, Inc., 102411 ORDC, 09-1491-AC
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • October 24, 2011
    ...on the character of the overall action, but instead is determined by the nature of the issue to be tried." Palmer v. United States, 652 F.2d 893,895 (9th Cir. 1981) (internal quotation marks and citations omitted), overruled on other grounds, White v. McGinnis, 903 F.2d 699 (9th Cir. 1......
  • 51 Cal.App.4th 688, B083585, Martin v. County of Los Angeles
    • United States
    • California California Court of Appeals
    • December 12, 1996
    ...of action does not by itself compel the conclusion that the cause of action is one in equity. In Palmer v. United States (9th Cir. 1981) 652 F.2d 893 (overruled on another point in White v. McGinnis (9th Cir. 1990) 903 F.2d 699, 703), the Page 697 Ninth Circuit Court of Appeals recognized t......
  • 699 F.2d 1292 (9th Cir. 1983), 81-3444, Reid Bros. Logging Co. v. Ketchikan Pulp Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • March 1, 1983
    ...looked beyond the facial language and applied the Rules in a manner consistent with their underlying purpose. 22 Palmer v. United States, 652 F.2d 893 (9th Cir.1981), cited by ALP, is consistent with this holding. In that case, a defendant made a timely request for a jury trial. The trial c......
  • 885 F.2d 1011 (2nd Cir. 1989), 954, Royal American Managers, Inc. v. IRC Holding Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • September 1, 1989
    ...(per curiam) (waiver) and Smith v. Cushman Motor Works, 178 F.2d 953, 953-54 (8th Cir.1950) (waiver) with Palmer v. United States, 652 F.2d 893 (9th Cir.1981) (no waiver). We agree with the majority rule. It would be "patently unfair" and, "in effect, [an] 'ambush [of the] tr......
  • Free signup to view additional results
37 cases
  • Tucker v. Cascade General, Inc., 102411 ORDC, 09-1491-AC
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • October 24, 2011
    ...on the character of the overall action, but instead is determined by the nature of the issue to be tried." Palmer v. United States, 652 F.2d 893,895 (9th Cir. 1981) (internal quotation marks and citations omitted), overruled on other grounds, White v. McGinnis, 903 F.2d 699 (9th Cir. 1......
  • 51 Cal.App.4th 688, B083585, Martin v. County of Los Angeles
    • United States
    • California California Court of Appeals
    • December 12, 1996
    ...of action does not by itself compel the conclusion that the cause of action is one in equity. In Palmer v. United States (9th Cir. 1981) 652 F.2d 893 (overruled on another point in White v. McGinnis (9th Cir. 1990) 903 F.2d 699, 703), the Page 697 Ninth Circuit Court of Appeals recognized t......
  • 699 F.2d 1292 (9th Cir. 1983), 81-3444, Reid Bros. Logging Co. v. Ketchikan Pulp Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • March 1, 1983
    ...looked beyond the facial language and applied the Rules in a manner consistent with their underlying purpose. 22 Palmer v. United States, 652 F.2d 893 (9th Cir.1981), cited by ALP, is consistent with this holding. In that case, a defendant made a timely request for a jury trial. The trial c......
  • 885 F.2d 1011 (2nd Cir. 1989), 954, Royal American Managers, Inc. v. IRC Holding Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • September 1, 1989
    ...(per curiam) (waiver) and Smith v. Cushman Motor Works, 178 F.2d 953, 953-54 (8th Cir.1950) (waiver) with Palmer v. United States, 652 F.2d 893 (9th Cir.1981) (no waiver). We agree with the majority rule. It would be "patently unfair" and, "in effect, [an] 'ambush [of the] tr......
  • Free signup to view additional results