Baltimore & OR Co. v. United Fuel Gas Co.
| Decision Date | 09 April 1946 |
| Docket Number | No. 5459.,5459. |
| Citation | 154 F.2d 545 |
| Parties | BALTIMORE & O. R. CO. v. UNITED FUEL GAS CO. et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
William F. Wunschel, of Charleston, W. Va. (Stanley C. Morris and Steptoe & Johnson, all of Charleston, W. Va., on the brief), for appellant.
Donald O. Blagg, of Charleston, W. Va. (A. G. Stone and Rummel, Blagg & Stone, all of Charleston, W.Va., on the brief), for appellees.
Before SOPER and DOBIE, Circuit Judges, and TIMMERMAN, District Judge.
Earl Saunders (a citizen of West Virginia) instituted, in the United States District Court for the Southern District of West Virginia, a civil action for damages against the Baltimore & Ohio Railroad Company (hereinafter called B. & O.), a Maryland corporation. The object of this action was to recover money damages for personal injuries alleged to have been received by Saunders in a collision between a motor truck in which Saunders was riding and an engine and train owned and operated by B. & O. The truck, at the time of the collision, was owned by United Fuel Gas Company (hereinafter called United), a West Virginia corporation, and was operated by M. C. Kirkhart, a citizen of West Virginia. Similar actions were instituted by Dearl Shamblin and Amos Hively. These three civil actions, since they involved identical issues of law and fact, were consolidated. We need consider here only the Saunders case.
B. & O. moved, under Rule 14 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, dealing with Third-Party Practice, to implead United and Kirkhart. B. & O. demanded (1) that any judgment rendered in favor of the plaintiffs be rendered against appellees, United Fuel Gas Company and M. C. Kirkhart; (2) that appellant have judgment against the appellees for all or part of any sums that might be assessed against it in favor of the plaintiffs; (3) that any judgment that might be rendered against appellant in favor of the plaintiffs also be rendered against appellees or (4) if any judgment be rendered against appellant in favor of the plaintiffs that judgment be rendered in favor of appellant and against appellees for two-thirds of the amount thereof. The District Court sustained the motions of United and Kirkhart to dismiss the amended third-party complaint, on the ground that the Court was without jurisdiction to entertain the third-party complaint since United and Kirkhart were citizens of West Virginia, the same state of which Saunders was a citizen. B. & O. has duly appealed.
We do not consider the merits of the decision of the District Court, from which this appeal was taken; for we think that decision is not a final judgment such as is appealable under Judicial Code § 128, as amended, 28 U.S.C.A. § 225. Accordingly, the appeal here was prematurely taken and must therefore be dismissed.
The problem of what constitutes, for the purpose of appeal, a final judgment is often difficult. A classic and oft-quoted definition is that of Chief Justice Waite, in Bostwick v. Brinkerhoff, 106 U. S. 3, 1 S.Ct. 15, 16, 27 L.Ed. 73:
"The rule is well settled and of long standing that a judgment or decree to be final * * * must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered."
After words of similar import, Circuit Judge Sanborn, in Morgan v. Thompson, 8 Cir., 124 F. 203, 204, went on to say:
"An order, judgment, or decree which does not have this effect — one which leaves the rights of the parties to the suit undetermined and subject to further adjudication — is not a final decision."
See, also, La Bourgogne, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973; City of Vicksburg v. Henson, 231 U.S. 259, 264-267, 34 S.Ct. 95, 58 L.Ed. 209; Ex parte Tiffany, 252 U.S. 32, 40 S.Ct. 239, 64 L.Ed. 443; The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L. Ed. 592; Maas v. Lonstorf, 6 Cir., 166 F. 41; Hickey v. Johnson, 8 Cir., 9 F.2d 498. And see Rose on Federal Jurisdiction and Procedure, 5th Ed., § 651; Williams on Federal Practice (2d Ed.), p. 627; Dobie on Federal Procedure, § 201; Moore, Federal Practice, vol. 3, § 73.02; Ohlinger, Federal Practice, vol. 6, § 581.
In applying the test of what constitutes a final decision, the federal courts seem to have regarded substance rather than form, and to have been guided by practical rather than by purely theoretical considerations.
Applying this test to the instant case, we are forced to the conclusion that the decision below is not a final judgment and is therefore not appealable. This decision in no sense determines the rights of the parties in the case. Saunders sought a money judgment against B. & O. for alleged personal injuries due to the negligence of B. & O. The question of the attendant liability of B. & O. is still undetermined. The District Court has merely declined to implead, upon the motion of B. & O., the driver and the owner of the truck in which Saunders was riding. That leaves the case exactly as it was when it was instituted.
If, when the case is tried on the merits, the judgment should be in favor of B. & O., the question now before us becomes of no consequence, for B. & O. has not been hurt. If, at the trial, the decision is against B. & O., an appeal can be taken by B. & O. to our Court and we can then decide all the questions properly before us on the appeal.
Nor does the instant decision below even pass on the questions, in case of a judgment adverse to B. & O., of what rights, if any, B. & O. may possess over against the alleged co-tort-feasors, and how these rights, if they exist, can be asserted. Such rights are still in futuro and potentially are in the lap of the courts. Saunders has here asserted only a single claim and is in no event entitled to more than one satisfaction — he might have asserted this claim against the alleged co-tort-feasors, the owner and the driver of the truck. Had he so chosen, the State Courts were open to him; he could not, for lack of the requisite diversity of citizenship, have sued all the co-tort-feasors in the United States District Court. He did choose to sue the B. & O. alone in the Federal District Court and that Court has merely upheld the validity of this election by refusing to compel the inclusion of the owner and the driver of the truck as parties to the action.
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