Atchison, Topeka and Santa Fe Railway Co. v. Jackson, 5220.

• Citation: 235 F.2d 390
• Decision Date: 03 August 1956
• Docket Number: No. 5220.,5220.
• Parties: The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellant, v. Jessie W. JACKSON, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

235 F.2d 390 (1956)

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellant, v. Jessie W. JACKSON, Appellee.

No. 5220.

United States Court of Appeals Tenth Circuit.

June 27, 1956.

Rehearing Denied August 3, 1956.

W. E. Treadway, Topeka, Kan. (Lawrence Weigand, Wichita, Kan., C. J. Putt, Topeka, Kan., J. B. Reeves, Oklahoma City, Okl., and Edwin M. Wheeler, Topeka, Kan., on the brief), for appellant.

Louis N. Crill, Minneapolis, Minn. (Ratner, Mattox & Ratner, Wichita, Kan., Davis, Rerat, Yaeger & Lush, and Bonner & Clements, Minneapolis, Minn., on the brief), for appellee.

Before BRATTON, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

BRATTON, Chief Judge.

This was an action instituted in the United States Court for Kansas by Jessie W. Jackson against The Atchison, Topeka and Santa Fe Railway Company. The action was brought under the Federal Employers' Liability Act, as amended, 45 U.S.C.A. § 51 et seq., to recover damages for personal injury. It was alleged in the complaint that plaintiff was the conductor on a certain freight train owned and operated by the defendant; that while the train was moving plaintiff prepared to board the caboose in the usual and customary manner; that due to the defective and insecure sill steps on the caboose and to the insecurity of the handholds located on the caboose, plaintiff was unable to obtain secure footing on the step and was caused to fall onto the track and roadbed adjacent to the caboose; and that he suffered serious and permanent injury. By answer, the defendant denied that the steps of the caboose were defective; denied that plaintiff suffered injury by reason of any defect attributable to the caboose; and pleaded that negligence on the part of plaintiff in mounting or attempting to mount the steps on the caboose of a moving train proximately caused or contributed to any injury which he may have sustained. The jury returned a verdict for plaintiff; judgment was entered upon the verdict; and the defendant appealed.

The first question to which the parties address themselves is whether the action of the trial court in permitting the law firm of Davis, Rerat, Yaeger & Lush, of Minneapolis, Minnesota, hereinafter referred to as the Minneapolis firm, to appear as counsel for plaintiff and participate in the trial of the case is open to review. A formal order of a court granting or denying a petition for admission to practice law is a judgment in a judicial proceeding subject to review on appeal in like manner to that provided by law for review of a judgment in an ordinary civil action. In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795. And the action of the court in permitting the Minneapolis firm to appear as counsel and participate in the trial of the case constituted judicial action in the nature of an interlocutory order in this particular case. Courts of appeals are courts of limited jurisdiction; and save for excepted instances in which it is otherwise provided by statute, they have jurisdiction to review only final decisions of the district courts. Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478; State Tax Commission of Utah v. United States, 10 Cir., 136 F.2d 903; Breeding Motor Freight Lines v. Reconstruction Finance Corp., 10 Cir., 172 F.2d 416, certiorari denied, 338 U.S. 814, 70 S.Ct. 54, 94 L.Ed. 493; Kanatser v. Chrysler Corp., 10 Cir., 195 F.2d 104; Long v. Union Pacific Railroad Co., 10 Cir., 206 F.2d 829.

By 28 U.S.C.A. § 1292, courts of appeal are expressly vested with jurisdiction to entertain direct appeals from certain kinds of interlocutory orders. The order permitting the Minneapolis firm to participate in the trial of the case does not fall within the purview of that statute. And such order could not have been brought to this court for review by direct appeal. Croissant v. Adams, 7 Cir., 27 F.2d 48. But for purposes of appeal, an interlocutory action from which no direct appeal will lie becomes merged into the final judgment and is open to review on appeal from the final judgment. Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629; Satterlee v. Harris, 10 Cir., 60 F.2d 490; Victor Talking Machine Co. v. George, 3 Cir., 105 F.2d 697, certiorari denied, 308 U.S. 611, 60 S.Ct. 176, 84 L.Ed. 511. By appropriate application of that well recognized general rule, we think it is clear that the interlocutory action permitting the Minneapolis firm to participate in the trial of the cause is open to review on this appeal from the final judgment.

Coming to the question whether the action of the court in permitting the Minneapolis firm to appear as counsel and participate in the trial constituted prejudicial error which requires reversal of the judgment, the defendant objected at the pretrial conference to such firm appearing and participating in the trial. The basis of the objection was asserted unethical and unprofessional conduct. Following the pretrial conference, an order was entered setting the matter for hearing with both judges of the court participating. When the matter came on for hearing, both judges did participate and a committee of the State Bar Association of Kansas attended. A member of the Bar of Wichita, Kansas, appeared as counsel for plaintiff but no member or associate of the Minneapolis firm appeared. Evidence and affidavits were submitted which tended to establish these facts and circumstances. No member or associate of the Minneapolis firm was admitted to practice before the courts in Kansas or before the United State Court for the District of Kansas. Pat Meroney, of Kansas City, Missouri, was a member of an organization frequently called the Brotherhood of Railroad Trainmen. On several occasions, Meroney sought out and interviewed persons known to have claims against the defendant for damages for death or personal injuries and solicited them to employ the Minneapolis firm. He carried with him printed agreements designed and intended for use in employing such firm. And as an inducement, he explained to the prospective client that the firm would defray all expenses of the litigation and would make advances of cash for the support and maintenance of the client until the claim was settled or the litigation ended. In some instances employment of the Minneapolis firm was effectuated through such pattern of conduct. And in some instances payments were made by the firm to the client during the period of employment. Speaking in general terms, the checks of the firm were issued monthly and ranged in amount from $150 to $350 each. One was for $800. One client was paid the total sum of $6,850 and another the total amount of $3,350. We entertain no doubt that the Minneapolis firm had knowledge of the methods and means which Meroney employed in soliciting and securing employment of the firm, and we are of the considered view that obtaining professional employment in that manner and making cash advancements of large sums to clients during the period of the employment amounted to aggravated violation of well...