Brickel v. Chicago, Burlington and Quincy Railroad Co., Civ. No. 4532.

• Court: United States District Courts. 10th Circuit. District of Wyoming
• Writing for the Court: John J. Spriggs, Sr., Lander, Wyo., and John J. Spriggs, Jr., Washington, D. C., for plaintiffs
• Citation: 200 F. Supp. 240
• Parties: Howard M. BRICKEL and A. J. Katches, T/A Mid-Continent Exploration Company, Plaintiffs, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, a corporation, Defendant.
• Docket Number: Civ. No. 4532.
• Decision Date: 29 December 1961

200 F. Supp. 240

Howard M. BRICKEL and A. J. Katches, T/A Mid-Continent Exploration Company, Plaintiffs,
v.
CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, a corporation, Defendant.

Civ. No. 4532.

United States District Court D. Wyoming.

December 29, 1961.

John J. Spriggs, Sr., Lander, Wyo., and John J. Spriggs, Jr., Washington, D. C., for plaintiffs.

Henderson & Godfrey, Cheyenne, Wyo., J. C. Street and W. L. Peck, Denver, Colo., for defendant.

KERR, Judge.

This motion for summary judgment turns on whether or not the issues raised in the case at bar have already been litigated and previously determined by a jury verdict and judgment entered thereon in civil action No. 4221. A brief summary of the two actions shows the legal relationship of the parties with respect to the status of some 750 tons of alleged mineral ores. There is no dispute about the identity of the parties and subject matter. They are the same in both suits.

Civil action No. 4221 was removed to this court from the State District Court, Sixth Judicial District, Weston County, Wyoming, wherein the complaint was filed on November 7, 1958. Plaintiffs alleged that the defendant unlawfully converted their ore to its own use and benefit and that plaintiffs suffered actual damages for the value of the ore in the amount of $3,299,500.00 and $500,000.00 punitive damages. Defendant interposed a general denial and certain specific defenses. Trial before a jury commenced on June 13, 1960, which returned its verdict for the defendant on June 18, 1960. On that date judgment was entered on the verdict. Plaintiffs' motion for a new trial was denied and their appeal was dismissed on November 14, 1960, upon stipulation of the parties. The judgment of this Court in

200 F. Supp. 241

civil action No. 4221 has never been appealed, reversed, set aside or vacated

The instant action was commenced in the United States District Court for the District of Columbia on June 7, 1961, and on July 27, 1961, it was ordered transferred to this court pursuant to the provisions of Title 28 U.S.C. § 1404. In their complaint plaintiffs prayed that they be awarded the sum of $25,000.00 for their out-of-pocket expenses for stockpiling the mineral ore on defendant's property, together with the sum of $19,000,000.00, estimated damages to compensate plaintiffs for the loss value to the ore to them in their operations. Defendant filed its answer and moved for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C., on the grounds of res judicata and collateral estoppel by judgment.

In support of its motion defendant has proffered the pleadings in the case at bar and in civil action No. 4221, together with a certified copy of substantially the entire record in said prior action; a certified copy of the complete transcript of the trial proceedings in civil action No. 4221, comprising six volumes; the exhibits introduced by defendant; and affidavits of the attorneys for the defendant.

Opposing the motion, plaintiffs argue that the issue of negligence of the defendant in this second action is a question of fact which may not be disposed of by summary judgment since it was not litigated in the prior action between...