Carey v. Greyhound Company, 23981
Decision Date | 03 April 1970 |
Docket Number | 24018 and 24158.,No. 23981,23981 |
Parties | William and Maxine CAREY, Plaintiffs-Appellees, v. GREYHOUND COMPANY, Defendant-Appellant. William and Maxine CAREY, Plaintiffs-Appellants, v. GREYHOUND CO. and Ellis D. Clark and Kenneth Glasgow, etc., Defendants-Appellees. William and Maxine CAREY, Plaintiffs-Appellees, v. Ellis D. and Jane D. CLARK, Kenneth and Jane D. Glasgow, Defendants-Appellants. |
Court | U.S. Court of Appeals — Ninth Circuit |
D. T. Mohlman (argued), Henry E. Kastner, J. Kenneth McMullin, of Williams, Lanza, Kastner & Gibbs, Seattle, Wash., for Greyhound Co.
Richard M. Holt (argued), of Cushman, Thomas & Holt, Issaquah, Wash., W. R. McKelvy (argued), of Skeel, McKelvy, Henke, Evenson & Beets, Seattle, Wash., for appellees.
Before DUNIWAY, WRIGHT and TRASK, Circuit Judges.
This action was filed on January 19, 1965, but it has never been tried. It arises from an accident described in the opinions in Tashire v. State Farm Fire & Cas. Co., 9 Cir., 1966, 363 F.2d 7, reversed, State Farm Fire & Cas. Co. v. Tashire, 1967, 386 U.S. 523, 87 S.Ct. 1199, 18 L.Ed.2d 270. The accident occurred in September, 1964. The present action was filed in the Western District of Washington by William and Maxine Carey, husband and wife. The defendants are Greyhound Company, Ellis Dean Clark and wife, and Kenneth Glasgow and wife. The purpose of the action was to recover damages for Maxine's personal injuries. She was a passenger in a Greyhound bus which collided with a pickup truck and trailer. The truck belonged to Glasgow; Clark was driving it at the time of the accident.
The Careys are citizens and residents of Washington; the Clarks and the Glasgows are citizens and residents of Oregon. Greyhound is not a citizen of Washington, but does business there. The accident occurred in California. At first, the action was stayed by stipulation, pending disposition of the Tashire case in Oregon. On October 6, 1967, the court entered a pretrial order and transferred the action to the District of Oregon. On April 3, 1968, the action was retransferred to the Western District of Washington.
The three appeals now before us are all from interlocutory orders. We conclude that none is appealable.
Greyhound, in October 1968, moved to amend the pretrial order and its answer to state a cross-claim against the defendants Clark and Glasgow for $50,000 for damage to its bus. The court denied the motion. On November 22, it entered an order reading, in part:
This order does not dispose of the entire action; it only denies leave to Greyhound to file a cross-claim and dismisses the action as to the Glasgows. The action as between the Careys and Greyhound and the Clarks remains. The court did not make the statement contemplated by 28 U.S.C. § 1292(b). Thus the order is not an appealable interlocutory order. Nor did it make the "express determination and direction" contemplated by Rule 54(b) F.R.Civ.P. Thus the order is not a final decision under 28 U.S.C. § 1291. On the contrary, as provided in Rule 54(b), it "is subject to revision at any time before final judgment adjudicating all claims and the rights and liabilities of all the parties." It is not appealable. See Metal Coating Corp. v. National Steel Const. Co., 9 Cir., 1965, 350 F.2d 521; Atterbury v. Carpenter, 9 Cir., 1962, 310 F.2d 126; Miles v. City of Chandler, 9 Cir., 1961, 297 F.2d 690; Matanuska Valley Lines, Inc. v. Neal, 9 Cir., 1955, 229 F.2d 136, 16 Alaska 42.
The Careys appeal from the foregoing order of November 22, insofar at it purports to be a Judgment of Dismissal of the Glasgows, and from an order denying their motion to amend the pretrial order to permit them to state additional theories of liability against the Glasgows.
The defendants Glasgow had moved for a summary judgment of dismissal on the ground that no joint venture between Glasgow and Clark was shown. In a memorandum order of October 17, 1968, the district court granted that motion. The order recites:
For the reasons already stated these orders are not appealable.
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