Chvala v. DC Transit System, Inc., 15949

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: FAHY, WASHINGTON and DANAHER, Circuit
• Citation: 110 US App. DC 331,293 F.2d 519
• Parties: Viola CHVALA, Appellant v. D. C. TRANSIT SYSTEM, INC., Appellee. Ann BAKER, Appellant v. D. C. TRANSIT SYSTEM, INC., Appellee.
• Docket Number: 15950.,No. 15949,15949
• Decision Date: 08 June 1961

110 US App. DC 331, 293 F.2d 519 (1961)

Viola CHVALA, Appellant
v.
D. C. TRANSIT SYSTEM, INC., Appellee. Ann BAKER, Appellant
v.
D. C. TRANSIT SYSTEM, INC., Appellee.

Nos. 15949, 15950.

United States Court of Appeals District of Columbia Circuit.

Argued January 27, 1961.

Decided June 8, 1961.

293 F.2d 520

Mr. Francis J. Ortman, Washington, D. C., with whom Mr. Arthur E. Neuman, Washington, D. C., was on the brief, for appellants.

Mr. Frank F. Roberson, Washington, D. C., with whom Mr. Jeremiah C. Collins, Washington, D. C., was on the brief, for appellee. Mr. John P. Arness, Rockville, Md., also entered an appearance for appellee.

Before FAHY, WASHINGTON and DANAHER, Circuit Judges.

FAHY, Circuit Judge.

On January 12, 1957, an automobile owned by Ernesto Regalado and driven by Carlos Sauma collided with a streetcar loading platform on Wisconsin Avenue in the District of Columbia, veered off, and crashed into a tree. One of the passengers, Victoria Krizman, was killed; another passenger, Ann Baker, was seriously injured. Action was brought in the District Court by Baker and by Krizman's administratrix against Regalado, Sauma and D. C. Transit System, Incorporated. A default judgment was entered against the defendant Sauma. Defendant Transit — the sole appellee here — moved for and was granted a directed verdict, on the ground that the loading platform, though used by its vehicles, was not its responsibility to maintain. Plaintiffs then secured a mistrial as to the remaining defendant, Regalado, and brought the instant appeals from the verdict and judgment in favor of Transit.¹ The action against Regalado is still pending.

A motion to dismiss the appeals was made by appellee upon the ground that the appeals are premature, no orders having been entered by the District Court in conformity with Fed.R.Civ.P. 54 (b).²

We think Rule 54(b) is applicable and that the appeals must be dismissed for the reason that the judgment in favor of Transit is not final and appealable in the absence of the express determination and direction referred to in the Rule. We first considered Rule 54(b) in David v. District of Columbia, 88 U.S.App.D.C. 92, 187 F.2d 204. Though we did not there hold that "more than one claim for

293 F.2d 521

relief" existed when a claim was against more than one party based on injuries alleged to be attributable to their negligence, that is, against joint tortfeasors, we left the door open to such a construction. In Felder v. D. Loughran Co., 88 U.S.App.D.C. 139, 188 F.2d 623, redecided on second appeal at 90 U.S.App. D.C. 324, 196 F.2d 239, we did hold the Rule applicable to such a situation. And see Vale v. Bonnett, 89 U.S.App.D.C. 116, 191 F.2d 334; Williams v. Protestant Episcopal Theological Seminary, 91 U.S. App.D.C. 69, 198 F.2d 595; Pabellon v. Grace Line, Inc., 2 Cir., 1951, 191 F.2d 169. In Gold Seal Co. v. Weeks, 93 U.S. App.D.C. 249, 209 F.2d 802, however, this court used language which in its context might be read as construing the Rule not to be applicable in such a factual situation. It was there indicated that such a case presented but one claim within the meaning of the Rule. This view has found favor in several circuits.³

That our application of the Rule in Felder was correct is, we think, now made clear by the Amendments to Rule 54(b) adopted by the Supreme Court April 17, 1961. These Amendments were prepared by the Advisory Committee on Civil Rules and reported to the Court by the Judicial Conference of the United States. They are now pending before the Congress...