Dilly v. S. S. Kresge, 78-1106

• Decision Date: 26 September 1979
• Docket Number: No. 78-1106,78-1106
• Citation: 606 F.2d 62
• Parties: Bernard DILLY and Eleanor P. Dilly, Appellees, v. S. S. KRESGE, a corporation, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 62

606 F.2d 62

Bernard DILLY and Eleanor P. Dilly, Appellees, v. S. S. KRESGE, a corporation, Appellant.

No. 78-1106.

United States Court of Appeals Fourth Circuit.

Argued Feb. 9, 1979.

Decided Sept. 26, 1979.

John S. Bailey, Jr., Parkersburg, W. Va. (Earley, Bailey & Pfalzgraf, Parkersburg, W. Va., on brief), for appellant.

Louie S. Davitian, Parkersburg, W. Va. (William L. Jacobs, Parkersburg, W. Va., on brief), for appellees.

Before RUSSELL and WIDENER, Circuit Judges, and HOFFMAN, District Judge ^*.

WIDENER, Circuit Judge:

The plaintiffs, Bernard and Eleanor Dilly, brought this action against her employer, S. S. Kresge Co., for injuries she received during the course of employment. The uncontested facts are that an assistant manager of Kresge came to the soda fountain area of the store, where Eleanor Dilly worked, and ordered a cup of hot chocolate. After he was told that they had no hot chocolate, the assistant manager grabbed Mrs. Dilly, shook her and said "What the hell do you mean running out of hot chocolate?" Eleanor Dilly stated in her deposition that she thought the assistant manager was serious and angry. The assistant manager contends that he was joking. As a result of the assistant manager's action, Mrs. Dilly claims her neck was injured.

The parties filed cross-motions for summary judgment. The district court granted summary judgment for the plaintiffs on the issue of liability and set a hearing to ascertain the amount of damages, if any, due the plaintiffs. Kresge filed a motion to set aside the district court's order pursuant to FRCP 59. This motion was denied. A notice of appeal was then filed and an appeal was taken to the order granting summary judgment in favor of the plaintiffs.

The defendant takes the position that the appeal from the grant of summary judgment for the plaintiffs and the denial of its Rule 59 motion is an appeal from a final order. We do not agree. The notice of appeal was filed and the appeal was taken prior to the ascertainment of damages; therefore, it was not a final order within the meaning of 28 U.S.C. § 1291. Neither has an interlocutory appeal been perfected as provided for in § 1292(b). Thus, we are without jurisdiction to hear this appeal. "A 'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In the case at bar, the district court found the defendant liable but delayed awarding damages until a hearing was held to determine their existence and amount. There is obviously something else for the district court to do but execute the judgment. We approve what Judge Friendly has said on the question at hand:

"The court had not finally determined the respective rights and liabilities of (the parties) since it had not fixed the damages. . . . If history, precedent or principle left any ground to doubt that a judgment determining liability but not fixing damages is not final under 28 U.S.C. § 1291, this would be removed by the provisions of 28 U.S.C. § 1292(a)(3) and (4) authorizing appeals from 'interlocutory decrees . . . determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed,' and 'judgments in civil actions for patent infringement which are final except for accounting.' "

Western Geophysical Co. v. Bolt Associates, Inc., 463 F.2d 101, 102 (2d Cir. 1972). Accord, 15 Wright & Miller, Federal Practice and Procedure, Civil § 3915.

Accordingly, the appeal is...