Gass v. National Container Corporation
| Decision Date | 30 October 1959 |
| Docket Number | No. 12624.,12624. |
| Citation | 271 F.2d 231 |
| Parties | William J. GASS, Plaintiff-Appellant, v. NATIONAL CONTAINER CORPORATION, a Corporation, and Leonard Moore, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William L. Mason, Jr., Bernard Susman, St. Louis, Mo., Lee Ensel, Springfield, Ill., for plaintiff-appellant.
Alton G. Hall, Barber & Barber, Henry R. Barber, Springfield, Ill., for defendants-appellees.
Before DUFFY, KNOCH and CASTLE, Circuit Judges.
This action was removed to the District Court on grounds of diversity of citizenship from the Circuit Court of Madison County, Illinois. Plaintiff's amended complaint contained three counts. By the first count, plaintiff-appellant, William J. Gass sought to recover damages both actual and punitive against the National Container Corporation and Leonard Moore, its Vice-President, defendants-appellees, on allegations charging fraud and deceit in inducing plaintiff to surrender and cancel a written contract of employment with the corporate defendant and then discharging him. The second count sought damages against the corporate defendant only for breach of a written contract of employment. The third count sought damages for breach of an oral contract of employment. Defendants moved to dismiss all counts and the District Court sustained the motion as to the first and third counts.
On motion of the plaintiff the District Court pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., made an express determination "that there is no just reason for delay" and expressly directed entry of final judgment on its order dismissing the first and third counts of plaintiff's complaint.
The determination of the District Court does not preclude review by us as to the application of Rule 54(b), Sears, Roebuck & Company v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297. The question of whether there was a basis for the determination by the District Court that there is no just reason for delaying review of its order dismissing the first and third counts of plaintiff's complaint must be determined in the light of the traditional, deeplyrooted and wisely sanctioned principle against piecemeal appeals. Rule 54(b) is designed to make an accommodation between that policy and the problems of the timing of review which have arisen under modern liberalized rules of joinder. In this connection the following observations made in Panichella v. Pennsylvania Railroad Company, 3 Cir., 252 F.2d 452, 455 are pertinent:
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...Refrigeration, 271 F.2d 257 (7th Cir.1959), cert. denied, 362 U.S. 928, 80 S.Ct. 756, 4 L.Ed.2d 747 (1960); Gass v. National Container Corporation, 271 F.2d 231 (7th Cir.1959); Flynn & Emrich Company v. Greenwood, 242 F.2d 737 (4th Cir.1957), cert. denied, 353 U.S. 976, 77 S.Ct. 1060, 1 L.E......
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