Hoffman v. Lamb Knit Goods Co.
| Decision Date | 28 February 1941 |
| Docket Number | 84.,No. 83,83 |
| Citation | 37 F. Supp. 188 |
| Parties | HOFFMAN et al. v. LAMB KNIT GOODS CO. YOUNG v. SAME. |
| Court | U.S. District Court — Western District of Michigan |
Mason, Sharpe & Stratton, of Kalamazoo. Mich., for plaintiffs.
Travis, Merrick & Johnson, of Grand Rapids, Mich., for defendant.
These cases are before the court upon motions for summary judgment under Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides in part: "* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Depositions of the general manager of the defendant in each of the cases, and of Phil Jonas, the operator and owner of the automobile which is alleged to have been the cause of the injuries sustained by plaintiffs, tend strongly to the conclusion that no relationship of master and servant existed, and that the status of Jonas at the time of the accident was that of an independent contractor. Under well established authority, plaintiffs cannot recover if such was the relationship.
The question presented is whether or not from the pleadings and depositions there appears to be any "genuine issue" concerning the existence of the master and servant relationship. The pleadings include allegations on behalf of the plaintiffs to the effect that Jonas was, "at the time of the aforementioned occurrence, the employee and servant of the defendant, and under its control, management and direction". These allegations are denied in the answers of the defendant. An issue is thus presented on the pleadings. The asserted elimination of this issue by the defendant's depositions is not as convincing as would have been the case had a written contract of employment been in existence and proved, or had book entries, statements and settlements disclosing only a commission basis of compensation been produced. Knowledge of the controlling facts upon this issue being almost exclusively in the possession of the moving party, nothing less than the most conclusive showing possible should be accepted as sufficient. However, unless a counter showing is made within a reasonable time by means of affidavits or depositions, it may be that defendant's depositions should be regarded as sufficient to justify a finding that no material issue exists. In the circumstances, it is the view of the court that a continuance of sixty days should be ordered to permit plaintiffs to obtain and submit affidavits or depositions tending to disclose the existence of an issue of fact upon the relationship existing between defendant and Jonas on the date of the accident. See Clair v. Sears Roebuck & Co., D.C., 34 F. Supp. 559. Such an order will be entered.
On Motions for Summary Judgments.
These cases are now before the court upon motions by defendant in each case for summary judgment, under Rule 56 (c) Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Pursuant to opinion filed December 20, 1940, orders of continuance for sixty days were entered to permit plaintiffs to obtain and submit affidavits or depositions tending to disclose the existence of an issue of fact upon the relationship existing at the time of the accident between defendant and its salesman, Mr. Jonas. The precise issue is indicated by the opinion.
The only additional testimony is by the deposition of James H. Prowant. Supplemental briefs have been filed and the cases are on the calendar for trial early in March, 1941. Therefore it is fair to assume that no additional testimony is, or will be, available upon the issue presented by the motions.
The substance of the Prowant testimony is to the effect that Jonas made deliveries of certain advertising matter and accepted return of merchandise for the defendant for which the witness received credit from the...
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Fancher v. Baker, 5-3742
...summary judgment, as knowledge of controlling facts on such issue is almost exclusively in defendant's possession.' Hoffman v. Lamb Knit Goods Co., D.C., 37 F.Supp. 188. In Subin v. Goldsmith, 2 Cir., 224 F.2d 753, the court '[O]pponents failure to file counter-affidavit in answer to affida......
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Duke v. Sanymetal Products Co.
...do pose a genuine issue of fact. Compare Gregg v. Weller Grocery Co. (Fla.Ct.App. 1963); 151 So.2d 450 with Hoffman v. Lamb Knit Goods Co. (W. D. Mich. 1940), 37 F.Supp. 188. We also believe that the dispute over Kotnik's employment status was made more obvious by the uncertainties apparent......
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Searle v. Great Northern Railway Company, Civ. No. 2080.
...* *". 6 Moore's Federal Practice 2232, § 56.17 (42). See Thomas v. Furness, Ltd., 9 Cir., 1948, 171 F.2d 434; Hoffman v. Lamb Knit Goods Co., D.C.W.D.Mich. S.D.1940, 37 F.Supp. 188; Berry v. Spokane, Portland & Seattle Ry. Co., D.C.D.Or.1942, 2 F.R.D. 483; Seward v. Nissen, D.C.D.Del.1942, ......