Jones v. Nelson

• Decision Date: 31 August 1973
• Docket Number: No. 72-1891.,72-1891.
• Citation: 484 F.2d 1165
• Parties: Henry Clayton JONES and Royal Globe Insurance Company, Plaintiffs-Appellants, v. Joy E. NELSON and Robert M. Nelson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

484 F.2d 1165 (1973)

Henry Clayton JONES and Royal Globe Insurance Company, Plaintiffs-Appellants, v. Joy E. NELSON and Robert M. Nelson, Defendants-Appellees.

No. 72-1891.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted May 25, 1973.

Decided August 31, 1973.

Ben A. Goff, Oklahoma City, Okla., for plaintiffs-appellants.

Charles C. Baker, Tulsa, Okla., for defendants-appellees.

Before BREITENSTEIN, HILL and DOYLE, Circuit Judges.

HILL, Circuit Judge.

In this diversity action Henry Jones appeals the trial court's order granting summary judgment for appellees Joy and Robert Nelson. The facts indicate that Mrs. Nelson was involved in an automobile accident while traveling to New Mexico to visit her husband, who was stationed on active duty at Holloman Air Force Base. Apparently Mrs. Nelson was driving in a westerly direction when she came up behind a semi-truck driven by Jones. After passing this truck but while still in the process of returning to the righthand lane of travel, her vehicle swerved into the left front end of the truck. As a result, both vehicles were damaged and Jones suffered serious personal injuries.

Appellants contend the appellees' negligence consisted of the following: failure to keep a proper lookout; operating the vehicle at a high and excessive rate of speed; failure to exercise ordinary care; and failure to safely overtake and pass the vehicle driven by Jones. The appellees in their answer denied these allegations and raised the affirmative defenses of unavoidable accident, sudden emergency, and contributory negligence. Depositions of Jones and Nelson were then taken. Jones' testimony was that although Nelson was not speeding when she passed him, it appeared that she either experienced a blowout on one of her tires and overreacted by cramping the wheels to the right, or she had misjudged the proximity of the two vehicles while changing back into the righthand lane immediately prior to the blowout. Jones admitted that he did not know positively how Nelson reacted to the situation. Nelson's deposition stated that she was a reasonable distance in front of the truck when she began switching into the righthand lane. She testified a blowout on the left rear tire caused her car to spin into the right lane, and although she tried to keep the car headed straight she was unable to do so.

After pre-trial conference and reading through both depositions, the trial court determined there was no genuine issue as to any material fact, and on September 27, 1972, granted summary judgment for appellees. Appellants on October 6 filed a motion for a new trial, and in support of their motion offered the affidavit of an expert in accident reconstruction. The expert stated that in his opinion a blowout upon the left rear wheel would cause the automobile to rotate around this wheel in a counterclockwise direction. Thus if the car rotated clockwise as testified by Nelson and Jones, it would be the result of driver manipulation rather than any natural forces stemming from the tire blowout. Despite this affidavit, the motion was overruled on October 18, 1972. On November 17 appellants filed their notice of appeal from the trial court's denial of the motion for new trial.

At the outset there are several jurisdictional problems which must be resolved before entertaining this case on its merits. We first note that appellants filed a motion for new trial with the district court after summary judgment was granted. Technically this motion was improper as no trial was conducted from which a new trial motion could be filed. Summary judgment is not a substitute for trial. Ando v. Great Western Sugar Co., 475 F.2d 531 (10th Cir. 1973); Machinery Center, Inc. v. Anchor Nat'l Life Ins. Co., 434 F.2d 1 (10th Cir. 1970). Nor can it be equated with a trial, for the very purpose of summary judgment is to eliminate those trials in which no issues of material fact exist. 6 Moore's Federal Practice, ¶ 56.04 1 at 2057 (2d ed. 1948). If exercised properly it is a final disposition of the issues at hand, and the appellant's proper recourse is to appeal the order. 28 U.S.C. § 1291; see Waldron v. Cities Service Co., 361 F.2d 671 (2d Cir. 1966), aff'd sub nom First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Lamb v. Shasta Oil Co., 149 F.2d 729 (5th Cir. 1945). In the case at bar the summary judgment order was a complete disposition of the cause and therefore properly appealable.

Rather than appealing the summary judgment order, however, appellants appeal the denial of their motion for new trial. It is arguable that as denial of their motion for new trial is unappealable, the time for filing their notice dates from the summary judgment order. It follows that as fifty days lapsed between the summary judgment order and the notice of appeal, appellants waited too long to appeal. Our research convinces us, however, that under Rule 59(b), F.R.Civ.P., a motion for new trial is equivalent to a motion for rehearing, and thus we can view appellants' new trial motion as one for rehearing. See Claybrook Drilling Co. v. Divanco, Inc., 336 F.2d 697 (10th Cir. 1964); Slater v. Peyser, 91 U.S.App.D.C. 314, 200 F.2d 360 (1952); Safeway Stores v. Coe, 78 U.S.App.D.C. 19, 136 F.2d 771 (1943). Although a motion for rehearing normally is not appealable, the time for taking an appeal is suspended by the timely filed motion. Rule 4(a), F.R.App.P.; Director of Revenue, State of Colorado v. United States, 392 F.2d 307 (10th Cir. 1968). In the instant case the trial court entered summary judgment on September 27, 1972. Nine days later, and within the time required by Rule 59(b), F.R.Civ.P., appellants filed their motion for new trial. The time for filing their notice of appeal was then properly suspended until the lower court overruled their new trial motion on October 18, 1972. Thirty days later, but within the statutory time limit of Rule 4(a), F.R.App.P., appellants...