Kraus v. Board of County Road Commissioners

• Citation: 364 F.2d 919
• Decision Date: 19 August 1966
• Docket Number: Misc. No. 317.
• Parties: Joyce M. KRAUS, Special Administratrix of the Estate of Kenneth Kraus, Deceased, Plaintiff, v. BOARD OF COUNTY ROAD COMMISSIONERS FOR the COUNTY OF KENT and Board of County Road Commissioners for the County of Newaygo, jointly and severally, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

364 F.2d 919 (1966)

Joyce M. KRAUS, Special Administratrix of the Estate of Kenneth Kraus, Deceased, Plaintiff, v. BOARD OF COUNTY ROAD COMMISSIONERS FOR the COUNTY OF KENT and Board of County Road Commissioners for the County of Newaygo, jointly and severally, Defendants.

Misc. No. 317.

United States Court of Appeals Sixth Circuit.

August 19, 1966.

William J. Addison, Cholette, Perkins & Buchanan, Grand Rapids, Mich., Sam F. Massie, Jr., Allaben, Massie, Vander Weyden & Timmer, Grand Rapids, Mich., for applicants.

Richard M. Van Orden, Bergstrom, Slykhouse, Shaw, Van Orden, De Young & Boyles, Grand Rapids, Mich., for respondent.

Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.

PHILLIPS, Circuit Judge.

These consolidated cases are before the court on the application of defendants for leave to take an interlocutory appeal under 28 U.S.C. § 1292(b),¹ from an order of the district court denying their renewed motion for summary judgment.

Following an automobile accident which occurred August 27, 1960, actions for wrongful death were brought against the Board of County Road Commissioners of Kent and Newaygo Counties, Michigan, jointly and severally, upon the theory that either one or both of the County Boards failed to keep the roads where the accident occurred in reasonable repair and in condition reasonably safe and fit for public travel. A number of defenses were asserted in the answers of defendants, including the failure of plaintiffs to give written notice of claim within sixty days of the date of the accident as provided by M.S.A. § 9.121, Comp.Laws Supp.1961, § 224.21. Upon the basis of this defense, defendants filed a motion for summary judgment, which was overruled by the district judge December 30, 1964. In his published opinion, the district judge ruled that the Michigan statute requiring notice within sixty days of injuries caused by defective roads does not apply to an action for wrongful death. 236 F.Supp. 677.

Jury trial was commenced in May 1966. The district court granted a motion for mistrial because of interjection on voir dire examination of the fact of insurance coverage in the background of one of the defendants.

On June 30, 1966, the district court overruled renewed motions for summary judgment, and inserted in its order a certification as provided by 28 U.S.C. § 1292(b) (footnote 1) to the effect that the case involves a controlling question of law as to which there are substantial grounds for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation.

Section 1292(b) was enacted in 1958, following a study by a committee of the Judicial Conference of the United States, and was endorsed by the Judicial Conference. The purpose of this legislation was explained in the report of the committee, of which the late Judge Shackelford Miller, Jr., of this court was a member, as follows:

"We have given consideration to the action taken by the circuit conferences and have reached the conclusion that provision should be made for the allowance of appeals from the interlocutory orders in those exceptional cases where it is desirable that this be done to avoid unnecessary delay and expense and that the danger of opening the door to groundless appeals and piecemeal litigation can be avoided by proper limitations to be included in the amendatory statute. * * *

"Your Committee is of the view that the appeal from interlocutory orders thus provided should and will be used only in exceptional cases where a decision of the appeal may avoid protracted and expensive litigation, as in antitrust and similar protracted cases, where a question which would be dispositive of the litigation is raised and there is serious doubt as to how it should be decided, as in the recent case of Austrian v. Williams (2 Cir. 198 F.2d 697). It is not thought that district judges would grant the certificate in ordinary litigation which could otherwise be promptly disposed of or that mere question as to the correctness of the ruling would prompt the granting of the certificate. The right of appeal given by the amendatory statute is limited both by the requirement of the certificate of the trial judge, who is familiar with the litigation and will not be disposed to countenance dilatory tactics, and by the resting of final discretion in the matter in the court of appeals, which will not permit its docket to be crowded with piecemeal or minor litigation."

The report of the Senate Judiciary Committee contains the following language:

"However, while it may be desirable to permit appeals from any interlocutory order in certain instances, the

...