Kurdziel v. Pittsburgh Tube Company
Decision Date | 25 September 1969 |
Docket Number | No. 19346.,19346. |
Citation | 416 F.2d 882 |
Parties | Helen T. KURDZIEL, Executrix of the Estate of Franklin C. Rosebrock, Deceased, Plaintiff, v. PITTSBURGH TUBE COMPANY, Third-Party Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Third-Party Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Frank E. Kane, Toledo, Ohio (Eastman, Stichter, Smith & Bergman, Toledo, Ohio, on the brief), for appellant.
Beatrice K. Bleicher, Toledo, Ohio (Fred A. Smith, Toledo, Ohio, on the brief), for appellee; Cobourn, Smith, Rohrbacher & Gibson, Toledo, Ohio, of counsel.
Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.
Third-party defendant-appellant Travelers Insurance Company appeals from a judgment entered in the United States District Court for the Northern District of Ohio, Western Division in favor of third-party plaintiff-appellee Pittsburgh Tube Company. Judgment was entered for "all costs and expenses incurred by Pittsburgh in defending a claim of Helen T. Kurdziel, Executrix." The principal suit was dismissed. Kurdziel v. Pittsburgh Tube Co., 416 F.2d 881 (6th Cir. 1969) (decided Sept. 25, 1969). The facts in the principal case are fully stated in the opinion for the court cited above and will not be repeated here.
It is, however, essential for purposes of this appeal to detail the posture of the parties. Plaintiff Kurdziel in the original case was the wife of one Rosebrock, who was an employee of the Clevite Corporation in Napoleon, Ohio. He was killed when a bundle of pipe, which was being unloaded in his employer's dock by a fellow employee, fell from a truck owned by Glenn Cartage Company. This pipe had been loaded on this truck by employees of Pittsburgh Tube Company at its plant in Monaca, Pennsylvania. The Clevite Corporation had contracted for the Glenn Cartage Company trucking service. Kurdziel's suit alleged that negligence of Pittsburgh Tube's employees in the loading of the truck was the proximate cause of Rosebrock's death.
Travelers Insurance Company carried a general liability policy insuring the vehicles of Glenn Cartage Company. One of the provisions of the policy insured others than the named insured while they were "using" the truck "(including loading and unloading)."1 It was Pittsburgh Tube's contention, advanced in its third-party action against Travelers Insurance Company, that this provision made Travelers liable for Pittsburgh Tube's damages and/or its costs of defense. In the original case the District Judge, trying the case without a jury, dismissed the action against Pittsburgh Tube on the merits, and as noted, this court has affirmed that judgment. On Pittsburgh's suit against Travelers, the District Judge entered judgment for Pittsburgh's costs and expenses and Travelers' Appeals.
Two issues concern us on this appeal. First, Pittsburgh moves to dismiss the appeal on the ground that Travelers did not file its notice of appeal within the 30 day limit set by Rule 73(a) of the Federal Rules of Civil Procedure2 and, hence, this court has not acquired appellate jurisdiction of the appeal. As to this, it is clear that the District Court's judgment was entered on November 27, 1968, that plaintiff-appellant Kurdziel filed notice of appeal on December 16, 1968, and that Travelers Insurance Company filed notice of appeal on December 30, 1968, the latter date being 33 days after the entry of judgment.
Undoubtedly, before the 1966 amendment to the rule involved, we would be required to grant Pittsburgh's motion to dismiss, but in 1966 the rule was amended to provide as follows:
"(3) if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise herein prescribed, whichever period last expires; * * *" Fed.R.Civ.P. 73(a).
The committee which recommended adoption of this amendment did so saying as follows:
9 Moore, Federal Practice ¶ 73.0122, at 3127 (2d ed. 1968).
Concerning the above-quoted 1966 amendment, Moore's Federal Practice says as follows:
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