McCollar v. Euler
| Decision Date | 15 December 1960 |
| Docket Number | No. 6427-6433.,6427-6433. |
| Citation | 286 F.2d 327 |
| Parties | Robert L. McCOLLAR, Administrator of the Estate of Harry E. McCollar, a/k/a Harry Edward McCollar, Appellant, v. William C. EULER and Elco Metal Products Corporation, a corporation, Appellees. Jack WALLER, Jr., a minor, by his guardian Robert Lewis McCollar, Appellant, v. William C. EULER and Elco Metal Products Corporation, a corporation, Appellees. Nancy Lee WALLER, a minor, by her guardian Robert Lewis McCollar, Appellant, v. William C. EULER and Elco Metal Products Corporation, a corporation, Appellees. Pamela Lou WALLER, a minor, by her guardian, Robert Lewis McCollar, Appellant, v. William C. EULER and Elco Metal Products Corporation, a corporation, Appellees. Robert L. McCOLLAR, Administrator of the Estate of Jack Waller, deceased, Appellant, v. William C. EULER and Elco Metal Products Corporation, a corporation, Appellees. Robert L. McCOLLAR, Administrator of the Estate of Peggy Lou Waller, deceased, Appellant, v. William C. EULER and Elco Metal Products Corporation, a corporation, Appellees. Robert L. McCOLLAR, Administrator of the Estate of Carol Ann Waller, deceased, Appellant, v. William C. EULER and Elco Metal Products Corporation, a corporation, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John R. Wall, Pueblo, Colo. (Daniel W. Caldwell, Springer, N. M., was with him on brief), for appellants.
George T. Harris of Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N. M. (McKenna & Sommer, Santa Fe, N. M., were with him on brief), for appellee.
Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and RICE, District Judge.
These consolidated appeals are from separate summary judgments in diversity suits arising out of an automobile accident in New Mexico. Each of the negligence suits is against the defendant William Euler and his employer, Elco Metal Products Corporation, as appellees. For purposes of these appeals, only one representative complaint is produced for the record. It alleges in substance that the plaintiff-appellants'-decedent was fatally injured when his automobile collided with one negligently operated by defendant Euler; that at the time of the accident, Euler was an employee and part owner of defendant-appellee Elco and acting in the scope of his employment. The critical issue presented was and is whether at the time of the accident, the defendant Euler was on the business of his employer.
The trial court's separate summary judgments in favor of defendant Elco, are based upon a finding that no genuine issue of any material fact survived the submitted pleadings, depositions and affidavits; and that the defendant Elco is therefore entitled to a judgment as a matter of law.
We know of course that a summary judgment is inappropriate and unauthorized unless it can be fairly and confidently said that no genuine issue of fact survives the pretrial proceedings. See Lopez v. Denver & Rio Grande Western R. R. Co., 10 Cir., 277 F.2d 830; Fowler v. City of Winfield, 10 Cir., 286 F.2d 385. On consideration of the motion for summary judgment, however, the court may pierce the formal pleadings to determine whether the depositions and affidavits, or other relevant documents, submitted as evidence, raise any triable factual issue. Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568; Schreffler v. Bowles, 10 Cir., 153 F.2d 1.
Euler's deposition established the fact that he was an employee and part owner of Elco; that he lived in Santa Fe, New Mexico; that Elco had its offices and principal place of business in Raton, New Mexico; that he frequently drove his personally owned automobile to his work in Raton...
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...this court. E. g., Atkinson v. Jory, 10 Cir., 292 F.2d 169; United States v. Kansas Gas & Elec. Co., 10 Cir., 287 F.2d 601; McCollar v. Euler, 10 Cir., 286 F.2d 327; Champlin v. Oklahoma Furniture Mfg. Co., 10 Cir., 269 F.2d 918, 74 A.L.R.2d 978; Alaniz v. United States, 10 Cir., 257 F.2d 1......
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...circumstances evidencing control by the employer at the time of the negligent act or omission of the employee. See McCollar v. Euler, 286 F.2d 327, (10th Cir.1960); Annot. 52 A.L.R.2d 287 (1957), and cases collected therein. Compare Jaramillo v. T. F. Thomas, 75 N.M. 612, 409 P.2d 131. The ......
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Singer v. Rehm, 7459.
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