McPherson v. Amalgamated Sugar Company, 16409.

• Decision Date: 26 October 1959
• Docket Number: No. 16409.,16409.
• Citation: 271 F.2d 809
• Parties: Myron E. McPHERSON, Appellant, v. AMALGAMATED SUGAR COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

271 F.2d 809 (1959)

Myron E. McPHERSON, Appellant, v. AMALGAMATED SUGAR COMPANY, a corporation, Appellee.

No. 16409.

United States Court of Appeals Ninth Circuit.

October 26, 1959.

Bruce Bowler, Boise, Idaho, for appellant.

Clemons, Skiles & Green, C. Stanley Skiles, Boise, Idaho, for appellee.

Before CHAMBERS, STEPHENS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

This appeal involves an action in tort, appellant alleging that the loss of his arm was proximately caused by appellee's negligence and that appellant thereby suffered damages of $338,000.

Prior to answering, appellee under Rule 12(b) (6) of the Federal Rules of Civil Procedure, 28 U.S.C.A., moved to dismiss the complaint for failure to state a claim upon which relief could be granted. Appended to this motion were various exhibits and an affidavit by appellee's attorney. From these exhibits and the affidavit it appears that appellant in 1957 had filed suit against Union Pacific Railroad Company for the amount of $375,000, claiming that the latter was responsible under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the same injury complained of here. The Railroad defended on grounds, among others, that the injury was caused by the negligence of the Amalgamated Sugar Company, appellee in the present action, and that such negligence could not be attributed to the Railroad. In instructing the jury, however, the trial judge noted that the Railroad was responsible under the Federal Employers' Liability Act if it knew of or acquiesced in the activities of Amalgamated's employees even though it was their negligence and not the Railroad's which caused the accident. The jury returned a verdict for appellant, assessing damages at $35,600. Judgment was duly recorded providing that appellant was to recover from the Railroad the above sum plus costs and 6% interest from the 14th day of September, 1957. On March 20, 1958, appellant signed a satisfaction of judgment in his case against the Union Pacific. This document noted that the Railroad had paid appellant $36,460.50, of which $313.80 were costs and $546.70 was interest.

Appellant's present action against Amalgamated was initiated on August 13, 1958.

Since in its motion to dismiss for failure to state a claim appellee utilized affidavits and documents outside of the complaint, the court below, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, treated the motion as one for summary judgment. The court found that the satisfaction of the judgment against Union Pacific was a full satisfaction against one of two joint tort-feasors, and that the satisfaction thus precluded the appellant from seeking further relief against the other tort-feasor. Accordingly, summary judgment for appellee was granted.

The appellant urges two points: First, he claims that the satisfaction of judgment in his suit against Union Pacific was only a partial satisfaction, and that a plaintiff who only partially satisfies a judgment against one joint tort-feasor is not barred from bringing suit against the other. Secondly, he claims that the court below committed reversible error by failing to treat appellee's motion as one for summary judgment, but considered it rather as a motion to dismiss for failure to state a claim upon which relief could be granted.

Taking appellant's second point first, he places great reliance upon the decision of this court in Mantin v. Broadcast Music, Inc., 9 Cir.1957, 248 F.2d 530. The district court in that case had granted a defendant's motion to dismiss for failure to state a claim. In dismissing, the court specifically noted that it had acted under Rule 12(b) (6) of the Federal Rules of Civil Procedure. There, as here, the defendant had introduced material not contained in the complaint, and on appeal this court held that where such extraneous matter was utilized by a defendant on a motion to dismiss for failure to state a claim upon which relief could be granted, Rule 12(b) required that the motion be treated as one for summary judgment. Since, in the Mantin case, the court...