Schramm v. Oakes, 8011

• Decision Date: 18 October 1965
• Docket Number: No. 8011,8012.,8011
• Citation: 352 F.2d 143
• Parties: Raymond M. SCHRAMM and Diane Schramm, Appellants, v. Stanley OAKES, Midtown Motors, Inc., Cooper Oldsmobile, Inc., and Todkill Lincoln-Mercury, Inc., Appellees. Pete V. DOMENICI as Administrator for C. M. Schramm, Appellant, v. Stanley OAKES, Midtown Motors, Inc., Cooper Oldsmobile, Inc., and Todkill Lincoln-Mercury, Inc., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

352 F.2d 143 (1965)

Raymond M. SCHRAMM and Diane Schramm, Appellants, v. Stanley OAKES, Midtown Motors, Inc., Cooper Oldsmobile, Inc., and Todkill Lincoln-Mercury, Inc., Appellees.

Pete V. DOMENICI as Administrator for C. M. Schramm, Appellant, v. Stanley OAKES, Midtown Motors, Inc., Cooper Oldsmobile, Inc., and Todkill Lincoln-Mercury, Inc., Appellees.

Nos. 8011, 8012.

United States Court of Appeals Tenth Circuit.

September 16, 1965.

Rehearing Denied October 18, 1965.

Pete V. Domenici, Albuquerque, N. M. (Gino J. Matteucci & Richard C. Civerolo, Albuquerque, N. M., on the brief), for appellants.

Joseph B. Zucht, Albuquerque, N. M., for appellee, Todkill Lincoln-Mercury, Inc.

Russell Moore, Alburquerque, N. M. (W. A. Keleher, A. H. McLeod and Michael L. Keleher, Albuquerque, N. M., on the brief), for appellees, Stanley Oakes and Midtown Motors, Inc.

Gerald R. Cole, Albuquerque, N. M. (Botts, Botts & Mauney and Vance Mauney, Albuquerque, N. M., on the brief), for appellee, Cooper Oldsmobile, Inc.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

This factually complicated case is here for a third time. On the first occasion we refused an interlocutory appeal under 28 U.S.C.A. § 1292(b). When the case came up the second time, we were compelled to remand the same for lack of an appealable order.¹ At that time, we suggested a reconsideration of the order quashing service as to certain defendants in light of cited authorities. It is apparent that our suggestions were not followed as the appeal comes now, after a final judgment, from the order quashing service upon certain of the same original defendants. Because of the complicated facts a detailed statement of the case becomes a necessity.

In their second amended complaint,² appellants (plaintiffs below) Raymond M. and Diane Schramm, father and daughter, alleged that on or about August 31, 1958, they were driving in a car owned by Raymond M. Schramm on Highway 66 near Albuquerque, New Mexico, when an automobile driven by one of the defendants who is not an appellee here, Shukri `M' El-Khatib, a citizen of Jordan, negligently collided with the automobile in which they were riding causing personal injuries to them and property damage to the automobile.<sup>3</sup> The following parties were joined as defendants, Murdock-Salyer Chevrolet Company, Red Gilmore, and Cooper Oldsmobile, Inc., (all residents of Oklahoma), Stanley Oakes, Midtown Motors, Inc., Garth Cameron, B. A. Todkill and Todkill Lincoln-Mercury, Inc., (all residents of Nevada), on the basis that Shukri `M' El-Khatib was driving the vehicle involved in the collision as an employee, agent and chauffeur for the defendants, all of whom were owners of the automobile or had an interest therein. Appellants sought service of process on the out of state residents⁴ through service on the Secretary of State of New Mexico, pursuant to 64-24-3 and 64-24-4, New Mexico Statutes Annotated, 1953.⁵

All of the appellees here and the other defendants except Shukri `M' El-Khatib entered special appearances for the purpose of moving to quash the service of process on them on the grounds generally that Shukri `M' El-Khatib was not their respective agent, employee or servant but an independent contractor and further that none of them were owners of the automobile which he was driving. Also accompanying Red Gilmore's motion to quash was Exhibit A, which is a copy of his agreement with Shukri `M' El-Khatib concerning the transportation of the automobile which was involved in the collision.<sup>6</sup> Affidavits were filed by each of the defendants in support of the motions to quash. In addition, at appellant's request, depositions were taken of Stanley Oakes, B. A. Todkill, who was president of Todkill Lincoln-Mercury, Inc., and Shukri `M' El-Khatib.⁷ An affidavit by Stanley Oakes revealed the following. That formerly he was in the used car business in Nevada under the name of Midtown Motors, Inc., and Stan Oakes, but that prior to the date of the collision he sold his business to Bert Todkill and became employed by Todkill; that one Garth Cameron contacted Bert Todkill and requested that Todkill obtain a Chevrolet Station Wagon for Cameron to buy; that Todkill told Oakes to see if he could locate such a car for Cameron; that Oakes contacted Cooper Oldsmobile, Inc., in Yukon, Oklahoma, and was informed that it could obtain an automobile like the one sought by Oakes; that one Red Gilmore made all the necessary arrangements with Shukri `M' El-Khatib to drive the car from Norman, Oklahoma, to Las Vegas, Nevada; and that Oakes was at all times in the employ of Todkill Lincoln-Mercury, Inc., and that Midtown Motors, Inc., had nothing to do with the transaction. In his deposition he admitted that Midtown Motors, Inc., is still in existence even though most, if not all, of its assets now belong to Todkill Lincoln-Mercury, Inc., and that he now works for that company managing the lot he used to own selling cars on a salary plus commission basis; that he merely told Cooper Oldsmobile, Inc., to ship the Chevrolet Station Wagon to Las Vegas and he gave no instructions on how to deliver it but only to get it to Todkill Lincoln-Mercury, Inc., in Las Vegas. He also said he paid for the wrecked automobile with a check drawn by Todkill Lincoln-Mercury, Inc., to either him or Midtown Motors, Inc., and that he executed an installment note for the amount of the automobile thereafter to Todkill Lincoln-Mercury, Inc.

B. A. Todkill by affidavit and deposition revealed that he was president of Todkill Lincoln-Mercury, Inc., in Las Vegas; that he never owned the 1958 Chevrolet Station Wagon that Shukri `M' El-Khatib was driving; that he never had any dealings with Red Gilmore or Shukri `M' El-Khatib; that the company hired Stanley Oakes; that the company was trying to procure an automobile for one Garth Cameron and that he was present when Oakes contacted Cooper Oldsmobile, Inc., in Oklahoma, but that he doesn't remember what type of arrangements were made for payment, etc.

In behalf of Cooper Oldsmobile, Inc., in Yukon, Oklahoma, the company's secretary-treasurer deposed that the corporate records showed that Shukri `M' El-Khatib was never employed by the company; that there is no record of the company acquiring a 1958 Chevrolet Station Wagon. However, Jackie Cooper, who was president of Cooper Oldsmobile, Inc., deposed that he did receive a call from Stanley Oakes in behalf of Todkill Lincoln-Mercury, Inc., seeking a 1958 Chevrolet Station Wagon; that Cooper located such a vehicle at Murdock-Salyer Chevrolet Company in Norman, Oklahoma, and informed Oakes of this and that Oakes then ordered the automobile and directed Cooper to draw a draft for the purchase price on Todkill Lincoln-Mercury's bank in Las Vegas and to deliver the car to Todkill Lincoln-Mercury, Inc., in Las Vegas. Cooper then directed Murdock-Salyer Chevrolet Company to bill said automobile to one Garth Cameron and that it would be picked up at Murdock-Salyer's office. Cooper then telephoned Red Gilmore in Oklahoma City and directed him to deliver the automobile to Oakes in Las Vegas. A. F. Salyer for Murdock-Salyer Chevrolet stated in his affidavit that they were paid for the automobile in question by Cooper Oldsmobile, Inc., and that they released the automobile to one Red Gilmore at direction of Cooper Oldsmobile and further that they had no relationship with Shukri `M' El-Khatib.

The trial judge found after examining the pleadings, exhibits, affidavits and depositions that Murdock-Salyer Chevrolet Company, Stanley Oakes, Midtown Motors, Inc., Garth Cameron, B. A. Todkill, Todkill Lincoln-Mercury, Inc., and Cooper Oldsmobile, Inc., were nonresidents of New Mexico and served with process out of state; that Red Gilmore was an independent contractor and was not the authorized employee, agent or chauffeur of any of the defendants; that the evidence may establish Shukri `M' El-Khatib was the chauffeur, agent or employee of Red Gilmore; that Shukri `M' El-Khatib did not operate the automobile as agent, employee or chauffeur of any of the other defendants nor with their permission; and that the motions of the defendants, other than Gilmore, to quash are granted and that the motion of Gilmore to quash is overruled. At this point the interlocutory appeal was attempted which we refused to take.

With most of the defendants no longer parties to the lawsuit by virtue of the court having granted their respective motions to quash service of process, the case proceeded to trial on the merits with Red Gilmore and Shukri `M' El-Khatib as the only defendants. A jury found for the plaintiffs and awarded Raymond M. Schramm $30,000 and Diane Schramm $5,000 against the defendant Red Gilmore. A default judgment was taken against Shukri `M' El-Khatib in the amount of $30,000 for Raymond M. Schramm and $5,000 for Diane Schramm. Thereafter, the plaintiffs appealed to this court, alleging it was error for the trial court to have quashed service of process on the defendants because the affidavits and depositions relied on to sustain the motions created issues of fact which were the same issues necessary to be decided on the merits. Furthermore, plaintiffs urged that even if a factual determination was then proper, the affidavits and depositions clearly brought the defendants within the New Mexico Non Resident Motorist Statute. This court, however, on appeal sustained a motion to dismiss the appeal because no final judgment had been entered disposing of the claim of the plaintiffs against such defendants, supra, note 1.

In light of the opinion by this court that the trial court reconsider its order on the motions to quash, the plaintiffs filed a motion requesting the trial court to do so. Thereafter, the trial judge notified the parties that "I have concluded to leave matters exactly as they presently stand in the above cause." The plaintiffs then filed a motion requesting the trial...