Sunfire Coal Co. v. UNITED MINE WORKERS OF AMER.

• Decision Date: 20 August 1964
• Docket Number: 15503.,No. 15502,15502
• Citation: 335 F.2d 958
• Parties: SUNFIRE COAL COMPANY and Ashlo Coal Company, Plaintiffs-Appellees, v. UNITED MINE WORKERS OF AMERICA, Defendant-Appellant. R. P. PRICE, C. H. Kelly and Follace Fields, Partners, d/b/a Elkhorn Coal Company, Plaintiffs-Appellees, v. UNITED MINE WORKERS OF AMERICA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

335 F.2d 958 (1964)

SUNFIRE COAL COMPANY and Ashlo Coal Company, Plaintiffs-Appellees, v. UNITED MINE WORKERS OF AMERICA, Defendant-Appellant.

R. P. PRICE, C. H. Kelly and Follace Fields, Partners, d/b/a Elkhorn Coal Company, Plaintiffs-Appellees, v. UNITED MINE WORKERS OF AMERICA, Defendant-Appellant.

Nos. 15502, 15503.

United States Court of Appeals Sixth Circuit.

August 20, 1964.

M. E. Boiarsky, Charleston, W. Va., and Harrison Combs, Washington, D. C., for appellant.

James S. Greene, Jr., Harlan, Ky., (Logan E. Patterson, Pineville, Ky., on the brief), for appellees.

Before WEICK, Chief Judge, and O'SULLIVAN and EDWARDS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

The above appeals, Nos. 15,502 and 15,503, involve identical questions, viz.: the propriety of the denial of motions for new trials, both made on the ground of newly discovered evidence. We will dispose of them in one opinion. On June 7, 1961, a final judgment, following a jury verdict, was entered in the United States District Court for the Eastern District of Kentucky in favor of Sunfire Coal Company and Ashlo Coal Company, and against appellant, United Mine Workers of America, in the total sum of $264,000.00. Such judgment was affirmed by this Court on February 16, 1963. Sunfire Coal Company v. United Mine Workers, 313 F.2d 108 (CA 6, 1963). On October 10, 1961, a final judgment, following a jury verdict, was entered in the same District Court in favor of R. P. Price, C. H. Kelly and Follace Fields, partners, d/b/a Elkhorn Coal Company, and against the appellant, United Mine Workers of America, in the total sum of $250,000.00. An appeal from the latter judgment is pending in this court.¹

Each of the aforesaid judgments included awards for compensatory and punitive damages. The actions arose out of alleged depredations committed by members of the defendant United Mine Workers upon the properties and business of the respective plaintiffs during the Mine Workers' massive campaign to obtain contracts from various coal operators in southeastern Kentucky and northeastern Tennessee. This activity occurred during 1959. The recitations of the facts in our decisions of Gilchrist v. United Mine Workers of America, 290 F.2d 36 (CA 6, 1960); Flame Coal Company v. United Mine Workers of America, 303 F.2d 39 (CA 6, 1962); United Mine Workers of America v. Osborne Mining Co., 279 F.2d 716 (CA 6, 1960); and Sunfire Coal Company v. United Mine Workers of America, 313 F.2d 108 (CA 6, 1963), provide a fair description of the character and extent of the activity, violence and destruction that was claimed to characterize the organization methods of the United Mine Workers.

In the Price and Sunfire cases, now before us on appeal from denial of the motions for new trial, evidence was admitted of shootings, burning, dynamiting and other violence without specifically identifying the perpetrators as being members of the United Mine Workers. Violence at the premises of operators other than the plaintiffs in the particular cases was also admitted as evidence of the grand scale of the entire operation. This was true also in the other cases which have been before us and the reasons for holding such evidence admissible are set forth in the cases as reported.

On April 22, 1963, in the Price case and on May 16, 1963, in the Sunfire case, defendant United Mine Workers filed motions each entitled, "Motion to Vacate Final Judgment and Order and Award Defendant United Mine Workers of America a New Trial Because of Newly Discovered Evidence." (Emphasis supplied.) In Price, the motion was filed about five months after the expiration of one year from the entry of final judgment and in Sunfire, about one year and eleven months after final judgment.

These motions were heard together before District Judges H. Church Ford and Mac Swinford, the trial judges in the respective cases. The motions were denied and in a joint memorandum the judges gave as the reason for such denial the provision of Rule 60(b) (2), F.R.Civ.P., which requires that motions for new trial on the ground of newly discovered evidence must be filed "not more than one year after the judgment." (Emphasis supplied.)

Defendant asserts that the newly discovered evidence would consist of testimony that certain of the acts of violence, arson and destruction were actually committed by persons in no way connected with the United Mine Workers; that they were committed by police officers, mine operators and others. In support of these motions defendant attached an affidavit of an attorney, H. B. Noble,² who deposed that on August 10, 1962, one Ira Kilburn, a member of the police force of Hazard, Kentucky, told Noble that he had information as to the identity of persons who had committed numerous crimes connected with the violence at the Kentucky mines. Kilburn's information was composed into an affidavit, sworn to before attorney Noble. Except for confession of his own participation in some of the events, all of which were criminal activities, it is not clear whether Ira Kilburn had any personal knowledge of the events which he detailed in his affidavit.³ Noble's affidavit stated that Ira Kilburn's information was given to him, "on a professional basis, as attorney and client," and was to be kept secret by him because Kilburn had said that his life had been threatened and that he, Kilburn, "wanted the affidavit made in the event that anything should happen to him that the affidavit could be presented to the grand jury for its consideration."

The motions for new trial alleged that Kilburn's affidavit was kept secret until on or about March 22, 1963, when it came to light at a hearing of Hazard city officials while investigating charges filed against the deponent Ira Kilburn as a member of the Hazard City Police Force. The record does not disclose how the affidavit went from its confidential and professional custody in the hands of attorney Noble to the Board of Commissioners of the City of Hazard. A further affidavit in support of the motion for new trial set forth that none of the people identified in the Kilburn affidavit were agents, officers or members of the United Mine Workers, but that "Paul Tayloe and Dick Johnson were engaged in the mining business; that R. D. Cisco, George Smith and Tommy Kilburn were members of the Hazard police force during the year of 1959; that C. C. Begley was a member of the Louisville and Nashville Railroad Company's police force and that Ira Kilburn was a member of the Hazard police force during the year of 1959."

It should be observed that Ira Kilburn did not make his affidavit for use as support for defendant's motions, nor is it claimed that he would or could give testimony at a new trial of the "information" contained in his affidavit. The defendant's position is that if given a new trial, "United Mine Workers intends to subpoena the said Ira Kilburn as a witness in a new trial for the purpose of examining him concerning the statements contained in the said `Kilburn affidavit.'"

It should be further noted that there is no claim made that any of the plaintiffs in Sunfire and Price, or any of their agents, or employees, knew of or in any way participated in bringing about the spectacular behavior which Kilburn described. The only occurrence referred to in Kilburn's affidavit which became part of the testimony in either Sunfire or Price related to the burning of the coal tipple of Marian Ritchie. The latter testified that his tipples at Sassafras, Viper and Ulvah, Kentucky, were burned in July and August, 1959. He was unable to directly identify the arsonists. No fraud upon the court by the plaintiffs is charged or intimated. Notwithstanding the voluminous evidence of the 1959 reign of terror in the Kentucky coal fields, and defendant's awareness that it was charged with responsibility therefor, the motions for new trial are silent as to any efforts made or diligence employed before, during or after the trials to find evidence, if any there was, that others than those connected with defendant were the perpetrators of the violence visited upon the mine owners. Kilburn's secret was kept by one of the defendant's attorneys, who averred that he was commanded to do so by Kentucky's Revised Statutes, § 421.210(4).⁴ Not until the fortuitous disclosures of the investigation into the affairs of the Hazard Police Department did defendant claim that evidence was available that others than their own people were responsible for what happened in 1959.

Relying on Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, defendant asserts that its motion for new trial should not be viewed as subject to the limitations of Rule 60(b) (2) which requires that motions for new trial on the ground of newly discovered evidence be presented within one year after judgment, but rather as coming within subdivision (b) (6) of that rule. That subsection relates to motions bottomed upon "any other reason justifying relief from the operation of the judgment." The latter ground is not subject to the limitation applicable to motions made under Rule 60(b) (2) — "newly discovered evidence" — nor to any specific period of limitation.

We do not read Klapprott as supporting defendant's position here. Klapprott there sought to vacate a default judgment cancelling his certificate of naturalization. He was given notice of the petition seeking such judgment, but within the time for his answer he was arrested and convicted of crime and was thereafter held in jail for several years. His motion to vacate the default judgment set forth facts which, if true, would prove that his efforts to defend the denaturalization proceedings were wrongfully thwarted by agents of the United States government. The majority opinion found first that the denaturalization judgment was void for failure of the government to prove the allegations of its petition therefor, and second, that the cause of Klapprott's failure to defend...