Union Transfer Company v. Riss & Company

• Decision Date: 17 January 1955
• Docket Number: No. 15145.,15145.
• Citation: 218 F.2d 553
• Parties: UNION TRANSFER COMPANY, a corporation, Trailmobile, Inc., a corporation, and Employers Mutual Casualty Company, a corporation, Appellants, v. RISS & COMPANY, Inc., a corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

218 F.2d 553 (1955)

UNION TRANSFER COMPANY, a corporation, Trailmobile, Inc., a corporation, and Employers Mutual Casualty Company, a corporation, Appellants, v. RISS & COMPANY, Inc., a corporation, Appellee.

No. 15145.

United States Court of Appeals, Eighth Circuit.

January 17, 1955.

William H. Sanders, Kansas City, Mo. (Stanley Garrity, Scott R. Timmons and Caldwell, Downing, Garrity & Eastin, Kansas City, Mo., on the brief), for appellants.

Don M. Jackson, Kansas City, Mo. (John H. Kreamer and Gage, Hillix, Moore, Park & Jackson, Kansas City, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a summary judgment for the defendant (appellee) in an action brought to recover the value of a trailer in which each of the plaintiffs had an interest and which was stolen from the defendant's parking lot in Louisville, Kentucky, on or about June 18, 1951. The substance of the plaintiffs' claim is that the defendant was, at the time of the loss, a bailee of the trailer for the mutual benefit of the parties, and that the loss was due to the defendant's negligence. The defendant denied liability. Federal jurisdiction is based on diversity of citizenship and amount in controversy.

The motion of the defendant for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., was submitted upon the pleadings, depositions and admissions on file. The District Court, in its order granting the defendant's motion, said:

"Plaintiffs premise their right of recovery herein on the existence of a mutual bailment, or one for hire. There is no evidence in this record to sustain that character of bailment, even if plaintiffs are given the benefit of all reasonable inferences that may be made from the facts established in evidence. Absent substantial evidence as to the existence of that matter, the plaintiffs are not entitled to have that issue submitted to a jury.

"The evidence is totally void of any fact that Riss & Company had any control over the trailer, after Grantski driver of the tractor-trailer parked it on Riss & Company\'s parking lot, with permission of Riss\' dispatcher. Plaintiffs\' assumption of that important fact, or reliance in proof thereof on selfserving statements made by Grantski, is not substantial evidence of the existence of control in Riss.

"Where a person merely agrees to permit another to park his vehicle on the former\'s lot, and the lot-owner does not assume control over the vehicle, he is only responsible as a gratuitous bailee, i. e. for gross negligence. Plaintiffs do not contend before the Court that Riss & Company is chargeable with, or guilty of, gross negligence in the premises.

"Therefore, plaintiffs have no right of action against Riss & Company, and defendant\'s motion for summary judgment should be sustained; the same as we would direct a verdict against the plaintiffs upon failure to prove gross negligence on the part of Riss & Company. The Clerk is ordered to enter judgment herein dismissing plaintiffs\' complaint, with prejudice."

The plaintiffs had requested a jury trial. They assert that the evidence before the court did not "show that that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law", within the meaning of Rule 56(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. That rule places the burden of demonstrating the nonexistence of any genuine fact issue upon the moving party and requires that all doubts be resolved against him. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318, 322. A surmise, no matter how reasonable, that a party "is unlikely to prevail upon a trial, is not a sufficient basis for refusing him his day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them." Sprague v. Vogt, 8 Cir., 150 F.2d 795, 801; Landy v. Silverman, 1 Cir., 189 F.2d 80, 82. See, also, Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627-629, 64 S.Ct. 724, 88 L.Ed. 967.

In the instant case the issues made by the pleadings were (1) whether the defendant was a bailee of the trailer for the mutual benefit of the parties; and (2), if so, whether the loss of the trailer was due to the defendant's failure to use ordinary care while the trailer was in its control. The plaintiffs, to show that these issues were genuine issues of fact, rely mainly upon the deposition of Donald L. Grantski, the employee of the plaintiff Union Transfer Company — doing business as Union Freightways — who, with a tractor, hauled the trailer to Louisville and parked it on the defendant's lot. It is conceded that,...