Vale v. Bonnett, 10790.

• Decision Date: 07 June 1951
• Docket Number: No. 10790.,10790.
• Citation: 89 US App. DC 116,191 F.2d 334
• Parties: VALE v. BONNETT.
• Court: U.S. Court of Appeals — District of Columbia Circuit

89 US App. DC 116, 191 F.2d 334 (1951)

VALE v. BONNETT.

No. 10790.

United States Court of Appeals District of Columbia.

Argued December 14, 1950.

Decided June 7, 1951.

Abraham Chaifetz, Washington, D. C., for appellant.

Richard W. Galiher, Washington, D. C., with whom Julian H. Reis, Washington, D. C., was on the brief, for appellee.

Before FAHY and WASHINGTON, Circuit Judges, and KIMBROUGH STONE, Circuit Judge, retired (sitting by designation).

STONE, Circuit Judge.

Clarence Vale brought this suit for negligent injury against Edward Somerville, Howard G. Bonnett, and Mary Borisow. Summary judgment was entered in favor of Borisow, who is not a party to the present appeal. Default was noted against Somerville and referred for inquisition as to damages. Subsequent to the above proceedings, a summary judgment was entered in favor of Bonnett. From that judgment, plaintiff brings this appeal.

During argument, the presiding Judge suggested that amended Rule 54(b), Fed.R.Civ.P., 28 U.S.C.A., had not been followed in the entry of this judgment, in that there had been no "express determination that there is no just reason for delay" and no "express direction for the entry of judgment." Appellant was given time for supplemental brief as to this matter. To this brief is attached copy of an "Order Correcting And Amending Order For Summary Judgment Nunc Pro Tunc," entered after argument here. Upon this order, counsel for both parties had endorsed their consent. The issue thus presented is whether this nunc pro tunc order has so cured the defects in the order as appealed from that we now may consider the appeal upon the merits.

This issue is determined in favor of retaining this appeal following the action taken in Remington Rand Inc. v. Societe Internationale Pour Participations Industrielles et Commerciales S. A. etc., 88 U.S.App.D.C. 275, 188 F.2d 1011. Prior to the Remington Rand decision, this court had recently considered Rule 54(b) as applied to situations somewhat differing from that presented here.¹ The Remington Rand opinion does not mention this issue but the situation there was the same as here in essentials. In that case, Rule 54(b) had not been complied with at the time of appeal but, after the appeal had been docketed here, a nunc pro tunc order (similar to the one here) had been procured and there was consent thereto by all parties. This court, in considering that appeal on the merits, obviously held that Rule 54(b) had been sufficiently complied with.

In the present case the order sustaining the motion for summary judgment stated that "the complaint be, and is hereby finally dismissed" (italics supplied). This, with expressions in an opinion filed by the trial court, is sufficient basis for a nunc pro tunc order as to the matters contained in this amendatory order. While we do not consider the securing of such an order good practice, at least in the relatively early stage of the general enforcement of Rule 54(b) we shall hear the appeal rather than remand and require the parties to start anew.

The issue on the merits is whether any unresolved genuine material issue of fact was present in this record when the summary judgment was entered. For determination of this issue, resort must be made to the pertinent pleadings, the pre-trial proceedings and two affidavits filed in support of the motion for summary judgment, having in mind the legal requirements applicable to such an issue.

The pertinent legal requirements are well stated by Judge Fahy in Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766. After an extensive review of decisions of the Supreme Court, of this court, and of some other circuits, Judge Fahy stated them as follows: "Our study of the question makes the following points clear: (1) Factual issues are not to be tried or resolved by summary judgment procedure; only the existence of a genuine and material factual issue is to be determined. Once it is determined that there is such an issue summary judgment may not be granted; (2) In making this determination doubts (of course the doubts are not fanciful) are to be resolved against the granting of summary judgment; (3) There may be no genuine issue even though there is a formal issue. Neither a purely formal denial nor, in every case, general allegations, defeat summary judgment. On this point the cases decided by this court must rest on their own facts rather than upon a rigid rule that an assertion and a denial always preclude the granting of summary judgment. Those cases stand for the proposition that formalism is not a substitute for the necessity of a real or genuine issue. Whether the situation falls into the category of formalism or genuineness cannot be decided in the abstract; (4) If conflict appears as to a material fact the summary procedure does not apply unless the evidence on one or the other hand is too incredible to be accepted by reasonable minds or is without legal probative force even if true; (5) To support summary judgment the situation must justify a directed verdict insofar as the facts are concerned." 86 U.S.App.D.C. at page 143, 180 F.2d at page 772.

In the light of these requirements, we turn (a) to the pleadings and the pre-trial record for the issues in the case; and (b) to those and the affidavits for the state of facts.

(a) The petition alleges injury to plaintiff by being struck by a falling extension ladder while he was walking on a public sidewalk in Washington City; that the ladder (owned by Somerville) had been placed against the building (occupied by Bonnett as lessee) by Somerville at the request of Bonnett for the purpose of repairing a store sign belonging to Bonnett; that the ladder was under the "exclusive care, custody and control of the defendants" (Somerville, Bonnett and Borisow); that the "ladder had been placed against the building in a negligent manner, and had been left unattended; that the falling of said ladder as aforesaid was due to the negligence of the defendants."

Bonnett answered denying sufficiency of the petition and, alleging lack of knowledge as to the "circumstances surrounding plaintiff's injuries," denied the complaint as applied to him. In a cross-claim against Somerville, he alleged that Somerville was performing the work under a contract with him whereby Somerville used his own equipment and employees over which and whom Bonnett had no control.

The pre-trial record — stating the "Nature of Case" — sets forth the above negligence allegations and that "plaintiff also relies on res ipsa loquitur." Also, "As against defendant, Bonnett, it is claimed that as tenant who employed the defendant, Somerville, to repair the sign, there was a duty to see that work was safely done or that protection was afforded against accident and not to permit any unsafe condition on the public sidewalk." Defendant, Bonnett, claims an oral contract with Somerville, as an independent contractor, to paint a neon display sign on the building and that no supervision of the work by Bonnett was intended or required. Also, Bonnett denied negligence and application of res ipsa loquitur.

(b) Two affidavits were filed in support of the "Motion for Summary Judgment, or for Judgment on the Pleadings." One, by Bonnett, stated he had made a contract with Somerville (three or four days before this accident) to paint a neon display sign located in the front, outside of this shop. That this contract provided that Somerville was "to furnish his own equipment, materials and employees." That "affiant consequently had no control, or right of supervision over the said Somerville or his employees." That affiant was out of the city the day of the accident. On information and belief, that an employee of Somerville placed a ladder belonging to Somerville "outside of affiant's premises, to be used in performing said painting contract," which ladder fell and struck plaintiff.

The other affidavit, by Esther Bonnett, stated she was in the shop on the date of the accident and that a ladder belonging to and being used by an employee of Somerville to paint a sign on the front of the shop fell to the pavement and struck plaintiff.

These pleadings and pre-trial statements present three issues: (1) application of res ipsa loquitur,² (2) negligence of Somerville, and (3) liability of Bonnett for negligence of Somerville.

(2) As to the issue of the negligence of Somerville. That is denied by Bonnett. The issue is open as to him. The default judgment against Somerville, obtained with no consent by Bonnett, does not foreclose the right of Bonnett to challenge that issue since the liability charged against him is founded upon that negligence. He is entitled to his day in court thereon. Both as to Bonnett and plaintiff, this is a vital issue of fact. The material facts as to such issue are entirely absent from this record. Therefore, the case must for this reason be reversed (as not properly situated for summary judgment) unless Bonnett is not liable for the negligence of Somerville.

(3) Liability of Bonnett for negligence of Somerville. This issue involves two sub-issues: the existence of an independent contract relationship between Bonnett and Somerville; and, even if Somerville was an independent contractor, the liability of Bonnett for the acts of Somerville because of the character of the work to be done by Somerville and the place where it was being done.

The existence of an independent contract is denied and the allegations in the answer are brief and consist largely of conclusions. Standing alone the pleadings would raise the issue (Garrett Biblical Institute v. American University, 82 U.S.App. D.C. 263, 265, 267, 163 F.2d 265, 267) but are not very helpful as statements of fact in connection with ruling on the motion for a summary judgment. The cross-claim and the affidavit by Bonnett are more factual. The substance of these is that three or four days before this occurrence, Bonnett contracted orally with...