Lewis C. Dougall v. Spokane, Portland and Seattle Railway Company, a Corporation

This is an appeal from an order of the United States District Court for Oregon denying appellant’s motion, under Rule 60 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for correction and relief from a judgment which was entered July 11, 1952.

This judgment dismissed appellant’s action under the Federal Employers’ Liability Act to recover from appellee damages on account of personal injuries sustained by appellant in January of 1946. The judgment was affirmed on appeal to this court (9 Cir., 207 F.2d 843 , Case No. 13,492), and certiorari was denied ( 347 U.S. 904 , 74 S.Ct. 429 , 98 L.Ed. 1063 ). Judgment on this court’s mandate was *602 entered below February 23, 1954. The motion under Rule 60, Federal Rules of Civil Procedure, was filed November 21, 1956, and the order presently appealed from was entered in January 1957.

As stated in our opinion on the original appeal, a pre-trial order, approved by counsel for both parties, was entered. By stipulation, the order was to supersede all pleadings. The final pre-trial order set out the issues as follows:

It is clear that the action to be tried was framed entirely under the Federal Employers’ Liability Act. The trial…

I dissent. I think the part of the pretrial Order designated under heading I. B., although poorly drawn, 1 did raise the question whether there was liability under the Safety Appliance Act. If there was any ambiguity about it, the Judge understood it to mean what I have in *603 dicated, for his findings recite, in the second introductory paragraph, that “the issues of plaintiff’s right to maintain this action under the provisions of the Federal Employers’ Liability Act was segregated for separate trial by the Court. * * * ” plainly this Judge understood there were two claims, else why segregate one ?

The orderly thing would have been to decide that issue first as it was segregated, and later get around to consideration of the Safety Appliance Act issues. Apparently through oversight the conclusions and the judgment directed that the action be dismissed. If, as I think it was fairly a two-claim action, the judgment should have been limited to dismissal of one claim only. Then Rule 54(b) would have come into action.

However, the judgment dismissed the action in its entirety. So framed, it was appealable. Appellant specified as error: “The U. S. District Court erred in entering its…

256 F.2d 601 Lewis C. DOUGALL, Appellant, v. SPOKANE, PORTLAND AND SEATTLE RAILWAY COMPANY, a corporation, Appellee. No. 15544. United States Court of Appeals, Ninth Circuit. June 13, 1958. Rehearing Denied Aug. 5, 1958. Roth & Tilbury, Roger G. Tilbury, Portland, Or., for appellant. Hart, Spencer, McCulloch, Rockwood & Davies, Hugh L. Biggs, Cleveland C. Cory, Portland, Or., for appellee. Before HEALY, POPE, and HAMLEY, Circuit Judges. HEALY, Circuit Judge. 1 This is an appeal from an order of the United States District Court for Oregon denying appellant's motion, under Rule 60 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for correction and relief from a judgment which was entered July 11, 1952. 1 2 This judgment dismissed appellant's action under the Federal Employers' Liability Act to recover from appellee damages on account of personal injuries sustained by appellant in January of 1946. The judgment was affirmed on appeal to this court (9 Cir., 207 F.2d 843 , Case No. 13,492), and certiorari was denied ( 347 U.S. 904 , 74 S.Ct. 429 , 98 L.Ed. 1063 ). Judgment on this court's mandate was entered below February 23, 1954. The motion under Rule 60, Federal Rules…