*1 663 by they face the words wrote into limited exclusion unless aircraft specifically policy. were named. none Here was. I would reverse comprehensive a term as “All” aswas policy plain unambiguous connoting used, such could have been judg- required a face and the evidence of, concepts quantity as the whole the defendants. every, any of, entire number Rehearing TUTTLE, premises denied: Circuit total and entire contents. dissenting. Judge, entirely about dedicated were contracted handling, aircraft, repair, stor- their age. portion of contract If another concept under aircraft from excluded dealing, palpably parties which the were por- can said of such be the least with inharmonious is that it was tion por- conflicting typewritten the “contents” The fact tion. premises itemized were not insured PRICE, Appellant, L.L. was abso- evidence and some extrinsic necessary lutely what the establish v. parties use of this did intend Appellee. RAILROAD, UNION PACIFIC
term. 15649. No. jury and the below The court Appeals United States Court of testimony of the witnesses heard the Ninth Circuit. reading parties. respective A of it 20,May appellee’s witness will demonstrate that convincing, Rehearing direct, July 7, 1958. while frank and Denied evasive, argu appellants were those of unconvincing. We do not mentative that, circumstances dis think record, the court commit closed permitting evidence
ted error in jury.8 placed ver be amply jury justified dict judgment en reasons stated thereon
tered
Affirmed. Judge
TUTTLE, (dissenting). holding I think I dissent. general impossible a exclu- court makes policy. provision in fire insurance
sion unambiguous Here, plain terms the printing, sure,
policy to be stated—in generality testifies “specifically unless of its effect—that covered. aircraft shall be
waived” every therefore, Clearly, term used to property must the covered be
describe
In addition
pp.
seq.;
foregoing
Leonard
authorities
909 et
v.
Corp.
Tex.Com.App.,
Prater,
Panhan
Production
36 S.W.2d
Navaho
86
see
Pipeline
Cir.,
499;
Co.,
Smith,
5
Cook v.
107
dle
A.L.R.
Tex.
Eastern
3;
Am.Jur., Evidence,
S.W.
appellant. Cory, Smith, Cory, Denton & Calvin M. Vegas, Nev., Bennett, Las Renwich & Davis, Bennett, E. E. Edward C. Ren- wiek, Davis, Angeles, Cal., Malcolm Los appellee. HEALY, POPE, HAMLEY, Before Judges. Circuit HAMLEY, Judge. brought against L. L. this action Company, Union Pacific Railroad re- to $118,- cover in the amount alleging wrongfully that he had been dismissed a trainman. filing After the of an answer
obtaining of admissions, certain defend- summary ant judgment. moved for a motion made on the a determination made the National Adjustment (Board) Railroad Board precluded dismissal valid this in- Agreeing court action. view, granted the trial court sum- mary judgment for defendant. Plaintiff appeals. single p. m., question presented ferred until 2:30 advised and was get whether, representative. another
appeal in view claim for appear p. m., did not at 2:30 *3 rights unimpaired, all with restoration hearing a was conducted in absence. his pay, was trial court the and for back Questions propounded were of various in- jurisdiction to entertain without employees by superintend- an assistant damages. dependent for court action ent, proceedings and was a record of the July 24,1949, Price was transcribed. On employed the rail- had been Price discharged car- of the from the service Central its South road as a brakeman on rier. Vegas, District, operating of Las out July 1949, 12, in- he was requested On Nevada. Price the Brotherhood of p. m. Railway 9:15 deadhead a to on structed Trainmen to his seek reinstate- California, Nipton, a distance of to pay train sen- for time lost and all swing Nipton. miles, iority at rights service for 56.7 The and other restored. p. m., and Nipton negotiated at 10:25 He reached Brotherhood road, with the rail- Vegas dispatch- telephoned train the Las of- as result of which a latter the to at dispatcher him wait leniency told The er. Nipton fered to back take Price on a he m., time 4:00 at rejected until a. basis. Price this offer. swing aon brakeman serve a was to January 11, 1951, On for claim Price’s hour. due at that train rights restoration to service with un- all dispatcher Price, impaired told however pay and for back was submitted sleep in place or no to eat Brotherhood, Price, there in was behalf to Las Nipton, return that he would and 25, 1952, to the Board.1 On June The Vegas train. first eastbound on the denying Board issued an award this, do not to dispatcher Price entirety. told in claim June On Vegas to Las returned he nevertheless Price in instituted this suit for at 12:35 which reached on a train of the the District Court United States obtaining July food m., 13. After on a. for the District of Nevada. Jurisdiction Vegas, dis- the train Price called diversity in Las is of the district court based ready to patcher was and stated citizenship. due de- Nipton to train on a return part indicated, As before the railroad was dispatcher in- 1:45 a. m. at granted summary judgment Nipton. return Price not to structed ground denying the Board award charged July independent the railroad Price’s claim On barred this damages. violating operating ap- rules 700 court Price with action On this given argues at peal, notice He written and 702. a Board award investigation discharged appear and claim of a that time hearing em- charges m., ployee subsequent preclude 10:00 a. on these at a in- does not following appeared damages. day. Al- on the request- argues, and specified place, ternatively, time if Board award a ground finality, postponement such it has ed present. representative a determination his union made has following merits, 9:30 postponement A until no determination such granted. morning was made in case. postponed hearing, employee Under At this Price re- who believ quested postponement discharg wrongfully a further on the es that he has been representative may petition that his ed was still Board for a redress grievance. Upon filing He not available. told his was then that the such hearing appropriate petition, would de- be division of the (i) (act), Railway Pursuant to § Labor Act (i). hearing, in on merits this con- Board is conduct a authorized to troversy findings, in whether, issue terms make writing. employment award is favor If the the circumstances case, petitioner, an order Board is to issue this charge the railroad dis- was entitled to directing make the award from of contrary return carrier Price because Vegas Nipton not com carrier does di- effective. If the Las to the dispatcher. an en ply, petitioner institute rections of the train proceeding questions district was one of two which Price forcement court. submitted for Board determination. *4 other which Price submitted pursuing ad Instead of whether, prior to to his the Board was remedy, however, an em ministrative ployee discharge, kind of he was accorded the by way may in an relief seek agreement hearing prescribed a in the providing action, Brotherhood between the railroad and the require to first him not state law does working governing wages conditions. remedies.3 his administrative exhaust claim, First In Price’s employee aggrieved If, however, Division of the Board said: proceed administrative with his elects remedy, adjudica efficient “If the carrier to have an is obtains employes operations railroad, merits, “final is on its award on the tion obey operating upon parties binding” must be relied on to both shall con Claimant except it instructions and orders. dispute, in so far as disobeyed wilfully money was found to have award.4 tain a insubordina- his orders. was This adverse to the such an award is When discipline. tion and merited petitioner, seek re- nevertheless employe “The ground amounting has been tendered a view thereof leniency reinstatement on a basis v. process Ellerd of law. of due denial complete but seeks Cir., vindication on the Co., 241 7 Pacific Railroad Southern grounds however, that was may not, denied the in- insti- F.2d 541. He vestigation provided by the rules of re- independent court action tute an agreement. Thus, only question other relief. or obtain cover is for review whether there was sub- action, present Price did not In the compliance with the investi- stantial of the Board award. seek a review gation rule. damages. independent suit an “Basically, complaint that above, there- principles stated Under hearing was held when the claim- jurisdiction fore, without the court was present.” was ant not if Board to entertain the represents proceeded determination The Board then to discuss manner in which the merits. act, 1282, 3, (i p) 711, L.Ed. First 65 89 2. 325 U.S. S.Ct. Section — (i- 661, 1886, reargued amended, 153 First 66 S.Ct. § 327 U.S. 928; Washington 721, p). 90 L.Ed. Terminal U.S.App.D.C. Boswell, 1, 75 124 Co. v. Com 3. v. Illinois Central Railroad Moore per 235, curiam F.2d affirmed an 630, 754, pany, S.Ct. 85 L. 61 312 U.S. 732, equally divided vote 319 U.S. 63 S. 1089; Western Transcontinental & Ed. L.Ed. 1694. That the award Ct. 87 Koppal, 345 73 S.Ct. v. U.S. Air 906, represent adjudication must 1325. It is not here con L.Ed. 97 binding, in order to be final and merits required law of Nevada tended Co., v. & R. Michel Louisville N. see rem to exhaust the administrative 226; Washington Cir., F.2d 5 188 instituting edy this court action. supra, Boswell, 124 Terminal Co. F.2d 249; (m) page of the Koelker v. Baltimore & Section (m); Co., D.C., F.Supp. 45 U.S.C.A. Ohio Railroad Burley, Elgin, R. Joliet & Eastern Co. v. not, It ed does opinion, apply was the carrier. in our was conducted rights grounds dispute Price’s none of concluded that concerns abridged. making regard unambiguous The claim relied was accordingly award. denied. was appears It therefore We not conclude that Price did merits on the determination made no adjudication upon obtain an the merits complaint. Board neither proceedings Board, in the before the railroad concluded that found nor juris that the trial court had therefore discharge Price. entitled independent diction to entertain this ac Board does decision written damages. tion than to other this issue even mention Reversed and further remanded for to have found report “claimant proceedings not inconsistent disobeyed find- wilfully his orders.” opinion. obviously reported not its ing thus superintendent of own, HEALY, Judge (dissenting). the railroad. *5 go along I am unable to hold- with the did not deal reason that the The ing my of associates that the Board made controversy is merits of with the disposition no complaint. appellant’s of merits decision, believed, in its as stated that it only question review “the Union, in its submission to the compliance was substantial whether Board, appellant Nip- admitted that left investigation rule.” Vegas; ton returned to Las and it Price’s sub- of plain misconstruction disputed doing was not in de- so he spe- board, had since mission liberately disobeyed an order of dis- on cifically presented the patcher. sought justify The Union merits.5 operating infraction admitted of an that, argues believed if Appellee by (b) order reference Ar- to Section of represent a deter did award that the my Agreement, by quoted ticle 32 of the have merits, could mination dispos- associates in their footnote 5. In interpretation under an obtained ing among Board, of the case the other act.6 “finality” provision of the things, “If have the carrier is to stated: operations railroad, em- dispute efficient its was here “in There no obey operat- ployees must be relied on to volving interpretation award,” an ing and orders.” instructions in are used the statute. as those words outright was an of The “award” denial appears plain me the Board It claim,7 parties concede. as all held, opinion, in was of substance provision
statutory in under which an by violation Com- asserted that the pany terpretation of be obtain- award true, even would if of Article Board, 5. In the submission to be- de- was followed This statement complaint Price, of was made why of half of the reasons discussion tailed during procedure followed discharge the railroad’s not entitled to railroad was leading of the incident Price, of circumstances discharge. It then stated: his case. n ‘The employees further contend that (m) of § sentence last of not violate Price did rales Brakeman U.S.C.A. Nipton leaving food. to secure That (m), dispute “In reads: case a justified these Brakeman involving interpretation arises provisions supported actions award, division the upon request the Board agree- (b) of Article 32 of Section party of either shall in April reading 1, 1943, effective terpret light of the dis follows: pute.” “ ‘Swing up brakemen will not bo tied points sleeping released nor The Board decision ends with these eating accommodations are not avail- words: “Award: Claim denied.” ” able.’ employee’s justify an viola- not serve to operating
tion of direct instructions post. a rul-
his abandonment ing Such safety promote in- appear to would always operations, must railroad of that considerations
take into account knowledge of intimate nature.1 With peculiarly equipped field, Board is decision.
to make such a
Henry Fogler, City, New York libelant-appellant. Libelant-Appellant, Raymond QUINTIN, Thacher, Proffitt, Crawley Prizer, & Wood, City (Edward New York C. COMPANY, STEAMSHIP Kalaidjian Stitt, SPRAGUE New York S. Robert Respondent-Appellee. City, counsel), respondent-appel- No. Docket 24775. lee. *6 Rehearing. On Petition for Appeals Court of United States CLARK, Circuit. Judge, MOORE,. Second Before Chief Judge, SMITH, 27, 1958. District Filed Feb. Petition Judge. 19, 1958. May Decided PER CURIAM. petition rehearing
On this carefully court has received con- arguments sidered the further extensive parties. Upon this consideration has determined in the in- justice terests the decree entered be- low should be vacated and the action re- Judge MeGohey manded to findings for further findings fact. which we supple- believe should be clarified and mented are as indicated and discussed opinions court, Cir., F.2d Judge In his discretion Me- Gohey may take action the basis of already may him the record or hearings hold additional and receive ad- ditional evidence as he determine. Railway Act, Act, Labor § one of the Section two 45 U.S.C.A. 1. Section heading (1), 151, under subdivision “General 151a “employee” purposes purposes,” defines thus: states one of its “Fifth” ti> ‘employee’ as used “The term herein be: interruption every person any service of a includes “to avoid commerce operation (subject continuing to its author- carrier or to the carrier en- * * supervise therein; ity gaged and direct the manner * * * service) of rendition