*2 LEE, Circuit Judge. proceeding
This originated as to a suit recover damages personal injuries for and Presently death. appeal, before us on it presents questions: two the relating to interpretation of of Rule the Fed- eral Procedure, U.S.C.A., of Rules Civil and to the of trial the other correctness the a dismissing court’s cross-claim action HOLMES, pudge, dissenting. appellant the its codefendant. Wallace, Helen Mrs. Cunliffe administra Wallace, de trix the estate Alva of ceased, Orleans, citizen the a of New sued New Public Railroad Orleans Belt Com pany, corporation doing Louisiana busi ness as a common carrier interstate com merce, Sons, and T. H. Smith & of New Orleans,1 alleging the was brought against the Belt Railroad under Act, Employers’ Liability Federal seq., U.S.C.A. 51 et and T. H. § Smith & Sons under the laws State n Louisiana; that Alva Wallace em ployed engine foreman in the rail yards Railroad; road of the Belt and employment the course of his he suffered injuries resulting in his death. Against Railroad,2 alleged Belt negligence she and carelessness in large, allowed La., Orleans, Provosty, Michel New heavy placed and boxes crates to be appellant. for to the railroad on close cars which the de Kerrigan, Bentley Byrnes, G. Emmett R. ceased worked as to to constitute failure Fonseca, all of provide and Bernard New Or- reasonably deceased a safe J. leans, appellees. La., place in which Against H. work. complaint, Wharf, Wallace, the Public Belt Rail- Street Alva where now City deceased, required work, Commission of New Or- road and incorrectly leans, appellant, riding referred to where he was on the side of discharge Belt Orleans Public Rail- New as the car duties and Company, of, proximate and & road and reason as a result of negligence suffering, & The errors T. H. Sons. were Smith defendant’s allowing permitting heavy in defendants’ answers. corrected boxes Paragraph protrude platform 6 of the is sub from the and be stantially placed proximity as follows: in such close to the side duty notwithstanding, moving “That, said cars and Track No. defendant, Two, the New Orleans decedent Alva Wallace was crushed Company, to fur- Belt Railroad Public between said boxes and the side of decedent, riding Alva Wallace with on nish the the car which he was * * * reasonably place work, duties, discharge safe in which to of his after carelessly negli- injuries defendant he died as a result of the said which * * suffered, permitted defendant, thereby, gently *. allowed received heavy placed neglecting large failing, refusing boxes to to furnish reasonably proximity, place within to-wit: five or with safe close decedent work, resulting suffering, injury, from the ears six inches the side or in his Two of the and death.” the track Number Louisiana - negli- Sons,3 allegations amendment July Smith were filed 1948. boxes became gence placing carelessness in the Rules of Civil Procedure proximity 54(b), cars and crates in such effective March per provides: that sufficient distance was not left to amended *3 result, pass, and, mit the deceased to as is “When for relief more than one claim the side he was knocked from crushed and claim, presented action, in whether as a an riding of was ladder the car on which he counterclaim, third-party cross-claim, or injuries. died as a of and result claim, entry may the court direct the of answers, each de- Both defendants filed upon hut judgment or more less final nying negligence part alleging on its and express upon than only all the claims of contributory part negligence on the of the just reason determination that there is no addition, Belt Rail- Public decedent. In the express delay Upon and cm direction for road, cross-claim, by to right asserted its entry judgment. the In the absence of Inc., by Son, indemnified T. be Smith & direction, any of and such determination it, taking against was rendered decision, however or form of order other position allegations the that the com- the of adjudicates all less than designated, which plaint clearly that showed Alva Wallace’s action not terminate the the claims shall injuries by solely primary were caused the claims, any the order or of the and to Son, negligence fault and of T. Smith & subject revi- servants, is to Inc., form of decision employees, placing and in its other entry judg- of the any sion at time before proxi- heavy boxes and crates in such the (Em- adjudicating all the claims.” ment mity course, the to railroad tracks. due phasis Son, Inc., supplied.) the Smith moved to strike T. & cross-claim, ground failed on the that it point raises the The motion to dismiss upon a claim relief to state which could appealed from to make that the order fails by granted. The motion was sustained was no express that there determination below, court and the was the cross-claim therefore, delay, and, since just reason appeal This dismissed. followed. expressly marked as a the order was not reviewable. judgment, final court, Sons, In this T. & Smith. Inc., to the on the appeal moves dismiss mo- dates shows that the A reference to ground that the order of the district court was tried the cross-claim to dismiss interlocutory and not final. The case date prior to the effective of and submitted upon was heard the to and motion dismiss judgment dismissing the new Rules. upon ruling the of the the correctness of cross-claim, the written together with the dismissing cross-complaint trial court in the reasons, was filed within a time short after in have the event was found to the rule became effective. amendment to
been taken. well parties argu- in admitted Counsel for all they were of the ment aware
The motion to dismiss the cross-com- 1947, change 54(b) by made the amend- plaint August in was filed was tried in ment, may be 10, 1948, and that the attention opinion on March and change. was not that mo- the court to of the trial called ruling sustaining court 3 Paragraph the side of cars that decedent was required place by to tracks follows-: duty platform, notwithstanding or which was not suffi- docks “That permit body defendants, distance to of the T. Smith & cient of the H. riding heavy pass placing on the side decedent while Sons exercise due care by being placed along on said tracks as a car he the railroad boxes and crates by required required of his du- to do reason where the decedent was tracks negligence tracks, by work, ties, proximity reason of such close carelessness, unnecessary hazards, decedent was crushed to create carelessly negligently ladder car from the side said knocked defendant pain great placed heavy or suffer dock and was caused boxes crates on the hours, anguish period after for a of four boxes or manner that crates such a edge result said defend- as a extended of the dock' which died out over he negligence.” platform or or six inches ants’ carelessness within five amendment to Rule likewise ef- against be asserted T. Smith & provides: fective on March codefendant, its Railroad Public Belt * n “* * Commission, obviously because the trial They the amend- [referringto jurisdiction court had claim as- no of the govern proceedings all actions ments] complainant against serted brought they after take also effect and Son, out, & As pointed, Inc. heretofore pend- further proceedings then in actions cause Belt Rail- except ingj opin- to the extent road arose Employers’ under the Federal ion application par- their Liability Act; Smith pending ticular action when the amend- Son, Inc., arose under the tort law Lou- ments take effect or would be feasible *4 parties isiana. All are injustice, would citizens of Louisi- in work which event the ana. Referring to general procedure that a former rule applies.” federal acquired jurisdiction having The judgment appealed in from reads by reason of question a substantial federal part: involved has right all ques- decide “This cause on came be on heard in case, tions Supreme Court in 10, 1948, defendant, March on motion of Hurn Oursler, v. 238, 245, U.S. 53 S. T. Smith & to dismiss the cross- 586, 589, Ct. 77 L.Ed. said: claim of Public Belt Railroad Commission' “ * * * go does not so rule far permit ju- federal as to court to assume a “Now, on due consideration thereof and separate of a distinct non- risdiction for the written reasons of the court joined federal of action because caus.e herein; file in the same with a federal cause “It is by ordered the court that mo- The observed action. distinction be * * * hereby be and the same is is between case where two distinct granted, hereby, said cross-claim is. support single grounds in of a cause of dismissed.” only pre- alleged, action are one of which Referring to the written reasons filed question, a federal a case where sents court, the trial find we that it was separate two distinct causes of action opinion that because of the difference alleged, only which federal in are is result that the establishment of contribu- former, character. In the where the fed- tory negligence of the decedent plainly wanting not question eral averred is respect would create with cause substance, court, though the federal even against action asserted the Belt Railroad established, may ground federal be against cause of and the T. asserted dispose nevertheless retain and of the case Son, Inc., indemnity might Smith & be upon ground; the nonfederal in the latter had the Public Belt upon may not do nonfederal cause Son, clear, therefore, is Inc. It that the of action.” court intended the dismissal as to the cross- claim to be final. Since to enforce a strict Pennsylvania Co., R. also Pearce See application amended, 54(b), as- Rule Cir., 162 F.2d 524. might hardship, work a we shall exercise A 13(g) cross-claim under Rule permitted and, the discretion under Rule 86 only coparty may be asserted rule, applying the old treat the order in- jurisdiction where court has final, tended to be final though even coparty. remand, Upon the cause of ac express language judg- there no complainant against by the tion asserted to that effect: ment motion to dismiss Inc., Son, should be dismissed for Smith & appeal denied. is jurisdiction. want Left the cor consideration reversed, judgment appealed from is the court ruling rectness of below pro- is remanded for cause further cross-claim, dismissing the but con ceedings not inconsistent with the views for, extensive, sideration will be at expressed. herein very outset, unnecessary pass we find it upon question: No cross-claim could Reversed and remanded.
HOLMES, Judge (dissenting). dismiss the I think the motion ap- sustained, the order
should be 'because judgment, final
pealed from was not finality requirements of did not meet the amended, which specified 54(b), in Rule Rule 19, 1948. March effective
became ‘Judgment’ used 54(a) provides that any order includes decree
these rules appeal lies.” from which an express that,
provides in the absence of just reason no
determination that there is of de- delay, other form “any order or shall the one under review
cision” such as before any time subject to revision at adjudicating all the entry of judgment
claim. rule, or opinion not an Under this Therefore,
der, judgment, or decree. is, was, still sub order under review any at below
ject revision adjudi entry of time before D’Arcy, 3 re claim. the entire cating General 313; Cir., F.2d Winkelman F.Supp. D.C., Corporation, Motors Tulsa, Okl., ap- Curran, E. John
pellants. Thompson Brown, B. and Paul both Lee et al. PRAY et al. v. PAYNE Verity, City, (Geo. L. Okl. of Oklahoma No. 3728. Sullivan, Mclnnis, Thompson & Brown Appeals Court of United States Verity, City, Okl., Oklahoma Tenth Circuit. brief), appellees. 9, 1949. Feb. PHILLIPS, Judge, Before Chief MURRAH, Judg- HUXMAN and es.
PHILLIPS, Judge. Chief deny- This is from judgment specific performance ing of a contract Payne an action and Herndon Pray and Bauman. 6, 1946, Magnolia On Petroleum June
Company1 addressed a “farm-out” letter Payne Magnolia which recited gas an oil and owner of lease covering E the NE Section Town % Range W,2 N, stated ship Magnolia Magnolia. Hereinafter called the lease. called Hereinafter