Weilbacher v. J. H. Winchester & Co., Inc

197 F.2d 303, 1952 U.S. App. LEXIS 3909

• Court: Court of Appeals for the Second Circuit
• Decided: June 6, 1952
• Docket: 22296_1
• Status: Published

Opinions

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff, a merchant seaman, instituted suit under the Jones Act, 46 U.S. C.A. § 688, against J. H. Winchester & Co., Inc. to recover for personal injuries suffered aboard the S. S. William A. Graham while the vessel was being operated by Winchester as general agent of the United States and for maintenance and cure. A jpry trial was had on January 12 and 13, 1949, resulting in a verdict in favor of the defendant on the claim for personal injuries but in favor of the plaintiff for maintenance and cure. Each party filed notice of appeal and while the appeal was pending the Supreme Court decided in Cosmopolitan Shipping Có. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, that a general agent operating a vessel for the United States was not liable under the Jones Act for injuries to a crew member. The Mc-Allister decision made it plain that the plaintiff could not succeed in his appeal, and the parties negotiated with the object of settling the case. While the negotiations were in progress, the parties were aware that legislation was before the Congress to grant relief to litigants who had prosecuted their suits against general agents in reliance on Hust v. Moofe-McCormack Lines, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534. Before the enactment of any legislation a settlement between Weilbacher and Winchester was made whereby the latter agreed -to pay the plaintiff the amount awarded him by the jury for maintenance and cure and both parties entered into a stipulation for the dismissal of their appeals. An order approving the stipulation was submitted to the district court and signed on September 28, 1949.

The present controversy has arisen because Weilbacher, relying on the Enabling Act, 46 U.S.C.A. § 745, started an action against the United States to recover for personal injuries. That remedial act allowed a seaman to sue the United States if a prior suit against a general agent was dismissed solely on the ground that it was brought against an improper party. However, the prior judgment in Weilbacher’s case was on the merits and it is clear that the Enabling Act did not afford any relief in that situation. Consequently, the judgment in favor of the general agent would bar the new suit against the United States. Adriaanse v. United States, 2 Cir., 184 F.2d 968. Anticipating such a result, Weilbacher moved under Rule 60(b), 28 U.S. C.A., in the court below for an order vacating the order of September 28, 1949, dismissing his appeal.¹ This motion was granted and the present appeal is from the order entered thereon.

At the outset we must determine whether the order appealed from is a final order within the purview of Section 1291 of the Judicial Code. 28 U.S.C.A. § 1291. Obviously, the objective of that section is to forestall appellate review when the decision below has but an inconclusive effect on the final outcome of the litigation. This is best illustrated in the example of a motion, also under Rule 60(b), to reopen a default judgment. Thus, the denial of such a motion is a final order, Tozer v. Charles A. Krause Milling Co., 3 Cir., 189 F.2d 242, for by its decision the district court has indicated that no further action will be taken at that level which will change the outcome and unless the order is appeal-able the controversy is at an end. On the other hand, the granting of the motion is not reviewable, United States v. Agne, 3 Cir., 161 F.2d 331, since the ultimate disposition of the case may not be affected thereby. Here the order was not directed to a correction of the original judgment; the effect of the order was to make it possible for the plaintiff to appeal from that judgment. Likewise, the order was not in any sense a determination of the merits of the original controversy and it is difficult to see how it could be considered as merged in the judgment itself. Actually, the motion to vacaté was in the nature of an independent proceeding, for its purpose was not only the reversal of the prior judicial action dismissing the appeals, but also the nullification of the voluntary agreement of the parties not to appeal. The question before the .court in vacating the order dismissing the appeals is whether the trial court could disregard a stipulation arising out of a settlement between the parties. This question does not require considera^tion with the main appeal'but involves a quite independent matter. We, therefore, conclude that an order of the sort here involved is of “ * * * that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate con-sideration be deferred until the whole case is adjudicated”, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, and consider it proper to review the order at this time.

It seems plain that all the facts affecting the validity of the district court’s action in disregarding the stipulation are before us. The stipulation settling the claims of the parties was made with the advice of the plaintiff’s attorney and in order to obtain the immediate payment of the sum awarded for maintenance and cure. As we have already said, the plaintiff was aware that legislative relief in some form was pending. In these circumstances we can see no foundation for allowing him to repudiate his agreement because it finally appeared to him less satisfactory than when he made it. As the Supreme Court said in Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211, 95 L.Ed. 207, when dealing with a somewhat similar situation' "Petitioner made a considered choice not to appeal, apparently because he did not feel that an appeal would prove to be worth what he thought was a required sacrifice of his home. His choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, * * There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.”

We find no justification for relieving the plaintiff of his stipulation. Accordingly, the order of the district court vacating the former order dismissing the appeals is

Reversed.

1 . Weilbaelier hoped that by prosecuting an appeal to this court he would obtain a reversal of the original judgment on the merits or a summary dismissal of his appeal on the basis of Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692. Either disposition on appeal presumably would then permit him to sue the United States.