Riley-Stabler Constr. Co., a Div. of Riley Lumber & Supply Compnay, Inc. v. Westinghouse Elec. Corp., 401 F.2d 526 (5th Cir. 1968). · Go Syfert
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Riley-Stabler Constr. Co., a Div. of Riley Lumber & Supply Compnay, Inc. v. Westinghouse Elec. Corp., 401 F.2d 526 (5th Cir. 1968). Cases Citing This Book View Copy Cite
18 citation events (1 in the last 25 years) across 6 distinct courts.
Strongest positive: International Shortstop, Inc., and Sam Talkington v. Rally's, Inc. (ca5, 1991-08-29)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) International Shortstop, Inc., and Sam Talkington v. Rally's, Inc.
5th Cir. · 1991 · confidence medium
Corp., 401 F.2d 526, 527 (5th Cir.1968); accord Miller v. FDIC, 906 F.2d 972, 974 (4th Cir.1990) (“general rule that summary judgment is seldom appropriate in cases wherein particular states of mind are decisive elements of a claim or defense”); Wilson v. Setter, 893 F.2d 861, 866 (6th Cir.1990) (“We are aware that state of mind is typically not a proper issue for resolution on summary judgment.”), vacated on other grounds, — U.S. —, 111 S.Ct. 2321 , 115 L.Ed.2d 271 (1991); National Union Fire Ins.
cited Cited as authority (rule) McGee Steel Co. v. State Ex Rel. McDonald Industries Alaska, Inc.
Alaska · 1986 · confidence medium
Riley-Stabler Construction v. Westinghouse Electric, 401 F.2d 526, 527 (5th Cir.1968); see United States ex rel.
discussed Cited as authority (rule) Tec Corporation v. Nuclear Dynamics, Inc.
6th Cir. · 1975 · confidence medium
Riley-Stabler Construction Co. v. Westinghouse Electric Corporation, 401 F.2d 526, 527 (5th Cir. 1968). 1 This states Kentucky law “as we believe the [Kentucky Court of Appeals] would state it, if it had the opportunity to do so in this case.” Glinsey v. Baltimore & O.
cited Cited as authority (rule) Winterroth v. Meats, Inc.
Wash. Ct. App. · 1973 · confidence medium
Cory., 401 F.2d 526, 527 (5th Cir. 1968).
discussed Cited as authority (rule) TEC CORPORATION v. Nuclear Dynamics, Inc.
E.D. Ky. · 1973 · confidence medium
Riley-Stabler Construction Co. v. Westinghouse Electric Corporation, 401 F.2d 526, 527 (5th Cir. 1968). *1168 Pursuant to Rule 56(d), F.R.Civ.P. it is determined that the sole issue in the matter to be litigated is whether Nuclear exercised good or bad faith, as to the plaintiff, in purchasing directly from the owners the Floyd County coal properties after the agreement of September 3, 1971.
discussed Cited as authority (rule) Ball v. Aetna Casualty & Surety Co.
E.D. Ky. · 1973 · confidence medium
Courts have been hesitant to resolve questions of intent by means of summary judgment; “(w)here state of mind is to be measured it cannot be resolved on summary judgment.” Riley-Stabler Construction Co. v. Westinghouse Electric Corp., 5th Cir., 401 F.2d 526, 527 (1968); see also 3 Barron and Holtzoff, Federal Practice and Procedure (Wright rev.) Section 1232.2.
discussed Cited as authority (rule) Vera Croley, Etc. v. Matson Navigation Company, David E. Bouler v. Matson Navigation Company
5th Cir. · 1971 · confidence medium
Co. v. Westinghouse Electric Corp., 5 Cir. 1968, 401 F.2d 526, 527 (Rives, J., specially concurring) ; Consolidated Electric Co. v. United States for Use and Benefit of Gough Industries, 9 Cir. 1966, 355 F.2d 437, 438-439 ; 3 W.
Retrieving the full opinion text from the archive…
RILEY-STABLER CONSTRUCTION COMPANY, a Division of Riley Lumber & Supply Company, Inc., Et Al., Appellants,
v.
WESTINGHOUSE ELECTRIC CORPORATION, Appellee
24539_1.
Court of Appeals for the Fifth Circuit.
Sep 27, 1968.
401 F.2d 526
1968 U.S. App. LEXIS 5442
James E. Clark, Birmingham, Ala., for appellants., Trammell E. Vickery, Atlanta, Ga., Ralph H. Ford, Huntsville, Ala., for ap-pellee.
Rives, Godbold, Hughes.
Cited by 14 opinions  |  Published

Lead Opinion

HUGHES, District Judge:

In Westinghouse’s motion for rehearing it is its contention that the majority opinion of this Court is in conflict with Bruce Construction Corporation v. United States for Use of Westinghouse Elec-[*527] trie Supply Company, 242 F.2d 873 (5th Cir. 1957).

An examination of Bruce reveals that it is a Miller Act case and one in which summary judgment was rendered, but the facts differ from those in this case. In Bruce the questions of diversion and good faith were not raised. There was no contention that any materials though ordered for the job were not used for that purpose. All were used on the job. It is only where there has been a diversion that there would be any necessity for raising the question of good faith.

In this case on the other hand the affidavit of the Secretary-Treasurer of Riley-Stabler stated that a substantial portion of material had been used on projects other than Drake Towers. Under such circumstances the question of good faith that the materials were intended for the use of Drake Towers is an issue. Where state of mind is to be measured it cannot be resolved on summary judgment. We find no conflict with Bruce.

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

RIVES, Circuit Judge, specially concurring.

Dissent

GODBOLD, Circuit Judge,

dissents.

RIVES, Circuit Judge (specially concurring) :

For reasons well stated by Judge Hughes in our original opinion, I am convinced that Westinghouse is not entitled to summary judgment. The Ninth Circuit in a Miller Act case has recently stated the rule as I understand it.

“When an issue requires determination of state of mind, it is unusual that disposition may be made by summary judgment. See Alabama Great So. R. R. [Co.] v. Louisville & N.R.R. [Co.,] 224 F.2d 1, 5, 50 A.L.R.2d 1302 (5th Cir. 1955). It is important, and ordinarily essential, that the trier of fact be afforded the opportunity to observe the demeanor, during direct and cross-examination, of a witness whose subjective motive is at issue.”

Consolidated Electric Co. v. United States for Use and Benefit of Gough Industries, 9 Cir. 1966, 355 F.2d 437, 438, 439. See also Poller v. Columbia Broadcasting Company, 1962, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458; 6 Moore’s Federal Practice, 2d ed., f[ 56.17 [41.-1]; 3 Barron & Holtzoff, Federal Practice & Procedure, 1967 PP., § 1232.2.

I, therefore, concur in the order denying the appellee’s petition for rehearing.