Halsall v. Atl. Coast Line R. R., 85 S.E. 433 (S.C. 1915). · Go Syfert
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Halsall v. Atl. Coast Line R. R., 85 S.E. 433 (S.C. 1915). Cases Citing This Book View Copy Cite
“under the modern theory of contracts we look to objective, not subjective, criteria in ascertaining the intent of the parties”
259 citation events (8 in the last 25 years) across 46 distinct courts.
Strongest positive: Sprague v. General Motors Corp. (mied, 1994-02-02)
Treatment trajectory · 1916 → 2026 · click a year to view as-of
1916 1971 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (quoted) Sprague v. General Motors Corp.
E.D. Mich. · 1994 · quote attribution · 1 verbatim quote · confidence low
under the modern theory of contracts we look to objective, not subjective, criteria in ascertaining the intent of the parties
discussed Cited "see" Ogunde v. Prison Health Services, Inc.
Va. · 2007 · signal: accord · confidence high
Accord Owens v. Haas, 601 F.2d 1242 , 1250-51, cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979) (reversing dismissal of inmate's breach of contract claim because contract between prison and the county to provide transportation of prisoners "indicates that Owens, as a federal prisoner, was intended to benefit from the agreement").
cited Cited "see" E.G.L. Gem Lab Ltd. v. Gem Quality Institute, Inc.
S.D.N.Y. · 2000 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979). 173 .
discussed Cited "see" Spear, Leeds & Kellogg v. Central Life Assurance Company, Alexander Hamilton Life Insurance Company of America, Inc., Canada Life Assurance Co. (2×)
2d Cir. · 1996 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied sub. nom County of Nassau v. Owens, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Restatement (Second) of Contracts § 308 (1981).
discussed Cited "see" Central Hudson Gas & Electric Corporation v. Empresa Naviera Santa S.A. (2×)
2d Cir. · 1995 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Chaplin v. Consolidated Edison Co., 579 F.Supp. 1470, 1473 (S.D.N.Y.1984).
discussed Cited "see" J.R. Maffei Richard Maffei Betty J. Maffei v. Northern Insurance Company of New York Maryland Casualty Co. (2×)
9th Cir. · 1993 · signal: see · confidence high
See Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 873 (9th Cir.1979), cert. denied, 444 U.S. 981 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see" Brown v. Twentieth Century Fox Film Corp.
D.D.C. · 1992 · signal: see · confidence high
See Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 871 (9th Cir.) (applying California law, which governs the interpretation of the 1964 agreement), cert. denied, 444 U.S. 981 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Tokio Marine & Fire Insurance Co. v. McDonnell Douglas Corp., 617 F.2d 936, 940 (2d Cir.1980).
discussed Cited "see" Trident Center v. Connecticut General Life Insurance Company
9th Cir. · 1988 · signal: see · confidence high
See Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 872 (9th Cir.), cert. denied, 444 U.S. 981 , 100 S.Ct. 483 , 62 *567 L.Ed.2d 407 (1979) (California law); Cal. Civ.Proc.Code § 1858 (West 1983); 4 S. Williston, A Treatise on the Law of Contracts § 618, at 714-15 (3d ed. 1961); id. § 624, at 825.
cited Cited "see" Gomez v. Coughlin
S.D.N.Y. · 1988 · signal: see · confidence high
See Owens v. Hass, 601 F.2d 1242 , 1247 (2d Cir.1979), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
cited Cited "see" McNair v. McMickens
S.D.N.Y. · 1987 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see" Ortega v. Rowe
5th Cir. · 1986 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1247-48 (2nd Cir.1979) cert. denied 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3rd Cir.1976); Williams v. United States, 405 F.2d 951, 954 (9th Cir.1969).
discussed Cited "see" Ortega v. Rowe
5th Cir. · 1986 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1247-48 (2nd Cir.1979) cert. denied 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3rd Cir.1976); Williams v. United States, 405 F.2d 951, 954 (9th Cir.1969).
discussed Cited "see" Washington v. James
2d Cir. · 1986 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Turpin v. Mailet, 579 F.2d 152, 167 (2d Cir.) (in banc), vacated and remanded on other grounds, 439 U.S. 974 , 99 S.Ct. 554 , 58 L.Ed.2d 645 (1978).
discussed Cited "see" Washington v. James
2d Cir. · 1986 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Turpin v. Mailet, 579 F.2d 152, 167 (2d Cir.) (in banc), vacated and remanded on other grounds, 439 U.S. 974 , 99 S.Ct. 554 , 58 L.Ed.2d 645 (1978).
discussed Cited "see" Bankr. L. Rep. P 70,798 in Re Boston and Maine Corporation, Debtor v. Sheehan, Phinney, Bass & Green, P.A.
1st Cir. · 1985 · signal: see · confidence high
See Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 875 (9th Cir.), cert. denied, 444 U.S. 981 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979) (while $1 million minimum fee was “clearly high,” client received services of “substantial value,” and the fairness of a fee agreement should be “determined with reference to the time when the contract was made”).
discussed Cited "see" Francis J. Dwyer v. Edward v. Regan, Individually and as Trustee and Administrative Head of the New York State Employees Retirement System
2d Cir. · 1985 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Turpin v. Mailet, 579 F.2d 152, 167 (2d Cir.) (en banc), vacated and remanded on other grounds, 439 U.S. 974 , 99 S.Ct. 554 , 58 L.Ed.2d 645 (1978); Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir.), cert. denied, 400 U.S. 853 , 91 S.Ct. 54 , 27 L.Ed.2d 91 (1970).
discussed Cited "see" Arancibia v. Berry
S.D.N.Y. · 1985 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242 , 1246 (2d Cir.1979) (such claims, if proven, are sufficient for finding municipal liability under § 1983), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
cited Cited "see" Madden v. City of Meriden
D. Conn. · 1985 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see" Patrick Bell, Sr., Etc. v. City of Milwaukee, Howard Johnson and Edwin Shaffer, Patrick Bell, Sr., Etc. v. Thomas Grady, Jr., Patrick Bell, Sr., Etc. v. City of Milwaukee
7th Cir. · 1984 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242 , 1247 (2d Cir.1980), certiorari denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (applying the Monell standard under Section 1985); Vasquez v. City of Reno, 461 F.Supp. 1098, 1102 (D.Nev.1978) (same regarding Section 1986).
discussed Cited "see" Bell v. City of Milwaukee
7th Cir. · 1984 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242 , 1247 (2d Cir.1980), certiorari denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (applying the Monell standard under Section 1985); Vasquez v. City of Reno, 461 F.Supp. 1098, 1102 (D.Nev.1978) (same regarding Section 1986).
cited Cited "see" Shishido v. SIU-Pacific District-PMA Pension Plan
N.D. Cal. · 1983 · signal: see · confidence high
See Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 871 (9th Cir.1979), cert. denied, 444 U.S. 981 , 100 S.Ct. 483 , 62 L.Ed.2d 407 .
discussed Cited "see" John Languirand, Cross-Appellant v. John Hayden, an Individual, City of Pass Christian, Etc., Cross-Appellee (2×)
5th Cir. · 1983 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1246-47 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see" Phyllis S. Hamm v. Members of the Board of Regents of the State of Florida, Defendants
11th Cir. · 1983 · signal: see · confidence high
Monell v. Department of Social Services, 436 U.S. 658, 691-94 , 98 S.Ct. 2018, 2036-37 , 56 L.Ed.2d 611 (1978) (§ 1983); Baskin v. Parker, 602 F.2d 1205, 1207-09 (5th Cir.1979) (same); see Owens v. Haas, 601 F.2d 1242 , 1247 (2d Cir.) (§ 1985), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see" Leonard Rogers v. Barbara Rulo, Frank Eck, Alvin Klein, Jr.
8th Cir. · 1983 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.1979) (county may be liable), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Popow v. City of Margate, 476 F.Supp. 1237, 1245-46 (D.N.J.1979) (city may be liable).
cited Cited "see" John McCann Plaintiff-Appellee-Cross-Appellant v. T. Coughlin, Iii, Defendants-Appellants-Cross-Appellees
2d Cir. · 1983 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see" Eiland v. Hardesty
N.D. Ill. · 1982 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Means v. City of Chicago, 535 F.Supp. 455 (N.D.Ill.1982); Smith v. Hill, 510 F.Supp. 767 (D.Utah 1981); Leite v. City of Providence, 463 F.Supp. 585 (D.R.I. 1978). 4 .
discussed Cited "see" Sager v. City of Woodland Park
D. Colo. · 1982 · signal: see · confidence high
While merely negligent failure adequately to train, supervise and control police officers is not sufficient to render a municipality and supervisory personnel liable under § 1983 for deprivations of constitutional rights resulting from police brutality, such potential defendants may be liable where training or supervision is “so reckless or grossly negligent that future police misconduct is almost inevitable.” Hays v. Jefferson Cty., 668 F.2d 869, 874 (6th Cir.), reh’g denied, 673 F.2d 152 (1982); see Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 4…
discussed Cited "see" Hobson v. Wilson
D.D.C. · 1982 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242, 1245-47 (2d Cir. 1979), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1980); cf. Monell v. Department of Social Services, 436 U.S. 658 , 694 n. 58, 98 S.Ct. 2018 , 2037 n. 58, 56 L.Ed.2d 611 (1978); Johnson v. Duffy, 588 F.2d 740 , 743 (9th Cir.1978); Carter v. Carlson, 144 U.S.App.D.C. 388, 393-95 , 447 F.2d 358, 363-65 (1971) rev’d on other grounds, 409 U.S. 418 , 93 S.Ct. 602 , 34 L.Ed.2d 613 (1973); Tate v. District of Columbia, Civil Action No. 81-846 (D.D.C., Oct. 26, 1981) (Greene, J.).
cited Cited "see" Harlee v. Hagen
E.D.N.Y · 1982 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.1978).
discussed Cited "see" Doris Holbrook v. Henry C. Pitt, and Third-Party v. Secretary, United States Department of Housing and Urban Development, Third- Party
3rd Cir. · 1981 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242 , 1250 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Safer v. Per-per, 569 F.2d 87 , 92 (D.C.Cir.1977); Avco Delta Corp. v. United States, 484 F.2d 692 , 702 (7th Cir. 1973), cert. denied, 415 U.S. 931 , 94 S.Ct. 1444 , 39 L.Ed.2d 490 (1974); United States v. California State Automobile Ass’n, 385 F.Supp. 669, 672 (E.D.Cal.1974), aff’d, 530 F.2d 850 (9th Cir. 1976); Bethune v. United States Department of Housing and Urban Development, 376 F.Supp. 1074 (W.D.Mo.1972); 4 A. Corbin, supra, § 781 at 70. 24 .
cited Cited "see" Durkin v. Bristol Township
E.D. Pa. · 1980 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242 , 1247 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979); Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977); Rambo v. Hirsh, C.A.
discussed Cited "see" Estate of Anna Lora Gilchrist, Deceased, Layland Myatt and Elizabeth Dearborn, Independent Executors v. Commissioner of Internal Revenue, Estate of Ruth T. Reid, Deceased, Walter D. Reid, Independent v. Commissioner of Internal Revenue
5th Cir. · 1980 · signal: see · confidence high
See Pennsylvania Bank & Trust Co. v. United States, 451 F.Supp. 1296 , 1300 n. 6 (W.D.Pa.1978), aff'd, 597 F.2d 382 (3d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979). 7 The present § 2041 of the Code was born with the Powers of Appointment Act of 1951, 65 Stat. 91 .
cited Cited "see" Estate of Gilchrist v. Commissioner
5th Cir. · 1980 · signal: see · confidence high
See Pennsylvania Bank & Trust Co. v. United States, 451 F.Supp. 1296 , 1300 n. 6 (W.D.Pa.1978), aff’d, 597 F.2d 382 (3d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979) .
cited Cited "see" Haverstock v. Wolf
D. Minnesota · 1980 · signal: see · confidence high
See Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866 (9th Cir.), cert. denied, 444 U.S. 981 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
cited Cited "see" Witt v. Harbour
W.D. Va. · 1980 · signal: see · confidence high
See Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979), cert. denied sub nom., 44 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1980); Popow v. City of Margate, 476 F.Supp. 1237 (D.N.J.1979).
discussed Cited "see, e.g." Phillips v. Federal Bureau of Prisons
D.D.C. · 2003 · signal: compare · confidence low
Compare Owens v. Haas, 601 F.2d 1242, 1248 (2d Cir.1979), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979) (question is “not free from doubt”), with Smith v. Corrections Corp. of Am., 19 Fed.Appx. 318, 320-21 , 2001 WL 1109854 , at *2 (6th Cir.2001) (no federal question was involved in the plaintiffs third-party beneficiary claim, which relied on a contract rather than federal law).
discussed Cited "see, e.g." Goodridge v. Harvey Group, Inc.
S.D.N.Y. · 1991 · signal: see also · confidence low
To determine whether Goodridge is an intended beneficiary of the Indemnity Agreement, we consider both “the intent of the parties — as revealed in their agreement — and the surrounding circumstances.” Septembertide, 884 F.2d at 679 ; see also Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see, e.g." McKenzie Construction, Inc. v. Desmond L. Maynard (2×)
3rd Cir. · 1985 · signal: see also · confidence low
See also Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 875 (9th Cir.) (California law), cert. denied, 444 U.S. 981 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979). 17 We believe that the district court had too narrow a view.
discussed Cited "see, e.g." Klitzman, Klitzman & Gallagher v. Krut
D.N.J. · 1984 · signal: see, e.g. · confidence low
See, e.g., Lenard v. Argento, 699 F.2d 874, 885-86 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 69 , 78 L.Ed.2d 84 (1983), quoting Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
cited Cited "see, e.g." Allman v. Coughlin
S.D.N.Y. · 1984 · signal: see, e.g. · confidence low
See, e.g., Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see, e.g." Willis Ray Triplett v. Leflore County, Oklahoma
10th Cir. · 1983 · signal: see, e.g. · confidence low
See e.g., Owens v. Haas, 601 F.2d 1242,1245-47 (2d Cir.1978), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (holding plaintiff should have been allowed limited discovery and opportunity to amend to state a § 1983 claim against County on similar theory of liability for its own acts of gross negligence or deliberate indifference), and cases there cited.
cited Cited "see, e.g." Allen v. Katz Agency, Inc. Employee Stock Ownership Plan
2d Cir. · 1982 · signal: see, e.g. · confidence low
See, e.g., Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979).
discussed Cited "see, e.g." Allen v. Katz Agency, Inc.
2d Cir. · 1982 · signal: see, e.g. · confidence low
See, e.g., Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979). 13 We hold only that the Plan as amended in November 1978 did not apply to an employee who had elected prior to the amendment to take his ESOP distribution in a cash lump sum, releasing his employer from liability.
discussed Cited "see, e.g." Edward Bowen v. Charlie Watkins, Chief of Police of the City of Columbus, Mississippi, Etc.
5th Cir. · 1982 · signal: see, e.g. · confidence low
See, e.g., Owens v. Haas, 2 Cir. 1979, 601 F.2d 1242, 1246 , cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 ; Redmond v. Baxley, E.D.Mich.1979, 475 F.Supp. 1111, 1116 ; Cook v. City of Miami, S.D.Fla.1979, 464 F.Supp. 737 ; see also Monell v. Department of Social Services, 436 U.S. at 694 n.58, 98 S.Ct. at 2037 .
discussed Cited "see, e.g." Bradley v. Coughlin
2d Cir. · 1982 · signal: see also · confidence low
THE MERITS Turning to the merits, it is initially apparent that as “[a] pro se plaintiff, particularly one bringing a civil rights action, [Bradley] should [have been] afforded an opportunity fairly freely to amend his complaint.” Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir. 1980); see also Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1981).
discussed Cited "see, e.g." Bradley v. Coughlin
2d Cir. · 1982 · signal: see also · confidence low
THE MERITS 21 Turning to the merits, it is initially apparent that as "(a) pro se plaintiff, particularly one bringing a civil rights action, (Bradley) should (have been) afforded an opportunity fairly freely to amend his complaint." Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir. 1980); see also Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1981).
cited Cited "see, e.g." Excess & Casualty Reinsurance Ass'n v. Insurance Commissioner of California
9th Cir. · 1981 · signal: see, e.g. · confidence low
See, e. g., Brobeck, Phleger & Harrison v. Telex, 602 F.2d 866, 872 (9th Cir.), cert. denied, 100 S.Ct. 483 , 443 U.S. 981 , 62 L.Ed.2d 407 (1979).
cited Cited "see, e.g." Excess And Casualty Reinsurance Association v. Insurance Commissioner Of The State Of California
9th Cir. · 1981 · signal: see, e.g. · confidence low
See, e. g., Brobeck, Phleger & Harrison v. Telex, 602 F.2d 866, 872 (9th Cir.), cert. denied, 100 S.Ct. 483 , 443 U.S. 981 , 62 L.Ed.2d 407 (1979).
cited Cited "see, e.g." Pacific Far East Line, Inc. v. Official Creditor Committee (In re Pacific Far East Line, Inc.)
9th Cir. · 1981 · signal: see also · confidence low
See also Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 871 (9th Cir. 1979), cert. denied, 444 U.S. 981 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1980).
cited Cited "see, e.g." In the Matter of Pacific Far East Line, Inc., Debtor. Joseph M. Alioto v. Official Creditor Committee
9th Cir. · 1981 · signal: see also · confidence low
See also Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 871 (9th Cir. 1979), cert. denied, 444 U.S. 981, 100 S.Ct. 483 , 62 L.Ed.2d 407 (1980).
Retrieving the full opinion text from the archive…
Halsall
v.
Atlantic Coast Line R. R. Co.
9070.
Supreme Court of South Carolina.
Apr 19, 1915.
85 S.E. 433
1915 S.C. LEXIS 82
Mr. W. Huger FitzSimons , for appellant. Messrs. Logan Grace , for respondent.
Hydrick, Chirk, Gary, Messrs, Watts, Fraser, Gage.
Cited by 3 opinions  |  Published

The opinion of the Court was delivered b}^

Mr. Justice Hydrick.

This is the second appeal in this case. The facts appear in detail in the opinion of the Court on the first appeal, 96 S. C. 308, 80 S. E. 467. As will be seen by reference thereto, .plaintiff received judgment against defendant for $5,000.00 damages for personal injuries. In brief, the facts were as follows: Plaintiff, as brakeman, was on the pilot of an engine, piloting it through defendant’s yards at Charleston for the purpose of attaching it to a freight train. Defendant, Graham, was engineer in charge of this engine, which was approaching another track on which a freight train, of which .defendant, Cameron, was conductor, was being moved through the yard. Plaintiff saw the freight train, and-saw-that his engine was approaching too near it, and, according to his testimony, he signalled Graham, the engineer, to stop. Graham did not heed the signal, and, when plaintiff saw that a collision was imminent, he jumped[*485] and was thrown under the freight train, and seriously-injured. Defendant moved the Circuit Court for a non-suit and the direction of the verdict on the following-grounds :

1. That there is a total absence of testimony to support the material allegations of the complaint.

2. Because the plaintiff’s own testimony shows that whatever injury plaintiff received was the result of his own negligence.

3. Because plaintiff’s own testimony shows that whatever injury he received was the result of the negligence of a fellow servant.

4. Because there is no testimony to show that the injury was the result of an)' negligence on the part of the defendant in this case.

The only specifications of negligence alleged appear in the fourth paragraph of the complaint, and were as follows:

(a) In failing and omitting to give any warning whatever by lights, signals, or otherwise, of the presence of the train of box cars on said old main line track, and immediately in front of the engine on which said plaintiff was riding, and not in any way protecting, by lights or otherwise, what was the rear of said train as soon as each box car came upon said old main line track.

(b) In failing and omitting to stop or slow up said engine upon which said plaintiff was riding in response to the signals given by said plaintiff in order to avoid collision with said train of box cars.

(c) In failing and omitting to have said engine upon which said plaintiff was riding under such control that it could have been stopped without coming into collision with said train of box cars.

The sole contention of. appellant on the former appeal was that its motion for nonsuit and direction of-the verdict should have been granted on the ground that Graham and plaintiff were fellow servants. This Court sustained that[*486] contention and held, in the opinion first filed, that two of the specifications of negligence (b) and (c), were as to the performance by Graham of his duties as engineer; that, as engineer, he and the plaintiff were fellow servants, and, therefore, no recover)!- could be had against the defendant for the negligence of Graham.

On petition filed by plaintiff for a rehearing, one of the grounds was that the Court had not considered the plaintiff’s right to recover under specification (a) of negligence. The Court dismissed the petitions and in response to that contention, said: “The absence of light can not affect the case. The object of lights is to enable those whose business it is to look for the train to see the train. This train was seen in time to stop. Besides, there is no requirement that every box car of a train should be lighted.”

Rule 27 of this Court is as follows: “Whenever an appeal to this Court is sustained on the ground that a non-suits should have been granted or a verdict directed because of a total failure of evidence or bec’ause the evidence could admit of but one inference, the reversal of the judgment shall have the same effect as if the nonsuit had been ordered, or a verdict returned under the direction of the Circuit Judge; provided, that this rule shall not be applicable when the 'cause of action was not barred by the statute of limitations at the time said orders were -refused on Circuit, but would be barred at the time they were reversed by the Supreme Court.”

The judgment of this Court on the former appeal was as follows: “The judgment of this Court is that the judgment of the Circuit Court is reversed and the case remanded for a new trial.”

1 When the case went back to the Circuit Court, the plaintiff moved for a new trial under the judgment of this Court. The defendant moved for judgment dismissing the complaint with costs, under rule 27. supra.

[*487] The Court below was in a dilemma, not knowing whether to violate the mandate of this Court in the cause, or its rule. As the mandate and the rule were clearly inconsistent, and both could not be followed, the Court held that specification (a) did not seem to have been entirely disposed of, and that, as the case had been remanded for a new trial, he felt compelled to obey that mandate, and, therefore, refused 'defendant’s motion.

Now, we are confronted by the dilemma. Shall we violate rule 27, under which the defendant was clearly entitled to an order for judgment of nonsuit, except for the peculiar wording of the judgment of this Court, or shall we violate the formal judgment which we have pronounced, and say that, notwithstanding we have ordered a new trial, the Court below erred in obeying that mandate ?

In Jones v. Ry., 65 S. C. 410, 43 S. E. 884, the Court-said: “When such questions are decided, they become res judicata, and when the remittitur has been sent down, the Supreme Court loses jurisdiction, and cannot render a different decision upon the question decided (even if it should be convinced that there was error), so as to affect the partticular case in which the decision was rendered.” (Citing numerous authorities.)

On petition for rehearing, suggesting that the doctrine of stare decisis and not that of res judicata was properly applicable in such cases, the Court adhered to the decision applying the doctrine of res judicata, and quoted with approval the principle announced in Sanders v. Bagwell, 37 S. C. 150, 15 S. E. 714, 16 S. E. 770, that the effect of a judgment of this Court granting a new trial was to place “the parties litigant in the same plight and condition they had been in before any trial of the action, with this restriction—that they could not again litigate the same matters that had been passed upon by this Court, as evidenced by the opinion of the Court, accompanying its judgments.”

[*488] In Crosby v. Ry., 83 S. C. 575, 65 S. E. 827, the action was founded upon an allegation of wilful tort. The Court was requested to instruct the jury that there was no evidence of wilfulness. The request was refused and the plaintiff recovered judgment. On appeal, this Court reversed the judgment on the ground that the request should have been granted. It was also adjudged that, as the complaint did not allege negligence, and as there was no evidence of wil-' fulness, plaintiff could riot recover actual damages. When the case went back to the Circuit Court, plaintiff moved for leave to amend the complaint so as to allege negligence.

The motion was refused on the ground, among others, that the effect of the reversal of the judgment, under rule 27, supra, was the same as if the request had been granted and a verdict returned for defendant under the direction of the Court. On the second appeal, this Court approved the ruling, and said:

“As the action was founded exclusively on the allegation of wilfulness and wantonness, .the request for an instruction that there was no evidence of wantonness or wilfulness was equivalent to a request for an instruction to find a verdict for the defendant. Therefore, under rule 27, when the judgment of the Circuit Court was reversed in the former appeal, on the ground that this instruction had not been given, the effect was the same as if a verdict had been rendered for the defendant. The case being at an end, when this judgment of the Circuit Court was reversed, the complaint could not be amended for the purpose of having a trial of another issue.”

But it is argued, on the other side, that the judgment of this Court granting a new trial is also res judicata, and cannot now be changed, even by this Court, because it lost jurisdiction of the cause, when the remittitur was sent down, and the decisions cited by the Court in the opinion in Jones v. Ry., supra, sustain that contention.

[*489] 2 It is also suggested that it was the duty of appellant to call the attention of the Court to any supposed error in the judgment before the remittitur was sent down. ’ The remittitur is retained in the Court ten days after filling the judgment for that purpose. Sullivan v. Speights, 14 S. C. 358; Carpenter v. Lewis, 65 S. C. 400, 43 S. E. 881.

If every issue in the case had-not been adjudicated, I would agree that, notwithstanding rule 27, the judgment of this Court granting a new trial ’ should be carried out. But, as I see it, there is nothing left to try, unless -we allow matters to be relitigat'ed which have already been decided, which cannot be done under the decisions above quoted. For these reasons, I think the .order appealed from should be reversed and the case remanded with instructions to grant a judgment of nonsuit.

But the majority of the Court are of the opinion that there was no error in refusing the motion for nonsuit, and that, in accordance with the judgment of this Court on the former appeal, plaintiff is entitled to a new trial.

It is, therefore, the judgment of this Court that the order appealed from be affirmed.

Affirmed.

Mr. Chirk Justice Gary and Messrs. Justices Watts and Fraser concur in the result. Mr. Justice Gage did not participate in the consideration of this case.

Footnote.—As to power of appellate Court to correct its judgment after it becomes final, but before remand to lower Court, see note in Ann Cas. D. 1297.