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TUCKER v. READING CO.

November 19, 1971

Melvin M. TUCKER
v.
READING COMPANY v. ROYCE KERSHAW COMPANY, Inc.


John W. Lord, Jr., Chief Judge.


The opinion of the court was delivered by: LORD, JR.

JOHN W. LORD, JR., Chief Judge.

 A brief procedural history of this case is in order, if only to preclude any further motions being made by either party to the present stage of the proceedings (Reading Company and third-party defendant Royce Kershaw) to reopen, reargue, resubmit, or reconsider any preliminary steps to the trial which we believe necessary in this matter, the reasons for which are set forth more fully in our Order.

 As recited in our Opinion of September 10, 1971, 53 F.R.D. 453, plaintiff Melvin M. Tucker was injured in the course of his employment with defendant Reading Company, and brought suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51. Reading sought to obtain indemnity under the contract from Royce Kershaw, manufacturer of the equipment involved, as well as contribution for concurrent negligence. The F.E.L.A. action was settled for $235,000.00. Royce Kershaw argued, and this Court agreed, that it had not received sufficient notice under the contract to hold it liable for indemnity. We, therefore, entered summary judgment in favor of Royce Kershaw and against Reading for both claims, on June 28, 1971. On July 8, 1971, Reading filed motions pursuant to Rule 59, Fed. R. Civ. P., to vacate and amend judgment, with Royce Kershaw. The motions were filed with the Clerk of the Court on July 13, 1971, and on July 26th, 1971. Reading filed its notice of appeal.

 A subsequent argument was held before us to determine if the appeal divested this Court of jurisdiction to consider the Rule 59 motions, or whether the filing of timely motions to vacate and amend rendered our summary judgment interlocutory, and, consequently, the appeal invalid. The Order of September 10, 1971, declared the appeal invalid, and we ordered a further hearing on the motions of Reading Company to amend and vacate. Briefs were filed and argument heard on those motions. We set forth below our reasons for denying the motion to vacate, and granting the motion to amend.

 I

 Reading failed to notify Royce Kershaw of the suit until approximately seventeen months had passed. It is Reading's position that because Royce Kershaw received notice of the accident almost immediately after its occurrence, this was sufficient notice.

 This is incorrect. Paragraph 15 of the Lease Agreement between Reading and Royce Kershaw is explicit in demanding that

 
In the event any suit, or action shall be commenced or any claim shall be asserted against the Railroad for or on account of any loss, damage or injury for which Kershaw is liable hereunder, the Railroad shall give Kershaw reasonable notice thereof . . .

 It is clear from a reading of the contract that Royce Kershaw contracted to receive from the Railroad reasonable notice of any suit against them, not reasonable notice of an accident which might be the cause of such suit.

 Reading's second argument for vacation of the award, that it failed to give notice for more than seventeen months because it did not know the exact legal strategy which plaintiff intended to employ, seems to us to be without merit. We think that a Railroad would be subject to such a large number of suits brought by workmen that it could anticipate whether or not a third-party defendant would have to be joined, particularly where, as here, the Reading was represented by a distinguished member of the Railroad defense bar. In any event, the contract called for reasonable notice, and seventeen months is to us far too long a delay. The cases construing time requirements for promptness are in accord. See, e.g., United States Casualty Company v. Liberty Mutual Insurance Company, 208 F. Supp. 36 (E.D. Pa. 1962); Farmers National Bank of Ephrata v. Employers Liability Assurance Corporation, 414 Pa. 91, 199 A. 2d 272 (1964).

 Reading has urged upon us that reasonable notice should not be taken arbitrarily from the time periods cited in the case law, but should be decided upon the facts of each case. Citing Farmers National Bank of Ephrata v. Employers Liability Assurance Corporation, supra. While this is a reasonable position, we note with interest that none of the cases cited by either party dealt with a time period of nearly a year and a half, and that, determining on the individual facts before us what is reasonable, we would have to conclude that seventeen months is not. Finally, Reading cites Meierdierck v. Miller, 394 Pa. 484, 147 A. 2d 406 (1959) for the proposition that reasonable notice is a question for the jury which it says we should empanel in this matter. Although the Meierdierck court mentioned jury consideration of such an issue where there were extenuating circumstances, it held that, "[where] special circumstances do not appear, the question whether the insured has complied with the requirements of the policy in giving notice of an accident is one for the court." Id. at 488, 147 A. 2d at 408. Aside from Reading's claim of non-knowledge of what Tucker's counsel's trial tactics would be, we find no special circumstances present in the case, and consider this to be a question for our sound discretion. Accordingly, we will deny the motion to vacate judgment.

 II

 The second form of relief requested by Reading is an amendment and modification of our Order of June 28, 1971, to permit it to seek common law ...


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