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Nix v. Spector Freight System

April 1, 1959

WILLIAM A. NIX, ET AL., PLAINTIFFS-APPELLANTS,
v.
SPECTOR FREIGHT SYSTEM INC., A CORPORATION, ET AL., DEFENDANT-APPELLEE.



Before BIGGS, Chief Judge, MARIS, GOODRICH, MCLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

Per Curiam:

Appellants' petition for rehearing forcefully restates arguments which were clearly advanced on the original briefing and argument of this appeal. Both of the judges who joined in the decision of this court have voted to deny rehearing before the division which decided the appeal. Less than a majority of the circuit judges now in regular active service have voted for rehearing before the court in banc. Judge Maris, having retired from regular active service since he joined in the disposition of this appeal, has voted only on the question of rehearing before the division which decided the appeal. Accordingly, the petition is denied.

MCLAUGHLIN, C. J., dissenting from the denial of petition for rehearing: I dissent from the denial of the petition for rehearing (which if heard should be heard by the full court) because such action continues a gross injustice to appellants.

This Court's affirmance of the dismissal of the complaint prior to any answer being filed arbitrarily brushes aside the sound averments that (1) as third party beneficiaries to the employment contract, plaintiffs are entitled to sue the party who had wronged them and not be compelled to join those who, according to the complaint, are connected with this particular cause solely by reason of having profited by that wrong; (2) the "arbitration", to which the majority ascribes validity, under the only pleading filed in the case to date is declared to be a void thing, the product of a conspiracy to defraud plaintiffs of their rights arising out of the contract.

At this stage of the suit the complaint cannot be dismissed under any sound law or practice. Appellants have clearly stated a proper cause of action, they should be allowed to prove it, if they can.

BIGGS, Ch. J., and STALEY, C. J., join in this dissenting opinion.

19590401

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