# Olga Zdanok v. The Glidden Company, Durkee Famous Foods Division, Frank T. Alexander v. The Glidden Company, Durkee Famous Foods Division

> Court of Appeals for the Second Circuit · January 29, 1964 · 327 F.2d 944

URL: https://www.frixlaw.com/law-library/cases/9449867

## Case

- **Full name:** Olga ZDANOK Et Al., Plaintiffs-Appellees, v. the GLIDDEN COMPANY, DURKEE FAMOUS FOODS DIVISION, Defendant-Appellant; Frank T. ALEXANDER Et Al., Plaintiffs-Appellees, v. the GLIDDEN COMPANY, DURKEE FAMOUS FOODS DIVISION, Defendant-Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** January 29, 1964
- **Citations:** 327 F.2d 944; 55 L.R.R.M. (BNA) 2249; 1964 U.S. App. LEXIS 6550
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumbard
- **Judges:** Lumbard, Waterman, Friendly
- **Cited by:** 459 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Criticized by Provident Tradesmens Bank And Trust Company v. Lumbermens Mutual Casualty Company, 411 F.2d 88 (1969).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9449867

## How later opinions describe it (automated extraction)

- holding that the mere fact that the damages had not yet been assessed should not deprive a ruling on liability of preclusive effect
- stating that “in an appropriate case” a ruling on liability is sufficiently final to have preclusive effect
- stating that the doctrine of the law of the case is addressed to the court’s “good sense”

## Opinion text

LUMBARD, Chief Judge
(concurring) .
I concur in affirmance of the interlocutory judgment of the district court.
Although the record is not very clear, it seems fair to conclude that at the first trial of the Zdanok action before the district court the defendant had full opportunity to introduce evidence relating to 'the contractual intent of the parties. The defendant having elected not to do so, the mandate of this court on the original appeal foreclosed for the district court the issue of liability. Inasmuch as the district court was without power to receive additional evidence relating to the issue of liability, and in light of the fact that absent such new evidence the case returns to us in virtually the same posture as at the time of our prior decision, I feel constrained to acquiesce in the application of the law of the case doctrine.
Were it not the ease that the Alexander action had been instituted in the New York State Supreme Court some two years before the brief trial of the Zdanok action, I should be reluctant to concur in the extension of the collateral estop-pel doctrine to encompass the circumstances in Alexander. But it is clear that when the defendant elected to rest its case primarily on the terms of the collective bargaining agreement in Zdanok —a case involving merely five employees —it was fully aware of the Alexander case, then pending in the state court for about two years, which involved some 160 employee-plaintiffs. Were the circumstances otherwise, I might be persuaded by a claim that the defendant, failed to produce the totality of its relevant evidénce in Zdanok because of the-limited recovery which could have been anticipated upon a judgment for only five plaintiffs. But such a position is untenable in the circumstances here.
I should like to point out that, while the law of these specific cases is settled, and with all respect to Judge Madden, a distinguished senior judge of the Court of Claims, the prior decision rendered by this court, 288 F.2d 99 (1961), in fact represents the views of but one judge of this circuit and is entitled to no prece-dential value so far as this circuit is concerned. The two judges of this circuit, who heard the first appeal were divided on the appropriate disposition of the case.
As for the merits of these cases, whatever substance there may have been in the plaintiffs’ position on the first appeal, had it been proper for the district court. to consider the additional proof adduced by the defendant at the second trial it seems to me to be clear beyond the peradventure of a doubt that the defendant proffered the only tenable view of the collective bargaining agreement. As Judge Palmieri stated: “This Court finds that the parties entertained no expectation that the employees’ rights-would survive the removal of the Elm-hurst plant to another state.” It is not. for the courts to alter the bargain which the parties themselves have struck.
Thus, unfortunately, the result of this-litigation is completely at variance with the intention of the parties. Nonetheless, in light of the sound basis in reason and policy for declining to permit the defendant to introduce now evidence which it could have brought before the district court at the first trial, I reluctantly concur in affirmance of the judgment below.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9449867. Public record. Not legal advice.