Appendix — Argo v. Wiman

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 8298

Jous L. Lewis, Wexry G. Scusipt anp Josernine Roce,

as Trustees of the Usirep Mixt Workers of AMEnica

WerareE AND RetinemMest Funxp oF 1950, Appellees,

Vv.

EF. Arnoup Lowry, individually and trading as Lowry

Coa Company, Appellant.

Appeal from the United States District Court for the

Western District of Virginia, at Abingdon.

Tep Darton, District Judge.

(Argued April 10, 1961. Decided September 16, 1961.)

Before SoseLorr, Chief Judge, and Sorer and Hayxswortn,

Cireuit Judges.

Haynswortn, Circuit Judge:

Summary judgment was entered for the plaintiffs in

this suit by the Trustees for the Welfare and Retirement

Fund of 1950 (United Mine Workers of America) against

a mine operator for ‘‘rovalty’’ payments at the rate of

forty cents per ton of coal mined by the defendant.' We

think the summary judgment was inapvropriate in the

light of the factual issues tendered.

1 Lewis v. Lowry, W.D. Va., 191) F. Supp. 490,

2a

From May 1955 to August 1958 the defendant was en-

gaged in a strip mining operation in Harlan County, Ken-

tucky. He employed three or four men at a time in the

operation, and during the entire period seven differeut

individuals were employed by him in the work. |

The defendant claims that shortiy after the operation

commenced, a representative of the United Mine Workers,

Floyd, came to the job and demanded that he sign the Na-

tional Bituminous Coal Wage Agreement of 1952 with

its amendments. At that time, the defendant had only

three employees, only one of whom, he claims, was a member

of the U.M.W. Nevertheless, the defendant signed the

agreement and later signed the subsequent agreements of

1955 and 1956. Though he admits that Floyd made no

threats of any kind to him, he claims that he was duressed

into signing these agreements beeduse of his conviction,

based upon violence in Harlan County, Kentueky in pre-

vious years, that, if he did not do so, he and his employees

would suffer injury to their persons or their property.

Perhaps inconsistently, but more importantly, the defendant

claims that before signing the first agreement he explained

to Floyd that he could not pay a royalty of forty cents a ton

or the union wage seale, and that Floyd prevailed upon him

to sign the agreement as a mere formality, but with the

clear understanding that he would not be bound by it. The

defendant says that he operated on that bas*s during the

three years preceding 1955, and that it was recognized by

Floyd that the defendant could not afford the wages and

royalty payments specified by the national agreement, and

that he was not expected to pay them.

The defendant also says that in performance he did

not pay the wages required by the national agreement,

that questions affecting working conditions were settled

on the seene, and that he sent monthly checks to the

plaintiffs in amounts which he felt he eould afford and

without regard to the tonnage of coal mined, this being

a

in accordance with his claimed understanding with Floyd.

These monthly payments to the plaintiffs were in) small,

even amounts. Seven of them were for $120 each. two of

them were for $140 each, three of them were for $200 each,

three of them were for $100 each, and the remainder were

for similar, even, mederate sums. The total of these pas

ments aggregated $3,264, and the defendant suggests

that neither the plaintiffs ner anvone else could have

suppose! that such even figures could have been based upon

actual coal production. Te points to his aetnal prodnetion

fizures which when computed for each month to a fraction

of a ton in tenths and multiplied Dw forty cents ao ten,

wonld invariably produce an odd dollar amount for the

rovalty payment.

The plaintiffs claim that payments agerevating $52,705.40

should have been made to them and seek the reeovery

in this aetion, after erediting the defendant with the

$3,264 he paid, of $49,551.40.

On summary judyment, the plaintiffs concede. as they

must, that Flovd did and said everything that the defendant

says he did and they aceept the other facts asserted by the

defendant.

The plaintiffs stand on the parol evidence rnle and upon

a theory that the poliey of the National Labor Relations

Act gives some added protection to labor agreements at-

tacked as sham.

Before we give consideration to the legal izsnes ten-

dered. we think the factual situation should be more fully

edeveloped. The defendant seeks to bring himself within

the usnal role that an agreement which is purely preten-

sive and delivered with m intention that it ts to be binding

upon either party may be shown by parel evidence to

have created ne contractual obligations.? It may be a

2 Tewis vo Mears, WD Pal 188 Po Sapp Fess and eee Burke vo Pitan s,

153 1S, 228. 14.8, 't. 810,58 L. Ee. Gos: In re Hicks & Son, Ine. 2 Gr, «2

F. 2d 277.

42

salutary limitation upon the rule that the bare assertion

of the party to be bound is not enough to show that the

purported contract was a pretense and a sham,? but here

the defendant claims corroboration in the cireumstances

of his performance,

On the present record we think the facts are not suffi-

ciently established to determine whether the situation is

yoverned by the rule which denies enforcement of pre-

tensive agreements or by the rule which forecioses the use

of parol evidence to establish a contemporaneous oral agree-

ment to vary the terms of a valid contract.

It is suggested, however, that a remand would be pur-

poseless, and that the usual rule, which permits a party

to show the real agreement, notwithstanding the existence

of a pretensive writing, is inapplicable to collective bar-

gaining agreements, The contention is founded principally

upon that provision in the National Labor Relations Act*

which requires that a collective bargaining agreement he

redueed to writin. if requested by either party. We find,

however, no such broad and collateral effect of the statu-

tory provision,

The requirement that collective bargaining agreements

be reduced to writing came into the Act after a history of

refusal by some employers to make a memorial of agree-

ments reached in collective bargaining negotiations. The

Congress was of the opinion that a refusal to record

an agreement reached was not the sort of good faith

bargaining required by the Act. The requirement, however,

ix directed to the real agreement of the parties. It does

not make sacrosanct a pretensive agreement inconsistent

with the real agreement reached in the collective bargaining

process,

3 Rock Ola Manufacturing Corporation v. Wertz, 4 Cir., 282 PF. 2d 268.

429 USCA § 158 (d).

OA

If negotiators in a collective bargaining session should

arrive at a complete agreement on the eve of April Fool's

Day and, out of a perverted sense of humor, should re-

duce to writing, sign, and distribute a pretensive agree-

ment far from the real agreement they had reached, surely

either party could show that the pretensive agreement was

in fact pretensive, and the right of each to require that

the real agreement be reduced to writing would be pre-

served, The requirements of the Act are directed to the

protection of the real agreement of the parties and not to

alteration of aecepted principles governing proof of the

terms of the real agreement.

If, therefore, it should be made to appear that the

union, for the sake of its relations with the larger mine

operators, or for any other reason, insisted upon exeeu-

tion hy the small operator of an agreement which in

fact was pretensive and not the real agreement of the

parties, nothing appears in the federal statutes which

would prevent disclosure and proof of the real agreement

between the union and the mine operator.

Finally, it is suggested that the plaintiffs, the Trustees

of the Welfare and Retirement Fund, may bave some

vreater right to erforee a pretensive agreement than

would either of the immediate parties to it. The rights

of the trustees, however, are entirely derivative. Their

right to recover contributions from the mine operator is

dependent entirely upon the real agreement between the

operator and the union. The trustees have no independent

right to insist that ..n operator make any contribution to

the fund, or that it do so on the same basis and under the

same formula that other operators contribute. The trustees

are the third party beneficiaries of the real agreement

hetween the union and the operator, which they may en-

foree in aceordance with its terms, but the fact that the

suit is brought for the benefit of the third party bene-

ficiaries would not foreclose a defense that there was no

6a

contract or that the writing upon which the complaint ix

based is not, in fact, the real agreement between the

operator and the union.°

The judgment will be reversed and the case remanded

for further proceedings.

Reversed and remanded,

Sonevorr, Chief Judge, dissenting:

The Distriet Court’s action was sound and its judgment

should not be disturbed.

Remand to the District Court is worse than useless since

it is for the purpose of establishing a legal irrelevancy.

This course is not justified because the only possible re-

sult of a trial on the issue of ‘‘sham contract’’ would be

to ascertain facts which could constitute no defense.

Lowry became a party to the industry-wide collective

bargaining agreement which obligated him to make royalty

payments to the Trustees of the Welfare and Retirement

Fund at the rate of $0.40 per ton. He regularly paid the

fixed amount upon the number of tons he reported to the

Trustees, reducing the total payments by the simple ex-

pedient of understating the tonnage in each of twenty-five

payments made during the period in question. When the

Trustees discovered from his reports to other agencies

that his production was much greater than he had ac-

counted for to the Trustees, they demanded payment of

the difference due. Lowry did not interpose the present

defense of ‘‘sham agreement,’’ but sought to defend the

correctness of the remittances made by him. He would

not, however, agree to an inspection of his production ree-

5 One ean imagine circumstances in which a pretensive agreement between

the union and a mine operator might induce action by the Trustees or

employees to their detriment. In such a situation an estoppel might arise or

the union and the employer might be held responsible for the losses in a tort

action. No such circumstances are developed on this record.

va

ords, either by a certified publie aceountant of his own

choice or by accountants from the Trustees’ office. It

happens that each of bis sven employers whose names

Lowry remembered in his deposition had been certified

by him from time to time to collect, and did collect, benefits

from the Trust Fund.

However, my dissent ix based not upon the defendant's

lack of equity, but upon broader grounds, f+r this is not

just a small case involving a few miners. If the present

employer is permitted to cireumvent his written collective

bargaining agreement, the effects will be industry wide."

There are three reasons why the defendant's allegations

fail to constitute a defense to the snit by the Trustees,

First, the statute authorizing agreements to establish in-

dustrial trust funds, properly interpreted, requires that

such agreements shall be in writing. Second, broadly as a

matter of federal labor law, the so-called ‘*sham’? exeep-

tion to the parol evidence rule should not be allowed in

suits under collective bargaining agreements. Third, even

if a private oral agreement, said to be the *‘real eontract’’,

could be relied upon by Lowry in a suit by the union, it

eannot be asserted as against the Trustees,

1 The present case involves no ‘‘ April Fools’ Day’ joxe, but is one of 4

series of attempts by coal operators over the nation to renege on their agreed-

upen obligations with respect to the Union Welfare and “etirement Pand. For

other cases where coal operators have attempted, unsueros<fully, te eoape the

payment of royaities to the Welfare Fuad. some of them involving the

same contentions as in the instant case and seme invelving different ones,

see: Lewis ¥. Fentress Coal and Coke Company, Wr FL Supp. 221 (MLD.

Tenn., 195%), aff’d 264 F. 24 134 (6th Cir, 1950): Lewie vo Wearne, 168 F.

Supp. 134 (ND. W. Va, 1958), aff'd 268 FL 2d 427 (4th Cir, 150): Lewes v.

Quality Coal Corporation, 270 F. 24 140 (7th Cir, 150), cert. denied 461 US.

929 (1960): Lewia ¥. Cable, 107 F. Supp. 196 (WLD. Pa. 1952); Leais v.

Hisson, 174 F. Supp. 241 (WD. Ark. 1950); Lewix v. Kerns, 175 FL Supp.

115 (SD. Ind, 1959+; Lense ¥. Mill Kedae Coals, Ine, 188 F. Supp. 4 (ED.

Ky., 1960); Lewis ¥. Young & Perkina Coal Company, 190 F. Supp. . $38

(WUD. Kr. 1960): Lewia ¥. Gilchrist, .... F. Supp. .... (ND. Als... decided

April 6, 1961). For one ease upholding a contention similar te that of the

defendant in the present case. see Lewin vo Mara, Isy F. Supp. 50s (WD.

Pa., 1960).

8a

I.

In scetion 302 of the Labor Management Relations Act,®

Congress show’ 4 cone: rn for the abuses accompanying the

growth of the industrial trust funds. Trimarily, it was

feared that if the management of the funds were left en-

tirely in the discretion of union officials, the money con-

tributed by employers and by employees might not be

used for welfare purposes. As Senator Taft said, ‘‘ Unless

we impose some restrictions, we shall find that the welfare

fund will become merely a war chest for the particular

union * * *.’’* QOne of the safeguards imposed by the act

is that: ‘*‘the detailed basis on which such payments are

to be made is specified in a written agreement with the

employer.’’* According to the law’s framers, the primary

purpose of this provision was to enable employees to know

what they were entitled to receive in welfare benefits and

to be able to bring suit against the Trustees if necessary.

Literally read, section 302(c)(5)(B) may be thought

to require that only the terms of the payments to the

employees be in writing. Nev-: ‘theless, the protection of the

employees is not complete nricss ihe statute is read to re-

quire as well that the terms on which payments are to be

made ini> the Trust Fund be similarly stated in writing.

Congress could not have intended to safeguard against the

improper use of money once it has been contributed to

the fund, but not against evasion of the primary obligation

to contribute. :

_

Further, it would be inconsistent to read the statute to

require that the agreement as to terms of payment to the

261 Stat. 157 (1947), as amended, 29 U.S.C.A. 4 186 (Supp. 1960).

393 Cong. Ree. 4747 (1947).

4Labor Management Relations Act § 302(¢)(5‘(B), 61 Stat. 157-58

(1947), as amended, 29 U.S.C.A. § 186(¢)(5)(B) (Supp. 1960),

5 See William Dunbar Co. v. Painters & Glaziers Dist, Couacil, 129 F. Supp.

417, 423 (Uc. D.C., 1955).

Vn

fund be in writing and vet to permit an employer to eleim

the **sham"’ exception to the parol evidences rule. The res

alty payments are an indirect method of compensating the

employees,* and they have a right to kuow exactly what thes

are receiving for their serviees. They also have a right te

know how well their union nevotiators represented their

interests. Thes are being deceived if the onbliely declared,

written agreement may be sapped by a seeret ecorpaet. In

addition, the establishment of this type of trust tund is

generally made on an industry-wide basis. Tf some employ:

ers secretly contribute less than their shares, other em.

ploy rs may be foreed to contribute more to enable the

fund to meet its oblications.? Assuming that diferent rov

alties may be charged different employers, the other om

ployers are at least entitled to know when someone is pay

ing less per ton than they are. If then Congress has re-

quired that the agreement be reduced to writing, it cannot

he supposed to have contemplated that a party mas come

into court with the defense, Yes, we have obediently put

it in writing, but we did not mean it."* The salutary

<cheme to cushion the financial impact on employees and

their families of unemployment, illness. old age and death

could be redueed to chaos by a suceession of such defenses

as that attempted here, bringing in its train a host of social

evils.

II.

In respect to ordinary eommercial contract the high

position accorded to written agreements, as witnessed by

the parol evidence rule itself, may under some eirenum-

stanees vield to the “sham”’ exception.” Nevertheless, as a

-

6 Lewia ¥. Benedict Coal Corp., 261 VS, 459, 469 Clore.

7 See Lewia v. Benedict Coal Corp. supra at 469 (1960),

*The parties are in disagreement as te Whether under Kentucke baw, if

applicable, the ** sham’ exception te the parol evidemee tule ts recugeic dF

find it uuneeessary to deeide this.

10a

matter of substantive labor law, courts should not permit

the exception.

A collective bargaining agreement has been called a

‘weneralized code’ for the industry to whieh it applies, and

has been likened to a ‘*charter instrument of a system of

industrial self-government, like words in a statute.’ ' Tf

these are valid concepts, a union and an employer can no

more make covert exceptions to the contract than a legisla-

tive body could to a statute whieh it adopts. Both are

frauds upon the constituencies concerned. This is not to

say that a collective bargaining agreement may never he

oral, but where the parties have put it into writing, as in

the usual case, it may not be varied by a contradictory oral

agreement.

The union is not bargaining for itself alone, but as a

representative of employees, and sometimes of others such

as the Trustees in the instant case. It is imperative that the

emplovees and other direct beneficiaries have a written

embodiment of their rights and duties which can be as-

eertained by all. The public also has a right to know

precisely what was agreed upon. If this ‘‘sham’’ exception

is recognized, none of these interests will have any idea

what the terms of the ‘‘real’’ collective bargaining contract

are,

We must have regard for the spirit of the legislation,

Section 8(d) of the Labor Management Relations Act" has

recognized the importance of having a collective bargain-

ing contract in writing by providing that bargaining in

rood faith includes a willingness to embody the agreement

in writing at the request of the other party. See H. J. Hetnz

® United Sicelworkers ¥. Warrior & Gulf Nav. Co., 363 U.S. 574, 578 (1960)

(Douglas, J.).

10UTnited Steelworkers v. American Mfa. Co., 363 U.S. 564, 570 (1960)

(Brennan, J., concurring). See Cox, The Legal Nature of Collective Bargain

ing Agreements, 57 “ fiech. L. Rev. 1, 22-36 (1958),

1161 Stat. 142 (1947), 299 T.S.CLA. § 158 (d) (1956).

Ltn

Coo v. NARLB.. SV) US. 514. 525-26 INST). ON written

labor agreement settles questions that af left unsettled

could lead to industrial strife. [Its qrarpose is to averd

strikes, Walkouts, workstoppages and othe ake. df <ueh

written contracts can be nullified Whenever the employer

and union come to some ether secret oral agreement. the

purpose of the contract as an instrument of industrial peace

may be frustrated’?

Ill.

Even if it be assumed that in a suit by the union rather

than the Trustees a sub-rosa understanding could he as-

serted by the employer, to allow the defense as against the

Trustees would tend to undermine the statutory scheme

for the creation of an irrevocable trust for the employers,

The plan is one sponsored jointly by industry and labor and

approved by Congress. The fund is jointly administered hy

representatives of employers and labor along with a neutral!

third party. If would be an unbearable incongruity, at war

with the law’s underlying policy, to allow the trust fund to

he eroded in the manner proposed, for what kind of trust

is it that leaves the dooor open to impairment hy secret

agreements, even those participated in by a donor? —

The Supreme Court in Lewis v. Benedict Coal Corp.,

361 U.S. 459, 465 (1960), pointed ont that a trust fund

is in ‘tno Way an asset or property of the union.’ See

Cong. Ree. 4678 (1947) (remarks of Senator Ball). In

that case the trust fund was considered so far independent

of the union that although a money judgment had been

— --

-

12 The majority opinion suggests in footnote 5 that an emplover might be

understanding with the union eontradicting

estopped from asserting an ori!

th ir written agreement if it were shown that the Trustees or emplovees aeted

te their detriment. The simple answer is that specific detriment to these third

parties is not required to be shown to invoke Ghe rule against aeeret evasion

of the written agreement because detriment is inherent in the frustration of

Trustees’ and employees’ rights which has been fully pointed out above in

the text.

Ion

rendered in favor of the employer against the union, the

employer Was not permitted to use it as a set-off to a

judgement against the employer in faver of the trustees,

The considerations bearing on the protection of the in-

terests of beneficiaries, which were stressed in Benedict,

apply in logie and common sense with no less force here.

Royalty payments to the Trustees may not be eurtailed by

private oral agreements between an employer and a union,

any more than they were permitted to be reduced by

damage claims of the employer against the union. The

Trust Fund's obligation to. pay benefits to Lowry's em-

ployees could not be affeeted by secret understandings be-

tween the coal company and the union; neither may the

employer's obligation to pay royalties to the Trustees be

diminished by clandestine arrangements between the em-

ployer and the union.

IV

The court’s opinion treats the defense of coercion as

frivolous, and with this I fully agree. No threats are

claimed. The mere fear that if one will not sign the agree-

ment there will be a strike or walk-out is not the kind of

coercion that a court will recognize as sufficient te invali-

date an agreement. This is elementary.’® Certainly no re-

mand is warranted to take testimony in support of this

‘*defense,”’

For the above reasons, I think that the order of the Dis-

trict Court should be affirmed. Remand erroneously implies

that if the facts that have been asserted could be estab-

lished, they would constitute a valid defense. With tais I

do not agree

13 See, ¢.0., Lewis v. Quality Coal Corporation, 270 FP. 24 140 (7th Cir.,

1959); Lewis v. Reeve 175 TP. Supp. 115 (8.1. Ind., 1959).

loa

Judgment

Fik-i and Entered September 16, 1901.

UNITE STATIS COURT OF APHEALS

FOR THE FOURTH CIRCUIT

No. S208

Joun L. Lewis, Piesny G. Scusmipr and Joseriuimk Reerer,

as Trustees of the Uxerep Mine Workers or Asenica

Werrare axp Retirement Fuxp of 150, Appellees,

¥.

FL Arxotp Lowry, individually and trading as Lowry Coan

Company, Appellant.

Apreat From the United States Distriet Court for the

Western District of Virginia.

THis Cavse eame on to be heard on the reeord from the

United States Distriet Court for the Western Distriet of

Virginia, and was argued by counsel.

Ox Consiperation Wireretor, Lt is now here ordered and

adjudged by this Court that th® judgment of the said) Dis.

trict Court appealed from, in this cause, be. and the same

ix hereby, reversed with costs; and that this cause be. and

the same is hereby, remanded to the Uenited States Distriet

Court for the Western District of Virginia, at Abingdon,

for further proceedings consistent with the opinion of the

Court filed herein.

Morris AL Soper

~ United States Circuit Fiala.

Crement Fo Hayyxsworrn, Jn.

United States Circuit Judqe,

I dissent:

Simon i. Sonetorr

Chief Judge, Fourth Ciroat =

Filed Sep. 16, 1961

R. M. F. Winziams, Jr.

Clerk

l4a

APPENDIX B

Section 8(d), Labor Management Relations Act, 1947

[29 USCA 158(d)):

**For the purposes of this section, to bargain collectively

is the performance of the mutual obligation of the enplover

and the representative of the employees to meet at reason-

able times and confer in good faith with respect to wages,

hours, and other terms and conditions of employment, or

the negotiation of an agreement, or any question arising

thereunder, and the execution of a written contract incor-

porating any agreement rerched if requested by either

party, but such obligation does not compel either party to

agree to a proposal or require the making of a conces-

ld

Section 302, Labor Management Relations Act, 1947

[29 USCA 186):

**(a) It shall be unlawful for any employer to pay or

deliver, ei: to agree to pay or deliver, any money or other

thing of value to any representative of any of his employ-

ees who are employed in an industry affecting commerce.

‘*(b) It shall be unlawful for any representative of any

employees who are employed in an industry affecting com-

merce to receive or accept, or to agree to receive or accept,

from the employer of such employees any money or other

thing of value.

‘*(e) The provisions of this section shall not be applica-

ble... (5) with respect to money or other thing of value

paid to a trust fund established by such representative,

for the sole and exclusive benefit of the employees of such

employer, and their families and dependents (or of such

employees, families, and dependents jointly with the em-

ployees of other employers making similar payments, and

their families and dependents): Provided, That (A) such

payments are held in trust for the purpose of paying, either

from principal or income or both, for the benefit of em-

laa "

plovees, their featsitdies iid depos tedents, for medical or

hospital care, peemstets on retirement or death of em.

Plovees, Colnpensation for injuries o7 illness resulting from

eccupational achivity or insurance te provide any of the

foregoipg, or tnetyplovinent benetite or lite insurance, dis

ability and sickness insurance. or aecident insurances: 24

the detailed basis on whieh suelo pasinents are te be quad.

Is specified IN aA Written agreetient with the etiplover, ane

emplovees and emplovers are eqs represented: im the

administration of such fund. tesether wath sueho metres

persons as the representatives of the emoulovers amd the

representatives of the eT plovers Ha ares tpn aimed on

the event the employer and eaples ce srenps deadlock on

the administration of such fund and there are ne neutral

persons empowered to break stich deadioek, seh aereenpent

provides that the two groups shall aeree on aa iupartical

Wnpire to decide such dispute. er in eveontoet thea turbine

to agree within a reasonable deneth of time. am giapartial

Winpire te decide such dispute shalhoonm petition af either

Croup, le appointed Is thee clistyiet cert at the Donated

States for the distriet where the trust fund has its prin-

cipal office, and shall also contain provisions for an ammual

audit of the trust fund. oc statement ot the result. of whieh

shall be available for inspection Da interested: pwersens at

the principal offiee of the trust fund and oat such other

places as may be designated im such written aurecment:

%9

Federa) Rules of Civil Procedure, Rule 56:

*Rale 56. Summary Judgment.

‘*(a) For Claimant. A party seeking te recover upon a

Claim, counterclatin, or cross-elatin or te obtam a declara-

tory judgment may. atoany time after the expiration of

— 20 days from the commencenent of the aetion or atter

service Of a dmotion for stumiuary tudwiment by the adverse

party, move with or without supporting affidavits for a

16a

summary judgment in his faver upon all or any part

thereof.

**(¢) Motion and Proceedings Thereon. The motion shal!

be served at least 10 days before the time tixed for the hear-

ing. The adverse party onior to the day of hearing may

serve opposing affidavits. The Judgment sought shall be

rendered forthwith if the pleadings, depositions, amd ad

missions on fie, together with the affidavits, if any, show

that there is no genuine issue as to any muaterial fact and

thar the moving parts is entitled te a judement as a matte:

of law. A summary judgment, interlocutory in character,

may be rendered on the issue of liability alone although

there is a genuine issue as to the amount of damages."