Wansor v. Hantscho

1978 | Cited 0 times | Fifth Circuit | May 24, 1978


Before BROWN, Chief Judge, COLEMAN and MORGAN, Circuit Judges.

Per Curiam:

The opinion of the panel, appearing at 570 F.2d 1202, is amended by the addition of the following language to appear as a new paragraph at 570 F.2d 1207, immediately prior to the section entitled "Directed Verdict":

We do not hold that a bona fide misunderstanding or mistake as to the law by counsel will constitute excusable neglect. We recognize that such a proposition would make the requirement of timely filing almost undeterminable. See Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 1 Cir., 1978, 569 F.2d 1174, 1175; 9 Moore's Federal Practice, P204.13[1], at 967-74, for explanations of the excusable neglect requirement and examples of the most frequently accepted excuses. All we decide here is that, viewing the facts and circumstances as a whole, the District Court Judge did not abuse his discretion in granting an extended time for appeal.

In its Petition for Rehearing and Rehearing En Banc, Hantscho draws our attention to several instances in the opinion in which our account of the facts is claimed to be misstated. Most of these are inconsequential evidentiary details which will be corrected if, as the Court has requested, both parties collaborate in a professionally responsible manner to furnish a formal statement of facts to the Supreme Court of Georgia, that will afford an that will afford an adequate, accurate statement of the operational facts. However, in the interest of accuracy at all stages of this litigation, the following amendments are made to the panel's opinion:

The final sentence of the first paragraph at 1204 is amended to read: "Wansor's injuries occurred while he was making this adjustment, the first time he had performed this task while the machine was in operation."

The first sentence in the paragraph immediately following is amended to delete the word "unguarded."

The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12 the Petition for Rehearing En Banc is DENIED.

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