
    STANDARD-VACUUM OIL COMPANY v. THE UNITED STATES
    [No. 48319.
    Decided January 11, 1955]
    
    
      
      Messrs. Oravath, Swame da Moore for plaintiff. Messrs. Albert R. Oonnelly and George /S'. Gollins were on the brief.
    
      Messrs. Kendall M. Barnes, with whom was Mr. Assistant Attorney General Warren E. Burger, for defendant.
    
      
       Plaintiff’s petition for writ of certiorari pending.
    
   Whitaker, Judge,

delivered the opinion of the court:

This case is before us on defendant’s motion for a new trial under Hule 54 (b) (5) and (6), or, in the alternative, for reconsideration of the order of the court entered on December 1,1953, denying the motion for a new trial.

It appears that on November 6, 1951, this court rendered an opinion (120 C. Cls. 518), in which it stated:

Caltex, Standard, and Shell are entitled to recover for the taking of their terminal facilities on Pandacan, and Standard is entitled to recover for the taking of its petroleum products on Cebu, the exact amounts being reserved for further proceedings under Rule 38 (c).

Petition for certiorari was filed and granted (343 U. S. 955) from the judgment holding the defendant liable on the Pandacan claims of Caltex (Philippines), Inc., Standard-Vacuum Oil Company, and the Shell Company of Philippine Islands, Ltd., and the Supreme Court reversed our judgment on these claims (344 U. S. 149). But the claim of the Standard-Vacuum Oil Company for the taking of its petroleum products on Cebu was not involved in the petition for cer-tiorari to the Supreme Court, and our judgment holding defendant liable on that claim was unaffected thereby.

Under 28 U. S. C. 2515, defendant filed on November 2, 1953, a motion for a new trial in the Standard-Vacuum Oil Company case insofar as it related to its petroleum products on Cebu; but this motion was overruled by the court on December 1, 1953, and the case was remanded to a Commissioner for the taking of testimony under Rule 38 (c). The Commissioner has not filed Ms report and no judgment on the amount plaintiff was held entitled to recover has been entered.

In Caltex (Philippines), Inc., v. United States, No. 48322 [129 C. Cls 605], we decided on July 13,1954, that our former judgment in the Standard-Vacuum Oil Company case, No. 48319 [120 C. Cls. 518], relating to the petroleum products on Cebu, was in error, and we overruled it, and in that case we held that Caltex (Philippines), Inc., was not entitled to recover for the destruction of its petroleum products on Cebu. Caltex (Philippines), Inc., and Standard-Vacuum Oil Company were in exactly the same situation with reference to their petroleum products on Cebu and, therefore, since we have held that Caltex (Philippines), Inc., is not entitled to recover, it follows that Standard-Vacuum Oil Company is not entitled to recover. But our former judgment of November 6, 1951, holding that it was entitled to recover still stands.

Have we authority to now set aside this judgment ?

Section 2515, 28 U. S. C. provides:

New trial; stay of judgment.
(a) The Court of Claims may grant a plaintiff a new trial on any ground established by rules of common law or equity applicable as between private parties.
(b) Such court, at any time while any suit is pending before it, or after proceedings for review have been instituted, or within two years after the final disposition of the suit, may grant the United States a new trial and stay the payment of any judgment upon satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has been done the United States.

More than two years have elapsed since we rendered our judgment holding the defendant liable, but the case has not been finally disposed of, as we stated at the outset, and 28 U. S. C. sec. 2515 gives us authority to grant a new trial within two years “after final disposition of the suit.” There is, therefore, still time for us to correct the error we have committed.

Accordingly, on the authority of our opinion in Caltex (Philippines), Inc., v. United States, 129 C. Cls. 605, we now hold that Standard-Vacuum Oil Company is not entitled to recover for the destruction of its petroleum products remaining on Cebu when the Japanese were about to land on April 10,1942. For all such products which had been appropriated by the defendant to its own use and which have not been paid for, it is entitled to recover.

Our former judgment is set aside, and the ease is referred to a Commissioner to take proof and report the amount due in accordance with this opinion.

It is so ordered.

Laramoee, Judge; Madden, Judge; Littleton, Judge; and Jones, Ghief Judge, concur.

ON PLAINTIFF’S MOTION UNDER RULE 54 (b) (1) EOR RELIEF PROM THE court’s ORDER OP JANUARY 11, 1955

Whitaker, Judge,

on June 7, 1955, delivered the opinion of the court:

In our opinion handed down on January 11,1955, we said:

“Caltex (Philippines), Inc., and Standard-Vacuum Oil Company were in exactly the same situation with reference to their petroleum products on Cebu and, therefore, since we have held that Caltex (Philippines), Inc., is not entitled to recover, it follows that Standard-Vacuum Oil Company is not entitled to recover.”

Plaintiff now says that the facts relative to the Cebu claim of Caltex (Philippines), Inc., including the action taken by the Depot Quartermaster on Cebu and his authority to take these acts, were developed in a case to which the present plaintiff was not a party and, hence, that they form no basis for a judgment in this action.

Technically, plaintiff is correct, although all the indications are that the facts relative to the oil products of Caltex (Philippines), Inc., and of Standard-Vacuum Oil Company are the same. Hence, a new trial is granted with reference to the alleged taking of plaintiff’s oil products on Cebu. The reference to the Commissioner as contained in our opinion of January 11, 1955, and the order based thereon, is broadened to include the taking of any evidence the parties may desire to offer relative to the alleged taking of plaintiff’s oil products on Cebu; otherwise the order of January 11, 1955, will stand.

It is so ordered.

Laramore, Judge; Madden, Judge; Littleton, Judge; and Jones, Ghief Judge, concur.  