110 F.2d 754 (1st Cir. 1940), 3454, Sampson v. Channell

Docket Nº:3454.
Citation:110 F.2d 754
Case Date:March 27, 1940
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 754

110 F.2d 754 (1st Cir. 1940)




No. 3454.

United States Court of Appeals, First Circuit.

March 27, 1940

Walter R. Donovan, of Boston, Mass. (James T. Connolly, of Boston, Mass., on the brief), for appellant.

Hubert C. Thompson, of Boston Mass. (John C. Twomey, of Boston, Mass., on the brief), for appellee.

Before WILSON and MAGRUDER Circuit Judges, and PETERS, District Judge.

MAGRUDER, Circuit Judge.

On this appeal the question presented may be stated simply, but the answer is not free from difficulty. A car driven by defendant's testator collided in Maine with a car driven by the plaintiff, injuring both the plaintiff and his wife, who was a passenger. The wife sued and recovered judgment. We affirmed that judgment in Channell v. Sampson, Dec. 29 1939, 1 Cir., 108 F.2d 315. In this, the husband's action, the jury found specially that the plaintiff's injury was caused by the negligence of defendant's testator, but brought in a general verdict for the defendant on the issue of contributory negligence. Judgment was entered for the defendant.

The action was brought in the federal district court for Massachusetts, there being the requisite diversity of citizenship. On the issue of contributory negligence the plaintiff requested the court to charge the jury, in accordance with the local Massachusetts rule, that 'the burden of proving lack of care on the part of the plaintiff is on the defendant '. This the court declined to do, but upon the contrary charged, in accordance with the Maine law, that the burden was upon the plaintiff to show affirmatively that no want of ordinary care on his part contributed to cause his injuries. The sole question raised is as to the correctness of this charge, and refusal to charge as requested.

Inquiry must first be directed to whether a federal court, in diversity of citizenship cases, must follow the applicable state rule as to incidence of burden of proof. If the answer is in the affirmative, the further point to be considered is whether the applicable state rule here is that of Massachusetts, where the action was brought, or Maine, where the accident occurred.

It would be an over-simplification to say that the case turns on whether burden of proof is a matter of substance or procedure. These are not clean-cut categories. 1 During the reign of Swift v. Tyson, 1842, 16 Pet. 1, 10 L.Ed. 865, the federal courts in diversity of citizenship cases consistently held that the defendant had the burden of proving the plaintiff's contributory negligence, even though the suit arose in a state whose local rule was the contrary. Pokora v. Wabash Railway Co., 292 U.S. 98, 100, 54 S.Ct. 580, 78 L.Ed. 1149; Miller v. Union Pacific, 290 U.S. 227, 232, 233, 54 S.Ct. 172, 78 L.Ed 285; Hemingway v. Illinois Central Railroad Co., 5 Cir., 114 F. 843, 846; Armour & Co. v. Carlas, 2 Cir., 142 F. 721, 722; New Aetna Portland Cement Co. v. Hatt, 6 Cir., 231 F. 611, 615-16; Harmon v. Barber, 6 Cir., 247 F. 1, 6; Bauman v. Black & White Town Taxis Co., 2 Cir., 263 F. 554; Maher v. Chicago, M. & St. P. Railway

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Co., 7 Cir., 278 F. 431, 434; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718, 721. See Central Vermont Railroad Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas. 1916B, 252; First National Bank v. Liewer, 8 Cir., 187 F. 16, 18. They avoided having to apply the local rule under the Conformity Act, R.S. § 914, 28 U.S.C.A. § 724, by saying that burden of proof was not a mere matter of procedure but concerned substantive rights, as to which the federal courts on a matter of 'general law' were free to take their own view. See Herron v. Southern Pacific Co., 283 U.S. 91, 93, 94, 51 S.Ct. 383, 75 L.Ed. 857. The question of classification also arose where suit was brought in one state on an alleged tort committed in another state. But here it was generally held, in the state courts at least, that burden of proof as to contributory negligence was a matter of procedure; hence the rule of the forum would be applied despite a contrary rule of the locus delicti. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Smith v. Brown, Mass., 19 N.E.2d 732; Chicago Terminal R.R. v. Vandenberg, 164 Ind. 470, 73 N.E. 990; Rastede v. Chicago, St. P., M. & O. Railway, 203 Iowa 430, 431, 437, 212 N.W. 751; Jenkins v. Railway, 124 Minn. 368, 373, 145 N.W. 40; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. See Helton v. Alabama Midland, 97 Ala. 275, 12 So. 276; St. Louis & S.F.R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; Prinn v. De Rice, 1930, 129 Me. 479, 149 A. 580; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695. Contra: Olson v. Omaha & C.B.S. Railway Co., 131 Neb. 94, 267 N.W. 246; Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. 2 Cf. Lykes Bros. SS. Co. v. Esteves, 5 Cir., 89 F.2d 528; Delaware

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& Hudson Co. v. Nahas, 3 Cir., 14 F.2d 56. In these two groups of cases the courts were talking about the same thing and labelling it differently, but in each instance the result was the same; the court was choosing the appropriate classification to enable it to apply its own familiar rule

In another and quite different setting the question of classification has frequently arisen, namely, in cases involving the constitutionality of statutes shifting from the plaintiff to the defendant the burden of proof on the issue of contributory negligence, as applied retroactively to alleged torts committed before the date of the enactment. Here the courts, federal as well as state, have upheld the statutes as so applied. Sackheim v. Pigueron, 215 N.Y. 62, 109 N.E. 109; Southern Ind. Ry. v. Peyton, 157 Ind. 690, 693, 61 N.E. 722; Wallace v. Western N.C.R., 104 N.C. 442, 10 S.E. 552; Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279. See Meeker v. Lehigh Valley Rd. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas. 1916B, 691; Luria v United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101; Mobile, Jackson & Kansas City Rd. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas. 1912A, 463; Reitler v. Harris, 223 U.S. 437, 441, 442, 32 S.Ct. 248, 56 L.Ed. 497. The courts say that such statutes introduce no change of the substantive law rule that contributory negligence is a complete bar to liability, but pertain only to the procedure by which the fact as to contributory negligence is to be established. In Easterling Lumber Co. v. Pierce, supra, a state statute, applicable to railroads, provided that from the proof of the happening of an accident there should arise a prima facie presumption of negligence. Referring to this statute, the Supreme Court said, 235 U.S.at page 382, 35 S.Ct.at page 134, 59 L.Ed. 279:

'The objection to the * * * statute is that it was wanting in due process because retroactively applied to the case since the statute was enacted after the accident occurred. But the court below held that the statute cut off no substantive defense but simply provided a rule of evidence controlling the burden of proof. That as thus construed it does not violate the Fourteenth Amendment to the Constitution of the United States is also so conclusively settled as to again require nothing but a reference to the decided cases.'

It is apparent, then, that burden of proof does not fall within either category of 'substance' or 'procedure' by virtue of any intrinsic compulsion, but the matter has been made to turn upon the purpose at hand to be served by the classification. Therefore, inasmuch as the older decisions in the federal courts, applying in diversity cases the federal rule as to burden of proof as a matter of 'general law', are founded upon an assumption no longer valid since Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, their classification of burden of proof as a matter of substance should be re-examined in the light of the objective and policy disclosed in the Tompkins case.

The opinion in that case sets forth as a moving consideration of policy that it is unfair and unseemly to have the outcome of litigation substantially affected by the fortuitous existence of diversity of citizenship. 3 Hence, the greater likelihood there is that litigation would come out one way in the federal court and another way in the state court if the federal court failed to apply a particular local rule, the stronger the urge would be to classify the rule as not a mere matter of procedure but one of substantive law falling within the mandate of the Tompkins case. There will be, inescapably, a twilight zone between the two categories where a rational classification could be made either way, and where Congress directly, 4 or the Supreme Court under authority of the Act of June 19, 1934, 48 Stat. 1064, 28 U.S.C.A. §§ 723b,

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723c, would have power to prescribe a so-called rule of procedure for the federal courts. 5 Thus, if Rule 8(c)6 of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, could be construed as imposing upon the defendant the burden of proof of contributory negligence, it seems that this would be valid and conclusive of the case at bar, despite the contrary intimation in Francis v. Humphrey, D.C., 25 F.Supp. 1, 4, 5. 7 Rule 8(c) speaks of contributory negligence as an 'affirmative defense', a phrase implying that the burden of proof is on the defendant. 8 Yet the only rule laid down is one of pleading; the defendant must affirmatively plead contributory negligence. It is not inconsistent to require the defendant to plead contributory negligence if he wants to raise the issue, and yet to put the burden of proof on the plaintiff if the issue is raised. 9 Since Rule 8(c) contains no prescription as to burden of proof, we...

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