Dupont v. Southern Pacific Company

• Decision Date: 24 October 1966
• Docket Number: No. 22412.,22412.
• Parties: Nathalie L. DUPONT, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee. Velma Margaret DUPONT, Indiv. and next friend for Mark Villejoin, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee. Nathalie LEGER et al., Plaintiffs-Appellants, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee. Anna Louise Dupont TRAHAN, Indiv. and next friend of Michael Joseph Trahan, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

366 F.2d 193 (1966)

Nathalie L. DUPONT, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee.

Velma Margaret DUPONT, Indiv. and next friend for Mark Villejoin, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee.

Nathalie LEGER et al., Plaintiffs-Appellants, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee.

Anna Louise Dupont TRAHAN, Indiv. and next friend of Michael Joseph Trahan, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee.

No. 22412.

United States Court of Appeals Fifth Circuit.

September 21, 1966.

Rehearing Denied October 24, 1966.

J. Minos Simon, John Rixie Mouton, Lafayette, La., for appellants.

J. J. Davidson, Jr., Richard C. Meaux, Lafayette, La., for appellee.

Before BELL and THORNBERRY, Circuit Judges, and FISHER, District Judge.

FISHER, District Judge.

These consolidated cases involve a railroad crossing collision between the Sunset Limited, a Southern Pacific train, and a 1953 Chevrolet automobile occupied by the driver and three guest passengers, all of whom were killed in the accident of June 25, 1961. The appellants are the survivors of the driver of the automobile and the three guest passengers. Originally a separate suit was filed on behalf of each of the survivors of the passengers and the driver. As a result of rulings on motions filed by appellee, the trial court ordered that single suits be filed on behalf of all survivors of each of the three passengers. A similar ruling was made in respect to survivors of the driver. Thus, four separate suits were filed.

On August 15, 1963, the trial court, sua sponte, ordered all four cases to be consolidated for purposes of trial, pursuant to Rule 42(a), Federal Rules of Civil Procedure,¹ and further ordered the separation of the issue of liability from the issue of damages, with the liability issue to be tried first. The pre-trial order further provided that the attorneys representing appellants were required to designate a lead counsel for the purposes of the trial.²

Counsel for the survivors of the passengers filed a motion to recall the pretrial order of August 15, 1963, in which they expressly objected to the consolidation of their cause of action with a suit filed by the survivors of the driver, citing as grounds that such a consolidation would create confusion and prejudice; further contending that the appointment of the lead counsel would result in a conflict of interests between the survivors of the driver and the survivors of the passengers.³

At a pre-trial conference on August 22, 1963, the court denied appellants' motion to recall the order of August 15th, and at that time counsel for the survivors of the passengers, under order of the court, was designated as lead counsel for all plaintiffs,⁴ although the pre-trial order was modified to provide that at the trial as circumstances warranted each party might have full right of examination of all witnesses. Lead counsel was, under order of the court, required to act as advocate of the survivors of the driver in addition to representing his clients, the survivors of the passengers.

The four cases as consolidated were tried to a jury; and after several hours of deliberating, the jury returned a verdict in favor of defendant against the survivors of the driver. Whereupon, without disclosing what the verdict was, the trial court instructed the jury to continue its deliberations and to return a verdict in all four cases. Sometime thereafter the jury returned four general verdicts in favor of the defendant and against all of the plaintiffs.

Appellants motion for new trial was overruled and this appeal followed.

The appellants make the following assignment of errors:

1. That the consolidation of the four cases and the requirements by the court that the plaintiffs designate a lead counsel to represent all plaintiffs constituted reversible error.

2. That the trial court erred in failing to give the jury certain instructions requested by plaintiffs.

3. That the trial court erred as a matter of law in not finding in favor of the survivors of the guest passengers.

The only assignment of error appearing to be meritorious is number one and we believe this assignment should be sustained and the cases reversed and remanded.

Trial judges are urged to make good use of Rule 42(a) of the Federal Rules of Civil Procedure where there is involved a common question of fact and law as to the liability of the defendant in order to expedite the trial and eliminate unnecessary repetition and confusion; and where the parties are represented by different counsel and the trial court permits full and complete development of the evidence by all parties, equal opportunity for argument, a clear and complete charge on the facts and the law applicable to the respective theories of all parties, the order of consolidation by the trial judge will not be disturbed on appeal except for abuse of discretion. Whiteman v. Pitrie, 220 F.2d 914 (5th Cir. 1955); Plough v. Baltimore & O. R. Co., 172 F.2d 396 (2nd Cir. 1949); Davis v. Yellow Cab Co. of St. Petersburg, 220 F.2d 790 (5th Cir. 1955); 5 Moore's Fed. Practice, Par. 42.02, p. 1204 (2nd ed. 1964); Walker v. Loop Fish & Oyster Co., 211 F.2d 777 (5th Cir. 1954); Polito v. Molasky, 123 F.2d 258 (8th Cir. 1941).

However, in resorting to the use of Rule 42(a) the trial judge should be most cautious not to abuse his judicial discretion and to make sure that the rights of the parties are not prejudiced by the order of consolidation under the facts and circumstances of the particular case. Where prejudice to rights of the parties obviously results from the order of consolidation, the action of the trial judge has been held reversible error. Atkinson v. Roth, 297 F.2d 570 (3rd Cir. 1961); United States v. Knauer, 149 F.2d 519 (7th Cir. 1945); Capstraw v. New York Central R. R. Co. (Sielagowski v. New York Central R. R. Co.), D.C., 15 F.R.D. 267; Bascom Launder Corp. v. Telecoin Corp., D.C., 15 F.R.D. 277; Ex Parte Miller, 273 Ala. 453, 142 So.2d 910.

In Atkinson v. Roth, supra, seven actions were instituted in the court below stating claims arising out of a collision between an automobile driven by one Atkinson and a tractor-trailer driven by one Roth. Atkinson had five passengers in his vehicle. A number of separate actions were commenced by the numerous plaintiffs, some against both Atkinson and Roth, and others against one or the other with the remaining parties being brought in as third-party defendants.

On motion of Roth and his alleged employers, all the actions were consolidated for trial over the objections of plaintiffs. The Court of Appeals for the Third Circuit held,

"All of the suits stating claims by passengers or their representatives, however, could proceed without conflict. But Atkinson driver as a plaintiff was obliged to keep his case free of contributory negligence, and in this he was at cross purposes with the other plaintiffs. The presence of Atkinson, quo defendant, in the same trial with Atkinson, quo plaintiff, emphasizes the conflict. In these circumstances, proper concern for due administration of justice seems to indicate to us the wisdom of avoiding another trial in which Atkinson appears as a plaintiff along with his passengers or their representatives."

Thus, in Atkinson v. Roth, supra, the confusion and harm resulted from the consolidation of various causes of action in which the plaintiff driver appeared as both plaintiff and defendant and the Third Circuit Court of Appeals held that such a situation could not be other than prejudicial to the party plaintiffs. In the instant case we do not have the driver of the automobile appearing as party defendant and no cause of action is brought against his estate, but we do have the survivors of the guest passengers making the contention that the accident resulted from the concurrent negligence of the driver of the automobile and the defendant. The trial court entering the order of consolidation went further and also ordered the designation of a lead counsel for all plaintiffs. Thus, the harm lies not only in the confusion resulting from the consolidation, but also in the fact that the rights of the parties are prejudiced because of the definite conflict of interest which is emphasized by the order of the court requiring the lead counsel to represent both sets of plaintiffs. In representing all plaintiffs, lead counsel must contest contributory negligence on the part of the driver, but in doing so he increases his burden and prejudices the interest of his clients, the survivors of the passengers, since the negligence of the driver not being imputed to the passengers will permit the survivors of the passengers to recover notwithstanding a finding of contributory negligence on the part of the driver. To advise the jury of this fact and to make this contention in representing the survivors of the passengers, lead counsel fails in his duty and obligation to the survivors of the driver. He, therefore, cannot properly and adequately represent either set of plaintiffs if required to represent all plaintiffs. The order of consolidation, together with the order requiring lead counsel for all plaintiffs, created an impossible situation which resulted in neither set of plaintiffs receiving the representation to which they are entitled.

In view of the disposition made of this appeal, a discussion of assignment number two, which is the same for both sets of plaintiffs in the court below is not indicated other than to comment that the trial court did not err in refusing to give the requested charges No. 7 and No. 10.⁵ The charge given by the Court, while not in the specific language requested, we believe substantially and adequately covered the issues raised by the evidence and the action of the trial court in refusing the requested charges was not error.

As to assignment number three, made by the survivors of the passengers, the trial court was...