Bell v. Burlington Northern R. Co.
| Decision Date | 05 August 1986 |
| Docket Number | No. 62757,No. 4,62757,4 |
| Citation | 738 P.2d 949 |
| Parties | 1986 OK CIV APP 17 Charles O. BELL, Jr., and Tank Trucks, Inc., Appellees, v. BURLINGTON NORTHERN RAILROAD COMPANY, and Sam Scully, Appellants. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Michael D. Parks, Stipe, Gossett, Stipe, Harper, Estes, McCune and Parks, McAlester, for appellee Charles O. Bell, Jr.
Richard Gibbon, Gibbon, Gladd and Associates, Tulsa, for appellee Tank Trucks, Inc.
Grey W. Satterfield, Kornfield, Franklin & Phillips, Oklahoma City, for appellant Burlington Northern.
Foremost among the issues raised in the defending railroad's appeal from the judgment below is the effect of its ill-fated lunch hour removal of the action to federal court which it sought in an effort to abort and lay waste to a long trial just as argument to the jury was about to commence. Notwithstanding the removal, the trial judge proceeded to complete the trial which eventuated in a verdict and judgment for plaintiffs.
We hold no reversible error affects the judgment and affirm it.
The operative facts are these. Near Kiefer, Oklahoma, on a hot August day in 1981, a tank truck driven in a westerly direction by 27-year-old plaintiff Charles O. Bell--and owned by plaintiff Tank Trucks, Inc.--was struck at a railroad crossing by a speeding, northbound, backward-traveling engine, owned and operated by defendant Burlington Northern Railroad Company.
Bell, whose multiple injuries included loss of his right leg, a fused left leg, and a practically useless right arm, and Tank Trucks each filed lawsuits against Burlington and its train conductor, Sam Scully, seeking recovery of damages each had sustained--Bell for his injuries and Tank Trucks for destruction of its truck. 1 Each plaintiff alleged the commission of specific acts of negligence by each of the defendants which contributed to the cause of the wreck. The railroad's engineer was said to be operating the engine at an unreasonable speed of 58 miles per hour in a posted speed zone of 45 miles per hour and failed to sound a whistle as the engine approached the subject crossing. Burlington otherwise contributed to the disaster, according to plaintiffs' evidence, by allowing a blind crossing to exist, created by a growth of trees and brush on its right-of-way some 320 feet south of the crossing--the direction whence came its backing engine.
Following some twenty-one months of pretrial preparation, including extensive discovery activity, a jury was seated June 13, 1983, in Sapulpa, Oklahoma, to decide the factual issues. For over a week the parties presented their evidence to the jury. Plaintiffs supported their allegations with evidence of both negligence and consequential damages. Demurrers of both defendants to plaintiffs' proof were overruled and both presented their defensive evidence. The parties rested during the morning of June 21, 1983. Defendants each again "demurred," and the trial judge indicated that because the alleged negligence of conductor Scully was imputable to the railroad, the instructions and verdict forms might be easier to prepare and understand if he sustained the conductor's demurrer. Neither plaintiff agreed to the proposed ruling and Tank Trucks objected to a demurrer being sustained. Nevertheless the conductor's demurrer was sustained and he was dismissed from the case. The court then instructed the jury on the law and recessed for lunch.
After the noon break the court and jury reassembled. Defense counsel at once stood up and announced in open court that it had filed a petition for removal to federal court during the noon recess and advised that "the court has lost jurisdiction." The trial judge, however, disregarded the maneuver and directed the lawyers to make their arguments to the jury. They did. The jury was then sent out to deliberate and eventually it returned a verdict finding plaintiff Bell twenty percent at fault and the railroad eighty percent. Mr. Bell's damage was fixed at $1,090,602.07 and Tank Trucks' at $34,000. 2
Plaintiffs moved for a new trial against defendant Scully and at the same time filed motions in federal court to reject the removal action and remand the matter to state court. On March 27, 1984, the U.S. District Court did so saying, among other things, that the federal court was "without jurisdiction" and that the court had "considerable doubt as to whether [the actions were] properly removed" in the first place.
Thereafter plaintiffs' motions to reinstate Scully as a defendant were overruled, and on June 26, 1984, the state judge rendered a judgment on the verdict previously returned. On the same day the court overruled plaintiffs' motions for a new trial. The judgment was stayed after defendant filed a supersedeas bond on June 29, 1984, and this appeal was filed July 25, 1984.
Burlington's first proposition is that the trial court erred in failing to instruct the factfinders that conductor Scully's negligence could not be imputed to the railroad or even considered by them in determining its liability.
Defendant's supporting argument is a convoluted attempt to reconcile two inconsistent positions it took during the proceedings below with respect to the conductor's dismissal. On the one hand it represented to the federal court as the basis for its attempted removal that Scully's dismissal was a voluntary one by plaintiffs. On the other hand it represented to the state court that the dismissal was an involuntary one by the court entitling it to the jury instruction concerning the legal effect of Scully's negligence.
The trial background for the issue is this. After the instructions were read, defense counsel began arguing once more about the instructions being misleading in that the court had held plaintiffs could not recover against Scully and yet at the same time instructed the jury members that the train crew were the agents of the railroad, and they could consider their negligence. "Now, that's misleading," said defense counsel, "and I think it's imperative that the Court tell the jury ... or allow Counsel to do it--that Sam Scully has been released as a matter of law and that his negligence can't be considered."
This introduced an extended rehash of what had already been settled after extensive discussion earlier in the day. What transpired after this raises the question of whether defendant was maneuvering for removal. As the lunch hour approached the court summed it up this way:
"For the time being, let's leave it as it is, and we'll take it up further after lunch," said the Burlington lawyer.
"Maybe we can put him [Scully] back in after lunch," a plaintiff lawyer suggested.
"I indicated to you that I could leave him in," said the judge.
The court recessed for lunch.
When court reopened after noon, defense counsel did not "take it up further", however, but told of the removal as we mentioned earlier. The trial court decided to complete the nearly-finished trial and did.
It is not necessary to go into the tortuous circuitry of defendant's argument further than to point out that there are two fundamental reasons why the court properly declined to give an instruction precisely like the one orally requested by defendant. First, the court gave an appropriate instruction on the subject, which the defendant had agreed to earlier in the day, and also told the jury that Scully was out of the lawsuit. And second, for the court to have gone beyond this and told the jury they could not consider the negligence of Scully would have been an erroneously restrictive comment on the evidence which would likely have confused the jurors and misled them into thinking that Scully had been charged with one or both of the two main wrongful acts complained of, when in fact he had not been so charged, but had been accused only of a failure to properly perform the supervisory role of subprincipal, i.e. prevent other employees from committing the wrongful acts that caused the wreck. Whether Scully properly carried out his responsibility or not neither increases nor diminishes the vicarious liability of the railroad because it was, after all, based on (a) the tortious conduct of the engineer, and (b) the wrongful acts of its other agents in failing to maintain a safer crossing. In other words under the facts of this case, Scully's dismissal--even if considered to be a finding of no civil liability on his part--does not have the exonerating effect on the railroad's respondeat superior liability that it would have if Scully were an employee whose specific tortfeasance was alleged to have caused the wreck. See Hooper v. Clements Food Co., 694 P.2d 943 (Okl.1985).
It also follows from the foregoing that giving agreed instruction No. 11 on agency was not misleading. All it said was that an act or omission of a train crew member acting within the scope of his authority or employment was in law the act or omission of the defendant railroad. That is the law.
Defendant's first contention is without merit.
Burlington's second assignment of error involves the construction of 28 U.S.C. § 1446(e) and the argument is that the trial court was without jurisdiction to take any further action in the case after receiving notice that defendant had taken the necessary steps to remove the case to federal court during the noon-hour recess on June 21, 1983. 3
For support it relies mainly on the views of a Florida law student and a federal appeals court case quoting the thoughts of Professor...
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