Burlington Northern R. Co. v. Hood
| Decision Date | 10 December 1990 |
| Docket Number | No. 89SC394,89SC394 |
| Parties | BURLINGTON NORTHERN RAILROAD COMPANY, Petitioner, v. Sidney L. HOOD, Respondent. |
| Court | Colorado Supreme Court |
Davis, Graham & Stubbs, Andrew M. Low, Judith A. Keene, James E. Puga, Michael J. Gallagher, Denver, for petitioner.
Irvin M. Kent, Aurora, Yaeger & Yaeger, P.A., Don C. Aldrich, Ronald J. Barczak, Minneapolis, Minn., for respondent.
The question in this case is whether the trial court, during a jury trial on a personal injury claim brought under the Federal Employer's Liability Act, 45 U.S.C. §§ 51-60 (1989), erred in prohibiting the defendant from questioning the plaintiff and the plaintiff's wife about a purported conversation in which the plaintiff allegedly admitted to his wife, who repeated the conversation to several other persons, that he had staged a work-related accident and had feigned the injuries for which he sought damages against the defendant-employer. The trial court ruled that such evidence was inadmissible because it might encroach upon the statutory marital privilege for communications between husband and wife, § 13-90-107(1)(a)(I), 6A C.R.S. (Supp.1990), also because any testimony about the conversation ostensibly would be lacking in personal knowledge and credibility in light of the wife's deposition testimony that the statement attributed to her husband may have been a dream, and, finally, because any trial testimony by the wife about the conversation would constitute inadmissible hearsay. The jury returned a verdict for the plaintiff, and the court of appeals affirmed the judgment in an unpublished opinion. Hood v. Burlington Northern Co., No. 86CA1799 (April 27, 1989). In affirming the judgment, the court of appeals did not consider the issue of marital privilege, but upheld the trial court's rulings on other grounds. It concluded that any cross-examination of the wife about her reporting the conversation to others would have been beyond the scope of her direct examination and inadmissible hearsay, that it would have been improper for the defendant to have elicited testimony from other witnesses about the wife's statement because of its hearsay nature, and that the defendant failed to preserve for appellate review its right to cross-examine the plaintiff about his alleged admission to his wife. We granted the defendant's petition for certiorari to consider whether the court of appeals properly resolved these evidentiary issues. We now reverse the judgment and remand the case for a new trial.
The issues in this case arise out of a negligence claim filed by Sidney L. Hood for injuries allegedly sustained while working as a locomotive electrician for Burlington Northern Railroad Company on December 28, 1983, at a railroad repair facility in Alliance, Nebraska. At the time of the accident, Hood was working in a diesel pit, which is a recessed service bay spanned by overhead tracks on which the locomotive engine is placed to facilitate repair. Hood fell from a ladder while working on an engine and struck his head on the floor. Shortly before the accident, which occurred at approximately 10:00 p.m., some lights in the service bay area unexpectedly went out. Several minutes later, after the lights came on, Hood was found by a co-worker lying unconscious on the floor of the service bay with a gash on the right side of his head and his face swollen. A lighted flashlight and a stepladder were resting near him.
Hood was taken to a local hospital and remained there for several days under the care of his family physician. During the period of hospitalization, Hood claimed that he was suffering amnesia and that, although he could recall events after the accident and from his distant past, he had no memory of the period of eight to ten years immediately preceding the accident. He claimed that he could remember his wife only as a much younger person and his two teenage sons as very small boys.
On December 3, 1984, Hood filed his complaint in the Denver District Court, in which he alleged that his injuries were caused by Burlington's negligence in furnishing him a defective ladder, in failing to properly illuminate the work area, and in permitting oil and grease to accumulate at the site of the accident. Burlington, in its answer, asserted that the accident was caused by Hood's contributory negligence and that, although he was injured in the accident, Hood did not suffer the type of injuries alleged in his complaint. The case was set for a jury trial on May 19, 1986.
Prior to trial, Burlington took several depositions and uncovered evidence indicating that the accident might not have occurred as Hood alleged and that his injuries might not be as he claimed. On May 1, 1986, approximately three weeks prior to trial, Dorothy Lunbery, the sister-in-law of Hood's wife, testified during a deposition that Hood's wife, Bernice, told Lunbery about a conversation that she (Mrs. Hood) had with Hood after he left the hospital. The conversation occurred on an acre of land owned by Hood and his wife near their home in Nebraska and was referred to as the "acre-of-land" conversation. According to Lunbery, Mrs. Hood told her that during the conversation Hood admitted that he had planned the accident, that she should not worry about him, and that he would never say anything about it again. The pertinent parts of Lunbery's deposition testimony were as follows:
Well, she [Mrs. Hood] told me that when Sid [Hood] got out of the hospital, and I don't remember the date, but they went out to the acre of land. She said that Sid got out of the car; the vehicle, and Sid walked from the vehicle for a little ways and stood up straight and he said his name, his birthdate, other dates, the kids' names, their birthdays, what her name was, their anniversary, and he said that it was a fraud and that he was going to take the railroad.
Q. When you say that it was "fraud," what are you referring to?
* * *
A. The accident; his accident.
Q. What else was said by Sid Hood to [Mrs. Hood]?
* * *
A. That this would be the first and last time that that would ever be spoken....
Q. When Sid [Hood] was reciting the information to [Mrs. Hood], do you recall any other items that were included in that recitation?
* * *
A. He told her not to worry at that time. That was the reason that he was telling her, so she wouldn't worry. [H]e said, "I'm telling you this so you won't worry."
Q. Did [Mrs. Hood] tell you what her reaction was to that conversation?
A. She was shocked; very shocked.
Q. Why?
A. Because, she thought Sid was really hurt.
According to Lunbery, Mrs. Hood told her that her husband, during the conversation, apologized for having caused the accident on her birthday, but added that "nobody was around and that's when it had to happen." Lunbery also testified in her deposition that Mrs. Hood told her that Hood's brother, Burdette, who also worked for Burlington at the Alliance repair facility, "was in on it" and knew that "the so-called accident was going to happen ... when the opportunity was right." During her deposition Lunbery also stated that Mrs. Hood discussed the "acre-of-land" conversation many times with her, and on other occasions discussed it with other relatives and friends. On one of these occasions Mrs. Hood's brother asked her, "Is [Sid] really hurt?" Mrs. Hood, according to Lunbery, hesitated for a minute and then stated, "No, it was a fake" and "he [Hood] really wasn't hurt and that he was going to 'take the railroad.' "
After Lunbery's deposition, Burlington made arrangements to re-depose Mrs. Hood on May 3, 1986. In an earlier deposition, Mrs. Hood testified that she and her husband, subsequent to the accident, drove to the site where the "acre-of-land" conversation is alleged to have taken place. During the earlier deposition, however, she merely stated that Hood became upset and told her "to shut up and leave him alone." In her second deposition on May 3, 1986, Mrs. Hood admitted discussing the "acre-of-land" conversation with Lunbery. At one point, she stated that she described the "acre-of-land" conversation with Lunbery in the context of a dream, but later acknowledged that she could not recall whether she told Lunbery that the conversation was a dream. Mrs. Hood admitted in her deposition that she told at least five other persons about the "acre-of-land" conversation, but she could not remember telling any specific individual that the conversation might have been a dream. When asked if she had any reason to believe that Hood's injuries might be feigned, Mrs. Hood responded, "I have got as much reason to believe that it isn't as I do that it is." She also admitted that she became confused over whether the "acre-of-land" conversation was a dream only after Hood had made repeated threats to kill her following her statements to Lunbery and others about Hood's admission, and that she had just recently, in the course of a pending divorce action, obtained a restraining order against him in order to prevent further harassment.
Based on the deposition testimony of Lunbery and Mrs. Hood, Burlington requested the trial court to continue the trial date so that it could further investigate whether the accident and Hood's injuries were real or feigned. 1 The court on May 16, 1986, denied the motion. Hood then moved for the exclusion at trial of any reference to the "acre-of-land" conversation. It was Hood's contention that Mrs. Hood could not determine whether the conversation had actually taken place and that any testimony about it would be untrustworthy and inadmissible hearsay. Immediately prior to jury selection on the scheduled trial date, the trial court conducted an in-limine hearing on Hood's motion and orally ruled that Burlington would be prohibited at trial from making any reference to, or from eliciting any testimony about, the "acre-of-land" conversation. The court, so far as the...
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