Burlington Northern R. Co. v. Warren

• Citation: 574 So.2d 758
• Parties: BURLINGTON NORTHERN RAILROAD COMPANY v. Nettie Faye Duckworth WARREN, as administratrix of the estate of James B. Duckworth, deceased, et al. 89-682.
• Decision Date: 21 December 1990
• Court: Supreme Court of Alabama

Page 758

574 So.2d 758

BURLINGTON NORTHERN RAILROAD COMPANY v. Nettie Faye Duckworth WARREN, as administratrix of the estate of James B. Duckworth, deceased, et al.

89-682.

Supreme Court of Alabama.

Dec. 21, 1990.

Rehearing Denied Feb. 8, 1991.

L. Vastine Stabler, Jr., and Samuel C. Campisi of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant.

Frank O. Burge, Jr. of Burge & Wettermark, Birmingham, and Wilson & King, Jasper, for appellee.

HORNSBY, Chief Justice.

James Duckworth was employed by the St. Louis-San Francisco Railway Company, predecessor to the defendant, Burlington Northern Railroad Company (hereinafter "Burlington"), as an assistant in the right-of-way maintenance department. On December 21, 1978, he was working near Plantersville, Mississippi, as part of a crew of three men who were operating a motorized brush cutter. The brush cutter ran along the railroad track cutting the grass and bushes growing alongside the track's right-of-way. Two people operated the brush cutter; one person operated the right side of the cutter and one person operated the left side. Duckworth had been instructed to remain at a switch and wait on the brush cutter to return. For some unknown reason Duckworth approached the rear of the machine. When Duckworth was approximately 50 feet from the rear of the brush cutter, a piece of metal debris was thrown out from under the machine and that debris struck him in the throat. He died five days later as a result of the injury. He was survived by his wife and four minor children.

The plaintiff, James Duckworth's widow (as administratrix of his estate), alleged that while her husband was still in the hospital William E. Byrd, a claims agent for Burlington, approached her about a settlement of her claim. She claimed that Byrd gained her confidence and became her sole adviser because, she said, he led her to believe that he was representing her interest and her children's interest regarding compensation from Burlington for her husband's death from Burlington. She further alleged that immediately after her husband's funeral Byrd began to pay regular visits to her home and during those visits convinced her that she should not hire a lawyer because the lawyer would get more money than she would. She also claims that Byrd never explained the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"), or any of the other possible basis she might have for an action or any damages that she or her children could receive. According to the plaintiff, Byrd convinced her that he would take care of her and her children and would get them everything they deserved from Burlington.

Approximately one year after James Duckworth's death, the plaintiff agreed to settle her claim with Burlington and Kershaw Manufacturing Company, the manufacturer of the brush cutter, for $151,500. ¹ The plaintiff and Byrd met at the law office of the attorney representing Burlington. Unknown to the plaintiff, Burlington's lawyer had prepared a complaint on her behalf, an answer and waiver for Burlington, and a proposed judgment for the trial judge to sign. Kershaw, which was represented by separate counsel, had agreed to pay $40,000 of the settlement proceeds. No Kershaw representative ever met with the plaintiff. Kershaw's lawyers sent a copy of its answer and waiver to Burlington's lawyer, who attached it to Burlington's answer and waiver. Burlington's lawyer and Byrd and the plaintiff then met with Judge James E. Wilson of the Walker County Circuit Court to settle the plaintiff's claim for the agreed amount. Judge Wilson questioned the plaintiff about her knowledge of the finality of the settlement and her desire to settle for the stated amount. He then entered a judgment for the agreed amount on January 2, 1980.

On November 12, 1981, the plaintiff filed the present FELA action. She sued in her capacity as administratrix of James Duckworth's estate and for her benefit and that of the deceased's four minor children. In her complaint she alleged that her husband had been an employee of Burlington and that he was killed on the job due to negligence on the part of Burlington and Kershaw. The plaintiff also alleged in her complaint that the January 2, 1980, settlement had been procured by fraud and therefore was null and void. ² After many delays, this case was finally tried before a jury, and the jury returned a verdict in favor of the plaintiff for $460,000. The trial court entered a judgment in that amount on October 2, 1989. We affirm.

Burlington appeals on the grounds that the trial court erred in entering a judgment based on a jury verdict setting aside the January 2, 1980, judgment, ³ while stating in its order that this was done "despite a finding of no evidence of 'fraud upon the court.' " Burlington also argues that the jury instructions were in error. Burlington asserts as its final grounds for this appeal that the plaintiff's attorney made "improper and overly prejudicial statements" in closing argument.

The Jury's Authority

In its brief, Burlington argues that the trial court should have granted its motions for a directed verdict and for a J.N.O.V. because the trial judge stated the following in his final order:

"Were it not for the Duckworth decision [Ex parte Burlington Northern R.R., 470 So.2d 1094 (Ala.1985) ], this court would grant the J.N.O.V. This judgment, set aside by the jury, was a pro ami judgment in which a Circuit Judge, in open court, after a hearing, approved the settlement as being in the best interest of the then-minor children of plaintiff, Nettie Duckworth [and the deceased, James Duckworth]. There was no contention, nor any evidence, that any fraud was committed on the court."

Although it is not necessary for our determination in this case, we note that the January 2, 1980, hearing and subsequent judgment were insufficient to qualify as a pro ami proceeding under Alabama law.

"This Court has recognized the special nature of an attempted settlement of a minor's claim. Before such a settlement can be approved, there must be a hearing, with an extensive examination of the facts, to determine whether the settlement is in the best interest of the minor. Large v. Hayes, 534 So.2d 1101 (Ala.1988); Abernathy v. Colbert County Hospital Board, 388 So.2d 1207 (Ala.1980); Tennessee Coal, Iron & R.R. Co. v. Hayes, 97 Ala. 201, 12 So. 98 (1892)."

Maryland Cas. Co. v. Tiffin, 537 So.2d 469, 471 (Ala.1988). (Emphasis added.)

Based on the evidence presented at trial in this case, we conclude that the hearing conducted on January 2, 1980, failed to meet the standard set out above for determining whether the settlement was in the best interest of the deceased's children. There is no record of what the judge asked the plaintiff at the January 2, 1980, hearing, but at trial Burlington's lawyer and Byrd and the plaintiff all testified as to what the judge had asked her.

The plaintiff testified that the judge merely asked her whether she understood that the settlement offer would be all of the money she could ever get from Burlington and Kershaw due to her husband's death. Byrd testified that the judge asked the plaintiff some additional questions regarding her age, her educational background, the number of dependents she had, and whether she had consulted an attorney. Burlington's lawyer testified that the judge also asked the plaintiff whether she wanted to settle the case for $150,000 and whether she had ever had any mental problems.

There is no evidence in the record that the judge conducted a hearing "with an extensive examination of the facts to determine whether the settlement was in the best interest of the minor[s]." Maryland Cas. Co., supra, at 471. The testimony in this case shows that the judge was concerned about the plaintiff but did not focus on whether the proposed settlement would be in the best interest of the children. The hearing was conducted in the judge's chambers, not open court, with only the plaintiff, Burlington's lawyer, Byrd, and the judge present. Moreover, there is no record of what transpired at the hearing in the judge's chambers. The January 2, 1980, settlement hearing, with the subsequent judgment, was not a valid pro ami proceeding conducted to determine whether the settlement would be in the children's best interest.

The law requires a more extensive hearing than is indicated here to determine whether a settlement is in the best interest of the minor. "[A] judgment entered on a compromise of an infant's claim is erroneous, and may be set aside where the court has made no examination or investigation of the facts to determine whether the compromise is for the best interest of the infant." Abernathy, supra, at 1209, quoting 42 Am.Jur.2d Infants § 47 (1978). There is nothing in the record to indicate that there was any investigation of the facts to determine whether the settlement would be in the best interest of the minors. Therefore, under Alabama law, the January 2, 1980, settlement proceeding was invalid as a pro ami proceeding on behalf of the children, and the consent judgment obtained as a result of that settlement would be voidable as to the four minor children.

The outcome of this case, however, hinges upon the validity of the prior consent judgment as to the plaintiff, because she was the personal representative of the deceased and the authority to settle any FELA claim rested solely with her. Benoit v. Fireman's Fund Ins. Co., 355 So.2d 892, on remand, 361 So.2d 1332 (La.1978) (construing the Jones Act, 46 U.S.C.App. § 688 et seq., which incorporates portions of FELA). Burlington argues that the prior consent judgment acts as a bar to this suit. The jury, however, returned a general verdict in favor of the plaintiff for $460,000. We affirm.

The issue regarding the validity of the consent judgment as to the plaintiff is whether there was sufficient evidence upon which the jury could find that the January 2, 1980,...