Carton v. Missouri Pacific R. Co.

• Court: Arkansas Supreme Court
• Writing for the Court: DUDLEY
• Citation: Carton v. Missouri Pacific R. Co., 865 S.W.2d 635, 315 Ark. 5 (Ark. 1993)
• Decision Date: 08 November 1993
• Docket Number: No. 93-132,93-132
• Parties: Carla Blakemore CARTON, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, Travelers Insurance Co., Intervenor.

Page 635

865 S.W.2d 635

315 Ark. 5

Carla Blakemore CARTON, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee Travelers Insurance Co., Intervenor.

No. 93-132.

Supreme Court of Arkansas.

Nov. 8, 1993.

J.R. Nash, Little Rock, for appellant.

Herschel H. Friday, Elizabeth J. Robben, Scott J. Lancaster, Little Rock, for appellee.

DUDLEY, Justice.

Appellant Carla Blakemore Carton, the operator of a diesel fuel delivery truck owned by Gulf Oil Corporation, slipped and fell in January of 1979, while unloading diesel fuel at Missouri Pacific's facility in North Little Rock. In 1981, she filed suit against appellee Missouri Pacific in federal district court. In 1984, she took a voluntary nonsuit. Later in 1984, she refiled the same suit in federal district court. In 1985, the district court dismissed the suit for lack of diversity. The district court made the dismissal with prejudice because it found that she had fraudulently attempted to manufacture diversity jurisdiction, and, as a result, was not entitled to the one-year period to refile after a voluntary nonsuit. The Eighth Circuit Court of Appeals affirmed the dismissal based on the lack of diversity, but directed the district court to enter a dismissal without prejudice. The district court entered the order February 19, 1987.

On April 23, 1987, appellant refiled the suit against appellee in the Circuit Court of White County. Appellee Missouri Pacific filed a motion to dismiss on the ground that the statute of limitations had run. The circuit court granted the motion. On appeal, we held that appellant could take advantage of the saving statute and reversed and remanded for trial. Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988).

The case was tried on the merits in May 1989, and, at the conclusion of all of the evidence, the trial court granted a directed verdict in favor of Missouri Pacific. On appeal, we reversed. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). Trial of the case commenced again in June, 1991, but, after two days of trial, the trial court granted a mistrial because of unfair surprise testimony introduced by the appellant. The case was reset for trial on the merits in August of 1992. The case was tried, and the jury returned a verdict in favor of appellee Missouri Pacific. Appellant, Carla Blakemore Carton, again appeals and assigns eight of the trial court's rulings as error. There was no reversible error, and we affirm the judgment.

Before this last trial commenced, appellant filed a motion requesting that the trial judge disqualify. The trial judge refused the request, and appellant assigns the ruling as error. Appellant does not contend that the trial judge was biased or acted with partiality in any manner. She does not contend that the trial judge acquired any personal knowledge of the disputed facts outside the knowledge he gained while presiding over the case. She does not contend that the trial judge violated Canon 3 of the Code of Judicial Conduct in any manner. Rather, she contends that, because there had been two reversals and a mistrial, the trial judge created the appearance of bias against her cause of action in the mind of the public and committed reversible error in refusing to disqualify. Appellant cites no authority for such an argument, and we are not aware of any. She cites one case for the proposition that a court must not only be fair but must also appear to be fair. If we were to accept the premise of appellant's argument to its logical end, a trial judge would be required to disqualify from a case if he ruled against one party's motions or objections throughout a trial. Such a result is not even suggested by the Canons. The Canons suggest that a judge disqualify when his impartiality might reasonably be questioned. Here, the impartiality of the trial judge could not be reasonably questioned.

The first reversal by this court was primarily on an abstruse issue of law. Suit was first filed in state court in 1987, two months after the federal district court's final order, but eight years after the accident. The issue was whether appellant was entitled to the benefit of the saving statute. The trial court ruled that the statute of limitations had run. We reversed because the only evidence of fraud was the finding by the federal district court that appellant fraudulently attempted to manufacture diversity jurisdiction by misrepresenting her citizenship. However, because the federal district court was without jurisdiction, its judgment was without validity as evidence, and there was no other independent proof of fraud. Without the evidence of fraud recited in the judgment there was no evidence of fraud; therefore, we reversed. No person would reasonably think that the trial judge's ruling evidenced any partiality.

Next, the mistrial was caused entirely by the actions of appellant's attorney in attempting to present undisclosed evidence. Again, no person would reasonably question granting a mistrial on such an occurrence. The second reversal occurred when the trial court granted a directed verdict for appellee. We reversed, and held that when the evidence was viewed in the light most favorable to appellant, there was substantial evidence from which the jury might have found that the railroad did not properly maintain its premises. It was a close case. After remand, the trial judge manifestly thought he was impartial, and could retry the case fairly. The record reflects that he presided with impartiality, with diligence, and with patience. There was no valid reason for the judge to disqualify. A judge has a duty to remain in a case unless there is some valid reason to disqualify.

Appellant's next assignment involves a ruling allowing appellant's employer's worker's compensation carrier to intervene to protect its right of subrogation. Section 11-9-410(a)(1) of the Arkansas Code Annotated of 1987 gives the carrier the right to intervene, and, as a result, the carrier could intervene as a matter of right under ARCP Rule 24(a). Even so, appellant contends that the intervention was not timely. The record refutes the argument. The carrier first intervened when the action was pending in the federal district court. Later, in 1981, a stipulation was signed by the attorneys for the carrier and for appellant, which provided the carrier had a lien in the federal action. The action in federal court was dismissed, and the cause was refiled in circuit court. Appellant did not notify the carrier of the action in circuit court. Rather, the trial court notified the carrier, and the carrier immediately filed a motion to intervene. Subsequently, the trial court granted a directed verdict, and appellant appealed. Appellant did not notify the carrier of the appeal. The case was reversed and remanded. Again, appellant did not notify the carrier that the action was to be retried. Once more, the trial court caused the carrier to be notified, and the carrier again moved to intervene. The trial court then allowed the intervention at issue.

Timeliness of intervention under ARCP Rule 24(a) is a matter within the discretion of the trial court and will not be disturbed absent some abuse of discretion. Cupples Farm Partnership v. Forrest City Prod. Credit Ass'n, 310 Ark. 597, 839 S.W.2d 187 (1992). Timeliness is to be determined from all the circumstances. Id. at 603, 839 S.W.2d at 190-91. There is nothing in the record to show that the trial court abused its discretion in allowing the intervention.

Appellant additionally argues that the ruling allowing intervention should be reversed because the intervenor refused to share in the costs of this litigation. Appellant relies on Northwestern National Insurance Co. v. American States Insurance Co., 266 Ark. 432, 585 S.W.2d 925 (1979), as authority for her argument. The cited case holds that when an insurance company has benefited from the work done by the insured's attorney, there is no inequity in requiring it to bear its fair share of the collection expense. However, in the case at bar, neither appellant nor the carrier has collected any money from the work done by appellant's attorney. Proceeds of a recovery simply are not at issue. Instead, the issue is whether the carrier should be allowed to intervene to protect its right of subrogation when the applicable statute gives it the right to do so. Again, the trial court ruled correctly in allowing the intervention.

Appellant makes another assignment that is equally ambage. She argues on appeal that the trial court erred in refusing to allow her to introduce evidence that, as a result of the accident, she became emotionally incompetent to handle her own financial affairs, and, consequently, it was necessary for her to incur legal expenses to set up an irrevocable trust to administer any recovery she might receive from this suit. The authority cited by appellant is A.M.I. 2205, which allows a party to recover for mental anguish. We do not reach the issue because the same argument was not presented to the trial court. The issue the trial court ruled on came about as follows. Months before the trial commenced, the trial court wrote the parties a letter which provided, in the material part:

If the existence, advisability, and basis of the trust account are admitted as evidence, the defendant may present competent evidence challenging those issues. There must be, of course, competent evidence that the trust was created as a proximate result of the plaintiff's injuries.

After the letter was received by counsel, but before the trial started, Missouri Pacific moved to prevent mention of the trust. Appellant argued that the costs incurred in setting up the trust were allowable damages. The court granted Missouri Pacific's motion, but stated that it would reconsider if a proper foundation were laid by appellant at trial. During appellant's case-in-chief, in her examination of her psychologist, Dr. Doug...