Couch v. Mobil Oil Corporation

• Decision Date: 07 June 1971
• Docket Number: Civ. A. No. 69-H-852.
• Citation: 327 F. Supp. 897
• Parties: J. M. COUCH v. MOBIL OIL CORPORATION et al. v. BECHTEL CORPORATION, Arabian Bechtel Corporation.
• Court: U.S. District Court — Southern District of Texas

327 F. Supp. 897

J. M. COUCH v. MOBIL OIL CORPORATION et al. v. BECHTEL CORPORATION, Arabian Bechtel Corporation.

Civ. A. No. 69-H-852.

United States District Court, S. D. Texas, Houston Division.

June 7, 1971.

David J. Nagle, Nagle & Barr, Houston, Tex., for plaintiff.

James T. Nesbitt, B. Jeff Crane, Jr., Vinson, Elkins, Searls & Smith, E. D. Vickery, Royston, Rayzor & Cook, Houston, Tex., for defendant.

Memorandum and Order:

SINGLETON, District Judge.

Plaintiff, a Texas resident, has filed this suit against a Delaware corporation for an accident occurring in Libya, in federal court based on diversity jurisdiction. 28 U.S.C. § 1332. The plaintiff was severely injured in an oil tank explosion when a Mobil employee prematurely turned on a valve that releases gas into the tank before the workers had completed the welding of the tank. The complaint sounds in common law negligence and does not allege the Texas Wrongful Death Statute as grounds for the cause of action. Vernon's Ann.Tex.Rev.Civ.Stat. art. 4678. Bechtel, the subcontractor, has by agreement of the parties been dismissed from this suit.

Upon filing, the plaintiff requested a jury trial according to the procedure set forth in F.R.Civ.P. 38. The plaintiff now petitions the court with a motion to withdraw the jury request. Said motion is hereby denied unless all parties consent under the provisions of F.R.Civ.P. 38(d) to the withdrawal of the jury. The denial of this motion is inextricably entwined in the thorny conflict of laws question raised by this suit. If Libyan law is to be applied, the defendant agrees that a jury is inappropriate because in Libya there are no juries, and the judge is the sole arbitrator of damages. On the other hand, the defendant refuses to give the consent necessary under F.R.Civ.P. 38 (d) to grant the plaintiff's motion for withdrawal. However, if Texas law is applied a jury upon request would be the accepted method of trial procedure.

The voluminous scholarly writings that have recently been published on this confusing area need not be recited here. Suffice it to say that a trend can be noted towards an interest analysis in the selection of which state's law to apply in a conflict of laws question. But even a mechanical choice of law theory would have applied the procedural rules of the forum court and not the procedural law of the state where the court sits, nor the procedural law of the site of the accident in a case such as the instant one, regardless of the substantive law which is applied.

"* * * there are affirmative countervailing considerations at work here. The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. An essential characteristic of that system is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury and, under the influence—if not the command—of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury. Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166. * * * We think that in the circumstances of this case the federal court should not follow the state rule. It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts. In Herron v. Southern P. Co. (US) supra, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 the trial judge in a personal-injury negligence action brought in the District Court for Arizona on diversity grounds directed a verdict for the defendant when it appeared as a matter of law that the plaintiff was guilty of contributory negligence. The federal judge refused to be bound by a provision of the Arizona Constitution which made the jury the sole arbiter of the question of contributory negligence. This Court sustained the action of the trial judge, holding that `state laws cannot alter the essential character or function of a federal court' because that function `is not in any sense a local matter, and state statutes which would interfere with the appropriate performance of that function are not binding upon the federal court under either the Conformity Act or the "rules of decision" Act.' Id. 283 U.S. at page 94, 51 S.Ct. at page 384. Perhaps even more clearly in light of the influence of the Seventh Amendment, the function assigned to the jury `is an essential factor in the process for which the Federal Constitution provides.' Id. 283 US at page 95, 51 S.Ct. at page 384. Concededly the Herron Case was decided before Erie R. Co. v. Tompkins 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, but even when Swift v. Tyson (US) 16 Pet. 1, 10 L.Ed. 865, was governing law and allowed federal courts sitting in diversity cases to disregard state decisional law, it was never thought that state statutes or constitutions were similarly to be disregarded. Green v. Neal's Lessee (US) 6 Pet. 291, 8 L.Ed. 402. Yet Herron held that state statutes and constitutional provisions could not disrupt or alter the essential character or function of a federal court.

"We have discussed the problem upon the assumption that the outcome of the litigation may be substantially affected by whether the issue of immunity is decided by a judge or a jury. But clearly there is not present here the certainty that a different result would follow, cf. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231, supra, or even the strong possibility that this would be the case, cf. Bernhardt v. Polygraphic Co., of America, Inc., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199, supra. There are factors present here which might reduce that possibility. The trial judge in the federal system has power denied the judges of many States to comment on the weight of evidence and credibility of witnesses, and discretion to grant a new trial if the verdict appears to him to be against the weight of the evidence. We do not think the likelihood of a different result is so strong as to require the federal practice of jury determination of disputed factual issues to yield to the state rule in the interest of uniformity of outcome." Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 539, 78 S.Ct. 893, 901, 2 L. Ed.2d 953 (1958).

The most recent Supreme Court decision in the Erie-York-Byrd line is Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) in hand service of process which reaffirms the principle that in diversity cases, regardless of what state law is applied, the Federal Rules of Civil Procedure will always control the manner in which the trial is conducted. Accordingly, F.R.Civ.P. 38 will govern this case.

The perplexing entanglement of the substantive nature of the damage issue as a judge, not a jury, determined question in the Libyan Code is surpassed in its delicate nature only by the present confusion in case law on choice of law problems. The rule of Klaxon Co. v. Stentor Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) that a federal court must follow the choice of law rule of the state where it sits, still prevails. In the instant case this rule would mean that this court would follow the choice of law rule of the State of Texas.

Although the Supreme Court has not seized upon the Byrd or Hanna dicta to free any of the binding ties of Klaxon Co. v. Stentor Mfg. Co., Inc., supra, a few circuit court decisions have used the "countervailing considerations" argument to steer away from Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Brown v. Pyle, 310 F.2d 95, 97 (5th Cir. 1962), the Fifth Circuit rejected an argument that despite improper venue, a federal court must hear a case if a state court would. In Monarch Ins. Co. of Ohio v. Spach, 281 F.2d 401, 406-407 (5th Cir. 1960) the court said a federal court may admit a pretrial examination in evidence even though a state court would not.

Defendant, Mobil Oil, strongly urges that Libyan substantive law is the only applicable law. It must be assumed that Mobil urges this approach because it claims that to follow Klaxon, supra, this court would be forced under the holding of Bernhardt v. Polygraphic, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956) to adopt the lex loci delictus theory of Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 184 (Tex.1968) the Supreme Court of Texas has not made any changes in this area since Marmon, see Doss v. Apache Power Co., 430 F.2d 1317 (5th Cir. 1970). But Marmon, supra, was a wrongful death case involving a detailed statutory interpretation of Tex.Rev.Civ.Stat.Ann. art. 4678 which is not at issue in the present case. Thus it is not applicable to a personal injury case not resulting in death where the accident in question occurred in a foreign country. Tex.Rev.Civ.Stat. Ann. art. 4678 is not applicable because, as stated in the introductory paragraph to the entire Title 77 of the statute, the act was intended to encompass only "injuries causing the death of any person." (emphasis added). To try to apply Bernhardt, supra, any further would simply mean that a federal court in Texas is to determine what the Texas state courts would think the Libyan courts would think on an issue about which neither has thought and merely highlights the unreality of the process. C. A. Wright, Federal Courts 235 (2nd 3d 1970).

Libyan law would require reparation by any defendant who causes injury to another.

"Every fault (i. e. indicated by Code headings to mean unlawful personal act) which causes injury to another imposes upon the person by whom it is committed an obligation (legal duty) to make reparation." Libyan Civil Code, Article 166.

The Libyan law reflects its direct descendancy from civil law in its judicial handling of the substantive law of damages. Libya does not have a jury system. Determinations on damages by the trial judge, apportionment, and certain other features of the Libyan system for dealing with damages...