Turner v. Burlington Northern R. Co.

• Citation: 771 F.2d 341
• Decision Date: 18 September 1985
• Docket Number: No. 84-2379,84-2379
• Parties: David L. TURNER, Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Appellant. Joseph P. Inserra; John P. Inserra; Jerome Wise and the Inserra Law Offices, a professional corporation.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 341

771 F.2d 341

David L. TURNER, Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Appellant.

Joseph P. Inserra; John P. Inserra; Jerome Wise and the

Inserra Law Offices, a professional corporation.

No. 84-2379.

United States Court of Appeals,

Eighth Circuit.

Submitted May 16, 1985.

Decided Aug. 15, 1985.

Rehearing Denied Sept. 18, 1985.

Rodney M. Confer, Lincoln, Neb., for appellant.

Donald L. Rudquist, and Barbara J. Rudquist, Minneapolis, Minn., for appellee.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Burlington Northern Railroad Co. (Burlington Northern) appeals from a final judgment entered in the District Court for the District of Nebraska upon a jury verdict in favor of David L. Turner. Burlington Northern sought specific performance of an agreement entered into by Turner's attorney to settle Turner's personal injury claim against Burlington Northern. For reversal Burlington Northern argues that the district court erred in (1) granting a jury trial on Burlington Northern's counterclaim for specific performance of the settlement agreement, (2) denying its motion for judgment notwithstanding the verdict, (3) instructing the jury that Burlington Northern had the burden to prove that Turner's attorney was authorized to enter into the settlement agreement, (4) instructing the jury that the standard for determining whether a client has authorized his attorney to accept an offer is a subjective standard, and (5) admitting evidence and permitting argument on improper and prejudicial matters. For the reasons discussed below, we reverse and remand.

Turner was injured on May 18, 1981, and again on January 20, 1982, while working as a machinist for Burlington Northern. As a result of these injuries he was referred by Burlington Northern's doctor to an orthopedic surgeon who performed surgery on Turner's lower back in February 1982. As a result of these injuries Turner was disqualified from continuing his employment as a machinist with Burlington Northern.

Turner brought suit under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq. (1982) (FELA), in federal district court. Turner hired the Inserra Law Office in Omaha, Nebraska, to represent him in his FELA suit. He was notified by his attorneys sometime in September 1982 that the trial of his case was set to begin in Lincoln, Nebraska, on Friday, September 24, 1982. The attorneys requested that Turner come to their offices on September 23, 1982, to prepare for trial. On September 23, 1982, prior to going to the Inserra Law Office, Turner met with Herbert Friedman, a Lincoln, Nebraska, attorney who specializes in the handling of FELA claims. Turner indicated that he was anxious about the upcoming trial and asked Friedman if being unmarried and charged with possession of marijuana could adversely affect his case. Friedman informed Turner that he did not wish to become involved in the case because the trial was set for the following day.

Following this meeting with Friedman, Turner went to the Inserra Law Office for the scheduled appointment. Turner testified that he met with John Inserra and Joseph Wise, Inserra's investigator, for two or three hours and discussed his case. Turner testified that Wise and Inserra repeatedly emphasized that the jury would not like him because he was single and had been charged with possession of marijuana and because his doctor's testimony would be unfavorable. Several times during these conversations, Inserra sent Wise and Turner out of his office while he contacted Burlington Northern to attempt to negotiate a settlement. After several telephone conversations between Inserra and Burlington Northern, Inserra informed Turner that Burlington Northern had made a final offer of $85,000 if Turner would relinquish his seniority rights with Burlington Northern or a lesser amount if Turner chose to retain his seniority rights and to continue working at Burlington Northern. The gross amount of the settlement would be reduced by $12,000 to $13,000 that Turner had already received. Inserra and Wise testified that Turner stated that he would take the $85,000. Turner testified that he replied, "I suppose I'm going to have to settle and I'll call you." Turner further testified that upon arriving home he called the Inserra Law Office to tell them that he did not want to settle his case. Turner subsequently refused to accept the settlement check from Burlington Northern. Several days later Turner returned to the Inserra office and obtained his file. Turner then hired other counsel to represent him in his action against Burlington Northern.

On September 26, 1982, Turner amended his complaint to add a charge of malpractice against his former attorneys and Joseph Wise, their investigator. On November 30, 1982, Burlington Northern filed an amended answer and counterclaim requesting specific performance of the settlement agreement entered into on September 23, 1982, between Burlington Northern and Turner through his attorney, Inserra. Burlington Northern's request for a trial to the court on the counterclaim was denied, but the district court granted a separate jury trial on the specific performance counterclaim. A jury returned a verdict in favor of Turner on the counterclaim. Burlington Northern's motion for certification under Fed.R.Civ.P. 54(b) was granted and this appeal followed. Turner's FELA and malpractice claims are pending in the district court.

Burlington Northern first argues that the district court erred in granting a jury trial on the counterclaim because the counterclaim sought specific performance, an equitable remedy, and was therefore properly triable to the court and not to a jury. Burlington Northern further argues that historically there was no right to a jury trial in an equitable suit for specific performance and that the rules of pleading and procedure, although liberalized, have not expanded the scope of the right to trial by jury. Turner argues that his right to a trial by jury may not be denied by Burlington Northern's styling its counterclaim as a suit for specific performance rather than one for accord and satisfaction, breach of contract or release.

Burlington Northern correctly states the general rule that "[a]n action for specific performance without a claim for damages is purely equitable and historically has ... been tried to the court," Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1189 (3d Cir.1979); see Klein v. Shell Oil Co., 386 F.2d 659, 663 (8th Cir.1967); 9 C. Wright & A. Miller Sec. 2309 (1971). Our inquiry, however, must proceed beyond this traditional means of determining whether a right to a jury trial exists. The seventh amendment, guaranteeing the right to jury trials, does not bar Congress or the Supreme Court from expanding the right to jury trials to cases which were traditionally tried to the court. Congress has on rare occasions extended this right in this manner. E.g., The Great Lakes Act of 1845, 28 U.S.C.A. Sec. 1873 (1982) (jury trial granted for claims which had previously been tried to the court in admiralty; upheld as constitutional in The Genesee Chief v. Fitzhugh, 53 U.S. 443, 459-60, 12 How. 443, 13 L.Ed. 1058 (1851) ). In a series of cases, the Supreme Court, recognizing a strong federal policy favoring trial by jury, has extended the right to a jury trial beyond its historic boundaries. Ross v. Bernhard, 396 U.S. 531, 538-39, 90 S.Ct. 733, 738-39, 24 L.Ed.2d 729 (1970); Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 21, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477-78, 82 S.Ct. 894, 899-900, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504-05, 79 S.Ct. 948, 953-54, 3 L.Ed.2d 988 (1959). These cases demonstrate that the historic distinction between law and equity, although still the standard for determining when a jury trial is constitutionally required, is no longer the only factor in determining if a trial by jury will be granted in "equity" cases.

In the present case, Burlington Northern filed a counterclaim for specific performance, an equitable action, rather than asserting an affirmative defense. A right to a trial by jury may not be made to depend on "the choice of words used in a pleading." Dairy Queen v. Woods, 369 U.S. at 478, 82 S.Ct. at 900. We do not believe that Burlington Northern's choice of an equitable counterclaim as a vehicle for asserting its defense to Turner's claim should deny Turner a trial if Turner otherwise is entitled to a jury trial.

In FELA cases, the Supreme Court has repeatedly emphasized that Congress intended that FELA lawsuits would be tried to the jury. Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359, 363, 72 S.Ct. 312, 315, 96 L.Ed.2d 398 (1952). The "right to trial by jury is 'a basic and fundamental feature of our system of jurisprudence' " and it is "part and parcel of the remedy afforded railroad workers under the Employers Liability Act," id., citing Bailey v. Central Vermont R.R., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943); "to deprive railroad workers of the benefit of a jury trial ... 'is to take away a goodly portion of the relief which Congress has afforded them.' " Id. In Dice, the Court held that the issue of fraud in the inducement of a release must be tried to a jury, although under applicable state law "it is necessary, before seeking to enforce a cause of action which such release [allegedly induced by fraud] purports to bar, that equitable relief from the release be secured." Id. 342 U.S. at 364, 72 S.Ct. at 315, citing Dice v. Akron, Canton & Youngstown R.R., 155 Ohio St. 185, 98 N.E.2d 301, 302 (1951) (state case reversed by Dice).

The Third Circuit, in Callen v. Pennsylvania R.R., held that a FELA plaintiff had a right to a jury trial on the question whether a release was the result of mutual mistake. 162...