Opposition Brief — Burlington Northern Railroad v. Cherner
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Supreme Court, U.S.
FILs
NOV 1 1006
JOSEPH F. SPANIOL, JR.
, K
7)
NO. 85-220 \C/
IN THE
Supreme Court Of Che Wnited Siates
October Term, 1985
BURLINGTON NORTHERN RAILROAD COMPANY,
Petitioner,
VS.
HON. MARVIN CHERNER, JUDGE OF THE TENTH
JUDICIAL CIRCUIT OF ALABAMA,
Respondent.
BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI TO |
THE SUPREME COURT OF ALABAMA
FRANK QO. BurGE, JR.
BurGE, POWELL & WETTERMARK, P.C.
1230 First Ala. Bank Bldg.
Birmingham, Alabama 35203
Telephone: 205-251-9729
Attorneys for Respondent
i
QUESTION PRESENTED FOR REVIEW
WHETHER THE FEDERAL EMPLOYERS’ LIABILITY
ACT REQUIRES A JURY TRIAL ON THE QUESTION
OF WHETHER A CONSENT JUDGMENT WAS PRO-
CURED BY THE FRAUD OF THE RAILROAD, NOT-
WITHSTANDING THE FACT THAT ALABAMA
EQUITY PRACTICE STIPULATES A NON-JURY TRIAL
ON AN ACTION TO SET ASIDE A JUDGMENT.
ii
PARTIES TO THE PROCEEDING
Parties:
Nettie Faye Duckworth Warren, administratrix of the
Estate of James B. Duckworth
Burlington Northern Railroad Company
Judge Marvin Cherner, sitting as Judge of the Tenth
Judicial Circuit of Alabama
Affiliated or related parties:
The parent company to Burlington Northern Railroad Com-
pany is Burlington Northern, Inc., which owns all the s. »ck in
the Burlington Northern Railroad Company. The following
companies are affiliated with the Burlington Northern Rail-
road Company:
The Belt Railway Company of Chicago
The Camas-Prairie Railroad Company
Davenport, Rock Island & Northwestern Railway
Company
Galveston Terminal Railway Company
Hous on Belt and Terminal Railway Company
Iowa Transfer Railway Company
Kansas City Terminal Railway Company
Keokuk Union Depot Company
The Lake Superior Terminal Transfer Railway
Company
Longview Switching Company
Minnesota Transfer Railway Company
Paducah & Illinois Railroad Company
Portland ‘Terminal Railroad Company
Pueblo Terminal Union Depot and Railroad Company
St. Paul Union Depot Company
Terminal Railroad Association of St. Louis
Trailer Train Company
Wichita Union Terminal Railway Company
Winona Bridge Company
iii
TABLE OF CONTENTS
sat rahe, Se Page
QUESTION PRESENTED FOR REVIEW i
PARTIES TO THE PROCEEDING ii
py et SES ERE Renee meer merce iii
TABLE OR AAD Cee i cs iv
eee eer rene See 1
See eeeeeee Gane Oem GND oe 2
REASONS FOR DENYING THE WRIT __ 4
1. Alabama equity law does not apply. —._-____ 4
2. Federal law requires a jury trial in FELA cases. ____ 6
3. This FELA action is not barred by the
Oiemcneeen. Ge S00 MONON 26 6
4. Consent judgments and releases are treated
identically under the FELA. ==. 7
5. Title 45 U.S.C. §55 guarantees a FELA claimant
a right to trial by jury in this instance. —--__»_»__ 8
CONCLUSION BOE GR SSSR eS ae 10
APPENDIX:
A — SUMMONS AND COMPLAINT _ A-l
B — PLAINTIFF'S FIRST AMENDMENT
CE a
C — MOTION TO TRANSFER __...- A-11
D — ORDER GRANTING MOTION
an OE ce A-15
ee ee ee A-17
ee | iS 8 | SR 6 8 4 SSSA RAE een eee A-20
G — APPLICATION FOR REHEARING 4 A-36
H — APPLICATION FOR REHEARING
DENIED A-38
iv
TABLE OF AUTHORITIES
Cases: Page
Bailey v. Central Vermont Railway Company, Inc.,
319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943) 5, 9, 10
Brown v. Western Railway of Alabama,
338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100 (1949) _.___. 10
Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44,
ge eR PM |) eee 6
Dice v. Akron, Canton & Youngstown R. Co.,
oF 0.2 see eee coe 4, 5, 6, 7, 8,9, 10
Duncan v. Thompson, 315 U.S. 1, 62 S.Ct.
7 Ee SR | en 8,9
Hazel-Atlas Glass Company v. Hartford-
Empire Company, 322 U.S. 238 (1944) ~~~ 6
Krasner v. Reed, 30 So.2d 731, 734, 33
Ala. App. 85, pet. for cert. dismissed
30 So.2d 734, 249 Ala. 240 (1947) ER
Riehle v. Margolies, 279 US. 218,
Ott. 2 oe oe ee oo... 6
Ricketts v. Pennsylvania R. Co.,
153 F.2d 757, 759 (2nd Cir. 1946) 6
Urie v. Thompson, 337 U.S. 181, 182, 69 S.Ct. 1018,
FR e. Big tk Y |- ae Sa 8
Statutes:
OD I aia A iinttneiticss passim
45 U.S.C. §55 8, 9, 10
NO. 85-220
IN THE
Supreme Court Of The United States
October Term, 1985
BURLINGTON NORTHERN RAILROAD COMPANY,
Petitioner,
Vs.
HON. MARVIN CHERNER, JUDGE OF THE TENTH
JUDICIAL CIRCUIT OF ALABAMA,
Respondent.
BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF ALABAMA
STATUTORY PROVISIONS
Liability of common carriers by railroad, in interstate or for-
eign commerce, for injuries to employees from negligence;
definition of employees.
Every common carrier by railroad while engaging in com-
merce between any of the several States or Territories, or be-
tween any of the States and Territories, or between the District
of Columbia and any of the States or Territories, or betwee:
the District of Columbia or any of the States or Territories and
any foreign nation or nations, shall be liable in damages to any
person suffering injury while he is employed by such carrier
in such commerce, or, in case of the death of such employee,
to his or her personal representative, for the benefit of the
2
surviving widow or husband and children of such employee;
and, if none, then of such employee's parents; and, if none,
then of the next of kin dependent upon such employee, for
such injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier, or by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves, or other equipment.
Any employee of a carrier, any part of whose duties as such
employee shal! be the furtherance of interstate or foreign com-
merce; or shall, in any way directly or closely and substantially,
affect such commerce as above set forth shall, for the purposes
of this chapter, be considered as being employed by such car-
rier in such commerce and shall be considered as entitled to
the benefits of this chapter.
45 U.S.C. §51.
J a i Lo
Contract, rule, regulation, or device exempting from liability;
set-off.
Any contract, rule, regulation, or device whatsoever, the
purpose or intent of which shall be to enable any common
carrier to exempt itself from any liability created by this chap-
ter, shall to that extent be void: Provided, That in any action
brought against any such common carrier under or by virtue
of any of the provisions of this chapter, such common carrier
may set off therein any sum it has contributed or paid to any
insurance, relief benefit, or indemnity that may have been
paid to the employee or the person entitled thereto on account
of the injury or death for which said action was brought.
45 U.S.C. §55.
STATEMENT ©F THE CASE
Nettie Faye Duckworth Warren, administratrix of the Estate
of James B. Duckworth, brought suit in the Tenth Judicial
Circuit Court of Alabama against St. Louis-San Francisco Rail-
way Company, Burlington Northern Railway Company (the
3
“Railroad”), and Kershaw Manufacturing Company (‘“Ker-
shaw”). Burlington Northern is successor corporation to St.
Louis-San Francisco Railway Company. Plaintiff alleges in her
complaint that her deceased husband was killed while working
as a laborer for the Railroad. Plaintiff alleges that his death
was proximately caused by the negligence of the Railroad and
that the action is brought pursuant to the provisions of the
Federal Employers’ Liability Act, 45 U.S.C. §51, et seq.
(FELA). The complaint avers that Kershaw is liable under
the provisions of the Extended Manufacturer's Liability Doc-
trine. She further avers that on January 2, 1980, a consent
judgment was entered in the case of Nettie Faye Duckworth v.
St. Louis-San Francisco Railway Company and Kershaw Manu-
facturing Company, CV-80-02, in the Circuit Court of Walker
County, Alabama, for the amount of $151,500.00, and that such
judgment was procured by fraud on the part of the Railroad
and Kershaw and is thus null and void. (Appendix A&B)
The Railroad moved to dismiss her complaint alleging that
fraud had not been stated with particularity. It also filed a
Motion to Transfer to Equity alleging that an independent
action to set aside an earlier “judgment” is an equity action.
(Appendix C). On May 12, 1982, the trial court granted the
Motion to Dismiss. Plaintiff filed an amended complaint. (Ap-
pendix B) On January 28, 1983, the Court granted the Rail-
road’s Motion to Transfer to the Equity Division. (Appendix
D) Subsequent to the transfer to the Equity Division, the Rail-
road filed a Motion to Strike Plaintiff's Jury Demand on the
ground that the plaintiff was not entitled to a jury in this
equity action to set aside a final judgment. (Appendix E) On
June 15, 1984, Judge Marvin Cherner issued a Pre-trial Order
containing a well reasoned Opinion denying the Motion to
Strike the Jury Demand. (Appendix F) The Railroad filed a
Petition for Mandamus with the Supreme Court of Alabama.
On January 4, 1985, the Alabama Supreme Court denied the
Petition for Mandamus. On January 18, 1985, Petitioner filed
a Petiticn for Rehearing, which was denied by the Alabama
Supreme Court on May 10, 1985. (Appendix G&F) This brief
4
supplements the Alabama Supreme Court's written Opinion,
the Opinion of Trial Judge Marvin Cherner, and submits sup-
porting arguments that the Opinion of the Alabama Supreme
Court was a correct application of the law.
REAS NS FOR DENYING THE WRIT
Nettie Faye Duckworth Warren’s action seeking to set aside
a fraudulently obtained consent judgment is a FELA claim
brought in state court. This case presents a confl*~ ‘etween
state court rules and this federal statutory remedy. A.abama
law provides that an action to set aside a judgment is an equi-
table proceeding which must be tried before a court without a
jury. The federal statute under which Mrs. Warren brings her
claim provides a FELA claimant the right to a jury trial on all
factual issues. This Court has protected a FELA claimant's
right to a jury trial from the application of local rules of pro-
cedure in its decision of Dice v. Akron, Canton & Youngstown
R. Co., 342 U.S. 359, 72 S.Ct. $12 (1952). The Alabama Su-
preme Court correctly interpreted Dice in its decision to pro-
tect Mrs. Warren’s right to trial by jury on the issue of the
consent judgment’s validity.
1. Alabama equity law does not apply.
In Dice, this Court did not allow Ohio equity law to deprive
a FELA claimant of his right to a jury trial on the issue of a
fraudulently obtained release. Dice, while working as a rail-
road fireman, was seriously injured when the engine in which
he was riding jumped a track. He brought suit in a FELA ac-
tion and the Railroad asserted the defense that Dice had exe-
cuted a release whereby he released the Railroad of all claims.
Ohio laws treat an attack on a release as an equitable action,
not triable by a jury. This Court concluded that in a FELA
claim, the plaintiff is entitled to a jury trial on the issue of the
release’s validity as well as all other factual issues. This Court
emphasized that the right to a jury trial is a fundamental right
afforded to injured railroad employees and their surviving de-
5
pendents under the FELA and has long been recognized as part
and parcel of the FELA remedy itself. Dice at 363; Bailey v.
Central Vermont Railway, 319 U.S. 350, 63 S. Ct. 1062, 87
L.Ed. 1444 (1943).
This Court in Dice, recognized that:
To deprive railroad workers of the benefit of a jury trial
where there is evidence to support negligence ‘is to take
away a goodly portion of the relief which Congress has
afforded them.’ Id. at 363.
In Bailey, this Court stated:
To deprive these workers of the benefit of a jury trial in
close or doubtful cases is to take away a goodly portion of
the relief which Congress has afforded them. Id. at 354.
This issue was put to rest in Dice when this Court held:
It follows that the right to trial by jury is too substantial
a part of the rights accorded by the Act to permit it to be
classified as a mere ‘local rule of procedure’ for denial . . .
Id. at 363.
In Dice, this Court adheres to the principle that the right to a
jury trial is part and parcel of the FELA claimant's remedy.
Therefore, crucial issues arising in the course of litigation shall
be tried before a jury as part of the remedy afforded by the
FELA. Any procedural rule which deprives the claimant of
the right shall not be applied.
This Court is emphatic in Dice that a state court cannot split
a FELA action so that issues of fraud are decided by a judge
and issues of negligence are decided by a jury. The Court com-
mented that Ohio could eliminate the right to a jury trial in
all FELA actions only by eliminaiing the right to a jury trial
in all negligent cases arising under common law or FELA. The
Court continued by stating:
But Ohio has not done this. It has provided jury trials for
cases arising under the Federal Act but seeks to single out
one phase of the question of fraudulent releases for deter-
mination by a judge rather than a jury. Dice at 363.
6
This Court has emphatically stated in its decision of Dice, that
“state laws are not controlling in determining what the inci-
dents of this federal right shall be.” Id. at 361. Chesapeake &
Ohio R. Co. v Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157
(1931); Ricketts v. Pennsylvania R. Co., 153 F.2d 757, 759
(2nd Cir. 1946). Likewise, Alabama equity !aw cannot be ap-
plied to deprive a FELA claimant of his federal right to a jury
trial.
2. Federal law requires a jury trial in FELA cases.
Petitioner argues that neither state law nor federal common
law requires a jury trial. The Railroad cites Hazel-Atlas Glass
Co. v. Hartford Empire Co., 332 U.S. 238 (1944) to support
its argument that federal common law does not require a jury
trial to set aside a fraudulent judgment. However, Hazel-Atlas
is not relevant to the instant case because it is brought under
federal patent laws, not under the FELA. This distinction is
the determining factor in the Dice decision with which the
Alabama Supreme Court complied. The crux of the Dice deci-
sion, is that in a FEL “ claim, the plaintiff's right to a jury trial
will not be abolished by state equity practice. This Court did
not allow the determination of these issues to be split between
a judge and jury. Likewise, the Alabama Supreme Court will
not allow the determination of a fraudulent consent judgment
and other issues of negligence to be split between a judge and
jury. To do so would be in direct contradiction of Dice.
3. This FELA action is not barred by the principles of
res judicata.
Petitioner argues that the principles of res judicata are in-
voked by a consent judgment; therefore, plaintiff's FELA ac-
tion is barred. However, Petitioner ignores an underlying
principle of this doctrine. A judgment obtained by fraud or
collusion may not be used as the basis for its application. The
principles of res judicata may not be invoked to sustain fraud.
Riehle v. Margolies, 279 U.S. 218, 49 S.Ct. 310, 73 L.Ed. 669
7
(1928). The Alabama courts have adhered to this principle
and will not apply the doctrine so as to deny “justice or deprive
a litigant of a righteous claim.” Krasner v. Reed, 30 So.2d 731,
734, 33 Ala. App. 85, pet. for cert. dismissed 30 So.2d 734, 249
Ala. 240 (1947).
This consent judgment does not represent the culmination
of litigation or of a lawsuit previously filed by Mrs. Warren.
Mrs. Warren was told by the claim agent that $151,500.00 was
the total amount that she could collect from the defendant.
The claim agent then took Mrs. Warren to the office of the
Burlington Northern Railroad’s attorney, who then prepared
a complaint to be signed by Mrs. Warren as plaintiff. After the
complaint was prepared, defendant's claim agent and attorney
escorted Mrs. Warren to the courthouse where the release was
reduced to a consent judgment. Mrs. Warren was never in-
formed of the Railroad’s liability under the FELA or of the
remedy afforded her under the FELA. This judgment is no
more than a fraudulent release that the Railroad’s claim agents
and attorneys cleverly had reduced to a final judgment. There-
fore, the judgment does not bar a: ibsequent FELA suit which
seeks to vacate the consent procured by fraud and to provide
to the plaintiff the remedy to which she is entitled under the
FELA. The Railroad cannot defraud a plaintiff of her rightful
claim and then hide behind res judicata to enforce the fraud.
4. Consent judgments and releases are treated identi-
cally under the FELA.
The Railroad argues that consent judgments are distinguish-
able from releases; therefore, Dice does not apply to the instant
case. However, the two devices are identical in purpose and
substance. Both a fraudulent release and a fraudulent consent
judgment would be attacked in equitable proceedings under
Alabama law in non FELA cases. Although the validity of
these devices would be issues for a judge to determine under
Alabama law, the validity of a release and a consent judgment
are issues for a jury to determine under the principles of Dice.
8
Equity practice in Ohio was, prior to Dice, identical to that
of Alabama. The Railroad seeks to invoke Alabama’s equity
practice in denying plaintiff's right to trial by jury. That is
precisely what Ohio attempted to do in Dice. However, Ala-
bama’s equity practice is no more sacred than that of Ohio.
The Alabama Supreme Court correctly followed Dice in its
determination that Alabama’s court rules may not deprive a
FELA claimant of the right to a jury trial on all factual issues.
5. Title 45 U.S.C. §55 guarantees a FELA claimant a
right to trial by jury in this instance.
Petitioner argues that the Alabama Supreme Court gives the
FELA an unique position and that “to accord such a status to
FELA cases would require at a minimum congressional intent
to require juries in this setting.” However, Petitioner fails to
cite Title 45 U.S.C. §55. It reads in pertinent part:
Any contract, rule, regulation, or device whatsoever, the
purpose or intent of which is to enable any common Car-
rier to exempt itself from “ge created by this chapter
shall to that extent be void . . . (Emphasis supplied) .
rhis statute protects sinijacipail and their surviving depen-
dents from any and all methods which a railroad might employ
with the intent to escape any measure of its liability under the
Act. In keeping with the congressional intent, 45 U.S.C. §55
has been relied upon to declare fraudulently obtained settle-
ments and releases void. Duncan v. Thompson, 315 U-S. 1, 62
S.Ct. 422, 86 L.Ed. 575 (1942).
The scope of this statute is broad and must be read as such
if the Act is to accomplish its humanitarian purpose. Urie v.
Thompson, 337 U.S. 181, 182, 69 S.Ct. 1018, 93 L.Ed. 1282,
11 A.L.R. 2d 252 (1949). The section is not limited to fraudu-
lently obtained statements and releases but forbids “any device
whatsoever” which is intended to escape liability under the
Act. This point is made clear in Dice, supra, in which this
Court stated:
Releases and other devices designed to liquidate or defeat
injured employees’ claims play, an important part in the
9
Federal Acts Administration. Compare Duncan v. Thomp-
son, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575. Their validity
is but one of the many interrelated questions that must
constaritly be determined in these cases according to a uni-
form federal law. 342 U.S. at 361-62 (Emphasis supplied) .
Respondent submits that the use of the term “device what-
soever” and “other devices’’ by the United States Congress and
this Court evinces congressional intention to cover all liability
escaping measures. If Congress wished only to prohibit con-
tractual releases, the words “device whatsoever” would be
meaningless and superfluous.
It is the term ‘device whatsoever” that expands Title 45
U.S.C. §55’s coverage beyond releases to include every measure
or connivance which the Railroad might use in an attempt to
escape liability. This includes the measures used by the Rail-
road against Nettie Faye Duckworth Warren. The scam used
against Mrs. Warren was not a judgment that she obtained rep-
resenting the culmination of litigation or the product of a law-
suit in which her interests were completely advocated. It is no
more than a product of the Railroad’s imagination, manipula-
tion, misrepresentations and fraud and therefore a “device”
prohibited by Title 45 U.S.C. §55. As has been briefed fully
heretofore, a FELA plaintiff is entitled to a jury trial on the
issue of whether Title 45 U.S.C. §55 was violated by the Rail-
road’s use of such a “device”. Dice, supra.
The argument of the Railroad in this case totally ignores the
congressional intent shown in §55 and supplants that intent
with a theoretical and erroneous argument that would allow
railroads to settle every FELA claim by consent judgment and
thereby totally avoid the intent of Congress in enacting §55
and totally avoid the rationale of the Supreme Court of the
United States’ opinion in Bailey v. Central Vermont Railroad,
319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943) , Dice, supra,
and other cases stating thai the right to a jury trial is part and
parcel of the FELA law. Dice says this includes Title 45
U.S.C. §55.
If Dice, Bailey, and §55 are not enforced by this Court, every
10
release of a future FELA claim will be by consent judgment
and there will be no such thing as a jury trial to determine
whether or not the consent judgment in question was a “device
. . . the purpose or intent of which” was to enable a railroad
to exempt itself from any liability created by the FELA. Uni-
formity of application of FELA law by the various state courts
would crumble and the rationale of §55 and Dice, as well as
Brown v. Western Railway of Alabama, 338 U.S. 294, 70 S.Ct.
105, 94 L.Ed. 100 (1949) would be ignored.
CONCLUSION
This Court has consistently protected the FELA claimant’s
right io a trial by jury. Bailey at 354; Brown at 294; Dice at
359. The decision of the Alabama Supreme Court is consistent
with the precedent set in the cases cited above. A jury trial is
a substantive right of the FELA claimant. The Alabama Su-
preme Court was correct in its analysis of Dice. A fraudulent
release and a fraudulent consent judgment would be attacked
in equity proceedings under Alabama law in a non FELA con-
text. Dice requires a jury trial for an attack on a release in a
FELA case, therefore, a jury trial is required for an attack on
a consent judgment in a FELA case. The Alabama Supreme
Court correctly concluded that to deny this basic right of trial
by jury violated the dictates of the United States Supreme
Court.
FRANK QO. BurcE, JR.
Burce, PowELL & WETTERMARK, P.C.
1230 First Ala. Bank Bldg.
Birmingham, Alabama 35203
205-251-9729
Attorneys for Respondent,
Hon. Marvin Cherner, Judge
of the Tenth Judicial
Circuit of Alabama
APPENDICES
A-1
APPENDIX A
IN THE CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
NETTIE FAYE DUCKWORTH _)
WARREN, Adnministratrix of the )
Estate of JAMES B. DUCK- )
WORTH, who sues on her behalf as_)
totally dependent surviving widow )
and on behalf of Anita Duckworth, _)
James Randy Duckworth, Bobby _i+?)
Duckworth, and Danny Duckworth, )
the totally dependent minor children )
of JAMES B. DUCKWORTH,
Deceased,
Plaintiff,
CIVIL ACTION
NO. CV81-4859
Vv.
ST. LOUIS — SAN FRANCISCO
RAILWAY COMPANY, a corpo-
ration, BURLINGTON NORTH-
ERN RAILWAY COMPANY,
a corporation, and KERSHAW
MANUFACTURING COMPANY,
INC., a corporation,
Defendants.
i i — ee See
SUMMONS
To Any Sheriff in the State of Alabama:
You are hereby commanded to serve this summons and
a copy of the complaint in this action upon defendants St.
LOUIS-SAN FRANCISCO RAILWAY COMPANY, a
corporation, BURLINGTON NORTHERN RAILWAY
COMPANY, a corporation, and KERSHAW MANU-
FACTURING COMPANY, INC., a corporation.
A-2
Each defendant is required to serve a written answer to
the complaint upon Scott A. Powell, attorney of record for
the plaintiff, whose address is 1620 First Alabama Bank
Building, Birmingham, Alabama 35203-3269, within thirty
(30) days after service of this summons with the exclusion
of the day of service, and to file the original of the said
written answer with the clerk of the court within the said
thirty day period. If any defendant fails to do so, a judgment
by default may be entered against that defendant for the
relief claimed in the complaint.
DATED: November 12, 1981
/s/ Potty Conrapi
Clerk of the Court
COMPLAINT
1. The plaintiff is the totally dependant surviving widow
of JAMES B. DUCKWORTH, deceased, and sues in her
capacity as administratrix of the estate of JAMES B.
DUCKWORTH, deceased and for her benefit as said totally
dependent surviving widow. Plaintiff also sues for the benefit
of Anita Duckworth, a minor sixteen (16) years of age,
Randy Duckworth, a minor twelve (12) years of age, Bobby
Duckworth, a minor ten (10) years of age, and Danny Duck-
worth, a minor four (4) years of age, who are the totally
dependant surviving minor children of JAMES B. DUCK-
WORTH, deceased.
2. At all times referred to herein the plaintiff was an
employee of the defendant and was working within the line
and scope of his employment for the defendant. At all times
referred to herein the defendant was a common carrier by
railroad engaged in tue business of operating a railroad in
interstate commerce for hire for the purpose of carrying
freight and passengers in interstate commerce. At all times
referred to herein the plaintiff’s duties of employment for
the defendant were in the furtherance of such interstate
A-3
commerce or directly or closely and substantially affected
such inte:state commerce. This action is brought under and
by virtue of the provisions of the Federal Employers Lia-
bility Act, Tit. 45, U.S.C.A., § 51, et seq.
3. Plaintiff avers that heretofore, on to-wit, the 21st day
of December, 1978, JAMES B. DUCKWORTH, deceased,
was working as a laborer for the defendant, BURLINGTON
NORTHERN RAILWAY COMPANY, successor corpo-
ration of ST. LOUIS-SAN FRANCISCO RAILWAY COM-
PANY, a corporation, at or near Tupelo, Mississippi, when
a bush hog operating nearby on the tracks and roadbed of
the defendant, caused a wire to be thrown out of the un-
guarded portion of the blade, striking JAMES B. DUCK-
WORTH in the throat with such force that he was so
severely injured that on, to-wit, the 26th day of December,
1978, he died.
. 4. Plaintiff avers that JAMES B. DUCKWORTH, de-
ceased, was killed as a proximate result, in whole or in part,
of the negligence of the defendant, BURLINGTON
NORTHERN RAILWAY COMPANY, the successor corpo-
ration of ST. LOUIS-SAN FRANCISCO RAILWAY COM-
PANY, a corporation, its agents, servants or employees,
while acting within the line of scope of their employment for
the defendant or by reason of a defect or insufficiency due
to its negligence in its roadbed, tracks, bush hogs, safety
practice, work practices, guards, guards on bush hogs, absence
of guards on bush hogs, absence of warning signs.on bush
hogs warning JAMES B. DUCKWORTH of the inherent
danger attendant with the operation of said bush hog.
5. Plaintiff further avers that the death of JAMES B.
DUCKWORTH was proximately caused, in whole or in part,
by the negligent failure of the defendant, BURLINGTON
NORTHERN RAILWAY COMPANY, a corporation, to
use reasonable care to provide to JAMES B. DUCK-
WORTH, a reasonably safe place for him to do his work and
labor for the defendant on the occasion of sustaining the in-
juries which resulted in his death.
A-4
6. Plaintiff further avers that the death of JAMES B.
DUCKWORTH, was proximately caused, in whole or in
part, by the negligent failure of the defendant, BURLING-
TON NORTHERN RAILWAY COMPANY, to provide
guards on its bush hog machines when they knew or in the
exercise of reasonable care should have known that said
machine created an ultar-hazardous work situation and work
station for the deceased, James B. DUCKWORTH, but
negligently failed to provide a guard around the machine
proximately resulting in JAMES B. DUCKWORTH’S
death.
7. Plaintiff further avers that heretofore, prior to Decem-
ber 21, 1978, the defendant, the KERSHAW MANU-
FACTURING COMPANY, INC., 4 corporation, manu-
factured this bush hog and plaintiff avers that the said
defendant negligently breached the extended manufacture’s
liability doctrine of the State of Alabama and that the bush
hog was not safely guarded and that said bush hog was
negligently designed and negligently manufactured without
said guarding attachment. Plaintiff further avers that bush
hog was negligently manufactured and negligently sold to
the defendant, BURLINGTON NORTHERN RAILWAY
COMPANY, a corporation.
8. Plaintiff avers that as a proximate consequence of the
said negligent breach of the extended manufacture’s lia-
bility doctrine of the State of Alabama, the said defendant,
KERSHAW MANUFACTURING COMPANY, INC., a
corporation, directly and proximately contributed to the
death of her said husband as aforesaid.
9. Plaintiff further avers that her said husband’s death
was proximately caused by the combined and concurring
negligence of all defendants at the aforesaid time and place
in the negligent manner as heretofore stated in this com-
plaint as to all defen? «uts.
10. Plaintiff further avers that heretofore, on to-wit, the
2nd day of January, 1980, a judgment was entered in the
case of NETTIE FAYE DUCKWORTH, v. ST. LOUIS -
|
|
A-5
SAN FRANCISCO RAILWAY COMPANY and KER-
SHAW MANUFACTURING COMPANY in the amount
of one hundred fifty-one thousand five hundred dollars
($151,500). Plaintiff further avers that said judgment is null
and void in that said judgment was procured by fraud on
the part of the defendants, its agents, servants or employees
while acting within the line of scope of their employment for
the defendants. Plaintiff further avers that said judgment
is null and void and that said judgment does not provide
any allocation or distribution for the deceased minor children
pursuant to Federal statutes.
11. As damages, plaintiff claims of the defendants the
sum of five million dollars ($5,000,000.00) for the benefit of
herself as the surviving dependant widow of JAMES B.
DUCKWORTH, deceased, and for the benefit of her four
minor children as totally dependant surviving children of
JAMES B. DUCKWORTH, deceased.
12. Plaintiff demands trial by struck jury.
BURGE & FLORIE, P.C.
1620 First Alabama Bank
Building
Birmingham, Alabama 35203-
3269
(205) 251-9729
BY: /s/ Scorr A. Powki
SCOTT A. POWELL
TRIAL COUNSEL: Frank O. Burge, Jr.
Scott A Powell
PLAINTIFF’S ADDRESS:
Route 1
Guin, Alabama 35563
a
A-6
DEFENDANT'S ADDRESS:
BURLINGTON NORTHERN, INC.
Vastine Stabler, Jr.
1900 First National-Southern Natural Bldg.
Birmingham, Alabama 35203-3269
KERSHAW MANUFACTURING COMPANY
Donald C. Bailey
2205 West Fairview Avenue
Montgomery, Alabama 36108
ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY
30 South 18th Street
Birmingham, Alabama 35233
A-7
APPENDIX B
IN THE CIRCUIT COURT FOR THE TENTH
JUDICIAL CIRCUIT OF ALABAMA.
NETTIE FAYE DUCKWORTH
WARREN, etc.,
)
)
Plaintiff, )
vs. ) CIVIL ACTION
)
)
)
)
ST. LOUIS-SAN FRANCISCO NO. CV-81-4859
RAILWAY COMPANY, a
corporation, et al.,
Defendants.
PLAINTIFF’S FIRST AMENDMENT TO COMPLAINT
Plaintiff amends her complaint heretofore filed as follows:
1. By adding the following averment to paragraph 10 of
plaintiff’s complaint:
Plaintiff avers that the aforesaid fraud of the defendant
was perpetrated upon the plaintiff by the defendants’ claim
agent who nade misrepresentations which were relied on as
being true by the plaintiff but which in iact were untrue as
a result of which plaintiff was damaged.
The said claim agent represented to the plaintiff that
plaintiff did not need a lawyer.to explain to her her rights
or to handle her claim for her because he, the claim agent
of the St. Louis-San Francisco Railway Company, would
handle everything for her and for her children with the St.
Louis-San Francisco Railway Company. The said represen-
tation was untrue in that the said claim agent never ex-
plained to the plaintiff her rights against the St. Louis-San
Francisco Railway Company or against Kershaw Manufac-
turin; Company; he never explained to the plaintiff the
Federal Employers Liability Act and in fact never mentioned
A-8
~____ the Federal Employers Liability Act to the plaintiff; the said
claim agent never mentioned to the plaintiff that loss of
contributions from her deceased husband was an item of
damage under the Federal Employers Liability Act; the said
claim agent never mentioned to the plaintiff that loss of
parental guidance of plaintiff's children was an item of dam-
age under the Federal Employers Liability Act; the said
claim agent never mentioned to the plaintiff that conscious
pain and suffering of her deceased husband during his life
time subsequent to his injury and prior to his death was an
item of damage under the Federal Employers Liability Act;
that Kershaw Manufacturing Company was subject to the
Manufacturer’s Liability Doctrine of the State of Missis-
sippi; the law of damages as it applied to Kershaw Manu-
facturing Company and plaintiff and her children was never
mentioned to the plaintiff by the said claim agent; the said
claim agent never mentioned to the plaintiff that there must
be an allocation of total damages between plaintiff as the
surviving dependent widow and her children as the sur-
viving dependent children of the deceased husband and
father; the said claim agent never told the plaintiff what any
investigation disclosed as to the cause of her husband’s in-
jury and the negligence of the railroad and the negligence
of Kershaw Manufacturing Company except to tell the plain-
tiff that the accident was caused by her husband’s own fault.
The said claim agent represented to the plaintiff that he
would work in her best interest and in the best interest of
her children in handling her claim against the railroad com-
pany if she would not get a lawyer. The said claiva agent did
not work in the best interest of the plaintiff and her children
in that he had her settle the case for One Hundred Fifty
One Thousand Five Hundred Dollars ($151,500.00) which
was substantially less than plaintiff and her children were
entitled under the existing law and facts of the case; the said
claim agent had a conflict of interest between representing
the plaintiff as he told plaintiff he would do at a time when
he was working for the defendant St. Louis-San Francisco
A-9
Railway Company and the defendant Kershaw Manufactur-
ing Company; the said claim agent used the first person
plural “we” when discussing his efforts on behalf of plaintiff
and her children against the railroad company; the said
claim agent used the third person “they” and “them” when
referring to his employer the St. Louis-San Francisco Rail-
way Company; the said claim agent never explained and
working as a claim agent for the defendant St. Louis-San
Francisco Railway Company and Kershaw Manufacturing
Company; when plaintiff protested that One Hundred Fifty
Thousand Five Hundred Dollars $151,500.00) was not a
sufficient amount of money fcr her loss the said claim agent
said that was all “we” can get and “they” will not pay any
more referring to himself and the plaintiff as “we” and re-
ferring to the St. Louis-San Francisco Railway Company as
“they”.
Plaintiff did not understand the papers that were signed
at the company’s lawyer’s office which led to a judgment
being taken but signed the documents and allowed the judg-
ment to be taken because the said railroad claim agent told
her she was getting all that she was entitled to get and that
he had worked it out for her in the best interest of her and
her children and he was handling everything for her so she
would not have to have a lawyer and pay a lawyer.
No allocation was ever made for plaintiff’s minor children
who were totally dependent upon their deceased father
James B. Duckworth for support during the life time of the
said James B. Duckworth.
A-10
Plaintiff avers that the aforesaid misrepresentations of
material facts were relied on by the plaintiff in her dealings
with the said railroad claim age. to her detriment and dam-
age and were material misrepresentations which misled her
to her detriment.
BURGE & FLORIE, P.C.
1620 First Alabama Bank
Building
Birmingham, Alabama 35203-
3269
(205) 251-9729
By: /s/ Frank O. Burceg, JR.
Frank O. Burge, Jr.
CERTIFICATE OF SERVICE
I do hereby certify that I have on this the 25th day of May,
1982, served a copy of the foregoing pleading on counsel for
all parties concerned by hand delivery.
/s/ FRANK O. Burce, JR.
Frank O. Burge, Jr.
A-11
APPENDIX C
IN THE CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
NETTIE FAYE DUCKWORTH
WARREN, Administratrix of the
Estate of JAMES B. DUCK-
WORTH, who sues on her behalf
as totally dependent surviving
widow and on behalf of Anita
Duckv..rth, James Randy Duck-
worth, Bobby Duckworth, and
Danny Duckworth, the totally
dependent minor children of
JAMES B. DUCKWORTH,
deceased,
Plaintiff,
CIVIL ACTION
NO. CV-81-4859
vs.
ST. LOUIS-SAN FRANCISCO
RAILWAY COMPANY, a corpo-
ration, BURLINGTON
NORTHERN RAILWAY COM-
PANY, a corporation, and KER-
SHAW MANUFACTURING COM-
PANY, INC., a corporation,
Defendants.
me Ne ee ee ee” ~-" i i i i de a
MOTION TO DISMISS OR IN THE ALTERNATIVE
TO TRANSFER TO EQUITY DIVISION
Comes now the defendant, Burlington Northern Railway
Company, a corporation, which is the successor corporation
to St. Louis-San Francisco Railway Company and moves
this Court to dismiss this action. In support of this motion,
defendant says as follows:
A-12
1. The complaint fails to state a claim upon which relief
can be granted.
2. The basis for setting aside the earlier judgment ren-
dered between these parties is alleged to be “fraud” by the
defendants, but the plaintiff fails to state with particularity
the circumstances constituting fraud as required by Rule
9(b), Ala. R. Civ. P.
In the alternative, the defendant moves this Court to
transfer this action to equity division. In support of this
motion, defendant says as follows:
1. Plaintiff in this cause of action filed suit against the
defendants in this cause of action in the Circuit Court of
Walker County, Alabama. ,
2. An order was issued on January 2, 1980 by the Circuit
Court of Walker County approving settlement of the case
and entering judgment against St. Louis-San Francisco Rail-
way Company in the sum of $111,500.00 and against Kershaw
Manufacturing Company, Inc. in the amount of $40,000.00.
Said judgment is attached hereto as Exhibit A.
3. The total amount of the judgment ($151,500.00) has
been paid by the defendants to the plaintiff.
4. Plaintiff now seeks in this independent action to set
aside the judgment over ore and one-half years ago by
another court.
5. An independent action filed to set aside an earlier
judgment under Rule 64, Ala. R. Civ. P., is an equity action.
Denton v. Stanford, 383 So. 2d 847, 848 (Ala. Civ. App.
1980) (holding that “This is an independent action in equity
for relief from a judgment”); Battle v. Morris, 265 Ala. 851
(1957) (original bill filed in equity to set aside a consent
judgment rendered in favor of plaintiff on the law side of
the circuit court); Bankers Mortgage Company v. United
States, 423 F.2d 73, 78 (5th Cir. 1970) cert. denied 399 U.S.
927 (1970) (holding that “ ‘independent action’ as used in
[Rule 60(b)] was meant to refer to a procedure which has
been historically known simply as an independent action in
equity to obtain relief from a judgment”); 7 J. Moore,
A-13
Moocre’s Federal Practice 4 60.36 (“The. original bill or in-
dependent action, to impeach for fraud . . . is founded upon
an independent and substantive equitable jurisdiction’).
Therefore, the Equity Division has exclusive jurisdiction
over plaintiff's cause of action and any further proceedings
should be conducted in that forum.
/s/ Lex E. Barns, JR.
/s/ L. VasTINE STABLER, JR.
Attorneys for Defendant,
Burlington Northern Railroad
Company, a corporation
OF COUNSEL:
CABANISS, JOHNSTON, GARDNER,
DUMAS & O’NEAL
1900 First National-Southern
Natural Building
Birmingham, Alabama 35203
(205) 252-8800
NOTICE OF HEARING
PLEASE TAKE NOTICE thai hearing on the above and
foregoing motion will be had before the Presiding Judge of
this Honorable Court on Wednesday, January 13, 1982 at
10:00 am. ORAL ARGUMENT REQUESTED.
/s/ L. Vastine STABLER, JR.
OF COUNSEL
A-14
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
motion to dismiss or in the alternative to transfer to equity
division has been duly served upon counsel for plaintiff by
mailing same to Mr. Scott Powell, 1620 First Alabama Bank
Building, Birmingham, Alabama 35203, this the 21st day of
December, 1981.
/s/ L. VASTINE STABLER, JR.
OF COUNSEL
TRIAL COUNSEL:
L. Vastine Stabler, Jr.
Michael C. Quillen
Lee E. Bains, Jr.
NN eEOOOoOoO
A-15
APPENDIX D
JOHN N. BRYAN, JR.
Circuit Judge
Tenth Judicial Circuit
of Alabama
303 County Courthouse
Birmingham, Alabama 35203
January 28, 1983
Mr. Frank O. Burge, Jr.
Attorney at Law
1620 First Alabama Bank Bldg.
Birmingham, Alabama 35203
Mr. L. Vastine Stabler, Jr.
Cabaniss, Johnsten, Gardner,
Dumas & O’Neal
1900 First National-Southern
Natural Bldg.
Birmingham, Alabama 35203
Mr. Jack J. Hall
Suite 725
First Alabama Bank Building
Birmingham, Alabama 35203
Re: Case No. CV 8104859 |
Nettie Faye Duckworth Warren
vs
St. Louis-San Francisco Railway
Co., et al
Gentlemen:
The Court this date entered the following order on the
motion to transfer to equity division:
“January 28, 1983. On October 14, 1983, this court heard
the routine motion docket. The motions to transfer this
sii
A-16
case to the equity division were heard by this court. The
plaintiffs’ attorney and the defendants’ attorneys briefly
argued the points and each was granted two weeks in
which to submit briefs in support of and in opposition
to said transfer of equity. To date, the court has received
no further briefs in opposition to the transfe~, therefore,
the court directs that this case be transferred to the
equity division of this court. This order of transfer is
without prejudice to the equity judge assigned this
particular case. In the event said judge is satisfied that
this case is inappropriate for equitable relief, then said
judge may transfer the case back to the law side.”
Yours truly,
/s/ JOHN N. Bryan, JR.
Presiding Judge
A-17
APPENDIX E
IN THE CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
(EQUITY DIVISION)
NETTIE FAYE DUCKWORTH
WARREN, Administratrix of the
Estate of JAMES B. DUCK-
WORTH, who sues on her behalf
as totally dependent surviving
widow and on behalf of Anita
Duckworth, James Randy Duck-
worth, Bobby Duckworth, and
Danny Duckworth, the totally
dependent minor children of
JAMES B. DUCKWORTH,
deceased,
Plaintiff, CIVIL ACTION
i NO.
: CV-83-500-457-
ST. LOUIS-SAN FRANCISCO WAT
RAILWAY COMPANY a corpo-
ration; BURLINGTON
NORTHERN RAILROAD COM-
PANY, a corporation; and KER-
SHAW MANUFACTURING
COMPANY, INC. a corporation,
Defendants.
Ne ee ee ee ee ee ee ee” ~- ee ee ee ee i a
MOTION TO STRIKE
Comes now the defendant, Burlington Northern Railroad
Company, a corporation, which is the successor corporation
to St. Louis-San Francisco Railway Company, and moves
this Court to strike plaintiff's jury demand. In support of
this motion, defendant says as follows:
1. Plaintiff seeks in this independent action to set aside
| -
A-18
the judgment rendered for plaintiff and against defendants
over three years ago by Circuit Court of Walker County.
2. An independent action filed to set aside an earlier
judgment under Rule 64, Ala. R. Civ. P., is an equity action.
Denton v. Stanford, 383 So. 2d 847 (Ala. Civ App. 1980)
(holding that “This is an independent action in equity for
relief from a judgment”); Battle v. Morris, 265 Ala. 851
(1957) (original bill filed in equity to set aside a consent
judgment entered in favor of plaintiff on the law side of the
circuit court) ; Bankers Mortgage Company v. United States,
423, F.2d 73, 78 (5th Cir. 1970}, cert. denied, 399 U.S. 927
(1970) (holding that “ ‘independent action’ as used in [Rule
60(b) ] was meant to refer to procedure which has been his-
torically known simply as an independent action in equity
to obtain relief from a judgment”); 7 J. Moore, Moore’s
Federal Practice { 60.36 (“The original bill of independent
action, to impeach for fraud . . . is founded upon an indepen-
dent and substantive equitable jurisdiction”).
3. This independent action was brought on the law side
of the Jefferson County Circuit Court. On January 28, 1983,
Judge Bryan granted defendants’ motion to transfer this
case to the equity division.
4. Plaintiff is not entitled to a jury in this equity action
to set aside a final judgment.
/s/ L. VASTINE STASBLER, JR.
/s/ Lee E. Barns, JR.
Attorneys for Defendant,
Burlington Northern Railroad
Company, a corporation
OF COUNSEL:
CABANISS, JOHNSTON, GARDNER,
DUMAS & O’NEAL
1900 First National-Southern
Natural Building
Birmingham, Alabama 35203
(205) 252-8800
A-19
NOTICE OF HEARING
PLEASE TAKE NOTICE that a hearing on the above
and foregoing Motion to Strike will be had before the
Honorable William A. Thompson on Wednesday, September
21, 1983 at 8:30 a.m.
/s/ Les E. Bains, JR.
OF COUNSEL
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
Motion to Strike has been duly served upon all counsei by
hand-delivering same to Mr. Scott Powell, 1620 First Ala-
bama Bank Building, Birmingham, Alabama 35203, and to
Mr. Doug Martin, 725 First Alabama Bank Building, Bir-
mingham, Alabama 35203, this the 9th day of September,
1983.
/s/ Lee E. Barns, JR.
OF COUNSEL
A-20
APPENDIX F
IN 'THE CIRCUIT COURT FOR THE
TENTH JUDICIAL CIRCUIT OF ALABAMA
NETTIE FAYE DUCKWORTH _)
WARREN, as Administratrix of the )
Estate of James B. Duckworth,
who sues on her own behalf as the
dependent surviving widow of
James B. Duckworth and who
also sues on behalf of Anita Duck-
worth, James Randy Duckworth,
Bobby Duckworth and Danny
Duckworth, the dependent minor
children of James B. Duckworth,
deceased,
Plaintiff,
Civil Action
No. CV-81-4859
Vv.
BURLINGTON NORTHERN
RAILROAD COMPANY, a corpo-
ration (successor corporation to
St. LOUIS, San Francisco Railway
Company, a corporation; and KER-
SHAW MANUFACTURING
COMPANY, INC., a corporation,
Defendants.
i i i i i i ~~ me me ee ee ee ae ee ee ee”
PRE-TRIAL ORDER
1. Counsel. Counsel for the plaintiff, Nettie Faye Duck-
worth Warren, are Frank O. Burge and Scott’ A. Powell.
Counsel for the defendant, Burlington Northern Railway
Company (successor to St. Louis-San Francisco Railway
Company), is Vastine Stabler. Counsel for the defendant,
Kershaw Manufacturing Company, Inc., a corporation, is
Jack J. Hall.
A-21
2. Duties. Plaintiff is Nettie Faye Duckworth Warren
who sues on her own behalf as the dependent surviving
widow of James B. Duckworth, deceased, and who also sues
on behalf of Anita Duckworth, James Randy Duckworth,
Bobby Duckworth and Danny Duckworth, as the dependent
minor children of James B. Duckworth, deceased. (For con-
venience, this plaintiff will be referred to as “Nettie Faye
Warren” or “Warren”). Defendants are Burlington Northern
Railway Company, a corporation (“Burlington”), and Ker-
shaw Manufacturing Company, Inc., a corporation (‘Ker-
shaw”).
3. Pleadings. The following pleadings have been allowed:
A. Complaint and amended complaint on behalf of Nettie
Faye Warren.
B. Answer and amended answer by Kershaw. Burlington
has not filed an answer and is hereby directed to file an
answer in accordance with the provisions of Rule 8(b) of the
Alabama Rules of Civil Procedure within twenty days from
the date of this order.
4. Prior Motions. The following motions were heard and
disposed of as hereinafter indicated:
A. Motion by Burlington to transfer to the Equity
Division was granted.
B. Motion by Kershaw to transfer to the Equity Division
was granted. |
By order entered October 28, 1983, this case was remanded
and re-transfered to the Civil Division for further proceed-
ings and specially assigned to this Court.
5. Pending Motions. The following motions are now
pending and the following action is taken with respect to
such motions:
A. Motion by Burlington to dismiss.
In support of its motion, Burlington has submitted a copy
of a final judgment rendered in the Circuit Court of Walker
County, Alabama, CA # CV-80-02 on January 1. 1980 award-
ing Nettie Faye Warren the sum of $111,500 against Bur-
lington and the sum of $40,000 against Kershaw.
A-22
In the first amendment to her complaint, Nettie Faye
Warren asserts that she was induced to agree to the judg-
ment entered in her favor from the Circuit Court of Walker
County, Alabama by representations made to her by the
defendants upon which she relied to her detriment and that
the representations were false. Nettie Faye Warren there-
fore seeks to vacate and set aside the judgment as being
obtained as result of the frauds practiced on her by Burling-
ton.
Since Nettie Faye Warren has challenged the judgment
by the allegations of her complaint, the complaint may not
be dismissed. Accordingly, the motion to dismiss filed by
Burlington is hereby overruled.
B. Motions by Burlington and Kershaw to strike jury
demand.
In the first amendment to her complaint, Nettie Faye
Warren alleges that the judgment rendered in her favor and
against Burlington and Kershaw by the Circuit Court of
Walker County, Alabama in Civil Action CV-80-02, was
obtained by fraud. She seeks now in an independent action
in this Court to set aside the judgment. Rule 60(b) of the
Alabama Rules of Civil Procedure provides:
On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a
final judgment, order, or proceedings for the following
reasons: ... (3) Fraud (whether heretofore denomi-
nated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; .. . this rule does not
limit the power of a court to entertain an independent
action within a reasonable time and not to exceed three
years after the entry of the judgment .. . to relieve a
party from a judgment, order, or proceeding, or to set
aside a judgment for fraud upon the court. . .
In Alabama, an independent action brought to set aside
or vacate a judgment procurred by fraud, accident or mis-
take, is in the nature of an equitable remedy. In Maddox v.
Hunt, 281 Ala. 335, 202 So.2d 548 (1967), an independent
A-23
action had been brought by the plaintiff seeking to set aside
a judgment obtained by default. Speaking to the general
principles involved and to the nature of the remedy, the
Supreme Court of Alabama stated in its opinion the follow-
ing:
Courts of equity will set aside and vacate judgments pro-
curred by fraud, accident, or mistake, and without
negligence on the part of the complainant, if the com-
plainant has a meritorious defense. Barrow v. Lindsey,
230 Ala. 45, 159 So. 232; St. John v. Campbell, 250 Ala.
380, 34 So.2d 584.
However, as stated in Hendley v. Chabert, et al., 189 Ala.
258, 65 So. 993, this equitable power to set aside a judg-
ment of another court is of great strictness, otherwise
equity courts would supplant the jurisdiction of aii other
courts. A due regard for the interests and caution in the
exercise of the power of equity to set aside judgments.
Where the plaintiff’s claim is equitable in nature, there is
no right to a jury trial. It is true that Rule 38(a) of the
Alabama Rules of Civil Procedure states that the right of
trial by jury is declared by the Constitution of A!sbama shall
be preserved to the parties inviolate. However, this rule only
means that the right to jury trial is preserved as it was
known in Alabama before the adoption of the Alabama Rules
of Civil Procedure. The Committee Comments to Rule 38 (a)
make this clear:
Subdivision. (a) is identical with Constitution 1901,
4 11, and thus preserves the right to jury trial precisely
as it has been known heretofore in Alabama. See gener-
ally, Jones, Trial by Jury in Alabama, 8 Ala. L. Rev. 274
(1956). Because law and equity are now to be merged,
there will be cases in which issues to be tried to the
jury are combined with issues to be tried to the court.
But the basic test is clear: If an issue is of a sort which
heretofore would have been tried to a jury, then the
party has a Constitutional right, expressly reaffirmed
by Rule 38(a), to have it tried to a jury under the
merged procedure. . .
A-24
The Supreme Court of Alabama has continued to construe
Rule 38 (a) as only giving the right to jury trial in those cases
where such right existed prior to the adoption of the Ala-
bama Rules of Civil Procedure. For example, actions seeking
the cancellation or reformation of a written instrument are
considered to be equitable in nature so that the parties are
not entitled to a jury trial. See, e.g., Richey v. Creel, 437
So.2d 554 (Ala. 1983); Johnson v. Brown, 437 So.2d 1273
(Ala. 1983); Holloway v. Nationwide Mut. Ins. Co., 376
So.2d 690 (Ala. 1979).
If Nettie Faye Warren’s action seeking to set aside the
judgment previously entered by the Circuit Court of Walker
County involved state law, she would not be entitled to a
jury trial. Hovvever, her claim is brought under the Federal
Employer’s Liability Act (F.E.L.A.) and her action is there-
fore governed by federal law rather than state law. New York
Central, etc. R. Company v. Tonsellito, 244 U.S. 360 (1917).
T.. support of their motions to strike the jury demand made
by Nettie Faye Warren, Burlington and Kershaw argue that
federal law is applicable only to substantive legal issues in-
volving Nettie Faye Warren’s rights under F.E.L.A. and that
all procedural issues are still governed by state law.
It is true that appellate courts in a number of decisions
have made the differentiation between substantive and pro-
cedural issues and have applied state law to decide the latter.
The difficulty however, is in trying to determine when a
particular issue involves procedural law rather than sub-
stantive law. See, Ely, The Irrepressible Myth of Erie, 87
Harvard L. Rev. 693 (1974) ; Chayes and Ely, Some Further
Last Dords on Erie, The Bead Game, The eons, 87
Harvard L. Rev. 741 (1974).
In Hanna v. Plumer, 380 U. S. 460 (1965), the U. S. Su-
preme Court held that the mode of obtaining service of
process by a plaintiff filing a suit in federal court was
governed by the Federal Rules of Civil Procedure and not by
state law governing service of process. In that case, Massa-
A-25
chusetts required the complaint to be served in person on
the executor of an estate while Rule 4(d) (1) of the Federal
Rules of Civil Procedure permitted service by leaving a copy
with an individual at the defendant’s usual place of abode.
The Supreme Court determined that method of service in-
volved procedural law rather than substantive law so that
service of process would be governed by the federal rules.
In Sibbach v. Wilson & Company, 312 U.S. 1 (1941), Mrs.
Sibbach, a plaintiff, refused to submit to physical exami-
nation for purposes of discovery by the defendant although
ordered to do so by the federal court. She lived in Illinois.
Under Illinois law, a defendant was not able to obtain an
order requiring a plaintiff to submit to physical exami-
nation. The U. S. Supreme Court rejected Mrs. Sibbach’s
contention on appeal that the issue whether she was re-
quired to submit to physical examination involved substan-
tive rights and should therefore be governed by [Illinois law.
The U. S. Supreme Court stated:
. . The suggestion that the rule offends the important
right to freedom from invasion of the person ignores
the fact that as we hold, no invasion of freedom from
personal restraint attaches to refusal so to comply with
this provision. if we were to adopt the suggested
criterion of the importance of the alleged right we should
invite endless litigation and confusion worse confounded.
The test must be whether a rule really regulates pro-
cedure, — the judicial process for enforcing rights and
duties recognized by substantive law and for justly ad-
ministering remedy and redress for disregard or in-
fraction of them. That the rules in question are such is
admitted.
In Minneapolis and St. Louis Railroad Company v. Bom-
bolis, 241 U. S. 211 (1916), the railroad on appeal raised
questions concerning the manner in which the plaintiff ob-
tained a verdict in the state court in Minnesota. By the
Constitution and laws of Minnesota in civil cases, after a
case has been under submission to the jury for a period of
twelve hours without a unanimous verdict, five-sixths of the
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jury are authorized to reach a verdict which is entitled to
the legal effect of a unanimous verdict at common law.
Upholding the procedure followed by the Minnesota state
court in reaching a verdict, the U. S. Supreme Court rejected
the railroad’s contention that the state court in enforcing a
federal right under F.E.L.A. was required to comply with the
7th Amendment to the U. S. Constitution and require the
jury to reach a unanimous verdict. The Supreme Court con-
cluded that in thisinstance, the Minnesota state court could
properly follow its own procedure in reaching a jury verdict.
However, in Dice v. Akron, Canton & Youngstown R. Co.,
342 U. S. 359 (1952), the U. S. Supreme Court took what
appears to be a directly contrary view to its position in
Bombolis. Dice, a railroad fireman, was seriously injured
when an engine in which he was riding jumped a track.
When he filed suit in the Ohio state court, the railroad as-
serted as an additional defense that Dice had executed a
release whereby he released the railroad from all claims for
the sum of $924.63.
Following a trial before a jury, a verdict and judgment was
rendered in favor of Dice. The trial court then granted judg-
ment notwithstanding the verdict. This judgment was re-
versed by the Ohio Court of Appeals but the Ohio Supreme
Court reversed the Ohio Court of Appeals and sustained
‘he trial court’s action. The Supreme Court of Ohio concluded
that the issue whether there was fraud in the execution of
the release was equitable in nature and therefore was prop-
erly decided by the judge rather than by the jury.
On appeal to the U. S. Supreme Court, the decision of the
Supreme Court of Ohio was reversed. The U. S. Supreme
Court concluded that Dice, in asserting his F.E.L.A. claim,
was entitled to a jury trial on the issue whether the release
was obtained from him by fraud as well as the other issues.
The U. S. Supreme Court stated:
We have previously held that ‘the right to trial by jury
is “a basic and fundamental feature of our system of
federal jurisprudence” ’ and that is ‘part and parcel of
A-27
the remedy afforded railroad workers under the Em-
ployer’s Liability Act.’ Bailey v. Central Vermont R.
Co., 319 U.S. 350, 354, 63 S. Ct. 1062, 1064, 87 L.Ed.
1444. We also recognized in that case that to deprive
railroad workers of the benefit of a jury trial where there
is evidence to support negligence ‘is to take away a
- goodly portion of the relief which Congress has afforded
them.’ It follows that the right to trial by jury is too
substantial a part of the rights accorded by the Act to
permit it to be classified as a mere ‘local rule of pro-
cedure’ for denial in the manner that Ohio has here used.
Brown v. Western R. Co. 338 U. S. 294, 70 S. Ct. 105,
94 L.Ed. 100.
The dissenting opinion in Dice pointed out that Ouic was
merely following the general rule that actions which are
equitable in nature do not carry with them the right to jury
trial. In Ohio, as in Alabama, an action seeking to cancel or
reform a written instrument obtained by fraud is equitable
in nature and does not carry with it the right to a jury trial.
The majority opinion, however, concluded that the right
to jury trial was a substantive right and therefore governed
by fe al law in claims asserted under F.E.L.A.
In the present case, Burlington and Kershaw argue that
Dice is not applicable because that case involved the cancel-
lation of a release obtained by fraud while Nettie Faye
Warren in the present case seeks to vacate a consent judg-
ment as being obtained by fraud. In the letter brief filed by
counsel for Burlington the following statement is found:
The conclusion of the majority in Dice that a jury trial
is to be protected is in the context where access to the
courts has not been obtained. In that sense the release
agreement is a self-help mechanism. Unlike the release
situation, the plaintiff in this case has availed herself
of the courts. The fact that she elected to effect a con-
sent judgment and not to invoke a jury does not mean
that a right has been denied. By coming to the court, the
plaintiff has invoked certain other protections avail-
able. She has received the benefit of judicial approval. . .
A-28
The consent judgment entered by the Circuit Court of
Walker County, Alabama did not represent the culmination
of litigation or of a lawsuit previously filed by Nettie Faye
Warren. According to the testimony of Nettie Faye Warren
and also of the Burlington employee, William E. Bird, she
was told that $150,000 was all she would get and she agreed
to accept that amount plus the $1,500 advance in settlement
of her claims. Nettie Faye then went to the office of the
Burlington attorney with William Bird. Burlington’s attorney
prepared the complaint to be signed by Nettie Faye Warren
and explained to her that Burlington and Kershaw were
accepting service of the same. Nettie Faye then went to the
judge’s chambers accompanied by Burlington’s attorney and
William Bird.
According to Bird’s testimony, the proceedings before the
Circuit Judge involved the following:
He asked her, I think the first question he asked Mrs.
Duckworth was how much education she had; and she
told him. He asked her if she had talked to an attorney,
and she told him that no, she had not.
He asked her if she had discussed it with members of
her family. She said, ‘yes.’ He asked her if she under-
stood that in signing this, if she was aware that this was
a full and final settlement for any and all claims re-
lated to that; and she said, ‘yes,’ she did. He asked her
if she was satisfied with that, and she said that she was.
That was basically the conversation that took place.
It is true that a final judgment rendered by a court of
competent jurisdiction stands on a different footing than a
release. This is true even though the judgment is a consent |
judgment. Myers v. Myers, 266 Ky. 831, 100 S.W. 2d 693
(1936) ; Marietta Chair Co. v. Henderson, 49 S.E. 312 (Ga.
1904) ; Sawyer v. Smith, 552 S.W. 2d 936 (Ct. of Civ. App. of
Tex. 1977); Irvine Toll Bridge Co. v. Williams, 3 S.W. 2d
193 (Ky. Ct. of App 1928); Wood Brothers Construction
Co. v. Yankton County, 54 F.2d 304 (8th Cir. 1931).
A-29
In Marietta Chair Co. v. Henderson, supra, the Supreme
Court of Georgia stated:
. . Parties are, of course, bound by judgments rendered
by courts of competent jurisdiction to which they have
submitted their controversies, and the judgments bind
them whether they expressly agree to them or not, and
an express agreement that a particular judgment should
be rendered gives to that judgment no peculiar charac-
ter, and renders it no more sacred that the ordinary
judgment. While a judgment is a contract of record, the
agreement which the law implies from such a contract
is simply that the parties will stand to and abide what
has been decreed in the case upon the law and the facts
pac yeti or which could have been properly in-
volved. . .
Acknowledging that a judgment was entered, Nettie Faye
Warren now attacks the judgment as having been obtained
by fraud and seeks its cancellation. She has the right under
the laws of the state of Alabama to make a direct attack
upon the judgment in an independent proceedings as she has
done in this case. However, because her claim is asserted
under F.E.L.A., she also has the right as a claimant under
F.E.L.A. to demand a jury for the trial of the issues related
to the question whether the consent judgment was obtained
by fraud.
In both Dice and the present case, the F.E.L.A. claimant
has asserted a claim which is equitable in nature;.in Dice,
the plaintiff was seeking to cancel a release as having been
secured by fraud. In the present case, the F.E.L.A. claimant
is seeking to cancel a consent judgment as having been
obtained by fraud. In both cases, the claimant would not be
entitled to a jury trial under state law to decide such issues.
However, under Dice, the F.E.L.A. claimant is guaranteed
the trial by jury for such issues as a substantive right. Under
Dice, Nettie Faye Warren is entitled to a jury trial on the
issue whether the consent judgment was obtained by fraud.
In accordance with this opinion, the motions filed by
A-30
Burlington and Kershaw to strike the demand for jury are
hereby overruled.
C. Motion by Kershaw to dismiss or in the alternative
for summary judgment.
In support of its motion for summary judgment, Kershaw
argues that the consent judgment entered by the Circuit
Court of Walker County, Alabama on January 2, 1980 has
the legal effect of finally resolving all claims for damages
against Kershaw by the dependent widow and children of
James B. Duckworth, deceased and also all claims by the
estate of James B. Duckworth, deceased, against Kershaw
for damages based on the accident resulting in James P.
Kershaw’s death.
According to Kershaw, the final judgment is valid and not
subject to cancellation as to Kershaw because the undisputed
evidence indicates that Kershaw did not participate in or
have knowledge of any alleged fraudulent conduct on the ~
part of Burlington’s employees which is the basis for Nettie
Faye Warren’s attack on the judgment rendered by the
Circuit Court of Walker County.
Reviewing the deposition of Nettie Faye Warren, she
testified as follows concerning Kershaw:
Q. Now, did you at any time have any dealings with
any one from Kershaw Manufacturing Company?
A. No, sir. You are the first person I have met or even
heard of being with that company.
Q. Alright. Did Mr. Bird at any time tell you that he
was representing Kershaw in any capacity?
A. The only thing he mentioned about Kershaw is that
they made the machine.
* * *
Q. Did I understand you correctly when you told me
that the first knowledge you had that Kershaw had
contributed any monies towards the settlement was after
you got home and you read it?
A. I read that about money. Now, he had mentioned
A-31
Kershaw’s name when we talked about the machine that
my husband had got hurt on.
* * *
Q. I have just got a question or two. Mrs. Warren, you
said that you believe that I am the first person that
you have seen representing Kershaw?
A. Yes.
Q. And that you understand that Mr. Bird was not
representing Kershaw but was representing the rail-
road; is that correct?
A. Yes.
Q. What is it that you allege that Kershaw did wrong
to mislead you in any way?
= I can’t — okay. The $40,000, is that what ya’ll paid?
es.
Okay. The Kershaw Manufacturing Company to me was
just a name that had made the machinery.
* * *
Q. (By Mr. Martin) As I understand it then, neither
Kershaw nor anyone acting on Kershaw’s behalf has
ever made any representation whatsoever to you; is that
correct?
Mr. Burge: As far as you know.
A. As far as I know.
Nettie Faye Warren acknowledged in her testimony that
no representations were made to her by anyone purporting
to act on behalf of Kershaw. She did not learn that Kershaw
was involved in the settlement until she read the papers
including the final judgment when she arrived home after
the settlement had been made.
In his deposition, William E. Bird testified as follows:
Now, who did you deal with, if you dealt with anyone,
that had any connection with Kershaw Manufacturing
Company, I-n-c.?
A. I didn’t deal with Kershaw at all.
* * *
A-32
Q. Who told you that Kershaw was going to pay
$40,000 toward.a settlement?
A. That came from the claims office after Mrs.
Duckworth and I arri at an agreement, and I was
told that there was a contribution from them.
Q. You had reached the nt based on $151,000.
After that is when you ed that Kershaw was
making some kind of contribution?
A. Yes sir.
Q. So at the time that you made the agreement with
Mrs. Duckworth Warren you did not know that Ker-
shaw was making any contribution?
A. No sir...
Bird testified that he had no discussions with anyone at
Kershaw concerning the settlement; that he received no in-
structions or directions from anyone at Kershaw regarding
the settlement and that at ail times he was acting strictly
as a representative for Burlington. He further testified that
he did not at anytime represent to Nettie Faye Warren that
he was acting on behalf of Kershaw.
The settlement of Nettie Faye Warren’s claims against
Kershaw is treated as a separate settlement in the consent
judgment which awards Nettie Faye Warren the sum of
$40,000 against Kershaw.
No evidence has been presented to indicate that Kershaw
itself was guilty of any fraudulent conduct or that it
knowingly participated or assented to any fraudulent con-
duct on the part of Burlington.
In Taxin v. Food Fair Stores, Inc., 287 F.2d 448 (3rd Cir.
1961), Taxin asserted claims for violation cf the Anti-Trust
Laws against two groups of defendants, one associated with
Food Fair Stores, Inc., and the second group associated with
Samuel P. Mandell Co., Inc. As one of the defenses, both
groups of defendants pleaded that the Taxins had executed
a general release releasing them all from all claims under
the anti-trust laws. In response, the Taxins executed affi-
davits stating that they had been induced to execute the
A-33
release instrument by a promise made in bad faith by the
Food Fair Stores, Inc. defendants that Food Fair Stores
would buy $500,000 worth of fruit and produce from them
annually. The affidavits and allegations filed by the Taxins
attacking the release did not charge that the Mandell de-
fendants participated in or even knew of the alleged mis-
representation.
Upholding the summary judgment granted by the trial
court in favor of the Mandell defendants, the U. S. Court of
Appeals for the 3rd Circuit stated:
The exculpation of the Mandeil defendants was one
important basis of the District Court’s conclusion that
the release was valid as to these parties. In analogous
circumstances the Court of Appeals for the 2nd Circuit
has suggested that it would be inequitable to deny one
anti-trust defendant the benefit of the settlement and
release solely because of fraud, unknown to him, on the
part of another defendant in connection with such settle-
ment and release. Martina Theatre Corp. v. Schine
Chain Theatres, Inc., 2 Cir. 1960, 278 F.2d 798, 802. This
is in accord with the rule of § 477 of the Contracts Re-
statement which reads as follows:
‘Fraud or material representation by a third person
renders a transaction voidable by a party induced there-
by to enter into it if the other party thereto’
(a) ‘has reason to know of the fraud or misrepresenta-
tion before he has given or promised in good faith some-
thing of value in the transaction or changed his position
materially by reason of the transaction, or’
(b) ‘is affected by the fraud or misrepresentation of the
law of Agency or of Trust.’
Also see Hoge v. Hoge, 1 Watt. (Penn.) 163 (1832).
Kershaw has changed its position materially by reascn of
the release, having paid the sum of $40,000 to Nettie Faye
Duckworth, as consideration for the discharge of its liability.
No evidence has been presented that Kershaw participated
in the negotiations with Nettie Faye Warren leading to the
settlement of her claims or that Kershaw knew or had notice
A-34
of facts from which it should have known by the exercise of
reasonable diligence that the settlement of Nettie Faye
Warren’s claim against it had been obtained by fraud.
It would be inequitable to deny Kershaw the benefit of
the settlement and release solely because of fraud, unknown
to it, on the part of Burlington.
Accordingly, the Motion for Summary Judgment filed by
Kershaw Manufacturing Company, Inc. is hereby granted.
Judgment is hereby rendered in favor of Kershaw Manu-
facturing Company, Inc. and against the plaintiffs.
6. Discovery. The parties are given leave to proceed with
further discovery provided it be completed fat least twenty
(20) days prior to the trial...
At least twenty (20) days prior to the trial, each of the
parties to this litigation shall furnish and make available to
each of the other parties, for inspection and copying, all docu-
ments, bills, reports, photographs and other exhibits which
each such party intends to utilize at trial. Unless otherwise
specifically agreed between the parties, each shall be pre-
cluded from offering any exhibits not so provided to each
of the other parties (other than purely for impeachment
purposes) unless relieved by the Court for good cause shown.
Upon such documents being exhibits to the parties herein or
counsel for each such party, each of the parties shall be
deemed to have agreed that such documents and exhibits
are authentic and genuine and that any photographs in-
cluded in said exhibits fairly and accurately portrays the
scene therein depicted and that such photographs and copies
of such documents may be utilized at tr.’ to the same ex-
tent as the originals without accounting for such originals,
unless objection is made by a party within seven (7) days
after being shown such document or exhibit. In the event
that any such objection shall be made, the party making the
same shall also state the basis for grounds for such objection.
No party may object to the authenticity or genuineness of
any document or exhibit on the ground that he has no
knowledge of the same unless such party has first exercised
A-35
reasonable diligence in his efforts to ascertain and verify the
same. Unless a party has given notice to the contrary within
seven (7) days after having been shown the same, each party
shall also be deemed to have agreed for purposes of this
action that any bills for services or materials are reasonable
in amount for the services or materials therein billed.
At least twenty (20) days prior to trial, each of the parties
shall exchange lists stating the names and addresses of all
witnesses which each of the parties intends to use in the
trial of this cause. The listing of a witness does not commit
the party to have such witness available at trial or to call
such witness. In the event any of the witnesses are expert
witnesses, the list shall include the substance of the opinion
of any expert witness (other than medical experts) as pro-
vided in Rule 26. However, each of the parties shail not be
required to furnish the names of rebuttal witnesses, the
necessity for whose testimony such party could reasonably
not have anticipated before the time of trial.
ORDERED this 15th day of June, 1984, that the above
provisions be binding on all parties unless modified by further
order for good cause shown.
/s/ Marvin CHERNER
Circuit Judge
Copies to:
Frank O. Burge, Esq.
Scott A. Powell, Esq.
Vastine Stabler, Esq.
Jack J. Hall, Esq.
A-36
APPENDIX G
IN THE SUPREME COURT OF ALABAMA
Ex parte: BURLINGTON
NORTHERN RAILROAD COM-
PANY
(In Re: NETTIE FAYE DUCK-
WORTH WARREN, etc.
CASE
NO. 83-1159
V.
BURLINGTON NORTHERN
RAILROAD COMPANY, etc.,
et al.
me eee ee ee ee ee ee ee
APPLICATION FOR REHEARING
Comes now Burlington Northern Railroad Company
(hereinafter “Burlington”) and petitions this Court to grant
it an application for rehearing. A rehearing is necessary to
rectify the omissions and analytical errors of the original
opinion.
1. The Court failed to properly apply principles of res
judicata in this case. The entry of the judgment extinguished
the FELA action; the plaintiff’s only remaining remedy was
the independent action in equity to set aside the judgment.
FELA rules therefore should not have been applied.
2. Burlington’s right to equal protection of the law was
violated in that it was denied the usual expectations of repose
extended to other defendants against whom judgments have
been ~*cred. |
3. Even if this case is characterized as an FELA claim,
the Court has overextended the Dice opinion. This Court
determined that the import of Dice is that all traditionally
equitable proceedings incidental to an FELA claim are to be
tried by a jury. This is simply incorrect. The holding of Dice
A-37
is that the federal procedural rule will prevail when it con-
flicts with a local rule. Dice does not require a jury trial
when the usual federal rule does not.
4. Assuming arguendo that federal law provides for a
jury trial to set aside a prior final judgment, it is uncon-
stitutional for this rule to be applied to the state court pro-
ceedings. Any effort by Congress to usurp the authority of
state court judgments through the FELA is prevented by
the constitutional doctrines controlling the relationship be-
tween federal and state power, now held to be rooted in the
Tenth Amendment. Congress knew this and the United
States Supreme Court knew this. Only Alabama has ignored
these principals. The failure of this Court to address the 10th
amendment issue when four of the nine justices in Dice
stated that the federal legislature did not even have power
to regulate the procedure governing the setting aside of a
mere release is adequate grounds for granting this appli-
cation.
Due to the toregoing reasons, this Court must reconsider
its decision and grant the application for rehearing.
Respectfully submitted,
/s/ L. VASTINE STABLER, JR.
/s/ KennetH D. Davis
Attorneys for Burlington
Northern Railroad Company
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
Application for Rehearing has been duly served on Mr.
Frank O. Burge, Jr... BURGE, FLORIE, POWELL &
WETTERMARK, P.C., 1230 First Alabama Bank Building,
Birmingham, Alabama 35203-3269, by hand-delivering, this
18th day of January, 1985.
/s/ Kennetu D. Davis
OF COUNSEL
A-38
APPENDIX H
OFFICE OF
CLERK OF THE SUPREME COURT
STATE OF ALABAMA
MONTGOMERY
Re: 83-1159
EX PARTE: BURLINGTON NORTHERN RAILROAD
COMPANY
PETITION FOR WRIT OF MANDAMUS
(Re: Nettie Faye Duckworth Warren, etc.
Appellant
vs.
Burlington Northern Railroad Co., etc., et al.
Appellee
You are hereby notified that the following indicated action
was taken in the above cause by the Supreme Court today:
___— Appeal docketed. Future correspondence should refer
to the above number.
___— Court Reporter granted additional time to file re-
porter’s transcript to and including
____ Clerk/Register granted additional time to file clerk’s
record/record on appeal to and including
__— Appell__— granted 7 additional days to file briefs to
and including
__ Appellant(s) granted 7 additional days to file reply
briefs to and including
__— Record on Appeal filed
—__— Appendix Filed
___ Submitted on Briefs
—__— Petition for Writ of Certiorari denied. No opinion.
xxxx Application for rehearing overruled. No opinion written
on rehearing.
__— Permission to file amicus curiae briefs granted
/s/ Ropert G. EspALE
Robert G. Esdale, Clerk
Supreme Court of Alabama
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.