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Sleek v. J. C. Penney Co.

November 13, 1963

JOSEPHINE ANN SLEEK, APPELLANT IN NO. 14,166,
v.
J. C. PENNEY COMPANY, INC., A DELAWARE CORPORATION, APPELLANT IN NO. 14,167.



Author: Biggs

Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.

BIGGS, Chief Judge.

Jurisdiction in the case at bar is based on diversity of citizenship and, after a jury trial, the suit resulted in a judgment in favor of the plaintiff, Mrs. Josephine Ann Sleek, against the defendant, J. C. Penney Co., Inc., in the amount of $10,000. Both parties have appealed. The plaintiff asserts that the amount of the jury's verdict was reduced because of the errors and the improper actions of the trial judge as set out hereinafter. The latter charge constitutes a most serious accusation. Penney insists that there was not sufficient evidence to support a verdict against it.*fn1

The complaint alleged that Mrs. Sleek was injured because Penney negligently permitted wrapping cord to gather on the floor of its store and this caused her to trip and fall. The following appears from the evidence offered by the plaintiff in her case in chief. On January 5, 1955, Mrs. Sleek, accompanied by her daughter, Mrs. DeFinis, her daughter-in-law, Mrs. Demor, and Mrs. DeFinis' daughter, Donna Jean Hughes, went to the Penney department store in Monroeville, Allegheny County, Pennsylvania. The purpose of this excursion was to purchase sheets at the Penney January "White Sale." While in the store, Mrs. DeFinis made a purchase, and as Mrs. Sleek was tabulating the sales slip for her, Mrs. Demor called to Mrs. Sleek from a point near a low platform or lowboy, described in the next paragraph. Mrs. Sleek testified that she turned to join her daughter-in-law and her right foot became entangled with something. This threw her off balance and after a futile attempt to regain her equilibrium, she fell heavily. After her fall she discovered wrapping cord on her shoe, which was the same as cord found in the aisle of the store, and was traced back to a spindle on or near a counter or platform.

Three of Penney's employees testified in its defense. All stated that there was a low platform or low-boy, perhaps five feet long, about five inches high and three to four feet broad, close to the spot where the plaintiff fell. One of these witnesses, Walker, testified that he heard a thud and that "[Mrs. Sleek] had stumbled over this lower platform. I had thought that was what was. * * * There was nothing else that would have made a thud."

Despite the fact that the plaintiff had proceeded with her case in chief on the theory that her foot had become entangled in the defendant's wrapping cord, nonetheless at the close of the defendant's case the plaintiff sought to introduce a new theory of liability: i.e., that Penney was negligent in making use of the low platform or low-boy in such a position that the plaintiff could fall over it. Her counsel moved to amend her complaint to conform to the evidence as provided by Rule 15(b), Fed.R.Civ.Proc., 28 U.S.C. This motion was refused and the plaintiff claims this constituted prejudicial error.

We cannot agree. Since this is a diversity case, we must look to the law of Pennsylvania to determine Penney's liability. Dill v. Scuka, 279 F.2d 145, 147 (3 Cir. 1960). Under Pennsylvania law the "jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture." Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477, 479 (1959). Even assuming that Walker's testimony, largely based on sound rather than sight, was sufficient, there was no evidence offered to show that the low-boy was improperly or negligently placed by Penney on the floor of the store. It is clear, therefore, that the court below committed no reversible error in rejecting the proffered amendment. See Stephens v. Reed, 121 F.2d 696, 699 (1941), in which this court said: "The court's refusal of these amendments was * * * not an abuse of discretion. There can be no abuse when what is refused would avail the offeror nothing if allowed."

The next point raised by the plaintiff is that the court below erred in refusing to admit certain expert medical evidence which the plaintiff insists would tend to prove that certain drugs, Flexin and Thoricin, prescribed for her by her doctors because of injuries resulting from her fall gave her hepatitis. According to the offer of testimony made by the plaintiff, it could have been shown that these drugs have been withdrawn from the market as causing this disease. The court refused to receive this evidence on the ground that it did not possess the certainty required by Pennsylvania evidentiary rules. See Wargo v. Pittsburgh Railways Co., 376 Pa. 168, 172-173, 101 A.2d 638, 640 (1954). The plaintiff's argument is based in part on Rule 43(a), Fed.R.Civ.Proc.*fn2 She points out also that Section 597, Restatement, Conflict of Laws, states that "the law of the forum determines the admissibility of a particular piece of evidence," that the Supreme Court held in Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 109, 80 S. Ct. 173, 175, 4 L. Ed. 2d 142 (1959), a Jones Act case, that "[the] matter [of sufficiency of expert testimony] does not turn on the use of a particular form of words by the physicians in giving their testimony," and finally, that this court has applied a seemingly equivalent rule in F.E.L.A. decisions. See Neff v. Pennsylvania R.R. Co., 7 F.R.D. 532, 534 (E.D.Pa.1948), affirmed, 173 F.2d 931 (3 Cir. 1949). She seeks to bolster her position in this, the case at bar, a diversity case, by citing as authority Carlson v. Chisholm-Moore Hoist Corp., 281 F.2d 766, 771-72 (1960), cert. denied, 364 U.S. 883, 81 S. Ct. 172, 5 L. Ed. 2d 104 (1960), where the Court of Appeals for the Second Circuit, relying largely on Rule 43 (a), allowed expert opinion evidence although the evidentiary rules of New York, in which the federal trial court sat, seemingly would have excluded it. But the offer of proof as to the cause of Mrs. Sleek's hepatitis was in our view insuffcient under any rule to make it available in the case at bar. One doctor testified, for example, "to the possibility of indirect possibility" of the plaintiff's hepatitis being caused by the drugs. The strongest testimony on this issue was given by Dr. Maier Tuchler of Phoenix, Arizona, who was called by the plaintiff as an expert in the fields of neurology and psychiatry. He testified that the two drugs, Flexin and Thoricin, were "suspected" of causing hepatitis, but he also stated that there were two kinds of hepatitis, one caused by infection and the other by drug reaction. The most that can be said for Dr. Tuchler's statements in this connection, on which the plaintiff's offer was based, was that she had parenchymal*fn3 hepatitis but, Dr. Tuchler went on to say that "you cannot determine which [type of hepatitis] is infectious and which is due to drug reaction."

There was of course a possibility that the plaintiff's illness could have been caused by the administration of drugs but even under the most liberal construction of what the witnesses said whether the plaintiff's hepatitis was infectious or caused by drugs was left completely in nubibus. There was no offer to prove that it was not infectious hepatitis, i.e., caused by a non-sterile needle or perhaps by food organisms. In addition, there was no offer of testimony as to what the plaintiff's dosage of either drug had been and the matter was left in the area of speculation. We are still of the view that in a diversity case where the sufficiency of the evidence goes to the maintenance of the substantive right, as here, the law of the state must prevail. Moran v. Pittsburgh-Des Moines Steel Co., 166 F.2d 908, 917 (3 Cir. 1948), cert. denied, 334 U.S. 846, 68 S. Ct. 1516, 92 L. Ed. 1770 (1948); Waldron v. Aetna Casualty & Surety Co., 141 F.2d 230, 234 (3 Cir. 1944). There was lacking here not only the reasonable medical certainty required by the law of Pennsylvania but the offer of testimony possessed insufficient probative value to permit it to go to the jury even under the most general rule of admissibility. The trial court did not err in rejecting the offer as made.

The plaintiff next insists that the court below erred in failing to enforce its own pretrial rules when it did not require the defendant to file a narrative statement, disclose names of witnesses, and furnish medical reports of examining doctors. Specifically she asserts that the fact that Penney did not file a Pretrial Narrative Statement as required by Rule 5(II), subd. C, par. 3 of the court below*fn4 was gravely prejudicial and that she was prejudiced further because her request, made almost at the close of her case, to require the defendant to produce a report or a copy of a report of an examination made by a Dr. Carpenter who had examined the plaintiff prior to trial at the request of Penney's insurance carrier, was not granted. A brief recital of the pertinent facts is necessary.

The record reveals that a pretrial conference had been scheduled in this case for Thursday, January 11, 1962 before Judge Rabe F. Marsh, Jr. In a letter dated December 29, 1961, plaintiff's counsel, Mr. McArdle, had requested Judge Marsh to postpone the pretrial conference and the filing of the required stipulation of facts until a few weeks after he returned to Pittsburgh, he being then about to leave the city. He stated that Penney's counsel, Mr. Martin, had agreed to the postponement and would so stipulate. Probably because of this letter, the apparent stipulation and Mr. McArdle's coming absence,*fn5 Judge Marsh entered an order on January 4, 1962, dispensing with the pretrial conference and directing that the case be listed for trial in the week of January 29, 1962. Judge Marsh's action of dispensing with the pretrial procedures referred to was authorized by Rule 5 (II), subd. H of the Rules of Court of the United States District Court for the Western District of Pennsylvania.*fn6

What the plaintiff's counsel did in effect was to dispense with pretrial and its aids, such as the narrative statement of his adversary as to the facts which would be offered by it, statements as to the oral or documentary evidence, and medical reports and the names of witnesses and classifications of witnesses to be called. He went ahead with the trial without this assistance and was content to do so. He made no complaint as to his failure to get a copy of Dr. Carpenter's report until the court had refused to exclude from evidence certain references in a damaging letter from Dr. Stuart N. Rowe, a neurosurgeon at the West Penn Hospital who had treated the plaintiff, a matter we shall deal with next in this opinion.

It is not clear upon what ground the plaintiff's counsel claims error, but in any event we cannot say that under the circumstances the trial court abused its discretion in refusing to compel Penney's counsel to produce the Carpenter report though many judges might well have reacted more responsively to Mr. McArdle's request. But, as we stated before, it was late in the plaintiff's case when the motion was made. Doubtless a way could have been found to get the report into the record if the plaintiff's counsel had wished to do so. He could have made use of a subpoena duces tecum, but if he did so, he took the chance of bringing into evidence a document prepared by his adversary's insurance carrier which might have proved damaging to his case. Under the circumstances at bar we cannot hold that the trial judge's refusal to permit the plaintiff's counsel to inspect Dr. Carpenter's report constituted prejudicial error.

We come next to the plaintiff's assertion that it was prejudicial error to permit Dr. William C. Wycoff, one of the plaintiff's doctors, to read into the record the contents of a letter setting out a report received from Dr. Rowe by Dr. Wycoff and used by the latter as one of the bases for his medical opinion of the plaintiff's condition. After almost all of the contents of the letter had been read into evidence without valid objection, the defendant's counsel asked Dr. Wycoff: "Will you tell us what your interpretation of Dr. Rowe's report was in that report to Mr. McArdle [the plaintiff's counsel]?" The plaintiff's counsel objected on the ground that the answer to the question would not be the best evidence and seemingly also that it would be hearsay. The record is very far from clear on this point and the plaintiff's argument is equally cloudy but it seems that the question was not answered. The trial court so states in its opinion. The generalized objection or objections of the plaintiff's counsel on the grounds indicated came only at the time stated. Nothing of consequence occurred after the objection was made. If an objection made during the course of a trial is to be valid on appeal, the party offering the objection must make a clear record in respect to the issue in the trial court. An appellate tribunal cannot speculate as to what was or was not done or what was or was not said in the court below. The record here will not support the plaintiff's contention of error.

The plaintiff's next point is unusual. She claims she is entitled to a new trial because, to quote her brief: "The Court Erred in Excluding Plaintiff's Offer of Proof of the Cost of Food in Arizona, and by Limiting Plaintiff's Damages to the Increased Cost of Living." We think the plaintiff has overlooked what is in the record. This is as follows.

"MR. MCARDLE [the plaintiff's counsel]: Your Honor, not the cost of living, the cost of rental. No charge for food, no charge for gas and electricity. * * * If that is food there, that is our mistake."

"THE COURT: - Then on the front of this you are offering the airplane fare, the taxi, and you have food at $10.00 a day. What is that? $15.00 at 10 days -

"MR. MCARDLE: - That is an oversight, Your Honor. That should be deleted. We had intended to delete it. Actually, I think she is entitled to the food if it is on the trip, but we are not going to quibble over it." (Emphasis added throughout.)

The plaintiff has no appealable issue here.

The plaintiff also alleges that the trial court improperly restricted her crossexamination of Robert W. Walker, who at the time of the accident was employed by Penney as a department manager. Walker testified on direct examination as stated in substance at an earlier point in this opinion, that he was about eight feet from the plaintiff when she fell and that he had heard a "thud" as if the plaintiff had stumbled over the low-boy. Walker was walking from the front to the back of the store. The fact situation is not entirely clear but it would appear that when Walker turned he saw the plaintiff stumbling before her fall.

On cross-examination the plaintiff attempted to ascertain why Walker was where he said he was at the time of her fall. Walker had testified that he might have left his department in the back of the store to approve a check offered by a customer or to make an adjustment for a customer. The plaintiff then asked: "How would they tell you to come up to okay a check? Why wouldn't they seek you out since you were at the Shoe Department?" The court did not allow this question to be answered. The plaintiff contends that she was entitled to hear the details of why Walker was in the position he said he was in. Her brief states: "If his reason for being in that position was unsatisfactory or if his narrative was incoherent, the jury would have been entitled to disregard his testimony." The plaintiff's counsel made no formal objection to the court's refusal to permit the question. He asked: "Your Honor limits me on cross?" The court replied: "No, I am not limiting you, but I am keeping you on the subject of probative value. This is beyond cross-examination. I like to keep on the issues. I have always tried to do that."

The court was in error in restricting cross-examination at this point. But we cannot say that it was so gravely prejudicial as to warrant a new trial.

Following a colloquy between the court and the plaintiff's attorney, Walker was then asked if he examined the floor after the plaintiff fell. He answered that he did not make an examination at that time. Later the witness testified that there was no string on the floor when he did examine it. The plaintiff then attempted to cross-examine Walker in regard to an answer to an interrogatory by Penney which had been read into the record earlier in that day's proceedings. The answer to the interrogatory was to the effect that string had been found on the floor near to where the plaintiff fell immediately after her fall. The plaintiff then asked if Walker was present in court when the answer had been read. The witness answered that he was not. At this point the court stopped this line of questioning. The plaintiff's counsel protested that the court was unduly limiting cross-examination and now contends that the action of the court deprived the plaintiff of her right to point up the contradiction between Walker's testimony and Penney's answer to the interrogatory. But the contradiction, if there was such, had already been demonstrated. The plaintiff was in a position to argue the inconsistency fully to the jury. But nonetheless the court ruled too restrictively here. It is true that the bounds of proper cross-examination must necessarily lie within the sound discretion of the trial court, United States v. Stoehr, 196 F.2d 276, 280 (3 Cir. 1952), cert. denied, 344 U.S. 826, 73 S. Ct. 28, 97 L. Ed. 643 (1952), but as was stated by Chief Judge Gourley in the court below in Cleland v. Peters, 73 F.Supp. 769, 773 (D.C.1947), citing Short v. Allegheny Trust Co., 330 Pa. 55, 198 A. 793 (1938): "[Cross]-examination of a witness may embrace any matter germane to the direct examination, qualifying or destroying it, or tending to develop facts which have been improperly suppressed or ignored by the party who was called as a witness." While we are of the opinion that the district court was too restrictive in curtailing cross-examination, we cannot perceive how the error was sufficiently prejudicial to warrant a reversal of the judgment on this ground alone. Cf. District of Columbia v. Clawans, 300 U.S. 617, 632, 57 S. Ct. 660, 81 L. Ed. 843 (1937).

Later in the cross-examination Walker was asked about the plaintiff's granddaughter, Donna Jean Hughes, who had been injured slightly when her grandmother fell. Inquiry was made of Walker as to whether he knew that Penney had replaced Donna Jean's coat which had been torn in the accident. This question was objected to and the objection sustained. The plaintiff then asked: "Well, in connection with the little girl's injury, was anything done for her by you?" This line of questioning properly was stopped by the court. It was irrelevant and if permitted to continue might have been prejudicial to the defendant.

We must now deal with the most troublesome aspect of the plaintiff's appeal. She asserts categorically and expressly that she is entitled to a new trial because the court below conducted the trial in an atmosphere of hostility and prejudice not only to the plaintiff but also to the plaintiff's counsel. The plaintiff's brief contains the following statement which was reiterated in the oral argument before this court: "At the Pre-Trial stage of this case, the Court entered a default order dismissing the action with prejudice for plaintiff's failure to timely file a Pre-Trial Statement. The decision of the Court was appealed to the Third Circuit, where, in a decision written by Judge Hastie, the case was reinstated and the dismissed order was reversed. Sleek v. J. C. Penney, 292 F.2d 256, 3rd Cir. This reversal has caused the trial judge to treat the instant case with hostility." The plaintiff's attorney had long been in default in filing the pretrial statement required by Rule 5(II) of the rules of the court below, despite repeated warnings. An examination of the opinion of this court will demonstrate that we held that the trial judge was in error in concluding that he was without power to consider an application made by the plaintiff for relief under Rule 60(b), Fed.R.Civ.Proc., 28 U.S.C., from the order dismissing the action with prejudice because the trial court erroneously had reached the conclusion that the ten day provision of Rule 59 limited the time for making a Rule 60(b) application. We reversed and remanded the case to the end that the court below could consider whether there was excusable neglect and reinstate the suit. The court below upon remand reinstated the action but ordered the plaintiff's counsel to pay into the registry of the court $1,000 as counsel fees to the defendant's counsel. The fee has been paid by the plaintiff's counsel.

So much for background. We shall now deal with the areas in which the plaintiff asserts hostility and prejudice were shown by the court.

The plaintiff insists that the court examined Dr. John W. Harmeir, one of her witnesses, in a hostile and prejudicial manner. Dr. Harmeir had testified in substance that the climate of Arizona was beneficial to the plaintiff's arthritis. The colloquy between the court and Dr. Harmeir is set out below.

"THE COURT: Just what are the changes in this area that have to do with this, doctor? How do they play a part in the ...


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