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July 18, 1962

Josephine Ann SLEEK, Plaintiff,
J. C. PENNEY COMPANY, Inc., a Delaware Corporation, Defendant

The opinion of the court was delivered by: WILLSON

On January 5, 1955, plaintiff, then 52 years of age, suffered a fall in defendant's department store. On January 3, 1957, she filed her complaint charging defendant with negligence. At the conclusion of a five day trial and after deliberating ten hours, the jury found for the plaintiff and awarded her damages in the sum of $ 10,000.00.

She has a lengthy history of illness and one serious injury from a fall which occurred in the year 1949. According to her physicians, her obesity was the cause of much of her illness. At the time of trial in January, 1962, she weighed 180 pounds. Neither party is satisfied with the verdict and judgment which has been entered for the plaintiff in the amount awarded by the jury. Defendant has filed a timely motion for Judgment N.O.V. in accordance with the prior motion of its counsel for a Directed Verdict. Plaintiff wants a new trial. Plaintiff's counsel says the low verdict arose and springs from bias and prejudice on the part of the trial judge directed towards plaintiff and her counsel, as well as numerous trial errors which occurred during the trial.

 As trial judge, in my opinion, the trial was conducted in a calm, dispassionate atmosphere without rancor between counsel or between the court and counsel, and with full judicial decorum. Plaintiff's counsel, James P. McArdle, Esq., is a leading negligence trial lawyer at the Pittsburgh Bar. Counsel for the defendant, Bruce Martin, Esq., is a skilled and experienced defense trial lawyer. In the trial of this case both lawyers exercised their skill in the art of advocacy in the highest degree. The case was hard fought from the beginning to the end.

 A unique feature of plaintiff's motion for a new trial is that the thrust of the motion is directed solely at the trial judge rather than the weight of the evidence, the defendant or its counsel. As trial judge, I think plaintiff won her case. I understand Mr. Martin for the defendant is of the same opinion. But Mr. McArdle and his client believe that the verdict was unfavorable to them.

 Mr. McArdle's charge of prejudice against me as a trial judge is not hard to accept in a personal sense because I feel that both he and his client had a fair and impartial trial. A judge's impartiality and freedom from prejudice is, like a woman's virtue, easy to challenge but difficult to defend. My own opinion is that the size of the verdict is a result of the weakness in plaintiff's case, both on the issue of liability and damages, which Mr. Martin very adroitly emphasized to the jury.


 As the rule requires, plaintiff's counsel has stated with particularity the grounds of his motion for a new trial. The motion is in eleven numbered paragraphs. The first paragraph and the tenth paragraph charge me, as trial judge, with prejudicial conduct which denied plaintiff a fair trial. The charge made requires some comment. However, if the charges of prejudice made by plaintiff are substantiated, certainly plaintiff should have a new trial. If, on the other hand, they are not substantiated, then trial errors, if any, were harmless within the meaning of Rule 61 of the Federal Rules of Civil Procedure, 28 U.S.C. as they did not affect the substantial rights of the parties and therefore should be disregarded.

  In Reason 1(a) counsel states that the Court, by a selective dismissal of the instant action in the pretrial stage and the circumstances in which the Court reinstated this action, was the result of a prejudicial attitude on the part of the Court. I do not mind saying that the word 'selective' disturbs me as one of the Judges of this Court. It indicates that I reached into the docket and pulled this case out for dismissal because of some bias or prejudice against plaintiff or her counsel. The record will show, however, as set out in my opinion, Sleek v. Penney Co., D.C., 26 F.R.D. 209, (1960), that on February 17, 1960, Judge McIlvaine, as the Judge in charge of miscellaneous matters, entered his Order directing counsel to comply with Rule 5 (II) within seven days or be held in default. In the routine of the division of business of the Court, I was the next Judge in charge of miscellaneous matters. This case came before me because plaintiff's counsel failed to comply with Judge McIlvaine's Order. I was faced, at that point, with, either wholly disregarding a brother Judge's Order or taking the only action possible. Thereafter, the dismissal went to the Court of Appeals and was returned for further consideration, Sleek v. J. C. Penney Company, 292 F.2d 256 (3 C.C.A., 1961). After a hearing, by my Order entered September 13, 1961, the case was reinstated. At the time, I believe counsel for the plaintiff was satisfied with the conditions of the reinstatement but that counsel for the defendant took exception thereto. In my Order I directed counsel to comply with pretrial Rule 5(II) of this Court so that pretrial procedure could be completed 'with the understanding that the case will be set for trial commencing the week of January 29, 1962'. The case did not come before me again until January 29, 1962, when the trial commenced pursuant to the Order of Judge Marsh entered January 4, 1962. It should be emphasized that in my Order of September 13, 1961, I did not direct that this case be pretried or tried by me but simply directed that it be placed upon the active trial calendar.

 The foregoing is a summary of the record in the pretrial stage, which, says Mr. McArdle, was the result of a prejudicial attitude on the part of the Court. It should be noticed also at this point that Mr. McArdle had not yet personally participated in any of the pretrial procedures, including the hearing at the time the case was reinstated. Such then is the record which, says plaintiff's counsel, in Reason 1(a), was the result of a prejudicial attitude on my part. If the foregoing be accepted as showing prejudice, then any decision made by any Judge is subject to a similar attack.

 Reasons 1(b), (c), (d), (e), (f) and (g) and Reason 10 may be classified as charging hostility towards the plaintiff and prejudicial conduct on the part of the trial court toward plaintiff and her counsel, which, in combination, resulted in an unfair trial. Several of these reasons will be separately commented upon. The other reasons will be covered in the general discussion of the first and tenth reason for a new trial.

 As to Reason 1(c) in the motion, mentioned in VIII of plaintiff's brief, a situation is presented in which experienced counsel charges that the trial judge improperly restricted his cross-examination of defendant's witnesses. This allegation is based upon the rulings made at the time Mr. McArdle was cross-examining two witnesses for defendant, Robert Walker and James Miller. The record will show, however, that this allegation is in fact based upon rulings made at the time Mr. McArdle was examining but one witness for the defendant, to wit, one Robert Walker. This witness said that at the time of the plaintiff's fall, he estimated he was about eight feet away. Hearing a noise and hearing a thud 'I turned to see what it was, and as I did, I seen this lady falling.' He was 'to the left of her and towards the back of the store.' He testified that he went to her assistance, getting her a chair and asked her whether she was hurt and her reply was that she was not. He further stated that he did not see any string on her foot at any time. Some questions were then asked by me and by Mr. Martin as to the witness's exact position, because it was not clear from the direct examination as to whether he was facing her or coming up behind her at the time plaintiff fell. Mr. McArdle (Transcript, p. 38) then commenced his cross-examination. He went into the witness's position at the time of the fall and continued his interrogation uninterrupted by anyone for some three and one-half pages of the record, until a point (Transcript, p. 42) when Mr. McArdle became interested in where the witness had been before he started back to the shoe department which was where he was going but in another aisle, when he observed plaintiff. The witness, in answer to Mr. McArdle's question, stated his purpose in leaving his department. Mr. McArdle then, commencing at p. 43 of the transcript, interrogated the witness about his right to okay checks for any department. After continuing with several questions along that line, I stated (Transcript, p. 43), 'I don't want to shut off the cross-examination.' I indicated reasons for my ruling. Mr. McArdle then made the statement, 'Your Honor limits me on cross?' My reply to him is set forth at p. 44 of the transcript indicating that the subject matter was beyond cross-examination. The next point of objection by Mr. McArdle occurs at p. 46 of the transcript. The witness had answered in response to a question that there was nothing on the floor. Mr. McArdle then interrogated the witness whether he was in Court when the Answer of the J. C. Penney Company was read into the record. The witness stated that he was not. Mr. McArdle's objection at this point was that the Court prohibited him from cross-examining this witness as to the Answer to an Interrogatory made by the defendant corporation. The point was that the defendant, of course, had admitted that there was string in the vicinity of the wrapping counter. The witness had not seen any string on the floor. Mr. McArdle referred to the answer which the Court and the jury understood was different from the witness's testimony. I felt then and still feel that the matter was a point for the jury, without requiring a witness who did not swear to the answer to comment upon an answer to an interrogatory made by his employer. This is the same situation as permitting one witness to comment on the truth or falsity of a statement made by another witness. The jury hears both statements and it is for the jury to decide the credibility of each answer. Mr. McArdle, on cross-examination of this witness, then continued for several more pages to a point at p. 50 where he interrogated the witness as to injuries suffered by the granddaughter of the plaintiff, an eleven year old girl at the time she received a minor injury when her grandmother toppled over her. The witness stated that he did not examine the clothing the girl wore and then he was asked by Mr. McArdle whether he knew the J. C. Penney Company had replaced the coat she had torn. Mr. Martin then interposed an objection and moved to withdraw a juror. I sustained the objection and instructed the jury to disregard it. Mr. McArdle then persisted in interrogating the little girl about her possible injuries. I felt that this was just as objectionable as the prior questions. Mr. McArdle then replied that he was testing the witness's recollection. Mr. McArdle then objected that the Court was limiting his cross-examination. At this point, it is to be observed that the interrogation which Mr. McArdle was pursuing was double-barreled. Certainly, he was testing the witness's recollection, which, of course, Mr. McArdle has a right to do, but over and above that, he was covering a subject highly prejudicial to defendant as it related to possible admission of liability because defendant had reimbursed the little girl for damage to her clothing and otherwise given her first aid. The ruling here was made after an objection, and it is believed to be a proper ruling.

 These three reasons all relate to the issue of damages. Some idea of the damages claimed by plaintiff in this case can be taken from the items of special damage offered in evidence. Mr. McArdle, in his brief, has divided these into five categories. Under the first, plaintiff claims over $ 4,500.00 for past medical and hospital expenses, including supplies, travel to Cleveland and expenses to Miami in 1956 and expenses to Phoenix. The expenses to Miami in the sum of $ 648.77 and the expenses to Phoenix in the sum of $ 500.00 are for reasons of health. Under the second subdivision, plaintiff claimed living expenses in Arizona because of her health over and above what she would have spent had she resided in Pittsburgh at $ 200.00 per month and to the day of the trial in the sum of $ 11,437.98. Under the third category plaintiff claimed lost wages for seven years at approximately $ 150.00 per week, a total sum of $ 54,600.00. Under items 4 and 5, she claimed for past pain and suffering and for future medical expense, cost of living and trips home to see her family in unliquidated amounts. For impairment of earning power in the future and for future living expenses in Arizona, plaintiff claimed over $ 51,000.00, plus unliquidated amounts for future medical and pain and suffering.

 Plaintiff, in appearance, might best be described as a short stout woman. As indicated, she had a lengthy medical history. Prior to trial she had, in fact, suffered three falls. The first one in 1949 was at her daughter's home. The second is the basis of this law suit. She suffered a third fall in Columbus in the year 1960 while in a cafeteria. Her witness, Dr. Harmeier, in describing the incident as related to him said, ...

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