24 F.3d 765 (5th Cir. 1994), 92-7797, Martin v. Sears, Roebuck & Co.

Docket Nº:92-7797.
Citation:24 F.3d 765
Party Name:Drucilla MARTIN, Plaintiff, v. SEARS, ROEBUCK & COMPANY, Defendant-Third Party Plaintiff-Appellee, v. Robert SIMS, d/b/a MSA Janitorial & Carpet Cleaning Service, Third Party Defendant-Appellant.
Case Date:July 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 765

24 F.3d 765 (5th Cir. 1994)

Drucilla MARTIN, Plaintiff,

v.

SEARS, ROEBUCK & COMPANY, Defendant-Third Party Plaintiff-Appellee,

v.

Robert SIMS, d/b/a MSA Janitorial & Carpet Cleaning Service,

Third Party Defendant-Appellant.

No. 92-7797.

United States Court of Appeals, Fifth Circuit

July 5, 1994

Page 766

William E. Ready, Jr., William E. Ready, Ready & Associates, Meridian, MS, for Sims.

Kathryn Grace Watts Mitts, Kenneth Watts, Eppes, Watts & Shannon, Meridian, MS, for Sears, Roebuck.

Appeals from the United States District Court for the Southern District of Mississippi.

Before ALDISERT [*], REYNALDO G. GARZA and DUHE, Circuit Judges.

ALDISERT, Circuit Judge:

This appeal by Robert Sims, doing business as MSA Janitorial & Carpet Cleaning Service, requires us to decide if the district court erred in this diversity case tried under Mississippi law by directing at pre-trial and in its jury instructions that Sims, the third-party defendant, would be held liable for any damages awarded Drucilla Martin in her personal injuries action against Sears, Roebuck & Co., the defendant and third-party plaintiff. The jury found for the plaintiff Drucilla Martin and assessed her damages in the amount of $125,000. The district court then molded the verdict, holding Sims liable to Sears for the amount of the verdict. Because we believe that the district court erred in interpreting an indemnity agreement between Sears and Sims, we will reverse the judgment and remand for a new trial.

The district court had jurisdiction under 28 U.S.C. Sec. 1332. We have jurisdiction in this appeal from a final judgment pursuant to 28 U.S.C. Sec. 1291. The appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.

I.

Drucilla Martin sued Sears for injuries sustained when she fell after entering the Sears store in Meridian, Mississippi. At pre-trial, Ms. Martin and Sears stipulated that she "tripped and fell on an entrance mat after she entered the southeastern entrance to the Sears' retail store ..." R. at 331. In her testimony at trial, however, Ms. Martin said that she "stumbled on something" and when she looked back at what caused her fall it "looked like something up against the wall." Tr., vol. 2, at 39, 42. Ms. Martin also testified that she turned to her right after entering the store. Id. at 43.

Evidence was introduced that Sims was an independent contractor assigned janitorial responsibilities at Sears' Meridian store. Among Sims' employees working the day Ms. Martin...

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