580 F.2d 91 (3rd Cir. 1978), 77-1836, Draper v. Airco, Inc.

Docket Nº:in No. 77-1836,
Citation:580 F.2d 91
Party Name:Dorothy L. DRAPER, Individually and as General Administratrix and Administratrix ad Prosequendum of the Estate of Robert W. Draper, Deceased, v. AIRCO, INC. and United States Steel Corporation, Defendants. AIRCO, INC., Defendant and Third-Party Plaintiff-Appellant
Case Date:June 28, 1978
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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580 F.2d 91 (3rd Cir. 1978)

Dorothy L. DRAPER, Individually and as General

Administratrix and Administratrix ad Prosequendum

of the Estate of Robert W. Draper, Deceased,


AIRCO, INC. and United States Steel Corporation, Defendants.

AIRCO, INC., Defendant and Third-Party Plaintiff-Appellant

in No. 77-1836,


W. V. PANGBORNE & CO., INC., Third-Party Defendant-Appellant

in No. 77-1837.


Nos. 77-1836, 77-1837 and 77-1905.

United States Court of Appeals, Third Circuit

June 28, 1978

Argued Feb. 24, 1978.

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[Copyrighted Material Omitted]

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L. Carter Anderson, Carl D. Buchholz, III, Rawle & Henderson, Philadelphia, Pa., for appellant, U. S. Steel Corp.

John R. Gercke, Schuenemann, Gercke & Picknally, Haddonfield, N. J., for appellant, W. V. Pangborne & Co., Inc.

Norman G. Slade, Porzio & Bromberg, P. C., Morristown, N. J., for appellant, Airco, Inc.

Before ADAMS, HIGGINBOTHAM, Circuit Judges, and BECHTLE, District Judge. [*]


A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

On September 23, 1970, Robert Draper, an electrician, died apparently from electrocution while installing a switch on an energized line on the premises of the United States Steel Corporation. The decedent's wife instituted this wrongful death and survival action against U.S. Steel, Airco, Inc. and W. V. Pangborne & Co., in the United States District Court for the District of New Jersey. Jurisdiction is based on diversity of citizenship. 1 Because of the patently improper remarks by plaintiff's counsel in his closing argument to the jury, the jury verdict for $585,789.55 must be overturned, and a new trial granted on both liability and damages.

Briefly stated, the facts of the case are as follows. The United States Steel Corporation had contracted with general contractor Airco, Inc. to construct an oxygen producing

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plant at U.S. Steel's facilities in Fairless Hills, Pennsylvania. An initial step in this project was the construction of a temporary oxygen storage facility. To provide power for this temporary facility, an overhead electrical feeder line was run to the facility from U.S. Steel's hot strip mill which was approximately fifty to sixty feet away. Airco sub-contracted this electrical work to W. V. Pangborne & Co., Inc. which hired Draper. The line was connected without incident on August 22, 1970. U.S. Steel requested that an "off-on" switch be installed on this feeder line so that Airco and Pangborne employees would not have to enter U.S. Steel's mill in order to turn the power off and on. It was decided that the switch would be installed while the line was energized or "hot." The parties have different versions of exactly how that decision was reached and who was responsible for it. The switch was to be placed on the outside wall of the hot strip mill. At the time of his death, Draper was on a ladder working on wiring inside the mill.

After this action against U.S. Steel, Airco and Pangborne was filed, Pangborne moved for summary judgment. The motion was granted on the ground that Pangborne was immune from suit under New Jersey's Worker's Compensation Act. U.S. Steel and Airco filed motions to join Pangborne on the basis of claims for contribution and common law indemnity. These motions were denied, but Airco's motion to join Pangborne as a third-party defendant on the basis of a contractual indemnity provision was granted. Following a hearing without the jury, this indemnity provision was held to be enforceable. U.S. Steel subsequently filed a third-party complaint against Pangborne again seeking contribution. This complaint was dismissed after trial. U.S. Steel also filed a cross-complaint against Airco based on a contractual indemnity provision. The district court held that U.S. Steel was not entitled to indemnity from Airco.

During the course of the trial, the proceedings were bifurcated. In the liability phase, a jury verdict was returned in favor of the plaintiff. All three defendants were found to have been negligent. In the damages phase, the jury returned a verdict of $430,000 which was increased to $585,789.55 to account for prejudgment interest.

All three defendants appeal from the judgment in favor of Draper. Pangborne also appeals from the order directing it to indemnify Airco. U.S. Steel also appeals from the denial of its claim for contribution against Pangborne and its claim for indemnity against Airco. Airco also appeals from the denial of its claim for common law indemnity against Pangborne.

In addition to finding that it was reversible error to refuse to grant a new trial because of improper remarks by plaintiff's counsel in his closing argument to the jury, we will also address other issues raised on this appeal so that the distinguished trial judge may have our rulings on some of the intricate legal issues that he will confront in a new trial.


    As indicated, the central issue on this appeal is whether the district court erred in refusing to grant a new trial because of prejudicial remarks made by plaintiff's counsel in his closing argument to the jury in the liability phase of the trial. We are forced to conclude that the district court did err and that a new trial must be granted. We recognize that the trial judge has considerable discretion in determining whether conduct by counsel is so prejudicial as to require a new trial. Lewis v. Penn Central,459 F.2d 468 (3d Cir. 1972); Corbett v. Borandi, 375 F.2d 265 (3d Cir. 1967). The remarks of counsel here, however, so far exceed the bounds of proper argument that we are bound to reverse the district court. 2

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    In reaching this conclusion, we wish to emphasize that we do not expect advocacy to be devoid of passion. A life has been lost here and the family is entitled to have someone speak with eloquence and compassion for their cause. But jurors must ultimately base their judgment on the evidence presented and the rational inferences therefrom. Thus, there must be limits to pleas of pure passion and there must be restraints against blatant appeals to bias and prejudice. These bounds of conduct are defined by the Code of Professional Responsibility and the case law.

    Counsel for the plaintiff breached a number of the rules of proper argument. Specifically, he committed the following improprieties: (1) he attempted to prejudice the jurors through repeated inappropriate references to the defendants' wealth; (2) he asserted his personal opinion of the justness of his client's cause; (3) he prejudicially referred to facts not in evidence; and (4) without provocation or basis in fact, he made several prejudicial, vituperative and insulting references to opposing counsel.

    Counsel repeatedly made reference to the wealth of the defendants in contrast to the relative poverty of the plaintiff. Appealing to the sympathy of jurors through references to financial disparity is improper. See Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir. 1975); Foster v. Crawford Shipping Co., Ltd., 496 F.2d 788 (3d Cir. 1974); Koufakis v. Carvel, 425 F.2d 892 (2d Cir. 1970). See also U. S. v. Socony Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (appeals to class prejudice improper).

    Although the amount of money at stake in the construction project on which the decedent worked is relevant in that it establishes a motive for the defendants to ignore reasonable safety precautions, when the argument is read as a whole, it is clear that counsel's remarks were intended to arouse the prejudices of the jury rather than to make this evidentiary contention. Counsel referred to the seven million or seven point four million dollar contract between Airco and U.S. Steel ten times. 3 He referred to U.S. Steel's owning four thousand acres of land. Counsel gratuitously referred to his asking an officer of defendant Pangborne whether it or its parent company was the biggest electrical contractor in the world. Counsel, somewhat incoherently, stated: "I am going to make the equalizer. You know what the equalizer between the multimillion dollar there for Dorothy Draper and her kids, it's right here. On that side of the room are bills of dollars and on this side of the room is the equalizer." He continued "(I)n this case I brought you the giants, the giants of the industrial world . . . " And then, "I am going to ask you to tumble the magnificent big companies here with all their engineers."

    Of course, this argument, as excerpted above, would not require reversal if counsel had not gone beyond the brink of rational argument in other aspects. The cumulative thrust of plaintiff's counsel's argument, however, was that because the defendants were rich (giants of the industrial world) and because the plaintiff was poor, the jury should base its verdict in favor of plaintiff on this financial disparity. But justice is not dependent upon the wealth or poverty of the parties and a jury should not be urged to predicate its verdict on a prejudice against bigness or wealth.

    The second impropriety is counsel's assertion of his personal opinion of the

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    justness of his client's cause in violation of Disciplinary Rule 7-106(C)(4). 4 Counsel also spoke of his meeting and talking to the Draper children none of whom had testified. 5 Reference to facts not in evidence is improper. See Ayoub v. Spencer, 550 F.2d 164 (3d Cir. 1977). Edwards v. Sears Roebuck and Co., supra at 284-85. This impropriety is compounded where, as here, the reference is to the dependent children of the plaintiff. See Edwards v. Sears Roebuck and Co., supra at 285 (reference to deceased's children crying at graveside); Tropea v. Shell Oil Co., 307 F.2d 757, 769...

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