Domany v. Otis Elevator Company

• Decision Date: 09 December 1966
• Docket Number: No. 16638-16641.,16638-16641.
• Parties: Mary DOMANY, Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant-Appellant. Mary DOMANY, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellant. Andrew DOMANY, Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant-Appellant. Andrew DOMANY, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

369 F.2d 604 (1966)

Mary DOMANY, Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant-Appellant.

Mary DOMANY, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellant.

Andrew DOMANY, Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant-Appellant.

Andrew DOMANY, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellant.

Nos. 16638-16641.

United States Court of Appeals Sixth Circuit.

December 9, 1966.

COPYRIGHT MATERIAL OMITTED

Sumner Canary, Cleveland, Ohio, for appellant, Otis Elevator Co. Daniel C. Schipfer, Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio, on the brief.

Michael R. Gallagher, Cleveland, Ohio, for appellant, Sears, Roebuck & Co. John B. Robertson, Hauxhurst, Sharp, Cull & Kellogg, Cleveland, Ohio, on the brief.

Edward I. Stillman, Cleveland, Ohio, for appellees. Sheehan, Cook, Miller & Stillman, Cleveland, Ohio, on the brief.

Before O'SULLIVAN, Circuit Judge, CECIL, Senior Circuit Judge, and MATHES, Senior District Judge^*.

CECIL, Senior Circuit Judge.

Mary Domany and her alleged husband, Andrew Domany, plaintiffs-appellees herein, brought these actions against Sears, Roebuck & Company and Otis Elevator Company, defendants-appellants, hereinafter referred to as Sears and Otis, respectively, in the United States District Court for the Northern District of Ohio, Eastern Division. They recovered judgments in the amounts of $175,000 and $65,000, respectively. Sears and Otis each appealed.

Jurisdiction is invoked on the basis of diversity of citizenship. Section 1332, Title 28, U.S.C. Mary and Andrew Domany, hereinafter referred to as plaintiffs, are residents of Ohio. Sears is a corporation organized in New York with its principal place of business in Chicago, Illinois. Otis is a corporation organized in the state of New Jersey, with its principal place of business in New York City. The substantive law of Ohio is applicable. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

The plaintiffs' claims arise out of an injury to Mary Domany resulting from the abrupt stopping of an escalator in a Sears store located in the Southgate Shopping Center in Maple Heights, Ohio. On November 18, 1960, Mrs. Domany was descending from the second to the first floor of the Sears store when the escalator upon which she was riding came to a sudden stop. She fell several steps to the floor below. Mrs. Domany sustained a ruptured fascia of one of the muscles of her right thigh and a contusion in the same area. At the time of her fall, Mrs. Domany was assisted by a lady employee of the store. She was able to walk and on the advice of the store security officer, she was taken by her husband to Suburban Community Hospital. She was treated at the hospital and released the same day. The following day, she saw her own doctor. Her physical injury was healed in a month. Sometime after the accident Mrs. Domany went to a psychiatrist who testified that she suffered from traumatic neurosis as a result of her fall.

The escalator involved in the accident was purchased from, and installed by, Otis. The escalator was serviced and maintained by Otis under a contract with Sears which provided that its possession and management were exclusively in Sears. The pit or place where the escalator mechanism was housed, while not locked, was under the exclusive control of Otis. Pursuant to this contract, Otis inspected and serviced the escalator at the Sears' store every Monday morning. In addition, Otis would respond to calls from Sears for service. The last inspection prior to the accident was made by Otis on Monday, November 14th. The escalator was found to be functioning properly on this inspection. The only service that Sears, through its employees, performed in connection with the escalator was to start and stop it at the beginning and end of each day. In accordance with Ohio standards, there were emergency stop buttons at the top and bottom of the escalator. The apparent explanation for the stopping of the escalator is that some unauthorized person pressed the emergency stop button. Without calling Otis for service, an employee of Sears restarted the escalator after the accident. Otis found the escalator to be functioning properly, on the next scheduled inspection, the following Monday.

Plaintiff, Mary Domany, sought to recover damages for the injuries she sustained as a result of the accident. Her alleged husband, Andrew Domany, sued to recover expenses paid by him as a result of his wife's injuries and for damages for loss of consortium. Otis and Sears were sued jointly. The first cause of action of each plaintiff was based on res ipsa loquitur and the second one on negligence. The trial judge submitted the case to the jury on both causes of action.

Both Sears and Otis claim that the trial judge erred in not submitting the issue of contributory negligence of the plaintiff, Mary Domany, to the jury. The trial judge instructed the jury, "There being no proof that Mary Domany did anything improper while on the escalator, she is not guilty herself of any negligence * * *."

It is a fundamental rule of our jury system that where there is a question as to the existence of certain alleged facts, the function of determining such facts rests with the jury and not the court.

"(W)e note the established rule that in the face of a motion to direct the jury to return a verdict for one of the parties to an action, * * * the court must construe the evidence most strongly in favor of the party against whom the motion is made, and, where there is substantial competent evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court\'s determination in disposing of such a motion." Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 36, 139 N.E.2d 10, 14. See also Hilleary v. Bromley, 146 Ohio St. 212, 64 N.E.2d 832; Botto v. Fischesser, 174 Ohio St. 322, 189 N.E.2d 127.

In considering the case most favorably to the party against whom the motion is made, the court is required to take into account any reasonable inferences that may be drawn from the facts in evidence. Purdy v. Kerentoff, 152 Ohio St. 391, 89 N.E.2d 565; Wilkeson v. Erskine & Son, 145 Ohio St. 218, 61 N.E.2d 201.

There was evidence that there were signs clearly visible at the approach to, and on, the escalator in question, cautioning passengers to hold the handrail. An elderly man who was below Mrs. Domany on the escalator walked off the escalator after it had stopped short and was not injured. There was testimony by those who performed tests on the escalator to the effect that by holding onto the handrails they were able to maintain their balance. While the plaintiff, Mary Domany, testified that she was holding onto the handrail at the time of the accident, the jury might well infer that she was not. As the trial judge said in his charge, "You are not required to believe the testimony of any witness simply because he or she was under oath. You may believe or disbelieve any witness wholly, or in part." Such an inference would be an immediate inference from the facts proven and would not be predicating one inference on another inference. The rule in Ohio was announced in McDougall v. Glenn Cartage Co., 169 Ohio St. 522, 2nd Syl., 160 N.E.2d 266, as follows:

"The only inferences of fact which the law recognizes are immediate inferences from facts proved, but a given state of facts may give rise to two or more inferences, and in such case one inference is not built upon another but each is drawn separately from the same facts."

The district judge was in error in failing to submit the issue of contributory negligence of the plaintiff, Mary Domany, to the jury.

One of the claims made by Sears on this appeal is that Andrew Domany was not the husband of plaintiff, Mary Domany. Sears claims that the trial judge erred in not directing a verdict in its favor on this issue or in the alternative in not submitting the question to the jury.

The plaintiffs entered into an alleged common law marriage in 1952. At this time, plaintiff, Andrew Domany, had a wife and three children living in Europe. He testified that he then believed that he was divorced from this wife. However, in 1953 he filed a suit for divorce in Cleveland, in which he alleged that he had a wife living in Europe. The wife in Europe filed an answer and contested the action. No divorce was granted. There was no further evidence that the European marriage was ever dissolved. On August 17, 1957, the plaintiffs had a ceremonial marriage in Angola, Indiana. The foundation of Mr. Domany's claims for expenses and damages for loss of consortium is that he was the lawful husband of plaintiff Mary Domany at the time of the accident. Without such a lawful relationship there can be no recovery by plaintiff Andrew Domany.

We cannot find from the record that counsel for Sears specifically raised the question of the validity of plaintiffs' marriage in the motion for a directed verdict at the close of plaintiffs' testimony or in the motion for a directed verdict at the close of all the testimony. Counsel did request before argument an instruction¹ in writing, to have the question submitted to the jury. The trial judge granted this request at the time it was presented and counsel claims to have argued the question to the jury. The only reference we find to the subject in the arguments is Mr. Gallagher's statement, "This was during a period when there was a mixed up marital status, and I don't care to get into that." The judge did not include the requested instruction in his general charge. He not only did not give the instruction but he assumed throughout the instruction that the plaintiffs were husband and wife. He said, "If you find the Defendants, either one or both of them, were negligent, and that such negligence was the proximate...