Elliott v. Michael James, Inc.

• Decision Date: 09 June 1977
• Docket Number: 76-1134,Nos. 76-1132,s. 76-1132
• Citation: 182 U.S. App. D.C. 138,559 F.2d 759
• Parties: Helen B. ELLIOTT, Individually and as Administratrix of the Estate of Darlene Julie Elliott, Appellant, v. MICHAEL JAMES, INC., t/a Gentlemen II, Appellee. Helen B. ELLIOTT, Individually and as Administratrix of the Estate of Darlene Julie Elliott, Appellee, v. MICHAEL JAMES, INC., t/a Gentlemen II, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 759

559 F.2d 759

182 U.S.App.D.C. 138

Helen B. ELLIOTT, Individually and as Administratrix of the Estate of Darlene Julie Elliott, Appellant, v. MICHAEL JAMES, INC., t/a Gentlemen II, Appellee.

Helen B. ELLIOTT, Individually and as Administratrix of the Estate of Darlene Julie Elliott, Appellee, v. MICHAEL JAMES, INC., t/a Gentlemen II, Appellant.

Nos. 76-1132, 76-1134.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 18, 1976.

Decided May 6, 1977.

Rehearing Denied June 9, 1977.

Roger E. Warin, Washington, D. C., with whom Laidler B. Mackall, Washington, D. C., was on the brief for appellant in No. 76-1132 and appellee in No. 76-1134.

William D. Foote, Jr., Washington, D. C., with whom James C. Gregg, Washington, D. C., was on the brief for appellee in No. 76-1132 and appellant in No. 76-1134.

Before: DANAHER, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge Danaher.

Opinion filed by Circuit Judge McGowan, concurring in part and dissenting in part.

DANAHER, Senior Circuit Judge:

Darlene Julie Elliott, aged 20, was stabbed to death in the early morning hours of June 24, 1968, while in the centrally located Washington restaurant known as Gentlemen II owned by Michael James, Inc. Her mother, Helen B. Elliott, as administratix of Darlene's estate, (and hereinafter referred to as Plaintiff) commenced an action seeking damages, her claim in a first count being predicated upon the District's Wrongful Death Statute, ¹ with a second count based upon the District's Survival Statute. ² The district court rejected Plaintiff's wrongful death claim but allowed the survival claim to go to the jury which returned a Plaintiff's verdict in the amount of $7,524.91. ³

BACKGROUND

This case was previously before us on Plaintiff's appeal from a judgment in favor of Defendant following a bench trial. Our opinion ⁴ sets forth facts developed at the first trial which are substantially the same as those appearing from the record of the jury trial now under review. Our earlier opinion had identified the case as a "wrongful death action," ⁵ where we remanded for a new trial since we found ourselves "not satisfied that the trial judge gave effect to inferences reasonably to be drawn from the plaintiff's case." ⁶ Accordingly we concluded, the judgment of the District Court must be reversed and the case was remanded for a new trial.

Plaintiff here has sought reversal of the ruling by the district judge dismissing the wrongful death claim. Defendant has contended that the trial judge erred in failing to grant Defendant's motion for a directed verdict in its favor and for judgment N.O.V.

Perhaps the more readily to pose the issues to be discussed, we should briefly turn to the facts and thereupon, to Defendant's claims of error.

In the late afternoon on Sunday, June 23, 1968, Darlene Elliott and a companion arrived at the Gentlemen II for refreshments. That evening the restaurant-bar closed at midnight whereupon the doors were closed and locked to the public. Paul Fleischer was the night manager whose duties after the closing included clearing the cash registers, checking the premises, filling out receipt books and preparing the bar for the next day's operation.

Darlene Elliott had been employed by the Defendant to work in the Defendant's soon to be opened Baltimore restaurant but meanwhile she was serving in Washington as a trainee bookkeeper at a wage of $85 per week. She had remained after other employees left for night manager Fleischer had asked her to remain to drive him to his home.

After other employees had left between 12:30 and 1 a. m. there remained only Fleischer, Darlene Elliott and Stanley Cobb, a night bus boy and clean-up man. The doors had been locked but could be opened with a key which was in the possession of Fleischer. ⁷ Respective counsel had stipulated as to the foregoing and to various following facts as to which no proof would be deemed necessary.

For example, one of the 18th Street exits was not regularly used, indeed it was secured by padlocks and bolts with restaurant equipment piled against it. The other 18th Street exit was secured with a hasp, padlock and a crossbar, utilized by day for delivery of dry goods and liquor and by the help, but it was always secured at night.

There was no exit from the basement, none from the mezzanine, and there were no outside windows opening therefrom. Windows on the first floor, the main floor of the restaurant, were plate glass and could not be opened. Windows on the third floor of the premises were three stories above the ground, and the basement windows gave onto barred-in window wells below the surface of the street. Upon conclusion of the reading to the jury of the stipulation, Plaintiff rested her case. Defendant renewed its earlier motions which the trial judge denied. He then informed the jury that the defense relied "in substantial extent on some of the same evidence you have already heard." However, Defendant "has the opportunity to present any additional facts which they wish to present to your attention."

Thereupon Defendant called as its witness one of the co-owners of Gentlemen II who testified that Mr. Fleischer was approximately 5 feet, 8 inches tall, weighing about 140 to 145 pounds, slightly built but not what would be considered an athletic type. Stanley Cobb was described as approximately 6 feet tall, muscular, well built, energetic, and considered to be in excellent health. Upon the conclusion of the testimony of that witness, Desmond, Defendant, rested his case but renewed Defendant's motions for a directed verdict which the trial judge denied.

The record makes clear that of prime importance, both at the first trial and again at the second trial, was a provision of the District of Columbia Building Code § 3-643(j) as applicable to the premises of the restaurant-bar. That section reads:

All doors used in connection with means of egress shall be so arranged as to be always readily opened from the side from which egress is made. Locks, where allowed, shall not require a key to unlock from the inside. (Emphasis supplied).

The condition of the premises within the purview of that code section remained unchanged throughout the gruesome happenings of those early morning hours. Fleischer was stabbed to death in the basement. On the main floor, Darlene Elliott as the jury clearly could find, had struggled throughout her vain efforts to reach the only exit, the key to which was in the possession of Fleischer. The victim's bra and other items of underclothing were found in various locations on the main floor. There were bloodstains here and there, even reaching as far as a coat rack near the locked exit. Darlene Elliott was stabbed many times during her struggle. The young woman was alive at least up to 3 a. m. on the morning of June 24, 1968, it fairly may be concluded, for a United States Park Police Officer then passing Gentlemen II heard a scream which he took to be that of a woman. He stopped and listened but heard nothing further.

Ultimately police had been alerted by a call from the telephone company. The premises were completely locked, and police had to break into the restaurant to gain access. There was no evidence that any persons except the three employees were or had been in that restaurant. Cobb was the only one alive. ⁸ We have said enough to indicate that Darlene Elliott in a long drawn-out struggle had fought vainly with Cobb in an effort to save her life. Cobb did not testify at his own trial, ⁹ nor was he a witness at either the first or the second trial of this case.

Such is the background posing the issues before us.

ISSUES

Fully alerted to the claims of the parties, quite aware of our holding on the first appeal in Elliott v. Michael James, Inc., supra n. 4, with the foregoing facts freshly in mind, the trial judge took account of the importance of the violation of the building code regulation, supra. In colloquy with respective counsel the judge noted, First

on the basis of the remand . . . that there is a prima facie case created by a demonstration of violation of the regulation, inasmuch as Darlene Elliott was found by the Court of Appeals to be among the class of people to be protected by the regulation,

and Second, he went on to rule that he did not see a "wrongful death case here" but that there was a "survival action." Concluding that the damages on the claim for wrongful death were "entirely speculative," the judge worked out with counsel for the respective parties an agreement that funeral expenses might be taken into account in the award for damages on the survival claim "if there is an award." (Emphasis added).

He heard argument by counsel for Plaintiff that the wrongful death claim should be submitted to the jury, but reiterated his conclusion that the evidence was inadequate to justify an award of damages for wrongful death. Our discussion, infra, will reach that point in due course. For the present, we will deal only with Defendant's cross-appeal as we treat of Defendant's claims of error. We so order our discussion since, as may seem apparent, unless liability be established we need not reach Plaintiff's claim respecting a recovery of damages for wrongful death.

PART I

A

Defendant undoubtedly has been unhappy with the ruling by the trial judge that our first opinion, supra n. 4, constituted the "law of the case." Aside from the fact that he had no other course open to him, the circumstances clearly required his so concluding. Only in minor respects was the evidence at the second trial different from what had first been presented. Indeed, counsel for the parties had entered into a stipulation concerning facts as to which there was no dispute. While we are quite aware that the principle of "law of the case" is not always necessarily binding, as a rule of practice the doctrine surely was appropriately here applied....