Kienle v. Jewel Tea Co.

• Decision Date: 05 May 1955
• Docket Number: No. 11393.,11393.
• Citation: 222 F.2d 98
• Parties: Isabelle KIENLE, as Administratrix of the Estate of Laura K. Ernst, deceased, Petitioner-Appellant, v. JEWEL TEA CO., Inc., d/b/a Jewel Food Stores, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

222 F.2d 98 (1955)

Isabelle KIENLE, as Administratrix of the Estate of Laura K. Ernst, deceased, Petitioner-Appellant, v. JEWEL TEA CO., Inc., d/b/a Jewel Food Stores, Defendant-Appellee.

No. 11393.

United States Court of Appeals Seventh Circuit.

May 5, 1955.

John J. Kennelly, Philip J. Carey, Chicago, Ill., for appellant.

A. R. Peterson, Owen Rall, Robert G. Schloerb, Chicago, Ill., for appellee.

Before MAJOR, LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

Plaintiff, as administratrix for the estate of Laura K. Ernst, deceased, prosecutes this appeal from an order dismissing her petition seeking a rule to show cause why defendants Jewel and another should not be held in contempt of the District Court. Defendant Jewel Tea Co., Inc., moves to dismiss on the premise that the petition below was grounded on alleged criminal contempt and that, therefore, plaintiff has no right to appeal.

The background for plaintiff's petition, briefly, is as follows. On April 16, 1951, plaintiff's decedent filed a complaint against defendant for damages for personal injuries allegedly sustained when decedent was struck by an "electric-eye" door at one of its food stores. A trial resulted in judgment in favor of the then plaintiff. We reversed, on the postulate that there was no evidence that the defendant was negligent, and remanded the cause. Ernst v. Jewel Tea Co., 7 Cir., 197 F.2d 881, certiorari denied 344 U.S. 918, 73 S.Ct. 346, 97 L.Ed. 707. On remand, the case was reassigned, on November 21, 1952, for a new trial. Meanwhile, on July 25, 1952, plaintiff's decedent filed a complaint in two counts in the Circuit Court of Cook County grounded on the same occurrence. The first count prayed judgment against the manufacturer of the door and the second, judgment against defendant. This cause was removed to the District Court and assigned for trial. On March 31, 1953, in consideration of the payment to her of $4,000, plaintiff's decedent executed a release of all claims against defendants. On April 2, 1953, on stipulation of the parties, separate orders were entered dismissing each cause with prejudice.

On June 10, 1954, after the death of Laura Ernst and plaintiff's appointment as administratrix for her estate, plaintiff sought and obtained leave to file the instant petition, in the original cause of action, alleging, in material part, that, prior to the first trial, an order for discovery had been entered by the District Court against defendant and a subpoena duces tecum issued to compel it to produce the names, addresses and statements of any eyewitnesses to the accident; that there were two such witnesses, who had, prior to October, 1951, when the cause was tried, given statements to defendant, and that defendant had failed and refused to comply with the said order and subpoena. The petition, as amended, prayed an order that defendants show cause why they should not be held in contempt and for certain affirmative relief, which, incidentally, is the subject matter of a new complaint now pending in the court below. Defendant was the only person mentioned in the amended prayer who had been party to the original suit. The only ground for reversal asserted is that the trial court erred in dismissing the petition.

It is obvious that no coercive relief was either sought or possible. The discovery order which defendant was alleged to have disobeyed was issued in a case which had been finally disposed of more than one year ago. It is not contended that the prayer of the petition was for other than a punitive judgment; indeed plaintiff asserts in her brief that she will gain nothing, regardless of what this court may decide relative to the contempt proceeding.

Thus petitioner sought to punish defendant for a past act which allegedly had been contemptuous of the court's authority. This was criminal contempt. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797; Tobin v. Pielet, 7 Cir., 186 F.2d 886. The question before us, therefore,...