Klotz v. Sears, Roebuck & Co.
| Decision Date | 05 June 1959 |
| Docket Number | No. 12575.,12575. |
| Citation | 267 F.2d 53 |
| Parties | Norman KLOTZ, Plaintiff-Appellee v. SEARS, ROEBUCK & CO., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Burton Y. Weitzenfeld, Chicago, Ill. (Edward J. Griffin, Chicago, Ill., on the brief), for defendant-appellant.
Frank J. Mackey, Jr., Chicago, Ill. (Louis P. Miller, Chicago, Ill., of counsel, on the brief), for appellee.
Before DUFFY, Chief Judge, and MAJOR and CASTLE, Circuit Judges.
This diversity action was brought by plaintiff-appellee, Norman Klotz, hereinafter called plaintiff, against Sears, Roebuck & Co., defendant-appellant, hereinafter referred to as defendant, to recover damages for personal injuries sustained as a result of the explosion of a sprayer purchased from defendant. As a result of the injuries it was necessary to remove plaintiff's left eye. The jury returned a verdict for plaintiff assessing damages at $100,000.00. The District Court entered judgment on the verdict and denied defendant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.
Defendant appealed. It contends the trial Court erred in failing to grant a new trial. The contested issues are: First, did statements by plaintiff's witnesses and by plaintiff's counsel in his argument to the jury constitute reversible error? Second, did the trial Court err in its instruction to the jury regarding loss of future earnings? Defendant asserts that prejudicial statements and the erroneous instruction deprived it of a fair trial.
Plaintiff contends that no reversible error exists because the statements complained of either were not objected to or objections were sustained and the jury instructed to disregard them, that the instruction challenged was proper and that there is no clear showing of abuse of discretion by the trial Court in denying the motion for a new trial.
In the early part of June, 1955, plaintiff purchased a sprayer from defendant. It was of the type commonly used for spraying trees and shrubbery and was composed of two parts — a tank with hose and nozzle, and a pump assembly. During 1955 the sprayer was used ten or fifteen times and during 1956 several times.
On July 5, 1956, while plaintiff was using the sprayer it exploded. The bottom section separated from the cylinder. Plaintiff sustained two cuts on his face and the loss of his left eye. At the time of the incident plaintiff was 26 years of age and was completing the third semester of University studies in Architectural Engineering. After the injury he did not return to his University studies but has been gainfully employed since November, 1956 — first in construction work and at the time of the trial as an account clerk with an Insurance Company. Plaintiff testified that in connection with his architectural studies he was required to do freehand sketching, which he can still do, but that the loss of his eye has affected his ability to put depth perception into his sketches. That it had no effect on his ability to do construction scale drawings. The testimony conflicted as to whether the explosion was caused by a defect which occurred during the process of the manufacture of the sprayer or was caused by corrosion resulting from failure to rinse out the sprayer after use. The directions for the use of the sprayer contained instructions that it should be rinsed out after each use.
During the course of argument to the jury plaintiff's counsel, after having twice entreated the jurors to "do unto others as you would have them do unto you" asked the jury to test the sincerity of the argument to be made on behalf of the defendant by what defendant's counsel would "have taken for his eye". The Court on the defendant's objection instructed the jury to disregard the remark.
Earlier plaintiff's counsel had stated "I don't think, ladies and gentlemen, no matter how much money this man is awarded — and I am telling Mr. Parsons1 to tell us what he will take for his eye, when he was 28 — no matter what you give him it won't be enough".
At another point, over defendant's objection, reference was made to a hypothetical discussion between plaintiff and a...
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Robertson v. Richards, 16043
...to ignore jury instructions and decide the case by sympathy. 75 Am.Jur.2d, "Trial," § 282, p. 357 (1974). In Klotz v. Sears & Roebuck Company, 267 F.2d 53 (7th Cir.1959), plaintiff's counsel repeatedly asked the jury to "do unto others as you would have them do unto you" and to "give us the......
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Spray-Rite Service Corp. v. Monsanto Co.
...that it was so prejudicial that it deprived Monsanto of a fair trial. The appeal to sympathy was not repeated. Klotz v. Sears, Roebuck & Co., 267 F.2d 53, 55 (7th Cir.), cert. denied, 361 U.S. 877, 80 S.Ct. 141, 4 L.Ed.2d 114 (1959). Moreover, the jury was properly instructed concerning the......
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Okrayaents v. Metropolitan Transportation Authority
...Cir.1962) (concluding that counsel cannot ask the jury to "treat [plaintiff] as you would like to be treated"); Klotz v. Sears Roebuck & Co., 267 F.2d 53, 54-55 (7th Cir.1959) (plaintiffs counsel asked jury to "give us the kind of deal that you would want to The comments by Mr. Sacks closel......
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Burnett v. Ocean Props., Ltd.
...1962) (concluding that counsel cannot ask the jury to "treat [plaintiff] as you would like to be treated")); Klotz v. Sears Roebuck & Co. , 267 F.2d 53, 54–55 (7th Cir. 1959) (plaintiff's counsel asked jury to "give us the kind of deal that you would want to get").The Court views the commen......