Nordmann v. National Hotel Company
| Decision Date | 19 April 1970 |
| Docket Number | No. 26894.,26894. |
| Parties | Mary LeBlanc NORDMANN, wife of/and Ervin A. Nordmann, Plaintiffs-Appellees, v. NATIONAL HOTEL COMPANY, d/b/a The Jung Hotel et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ashton R. Hardy, New Orleans, La., for defendants-appellants.
Phillip A. Wittmann, David L. Stone, New Orleans, La., for plaintiffs-appellees.
Before RIVES, BELL and DYER, Circuit Judges.
Mr. and Mrs. Nordmann sued the National Hotel Company for damages which resulted from a robbery and assault committed upon them in a Jung Hotel room in New Orleans between 12:10 A.M. and 1:10 A.M. on October 18, 1965. The Nordmanns, accompanied by a friend and business associate, William Mixon, registered into the hotel as paying guests the previous afternoon. That evening, with several other friends, they attended a ball in the hotel ballroom. The hotel contains some twelve hundred guest rooms, and there were some twelve to fourteen hundred people at the ball. Shortly after midnight, when the Nordmanns left the ball and started up to their room, they entered a self-serving, automatic type elevator. They were followed by the man who later robbed and assaulted them. When they left the elevator they did not notice that this man followed until Mr. Nordmann put the key in the door. At that time the man thrust a gun in Nordmann's back and pushed them into the room and on the bed. He took such money as Nordmann had in his wallet, fifty dollars, forced him to lie face down on the bed, had Mrs. Nordmann get a razor blade from the bathroom and cut a section of a venetian blind cord with which he tied Nordmann's hands behind his back. He announced that "It's not just the money I want, that's not all I want." He proceeded to make indecent advances to Mrs. Nordmann, repeatedly slapping and hitting her, and forced her to mix him two drinks. Finally, on her plea to let her mix him another drink or get water for her husband, Mrs. Nordmann was permitted to go back into the bathroom. She described the conclusion of the assault thus:
The assailant fled down an inside fire escape and has never been captured.
This appeal is from a judgment entered on a jury's verdict for $16,000 in favor of Mrs. Nordmann and for $5,000 in favor of Mr. Nordmann. Six grounds are urged for reversal. We find no merit in any of them and affirm.
Appellants contend that the jury at first returned a verdict finding, in answer to a special interrogatory, that the defendant was not negligent, and that judgment for the defendants should be entered on that verdict.
The jury had retired to consider its verdict at 7:35 P.M. At 10:10 P.M., the jury returned to the courtroom and the foreman announced that they had arrived at a verdict. The verdict was received by the Clerk and handed to the Judge, who declined to accept it, stating:
After further instructions, the jury again retired to consider its verdict at 10:30 P.M. After the jury had thus retired for the second time, counsel for the defendants asked "that the Court recall the verdict and make it a part of the record at this time, and allow the jury to have another set of interrogatories, or the same set, but another copy of the interrogatories."
The court declined this request and did not at that time advise counsel as to what the jury had marked on the interrogatories as first returned.
At 11:07 P.M. the jury returned with the verdict upon which judgment was entered. In pertinent part, the final verdict read as follows:
"1. Was the Jung Hotel, through its employees
agents and/or representatives negligent? Yes
"2. If so, was this negligence a proximate
cause of the injuries sustained by the plaintiffs? Yes
"3. Was the plaintiff, Mrs. Mary LeBlanc Nordmann
guilty of contributory negligence? No
* * * * * * * * * *
"6. What is the total amount of damages to
which the plaintiff, Mrs. Mary LeBlanc
Nordmann, is entitled to recover? $16,000.00
"7. Was the plaintiff, Ervin A. Nordmann
guilty of contributory negligence? No
* * * * * * * * * *
"10. What is the total amount of damages to
which the plaintiff, Ervin A. Nordmann, is
entitled to recover? $5,000.00
"June 18, 1968 (Signed) John B. Vaughn
Foreman"
After accepting that verdict, the court announced that judgment would be entered accordingly and at 11:15 P.M. excused the jury. Counsel for the defendants moved the court for a mistrial. In refusing that motion, the court stated for the record the answers to the interrogatories on the verdict as first returned, in pertinent part as follows:
The appellants emphasize that the verdict was signed in ink by the foreman and that, as first returned, only three answers had been written in ink, viz., the answers "no" to questions 1, 3 and 7. No authority is cited, however, which would require or permit the court to ignore the penciled answers.
The court had instructed the jury that the answer "no" to the first question would end the case, and that question 3 and 7 should be answered only in the event that both questions 1 and 2 had been answered in the affirmative. The fact that questions 2, 3 and 7 were answered was inconsistent with any negative answer to the first question.
The answer "no" to the first question was also inconsistent with the answers to questions 6 and 10, which in effect constituted the general verdict. We agree with 2B Barron & Holtzoff, Wright ed., § 1059:
The present case presented the third situation and the court properly chose to return the jury for further consideration. See Welch v. Bauer, 5 Cir. 1951, 186 F.2d 1002, 1004. The positive answers of the jurors when individually polled leave no doubt as to their intention or genuine verdict.
The appellants' next argue that "the verdict of the jury is contrary to the law and the evidence." This contention is almost frivolous. The law imposes upon innkeepers at least ordinary or reasonable care to protect their guests against injury by third persons,1 and some cases call for the exercise of a higher degree of care.2 In this case the court, by its instructions, held the defendants to a standard of ordinary or reasonable care to protect the hotel's guests from injury by third persons.
The complaint charged the defendants with negligence in the following particulars:
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