Palmer v. Miller

• Decision Date: 18 December 1944
• Docket Number: No. 12923.,12923.
• Citation: 145 F.2d 926
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: PALMER v. MILLER.

145 F.2d 926 (1944)

PALMER v. MILLER.

No. 12923.

Circuit Court of Appeals, Eighth Circuit.

December 18, 1944.

Charles M. Miller, of Kansas City, Mo. (Edwin S. McAnany and Omar E. Robinson, both of Kansas City, Mo., on the brief), for appellant.

Arthur C. Popham, of Kansas City, Mo. (Cowgill & Popham and Sam Mandell, all of Kansas City, Mo., on the brief), for appellee.

Before SANBORN, THOMAS, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment for the defendant (appellee) entered upon the verdict of a jury in an action brought by the plaintiff (appellant) to recover damages for injuries to his left ear which were alleged to have been caused by the defendant's negligence. Jurisdiction was based on diversity of citizenship.

In his points relied upon for reversal, the plaintiff challenges: (1) The instructions of the court; (2) rulings on objections to statements of defendant's counsel during the closing arguments to the jury; (3) the sufficiency of the evidence to sustain the verdict; and (4) the conditions under which the final deliberations of the jury took place.

The claim of the plaintiff, stated in his complaint, is, in substance: That in July, 1942, he had slightly impaired hearing in his left ear; that he ordered a hearing device from the defendant, who was an agent for the Vacolite Company, of Texas, a manufacturer of such devices; that the defendant advised the plaintiff that it would be necessary to make an impression of plaintiff's left outer ear, so that the ear piece of the device could be moulded to fit that ear; that the defendant also advised the plaintiff that the impression would be made by filling his outer ear with plaster of Paris in semi-liquid form, which would be removed when it had hardened, and that the defendant would pack the auditory canal of the plaintiff's left ear so as to prevent any of the plaster of Paris entering the inner ear; that the defendant represented that he had the requisite skill to make the impression without danger to the plaintiff; that on July 24, 1942, the defendant made the required impression at the plaintiff's home in Kansas City, Kansas; that in making it the defendant placed an inadequate amount of cotton in the auditory canal of the ear and so negligently and carelessly packed the canal that it was not wholly closed; that, as a result, some of the plaster of Paris entered the inner ear; and that the effect of the entry of the plaster into the plaintiff's inner ear was to destroy the hearing in his left ear, to cause him much pain and suffering, and to require an operation for the removal of the plaster.

In his answer, the defendant denied the material allegations of the complaint.

Upon the trial, the undisputed evidence showed that the defendant had sold to the plaintiff the device referred to in the complaint; that the defendant had made a plaster of Paris impression of the plaintiff's left outer ear; that before doing so he had packed the auditory canal of the ear with cotton; that some of the plaster had, nevertheless, passed into the plaintiff's inner ear; that the plaster caused the plaintiff much pain; that to remove it an operation had to be performed; and that the operation was followed by infection.

At the close of the evidence, there were two controversial issues of fact: 1. Was the defendant negligent in packing the auditory canal of plaintiff's left ear, as charged in the complaint? 2. What were the nature and extent of the injuries caused by the negligence, if any, of the defendant, and what damages would compensate the plaintiff for such injuries? In other words, the two issues about which there was disagreement were (1) the issue of liability, and (2) the issue of damages.

Neither party moved for a directed verdict. Both parties submitted requests for instructions. The requested instructions were discussed by the court and counsel, and the court stated that he considered the requested instructions to be substantially correct, and that counsel might depend upon their substance being incorporated in the charge.

The closing arguments of counsel, in so far as they related to the merits of the case, were directed to the issues of liability and damages. The court's charge was in accord with the theory upon which the case had been tried.

The court instructed the jury as follows:

"You are instructed that the defendant was required to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances, to know of dangers, if any, connected with making a mold for the ear tube referred to in the evidence, and even to use such care, if required, of scientific knowledge and means readily and reasonably available, if they were available, to discover and know such dangers, if any; and, therefore, you are instructed that if you believe and find from the evidence that the plaintiff purchased of defendant a hearing aid manufactured by the Vacolite Company of Dallas, Texas, and the defendant was to make or take a mold of plaintiff's left ear for the purpose of making an ear tube in connection with the sale of the hearing aid, and in so doing the defendant negligently filled the ear with a substance so that the substance composing the mold was permitted to run into the inner ear and harden and injure the left ear and impair the hearing thereof, then your verdict must be in favor of the plaintiff and against the defendant."

This conformed to the first instruction requested by the plaintiff. The court also charged the jury that —

"`Negligence,' as used in these instructions, has no peculiar meaning. It means simply the failure to use such care as a reasonably prudent person would exercise under the same or similar circumstances."

This instruction was in accord with the second instruction requested by the plaintiff. The two instructions quoted cover the only requests for instructions made by the plaintiff with respect to the issue of liability.

The court also gave the following instruction:

"The burden of proof is upon the plaintiff in this case, as in all cases, to establish the facts upon which the recovery is predicated, if there be a recovery. By that I mean the burden is upon the plaintiff to establish by the greater weight of the evidence the truth of the facts which are under the law necessary to plaintiff's recovery. And by `greater weight of the evidence,' of course, is not meant the greater number of witnesses, but is meant the greater weight of the credible testimony. If the plaintiff has sustained that burden and has established the facts which I have given you to your reasonable satisfaction, then your verdict will be for the plaintiff. If you conclude that the plaintiff has not sustained that burden or that the evidence is evenly divided, evenly balanced as to those facts, then you will conclude, of course, that under those circumstances the burden has not been sustained and your verdict will be accordingly."

This instruction was in substantial accord with the defendant's requests for instructions.

At the conclusion of the court's instructions with respect to both liability and damages, the court gave this precautionary instruction, which, in substance, conformed to a request made by the defendant:

"Negligence is not presumed. The mere fact, in itself, standing alone, that the substance in question entered the canal of the left ear does not establish negligence, but a charge of negligence when made and denied, as it is here, must be established by proof, as explained in these instructions."

The plaintiff did not object to this requested instruction during the discussion preceding the closing arguments to the jury. He took no exception to the instruction, at the close of the court's charge.

After the jury had been out for some time, they submitted the following question to the court:

"Do we employ the results of the accident as a medium of proving or disproving the defendant's guilt? We would like a copy of your instructions, if possible."

Counsel and the court, out of the hearing of the jury, discussed the question submitted and considered what should be done with respect to it. Counsel for the plaintiff contended that the precautionary instruction should be enlarged upon and that the jury should be told that the fact "that this substance got past the cotton is some evidence of negligence." The court finally decided to have the reporter read to the jury the instructions of the court, except those portions relating to the credibility of witnesses, the form of the verdict, and the measure of damages. After that had been done, the court said to the jury: "Gentlemen, does that clarify the matter in your mind?" The foreman said: "I think that clears up the point we had in mind, sir." Counsel for the plaintiff then, out of the hearing of the jury, said to the court:

"If your Honor please, after hearing the instructions read to the jury, as stated to the Court in chambers, when your Honor received this inquiry from the jury, I stated that that last instruction there, that the law does not presume negligence from the mere fact in and of itself, standing alone, is misleading. Not only is that instruction misleading, but I think and I submit that the Court has overstressed the burden of proof in this case in favor of the defendant. If I recall, it has been mentioned at least three times in different paragraphs to this jury, and our Supreme Court, as your Honor well knows, has criticized burden of proof instructions that way, saying...