Steber v. Kohn, 8683.

• Decision Date: 04 June 1945
• Docket Number: No. 8683.,8683.
• Citation: 149 F.2d 4
• Parties: STEBER v. KOHN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

149 F.2d 4 (1945)

STEBER v. KOHN et al.

No. 8683.

Circuit Court of Appeals, Seventh Circuit.

April 18, 1945.

Rehearing Denied June 4, 1945.

Earl J. Walker, of Chicago, Ill., for appellant.

Maurice S. Cayne and Bernard W. Vinissky, both of Chicago, Ill., for appellees.

Before EVANS, SPARKS, and KERNER, Circuit Judges.

SPARKS, Circuit Judge.

The plaintiff appeals from a judgment in favor of defendants on a directed verdict entered at the close of her evidence. The action was brought to recover for damages for serious and permanent illness alleged to have resulted from poisoning caused by wearing a pair of shoes which had been dyed with a product alleged to have been manufactured and sold by defendants.

Appellees have moved to dismiss this appeal on the ground that it was filed too late to confer jurisdiction on this court to hear it. The facts as to this are that the judgment was entered on February 1, 1944. Motion for new trial was seasonably filed, and thereafter, on March 2, overruled. On April 28, appellant filed a second motion for new trial on the ground of newly discovered evidence, with supporting affidavits. Leave to file this motion was duly granted; the court took it under advisement, and, on June 9, overruled it. Notice of appeal was filed on August 11. Appellees contend that the filing of the motion for new trial on the ground of newly discovered evidence did not operate to extend time for taking the appeal which started running with the denial of the first motion for new trial, citing Gersing v. Chafitz, 77 U.S.App.D.C. 38, 133 F.2d 384; Dante v. Bagby, 39 App. D.C. 516; Jusino v. Morales & Tio, 1 Cir., 139 F.2d 946. We do not agree. It is clear that the motion for new trial for newly discovered evidence was properly filed under the provision of Rule 59(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which permits the filing of such motion at any time before expiration of the time for appeal, with leave of court obtained on notice and hearing and on a showing of due diligence. We see no reason for differentiating between the effect of this motion and the one involved in Leishman v. Associated Wholesale Electric Co., 318 U.S. 203, 63 S.Ct. 543, 544, 87 L.Ed. 714. There the Court held that a motion under Rule 52(b) of the Federal Rules of Civil Procedure to amend and supplement the findings in a patent infringement suit "deprived the judgment of that finality which is essential to appealability." It stated the general rule that "where a petition for rehearing, a motion for a new trial, or a motion to vacate, amend or modify a judgment is seasonably made and entertained, the time for appeal does not begin to run until the disposition of the motion." We think this rule is equally applicable here. The court granted leave to file the motion for new trial for newly discovered evidence, and took it under advisement. Granting of the motion would have required vacating the judgment, hence until disposition of it, the judgment which it sought to set aside could not become final and appealable. Time for the appeal did not, therefore, begin to run until denial of the motion, and the appeal was timely taken.

The motion for directed verdict did not state grounds therefor, as required by Rule 50(a) of the Federal Rules of Civil Procedure. However, in granting it, the court made the following statement:

"I have considered this evidence very carefully, what came in yesterday, and what I heard this morning, I reviewed my notes here over the noon hour, and some of the depositions, and, without meaning in any way to reflect upon counsel, I really do not think that this plaintiff, in her unfortunate condition, should be forced to go through any more, because, although it may well be that the opinion of her doctor is correct that her present condition is traceable to her having taken into her system in some way or other one of these benzine derivatives, and even assuming his conclusion that it was in the shoe dye is correct, I certainly think the plaintiff has wholly failed to prove that it was the product of the defendant here.

"To permit you to go further, and to require the defendant to put in his case, if the jury returned a verdict in your favor, which would probably be doubtful under proper instructions, I would, in conscience, have to set it aside.

"I think this evidence should have been analyzed before this unfortunate girl had to go to the expense that she did in trying to effect a recovery. Probably some shoe dye manufacturer is responsible, I don't know. Clearly you have not proved this defendant responsible.

"Here we have a cobbler in the city in which this girl resides * * * who by his own testimony, admits he has used several shoe dyes, that whatever he bought of the products of the defendant in this case he bought from this Joe Lieberman, who delivered it to him on a truck, and his testimony is that he delivered about 25 per cent of the products that this shoemaker used, that he bought 75 per cent of his material from other jobbers selling shoemakers' supplies.

"He also testified that never on his truck has he carried any gallon lots of defendant's products, yet the testimony is that the dye used in this case — if he in fact dyed this plaintiff's shoes, and we have only her word for it, he doesn't remember doing it — came from gallon bottles.

"We have the testimony of Lieberman that it would have been possible, of course, for him to have ordered it direct, as Mr. Lieberman states, by mail or otherwise, from the store or company, and have it delivered independently of Lieberman, but there seems to be no record of that. Then we have this company that Lieberman works for, handling some twelve or fifteen other kinds of shoe dye.

"I fail to see where the product of this defendant has been put sufficiently clearly into the picture to make this defendant respond in damages as against any other manufacturer of shoe dye whose name this cobbler and Joe Lieberman may have thought of when asked some two years later, `Whose shoe dye did you put on somebody's shoe?' There is clearly no connection.

"In a case of implied warranty, you must have certain clear and convincing evidence that the product as to which the warranty is alleged to have been made actually found its way into the body of the plaintiff, and that the plaintiff's condition of which she complains was caused by its getting there. We do not have any such proof in this case.

"I think the plaintiff has wholly failed to establish the issues that it is her burden to establish. I feel sympathy for her. I would like to help her. Under the law I cannot. I can do nothing but direct a verdict for the defendant, which is accordingly directed at this time."

We have set forth in full the statement of the court explaining its action in order that we may have it as a background for our examination of the evidence introduced by plaintiff, and in determining whether or not the court erred in holding as a matter of law that there was no substantial evidence to support the plaintiff's action. It is, of course, axiomatic that the court, in ruling on a motion for directed verdict, must give full credence to all the evidence offered by the party against whom the verdict is sought. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. In Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 233, 74 L.Ed. 720, the Court said, "Issues that depend on the credibility of witnesses, and the effect or weight of evidence are to be decided by the jury. And in determining a motion of either party for a peremptory instruction, the court assumes that the evidence for the opposing party proves all that it reasonably may be found sufficient to establish and that from such facts there should be drawn in favor of the latter all the inferences that fairly are deducible from them."

Plaintiff herself testified that on October 21, 1940, she took a pair of white leather shoes to a cobbler, Fred Pannucci, to have them dyed black. She got the shoes back on October 23, and wore them for the first time after they were dyed, on October 26, for about three hours. When she took them off she noticed a red mark on her left foot and also that her stockings were discolored. Two days later large spots started to form around the spot on her foot, and from that the rash spread until it covered her entire body. She consulted a physician on November 3, and after seeing him three times, and taking the medicine he prescribed for her, she consulted a second physician who also prescribed for her and then referred her to Dr. Coombs under whose direction she entered a hospital on November 28. Prior to October 1940, her health had been very good.

Dr. Coombs attended plaintiff from November 28, 1940, until he entered military service in September 1942. The record shows that he was exceptionally well qualified in his specialty, biochemistry, and had had experience in treating several cases of shoe dye poisoning. He testified to the serious and permanent nature of her illness which he diagnosed as purpura which later developed into Bright's disease or nephritis, and secondary anemia. He also stated that she would require medical treatment for the rest of her life, but that it would be a losing process and that her prognosis was guarded or bad. He also testified as to the poisonous effects of the benzene products on the human body, naming various benzene derivatives which are easily absorbed in the body through the skin, including orthodichlorobenzene, a highly poisonous compound, one part in 100,000 being enough to be poisonous. He stated that the cause of her condition was the absorption of poison in her body. He also stated that in his opinion, she had been poisoned by shoe dye, but that answer was stricken. He was allowed to say that the poison was typical of benzene or one of its compounds and that in his opinion a shoe dye containing orthodichlorobenzene as a...