Whittington v. New Jersey Zinc Co.

• Citation: 775 F.2d 698
• Decision Date: 23 October 1985
• Docket Number: Nos. 83-3508,83-3538,s. 83-3508
• Parties: William WHITTINGTON; Thelma Whittington, Plaintiffs-Appellees, Cross-Appellants, v. NEW JERSEY ZINC COMPANY, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 698

775 F.2d 698

William WHITTINGTON; Thelma Whittington, Plaintiffs-Appellees, Cross-Appellants, v. NEW JERSEY ZINC COMPANY, Defendant-Appellant, Cross-Appellee.

Nos. 83-3508, 83-3538.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 20, 1985.

Decided Oct. 23, 1985.

Harry T. Quick, Rita A. Bartnik, Arter & Hadden, Hugh M. Stanley, argued, and Irene C. Keyse-Walker, Cleveland, Ohio, for defendant-appellant, cross-appellee.

Leon M. Plevin, Nurenberg, Plevin, Jacobson, Heller & McCarthy Co., Harlan M. Gordon and Richard C. Alkire, argued, Cleveland, Ohio, for plaintiffs-appellees, cross-appellants.

Before LIVELY, Chief Judge, JONES, Circuit Judge, and NEWBLATT, District Judge. ^*

PER CURIAM.

New Jersey Zinc Company appeals from judgment for the plaintiffs William and Thelma Whittington in this diversity action in which a jury awarded damages to the Whittingtons. The Whittingtons cross-appeal from the trial court's denial of their motion for prejudgment interest on the verdict. Upon consideration of the issues raised on appeal, we affirm the judgment in favor of the Whittingtons and remand their motion for prejudgment interest for an evidentiary hearing.

New Jersey Zinc operated facilities that converted titanium tetrachloride gas (TiCl) into liquid for various industrial uses. TiCl is a highly corrosive substance. Marco Industries employed Whittington to perform maintenance work on New Jersey Zinc's premises pursuant to Marco's contract with New Jersey Zinc. For approximately eighteen months prior to June 3, 1974, Whittington worked almost exclusively on New Jersey Zinc's premises in Ashtabula, Ohio. During this time, Marco paid him, withheld taxes from his paycheck, and retained the right to fire him. Whittington and his Marco co-workers used the tools of both Marco and New Jersey Zinc. For example, Marco supplied hard hats, respirators, and safety glasses, while New Jersey Zinc supplied rainsuits and face shields. Whittington worked on both the day and night shifts. During the day shift, Marco foremen were present on New Jersey Zinc's premises. During the night shift, only New Jersey Zinc supervisors were present, with whom Whittington and his co-workers cooperated. During the night shift on June 3, 1974, Whittington was attempting to remove a valve when TiCl came out of the attached pipeline and splashed him in the face.

On May 17, 1976, the Whittingtons filed a complaint alleging that Whittington had been seriously and permanently injured, in particular through loss of vision in both eyes, as a result of New Jersey Zinc's negligence in failing to properly purge TiCl from the pipeline on which he was working. New Jersey Zinc primarily advanced the defense that it was immune from liability under the Ohio Workers' Compensation Act because it employed Whittington at the time of his injury. After extensive discovery, the parties consented to try the case to a jury with a United States Magistrate presiding, rather than a District Judge. Following a seven-day trial, the jury returned a verdict in favor of the Whittingtons for $383,000. Shortly after the magistrate entered judgment on this verdict, the Whittingtons filed a motion seeking pre-judgment interest under Ohio statutory law, and sought hearing on this motion. This motion was denied without a hearing. New Jersey Zinc sought a new trial on the basis of evidence that Whittington had perjured himself concerning his capacity to work and his actual work activities following the injury. After depositions were filed with the court, this motion was denied without a hearing.

New Jersey Zinc contends that the jury verdict below is fatally flawed because with the parties' consent, the trial was supervised by a magistrate rather than by an Article III judge. This Circuit has recently joined eight other circuits that have carefully considered and rejected challenges to the constitutionality of the United States Magistrate's Act. K.M.C. Co., Inc. v. Irving Trust Co., 757 F.2d 752, 755 (6th Cir.1985). New Jersey Zinc presents no basis for reconsidering this question.

New Jersey Zinc also contends that the district court abused its discretion by denying its motion for a new trial. New Jersey Zinc alleged that Whittington had perjured himself during trial when he testified concerning the extent of his work, after his accident, for a welding business that bore his name. New Jersey Zinc submitted depositions in which deponents stated that Whittington did substantial work for the business.

The trial court appears to have given thorough consideration to New Jersey Zinc's motion. In addition to documentary evidence, the court had before it over three hundred pages of deposition testimony from eight deponents who had been subject to cross-examination and redirect examination regarding the factual basis for New Jersey Zinc's claim that Whittington had committed perjury. Each party also filed a brief. The trial court had observed Whittington's demeanor during trial. The trial court concluded that the new evidence, considered in its entirety, did not clearly establish perjury by Whittington. "[T]he most that can be said of the evidence relied upon by defendant is that it is potentially 'of a contradictory and impeaching character.' " Therefore, the district court denied New Jersey Zinc's motion for a new trial.

We commend the magistrate on his thorough consideration of the motion for a new trial. The decision whether to grant a new trial is entrusted to the trial court's sound discretion. United States v. Barlow, 693 F.2d 954, 966 (6th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983). New Jersey Zinc's contentions on appeal have not led us to "a definite and firm conviction" that the trial court abused his discretion by denying the motion for a new trial. See Balani v. I.N.S., 669 F.2d 1157, 1160 (6th Cir.1982).

New Jersey Zinc also raises three challenges to the jury instructions on the question of whether it employed Whittington and, therefore, was immune to suit under Ohio's Workers' Compensation Act. O.R.C. Sec. 4123.74. We review the adequacy of jury instructions taken as a whole. Jury instructions are not prejudicial if they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its determination. See Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1181 (6th Cir.1983).

First, the trial court allegedly instructed the jury to consider factors irrelevant to the determination of whether an employment relationship existed between Whittington and New Jersey Zinc. The trial court instructed the jury to determine whether New Jersey Zinc employed Whittington on June 3, 1974, by examining all the relevant circumstances surrounding Whittington's relationship with New Jersey Zinc including, most critically, who had the right to control the means and method of Whittington's work on that date.

In determining whether the necessary relationship existed which would bar Mr. Whittington from recovering damages from New Jersey Zinc Company, the jury should take into account all facts and circumstances pertaining to Mr. Whittington's relationship to both New Jersey Zinc Company and Marco Industries. This would include who hired and had the right to fire Mr. Whittington, who had the right to make and alter work assignments, who possessed the right to discipline Mr. Whittington, whose tools were used in the performance of his duties, under whose supervision he worked, and all other factors in the evidence pertinent to the relationship between Mr. Whittington and those companies.

Now while each of these factors may be considered by you in determining this question, none is absolutely conclusive on the issue. Nevertheless, the critical factor is who had the right to control the means and method of Mr. Whittington performing his work on June 3, 1974.

What we are concerned with is the existence of the right of control. If that right exists, it is immaterial to what extent it may or may not have been exercised.

Tr. at 1089-90.

New Jersey Zinc contends that these instructions were prejudicially erroneous because, under Ohio law, the right to control the means and method of work is the...