Petition for Writ of Certiorari — Montgomery Ward & Co. v. Dabney

——

85 = 3 1 Q yr Supreme Cont. US.

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AUG 26 1985

—a ~ NIOL, JR.

CLERK

In THE

Supreme Court of the Anited States

Octroser TERM, 1985

MONTGOMERY WARD & CO., INCORPORATED,

Petitioner,

bs

MARJORIE LOUISE DABNEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

H. Warren SIEGEL

Counsel of Record

Ronautp L. GrianGiorai

One Montgomery Ward Plaza

Chicago, Illinois 60671

(312) 467-2220

Attorneys for Petitioner

Of Counsel:

MicHaeEL W. LirsBe

200 Union Arcade

Davenport, Iowa 52821

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTIONS PRESENTED

1. Without direct state precedent interpreting Section

535.3 of the Iowa Code allowing prejudgment interest, did

the Court of Appeals properly permit prejudgment inter-

est to be assessed against Montgomery Ward in a situa-

tion relating back to the original filing of the complaint

in 1979 where the first trial, which resulted in a verdict

for plaintiff, was reversed by the Court of Appeals be-

cause of errors by the trial court and where another ver-

dict for plaintiff was entered after retrial?

2. If the Court of Appeals has properly construed Iowa

Statutes to permit prejudgment interest to be assessed

for the period of time, in this case over 20 months and

approximately $475,000, during which the first case had

been reversed and was awaiting retrial, does the Iowa

Statute run afoul of the due process and equal protec-

tion clause of the Fourteenth Amendment to the extent

that it unduly discriminates against appellants who seek

review of a trial court decision, in good faith and do in

fact obtain a reversal of that decision and mandatory re-

trial?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........0s000s%

TABLE OF AUTHORITIES ..........000055.

ogi i ti rere rer rer rr errr

Bi i ee er re rere mrt

REASONS FOR GRANTING THE WRIT ....

CAIDA 5a asdianek (eakneageenenetaes

APPENDIX

Opinion of the United States Court of Appeals for

Cie Tees COU ws va vnvkncsntcnteaesbeuss

Opinion of the United States District Court for the

Southern District of Iowa, Davenport Division .

Order of the United States Court of Appeals for

the Eighth Circuit Denying a Rehearing and a

Can Te TRUE ae occa xkdcowedscandeexe

Order of the United States Court of Appeals for

the Eighth Circuit Denying Appellee’s Motion

to Certify a Question to the Iowa Supreme

CE cnc ndnaceuscuuvcnesse eee

19

26

27

iil

TABLE OF AUTHORITIES

Cases

Aetna Life Insurance Company v. Margaret W.

Lavoie, et al., No. 84-1601 ................

Arnold v. Arnold, 140 N.W.2d 874 (Ia. 1966) ....

Dabney v. Montgomery Ward & Co., Inc., 692 F.2d

i Ee cc cis actch shacks ances eeaees

Hysell v. Iowa Public Service Company, 559 F.2d

8 BS Seer

Lindsey v. Normet, 405 U.S. 56 (1972) ........

Muchmore Equipment, Inc. v. Grover, 334 N.W.

i tad ete s 0440005806 6008 45

Reiss Steamship Company v. United States Steel

Corporation, 427 F.2d 1152 (6 Cir. 1970) ...

Riha v. International Telephone & Telegraph

Corp., 583 F.2d 1053 (8 Cir. 1976) .........

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ln THE

Supreme Court of the Anited States

OcroserR TrrM, 1985

No.

MONTGOMERY WARD & CO., INCORPORATED,

Petitioner,

Vv.

MARJORIE LOUISE DABNEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner Montgomery Ward & Co., Incorporated re-

spectfully prays that a writ of certiorari issue te review

the Judgment and Opinion of the United States Court of

Appeals for the Eighth Circuit entered in this proceed-

ing on May 9, 1985.

-

OPINIONS BELOW

The Opinion of the Court of Appeals (Appendix (““App.”’),

infra, 1) is reported at 761 F.2d 494. The Opinion of the

District Court (App.19) is not reported. The order of the

Court of Appeals denying a rehearing and denying a re-

hearing en banc is reproduced infra, (App. 26).

JURISDICTION

The judgment of the Court of Appeals was entered on

May 9, 1985. A timely petition for rehearing and rehear-

ing en bane was denied on July 1, 1985. The jurisdiction

of this court is invoked pursuant to 28 U.S.C. § 1254(1).

=

STATUTES INVGLVED

Iowa Code Section 535.3 reads as follows:

“Interest shall be allowed on all money due on

judgments and decrees of courts at the rate of ten

percent per year, unless a different rate is fixed by

the contract on which the judgment or decree is ren-

dered, in which case the judgment or decree shall

draw interest at the rate expressed in the contract,

not exceeding the maximum applicable rate permitted

by the provisions of section 535.2, which rate must

be expressed in the judgment or decree. The interest

shall accrue from the date of the commencement of

the action.”

Iowa Code Section 684A.1 states:

“The supreme court may answer questions of law

certified to it by the supreme court of the United

States, a court of appeals of the United States, a

United States district court or the highest appellate

court or the intermediate appellate court of another

state, when requested by the certifying court, if there

are involved in a proceeding before it questions of

law of this state which may be determinative of the

cause then pending in the certifying court and as to

which it appears to the certifying court there is no

controlling precedent in the decisions of the appellate

courts of this state.”

a

STATEMENT OF THE CASE

The previous decision in this matter in front of the

Kighth Circuit in 1982 is reported at 692 F.2d 49. In that

opinion the Court of Appeals reversed the verdict and

judgment of the District Court for a variety of reasons

and rema ded this matter for a new trial. Review of the

Court of Appeals decision was sought by respondent here,

Marjorie Dabney, both in a Petition for Rehearing En

Banc and in a Petition for Certiorari filed w*’ this court

on March 18, 1983. Those petitions were denieu and some

20 months later the matter was retried and resulted in

another verdict in favor of Marjorie Dabney. A review

of the trial covrt decision was again sought by Mont-

gomery Ward urging various grounds of error.

The only ground upon which review is sought in this

Court is that part of the decision of the Court of Appeals

interpreting Section 535.3 of the Iowa Code. The Court

of Appeals held that section required the imposition of

prejudgment interest from the date of the second judg-

ment on February 9, 1984 back to the original date of

the filing of the complaint in this action on October 12,

1979, including that portion of time during which the first

judgment of the court had been reversed, plaintiff/respond-

ent unsuccessfully sought review and the case was wait-

ing for retrial. The Court of Appeals stated (App. 16-17)

that the issue had not been clearly decided by the Iowa

Supreme Court and the Court of Appeals would defer to

the Decision of the District Court permitting prejudgment

interest during this period of time. In doing so, the Court

of Appeals treated the question of prejudgment interest

as compensation. In reaching this decision, the Court of

Appeals refused to certify the question to the Iowa Su-

eallinns

preme Court as provided by Iowa law and as requested

by the petitioner (App. 27). In so doing, the Court of

Appeals: a) ignored Iowa precedent denying interest ac-

crual on a vacated judgment during the period of time

of the successful appeal and did not follow precedent

within the Eighth Circuit or other circuits; and, b) has

issued a decision which will have a chilling effect of dis-

couraging appeals where there are obviously legitimate

issues to be reviewed. The first appeal resulted in a re-

versal of the trial court in this case.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals departs from both

the precedent of the Iowa Supreme Court and prior

Eighth Circuit decisions. While the Court cites Arnold

v. Arnold, 140 N.W.2d 874, 878 (1966) which allowed post-

judgment interest to accrue from the original judgment

date on a judgment which was increased on appeal, the

Court ignored the decision of the lowa Supreme Court

in Muchmore Equipment, Inc. v. Grover, 334 N.W.2d 605,

610 (Ia. 1983). In Muchmore the Iowa Supreme Court,

citing different portions of the Arnold decision than relied

upon by the Court of Appeals, stated:

“Generally, when a judgment is modified on appeal

and the only action required in the trial court. is com-

pliance with the mandate of the Appellate Court the

interest runs from the date of the original judgment;

however, when a judgment is reversed the interest

is not generally computed and accrued during penden-

cy of the appeal.”

= =

While neither the Arnold case nor the Muchmore case

involved prejudgment interest, the fact that the Court of

Appeals treats prejudgment interest as ordinary compen-

sation in the sense of giving the plaintiff the fair value

of the amount found due from the time of filing of the

complaint, which is the same principle upon which post-

judgment interest is given, that is, making sure that the

plaintiff has the fair value of the money found due at the

time of judgment, the Muchmore case does support the

position here that, during the period of time that the first

appeal was pending and the matter awaiting retrial after

a successful appeal oy defendant, prejudgment interest,

which in this case amounts to $475,620 for that period,

should not be chargeable to Montgomery Ward.

Since there is no direct precedent in Iowa, because

there has been no decision on the prejudgment interest

issue as opposed to post-judgment interest, the Court of

Appeals, if the issue was unclear, could have exercised

the right given under Iowa statute to refer the case to

the Iowa supreme Court for verification. This was re-

quested by Montgomery Ward but this request was denied.

The refusal to do so on these facts raises serious constitu-

tional and judicial! administration issues.

The Eighth Circuit in Hysell v. Iowa Public Service

Company, 559 F.2d 468 (1977) dealt with the question of

how to compute post-judgment interest under Title 28

U.S.C. § 1961 which formerly provided:

“Interest shall be allowed on any money judgment

in a civil case recovered in a District Court . . . Such

interest shall be calculated from the date of the judg-

ment at the rate allowed by state law.”

The Court was dealing with a situation similar to the one

here. In Hysell the first verdict had been successfully

~~

challenged on appeal, the judgment vacated and matter

remanded solely on the issue of damages and for the entry

of a new judgment. The Court of Appeals found that it

would be improper under principles of fairness and equity

to allow the post judgment interest to run from the date

of the original judgment and the Court stated that the

interest should be computed from the date of the second

judgment. In fact, the Court emphatically stated that ‘“In-

terest does not accrue on a vacated judgment”’, [bid., at

p. 476 relying on Riha v. International Telephone & Tele-

graph Corp., 533 F.2d 1053 (8 Cir. 1976).

Likewise, other Courts of Appeal have come to the

same conclusion. In Reiss Steamship Company v. United

States Steel Corporation, 427 F.2d 1152, 1153-54 (6 Cir.

1970) the Court, dealing with prejudgment interest specifi-

cally, found that it would be inequitable to allow the pre-

judgment interest award for the period from the date of

the filing of the Notice of Appeal until the date of the

entry of judgment c” reversal and for other periods of

time during which there had been a successful review for

defendant.

If the interpretation of the Court of Appeals, allowing

prejudgment interest even for the period of time covered

by a successful appeal resulting in a reversal, is allowed

to stand, it would create serious questions as to the con-

stitutionality of the lowa statute allowing prejudgment

interest. Certainly there is no problem where an appeal

results in affirming the trial court’s decision in relating

the prejudgment interest back to the original filing of the

complaint as contemplated by Iowa Section 535.3. But, if

that section does cover the total period of time back to

the original filing of the complaint, including the period

of time involved in a successful review where the first

verdict was reversed because of prejudicial errors or othe

= Ss

reasons, the decision would seriously impair the willing-

ness of appellants in good faith to seek review. Whatever

policy reasons may exist for placing the chance of an un-

successful review on an appellant, certainly those policy

reasons do not apply where the review is successful. If

that were the case, appellants would not only be discour-

aged from seeking legitimate review but, in fact, would

be penalized for being successful in doing so.

This issue is not unlike the question addressed in Lind-

sey v. Normet, 405 U.S. 56, 78-79 (1972), 92 S.Ct. 802,

876-87, wherein this Court allowed proper remedies by

a state to discourage insubstantial appeals if the rules are

reasonably tailored to achieve the ends and do not un-

fairly discriminate against persons taking appeals no

matter how meritorious their case may be. This Court

presently has before it awaiting review, Aetna Life Insur-

ance Company v. Margaret W. Lavoie, et al., on appeal

from the Supreme Court of Alabama, No. 84-1601. That

case involves the issue of the validity of a 10% penalty

imposed by Alabama statute payable upon affirmance of

a money judgment. The issue in that case is whether it

is permissible to impose the 10% penalty without violating

the rules set forth in Lindsey in a situation in which the

review is sought in good faith and with legitimate issues,

including those of first impression (as here).

The result in this case is even more far reaching for

we are dealing, not just with a simple 10% penalty but,

with prejudgment interest at the statutory rate in lowa

of 10% for a period of time totally outside the control of

the appellant depending on how long it takes for the ap-

pellate process to proceed, and notwithstanding that the

appeal is clearly in good faith because it results in a re-

versal and new trial being ordered. Whatever may be the

rationale for permitting prejudgment interest, it surely

=

should not apply during any period of time of an appeal

resulting in a success and in a retrial because of errors

(or other reasons) made during the course of the first pro-

ceeding. There are certainly remedies and procedures

available by which the state can control frivolous appeals.

If the appeal is not successful, certainly the imposition

of prejudgment interest is not an issue. However, where

the appeal is successful, it is not only inequitable it is

downright chilling to an orderly judicial review process

to allow prejudgment interest to be imposed for that

period of time caused by the need to seek a successful

‘review of the first decision of the trial court.

CONCLUSION

For these reasons it is respectfully requested that a writ

of certiorari should issue to review the Judgment and

Opinion of the Eighth Circuit.

Respectfully submitted,

H. WARREN SIEGEL

Counsel of Record

RONALD L. GIANGIORGI

One Montgomery Ward Plaza

Chicago, Illinois 60671

(312) 467-2220

Attorneys for Petitioner

Of Counsel:

MICHAEL W. LIEBBE

200 Union Arcade

Davenport, Iowa 52821

APPENDIX

App. 1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JUDGMENT

September Term, 1984

No. 84-15387SI

MARJORIE LOUISE DABNEY,

Appellee,

VS.

MONTGOMERY WARD & Co., INC.,

Appellant.

Appeal from the United States District Court

for the Southern District of Iowa

This appeal from the United States District Court was

submitted on the record of the said District Court, briefs

of the parties and was argued by counsel.

Upon consideration of the premises it is hereby ad-

judged and decreed that the judgment of the District

Court is affirmed in accordance with the opinion of this

Court.

May 9, 1985

Costs of briefs of appellee for

recovery from appellant: $193.28

A true copy:

ATTEST: /s/ ROBERT D. ST. VRAIN

Clerk, U.S. Court of Appeals,

8th Circuit

App. 2

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 84-1537

MARJORIE LOUISE DABNEY,

Appellee,

va

MONTGOMERY WARD & Co. INCORPORATED,

Appellant.

and

HONEYWELL, INC.

Appeal from the United States District Court

for the Southern District of Iowa

Submitted: October 11, 1984

Filed: May 9, 1985

Before Ross and McMILLIAN, Circuit Judges, and Devitt*,

Senior District Judge.

* The Honorable Edward J. Devitt, United States Senior Dis-

trict Judge for the District of Minnesota, sitting by designation.

_

App. 3

McMILLIAN, Circuit Judge.

Montgomery Ward & Co. appeals from a final judgment

entered in the District Court! for the Southern District

of Iowa upon a jury verdict awarding Marjorie Louise

Dabney $2,000,000, which amount included prejudgment

interest, for injuries sustained in a fire allegedly caused

by a wall heater (furnace) manufactured by Montgomery

Ward. For reversal Montgomery Ward argues that the

district court erred in (1) denying its application for

destructive testing of the louvers of the furnace, (2) deny-

ing the jury’s request for a transcript of the testimony

of an expert witness, (8) denying a request to amend an

answer and an instruction on comparative fault, (4) deny-

ing its motion for new trial based on insufficient evidence

as to proximate cause, (5) admitting into evidence cumula-

tive photographic evidence of Dabney’s injuries, (6) deny-

ing its request for remittitur, and (7) denying its motion

for altered judgment based on a tolling of the interest

during the pendency of Montgomery Ward’s successful ap-

peal on the first trial. For the reasons discussed below,

we affirm the judgment of the district court.

On October 15, 1977, Dabney suffered serious burns in

a fire which occurred in her apartment in Burlington,

Iowa. She leased this apartment and the lessor bore the

responsibility of cleaning and maintaining the apartment,

including the furnace. At the time of the fire, Dabney was

51 years old and lived alone in the apartment. Dabney

was employed as a waitress at a neighborhood tavern and

normally worked 45-69 hours per week at the rate of $3.50

per hour.

1 The Honorable R.E. Longstaff, Magistrate, United States

District Court for the Southern District of Iowa.

App. 4

Dabney testified that on the evening of the fire she had

fallen asleep on the sofa in the living room. The sofa was

10-15 feet from the furnace and was located on the north

wall of the living room under a window covered by draperies.

The draperies caught fire and fell from the rod onto

Dabney and the back of the sofa. Dabney testified that

she awoke but was unable to see because of the smoke.

When she tried to get out of the front door of the apart-

ment, she was unable to manipulate the door knob be-

cause of the burns on her hands and arms. She then went

to the rear of the apartment and into a closet which had

a common wall with the apartment on the other side of

the building occupied by her mother. She knocked on the

wal!, moaned and collapsed in the closet. Dabney’s mother

was awakened by “‘a terrible noise” and heard her daughter

on the other side of the wall. Firemen found Dabney

severely burned and collapsed in the closet adjacent to

the apartment bathroom.

As a result of the fire, Dabney sustained serious in-

juries, including second and third degree burns over 36%

of her body. She was hospitalized at the University of

Iowa Burn Treatment Center for treatment of these

burns. Dabney underwent eleven surgical operations over

a three-year period. As a result of her burns, Dabney

could not shut her eyelids and her eyelids were sewn

almost completely shut for two years. Dabney was re-

quired to wear elasticized “pressure garments” for three

and one-half years in order to reduce the scarring from

the burns. She also wore collars or braces, including a

mouth brace, for two years in order to minimize contrac-

tion of her skin while it healed. Her skin will not regener-

ate, her sweat glands are permanently destroyed on the

areas where she was burned, and she has permanently

lost the use of her tear ducts. Because of the extensive

App. 5

burns to the skin, she is unable to tolerate extremes of

heat and cold. She also suffers from emotional depression

as the result of the change in her physical appearance.

Dabney testified that she frequently is afraid to go to

sleep at night because of the fire. Dabney offered evidence

of past and future medical expenses in the amount of

$88,945. Her physician testified that Dabney is unemploy-

able and suffers permanent disfigurement, scarring and

pain.

On October 12, 1979, Dabney filed suit against Mont-

gomery Ward and sought money damages for personal in-

juries she sustained as a result of the October 15, 1977,

fire in her apartment. Dabney specifically alleged that the

fire in her apartment was proximately caused by a de-

fect in the design of a Montgomery Ward SBI9074 fur-

nace. On September 23, 1981, the jury returned a ver-

dict in favor of Dabney in the amount of $1,000,000. The

judgment entered thereon wa: subsequently reversed and

the case remanded for retrial by order of this court in

Dabney v. Montgomery Ward & Co., 692 F.2d 49 (8th Cir.

1982), cert. denied, 461 U.S. 957 (1983).2 On retrial a ver-

dict was rendered on February 9, 1984, for Dabney in

the amount of $2,000,000; on the same date the district

court entered judgment for that amount and awarded

Dabney prejudgment interest from the date of the filing

of the complaint on October 12, 1979, until the date of

the second judgment. On February 21, 1984, the district

2 This court held that the district court abused its discretion in

denying Montgomery Ward’s request to amend its witness list by

adding the name of a witness who was only discovered on the

morning the trial was scheduled to commence and in refusing

thereafter to grant Montgomery Ward a new trial. Dabney v.

Montgomery Ward & Co., 692 F.2d 49, 51-52 (8th Cir. 1982), cert.

denied, 461 U.S. 957 (1983).

App. 6

court denied Montgomery Ward’s request for a new trial

or an altered judgment. This appeal followed.

Dabney’s theory of the cause of the fire is that the fur-

nace was defective in design. Her experts stated that the

natural gas flames from the main burners of the furnace

were not confined inside the heat exchangers as required

by the American Gas Association standards, but instead

“licked out’’ beyond the base of the heat exchangers in-

to the convective flow of room air through the furnace.

All the combustion products and flames should be con-

fined inside the heat exchangers and then discharged up

the flue and out the chimney. During operation of the fur-

nace, cooler room air was drawn into the bottom of the

furnace, past the heat exchangers and then out the louvers.

Dabney’s experts testified that the flames “‘licked out”

of the burner because the cross-section of the heat ex-

changers had not been properly designed and that this

defect had existed at the time of manufacture. The ex-

perts testified that the furnace had ignited dust and lint

which had accumulated inside the unit and the fire pro-

gressed outside the furnace with the natural convection

of air through the louvers, down and directly onto com-

bustibles in front and to the right of the furnace.

Montgomery Ward’s experts testified that it was ex-

tremely unlikely that the fire started inside the furnace.

The experts testified that no amount of lint or other

debris could have accumulated inside the furnace sufficient

to have possibly generated enough heat long enough to

cause the fire, especially to have caused burning particles

to fall 3-4 feet from the furnace (on the rug, curtains, sofa,

or fur coat).

App. 7

Destructive Testing of the Furnace

Montgomery Ward filed an application on October 11,

1983, for approval to perform destructive testing on cer-

tain parts of the furnace which had been involved in the

fire. Montgomery Ward wanted to test portions of the

louvers by expos..g them to the kind of heat that would

have been generated in a fire consistent with Dabney’s

theory of the cause of the fire. Dabney resisted this

method of testing because the furnace (or at least that

part of it which she considered essential to her case)

would have been completely destroyed in the testing

process. The district court denied Montgomery Ward’s re-

quest to subject the louvers to this type of testing but

did approve testing of three portions of the furnace’s side

wall assembly.

Montgomery Ward argues that the district court abused

its discretion in denying its motion for destructive test-

ing because the testing was essential to determine whether

the discoloration of the paint on the louvers was caused

by the fire or by other causes. Montgomery Ward argues

that the district court’s denial of the testing prevented

it from obtaining evidence which would impeach Dabney’s

expert witnesses’ credibility and discredit Dabney’s theory

of the cause of the fire. Montgomery Ward further argues

that its interest in the destructive testing of the louvers

greatly outweighed Dabney’s interest in not performing

the testing because photographs could have aid did pre-

serve evidence of the actual appearance of the louvers and

Dabney had ample witnesses to testify as to what the

photographs represented.

Dabney argues that the district court properly denied

Montgomery Ward’s request for destructive testing be-

cause the application was untimely and was deficient on

App. 8

its face. Dabney argues that Montgomery Ward did not

request an order for destructive testing until Octobe:

1983, four years after the fire and two years after the

first trial of the case. Further, Dabney argues that Mont-

gomery Ward’s application was deficient because it failed

to specify the time, place and manner of the testing, the

size of samples to be taken from the furnace, or to indi-

cate clearly that the resuits would be relevant and ma-

terial to the issues in this case. Finally, Dabney argues

that Montgomery Ward was not prejudiced because it had

an opportunity prior to the first trial to photograph, in-

spect and test the furnace and, in compliance with the

district court’s order, was able to conduct destructive

testing on portions of the furnace prior to the second trial.

Fed. R. Civ. P. 34 provides that “‘any party may serve

on any other party a request . . . to inspect and copy,

test, or sample any tangible things which constitute or

contain matters within the scope of Rule 26(b) and which

are in the possession, custody or control of the party upon

whom the request is served.” In general, parties may ob-

tain discovery regarding any matter not privileged which

is relevant to the subject matter involved in the pending

action. Fed. R. Civ. P. 26(aX1). “{A] district court has very

wide discretion in handling discovery and will generally

not be reversed unless ‘in the totality of the circumstances

the district court’s rulings are a gross abuse of discre-

tion resulting in fundamental unfairness.’ ”’ Phil Crowley

Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir.

1979) (citations omitted); see O’Neal v. Riceland Foods,

684 F.2d 577, 581 (8th Cir. 1982). Orders by a district

court denying or limiting discovery, therefore, will not be

reversed unless there has been a clear abuse of discre-

tion. Admiral Theatre Corp. v. Douglas Theatre Co., 585

F.2d 877, 898 (8th Cir. 1978).

App. 9

We hold that the district court did not abuse its discre-

tion in denying Montgomery Ward’s request for destruc-

tive testing of the furnace. Although Montgomery Ward

vigorously asserts that the district court’s denial of its

request for discovery prevented it from securing critical

evidence, we note that Montgomery Ward did not request

this evidence prior to the first trial and did not request

the evidence until four years after the accident occurred.

_ We further observe that the district court did permit

limited destructive testing of other portions of the fur-

nace and that Montgomery Ward did not indicate to the

district court at the special hearing in November 1983 that

the limited testing approved by the district court would

prevent it from securing the necessary evidence for its

defense. On the contrary, Montgomery Ward’s response

to the earlier decision could be viewed as acquiescence.*

Further, Montgomery Ward’s expert who conducted the

destructive testing as permitted by the district court tes-

tified concerning his conclusions about the louvered sec-

tion even though he did not specifically test that area of

the furnace.

° At page 22 of the transcript of the November 8, 1983, hearing,

the district court said:

I am very disturbed about your request to remove the

louvers from sections A and B. Insofar as that is your request

in the evidence or the record before me now, I am going to

deny that application.

I am less disturbed about your proposal to remove two-by-

two sections from areas C, D and E. If that removal would

be helpful to you, I will go ahead and allow that re.:oval so

long as it, of course, is in an area that doesn’t reflect any burn

pattern.

MR. LIEBBE: Fine.

App. 10

Jury’s Request for Transcript of Expert Witness

Montgomery Ward argues that the district court abused

its discretion in denying the jury’s request for a transcript

of the testimony of Carroll Stone Kirkpatrick. Kirkpatrick

was Montgomery Ward’s major expert witness and was

asked on cross-examination whether he agreed that the

removal of the enamel coating on the inside of the louvers

was the result of a fire inside the furnace. Montgomery

Ward argues that Dabney’s counsel twice during the trial

misstated Kirkpatrick’s testimony concerning the cause

of the damage on the inside of the upper louvers The

first misstatement allegedly occurred while counsel was

questioning another defense expert witness; counsel al-

legedly stated that Kirkpatrick had agreed with Dabney’s

theory of the cause of the fire. Montgomery Ward fur-

ther argues that during closing argument Dabney’s coun-

sel argued that Kirkpatrick had stated that the enamel

coating was removed from the louvers because of a fire

which began within the furnace. Montgomery Ward as-

serts that because of these two misstatements and the

importance of Kirkpatrick’s testimony to the defense, the

district court should have granted the jury’s request for

the transcript of Kirkpatrick’s testimony.

“We note that the trial judge has traditionally been ac-

corded broad discretion in the conduct of his trial and that

an appellate court will not retroactively substitute its

discretion for that of the trial judge unless there has been

a showing of abuse.’”’ Dobson v. Bacon Transport, 607

F.2d 805, 807 (8th Cir. 1979) (citations omitted). The dis-

trict court in denying the jury’s request for the transcript

stated that the Kirkpatrick testimony took approximate-

ly three hours, was highly technical, was the testimony

of only one of five expert witnesses testifying with refer-

ence to liability in the case, could pose substantial prob-

App. 11

lems in accurate rereading by the court reporter because

of its technical nature, was presented to the jury just the

day before the jury began its deliberation, and would have

unduly emphasized the testimony of one of the five tech-

nical and expert witnesses. The district court also in-

structed the jury that “{s|tatements and arguments of

counsel are not evidence in the case.’’ We hold that the

district court did not abuse its discretion in denying the

jury’s request for the transcript.

Denial of an Instruction on Comparative Fault

Montgomery Ward argues that the district court erred

in denying its motion to amend its answer to add the af-

firmative defense of comparative fault. Further, Mont-

gomery Ward argues that the district court erred in refus-

ing to give an instruction on comparative fault because

Iowa courts, if presented with the issue, would have held

that comparative fault was applicable to strict liability

cases. Lastly, Montgomery Ward argues that it presented

evidence that Dabney was contributorily negligent in fail-

ing to notify the landlord that the furnace had not been

cleaned in the two years before the fire.

“In the absence of controlling state law, ‘it is the duty

of a federal court to apply the rule it believes the state

supreme court would follow.’”’ Sperry Corp. v. City of

Minneapolis, 680 F.2d 1234, 1238 (8th Cir. 1982) (citations

omitted). Further, we are guided by the principle that

the interpretation of state law by a district judge sitting

in that forum is entitled to substantial deference unless

it is “fundamentally deficient in analysis or otherwise lack-

ing in reasoned authority.”’ Kansas City Power & Light

v. Burlington Northern R.R., 707 F.2d 1002, 1003 (8th

Cir. 1983) (citations omitted).

App. 12

The district court held that Montgomery Ward was

neither legally nor factually entitled to the requested

amendment and jury instruction concerning comparative

fault. The district court considered the case of Goetzman

v. Wichern, 327 N.W.2d 742 (1982), wherein the Iowa Su-

preme Court held that the doctrine of comparative negli-

gence was available in all cases in which contributory

negligence had previously been a complete defense. Be-

cause the defense of contributory negligence had not been

available in actions based on strict liability, Franken v.

City of Sioux Center, 272 N.W.2d 422, 425 (lowa 1978);

Hawkeye Security Insurance Co. v. Ford Motor Co., 199

N.W.2d 373, 380-81 (lowa 1972), the district court held

that the defense of contributory negligence was not avail-

able to Montgomery Ward in this strict liability case.

We have carefully reviewed applicable Iowa law and do

not find the district court’s interpretation of this law defi-

cient in analysis or otherwise lacking in reasoned author-

ity. We therefore hold that the district court did not err

in denying Montgomery Ward’s request for an amendment

and a jury instruction on comparative fault.

Sufficiency of the Evidence

Montgomery Ward argues that the district court erred

in denying its motion for a new trial because Dabney

failed to present sufficient evidence of the specific proxi-

mate cause of the fire as required by Iowa law. North-

western National Insurance Co. v. Raid Quarries Corp.,

249 N.W.2d 640, 645 (Iowa 1977). Montgomery Ward

argues that Dabney’s theory of the fire (lint and debris

inside the furnace caught fire and spread into the apart-

ment because of the defective design) is based on specula-

tion because Montgomery Ward’s expert testified that it

App. 13

was impossible for there to be enough lint in the furnace

to cause such a fire. Montgomery Ward argues therefore

that the great weight of the evidence was contrary to

Dabney’s theory and thus the district court erred in deny-

ing its motion for a new trial.

The applicable standard of review is quite limited. “A

motion for a new trial on the ground that the verdict is

against the weight of the evidence is committed to the

sound discretion of the trial court and its decision will

be reversed only upon a clear showing of abuse.” Rey

v. City of Fredericktown, 729 F.2d 1171, 1174 (8th Cir.

1984). See Burnett v. Lloyds of London, 710 F.2d 488,

489-90 (8th Cir. 1983). “Ordinarily no error can be predi-

cated upon the denial of such a motion for a new trial.”

Bond v. IMFS, Inc., 727 F.2d 770, 771i (8th Cir. 1984).

Montgomery Ward has failed to demonstrate any abuse

of discretion by the district court in denying its motion

for a new trial.

Photographs of Dabney’s Injuries

Montgomery Ward argues that the district court erred

in admitting photographs depicting the natwre and extent

of burns to Dabney’s body. Montgomery Ward argues that

the photographs were duplicative and cumulative and

should have been excluded under Fed. ®. Evid. 403 be-

cause their probative value was slight and was outweighed

by the graphic nature of the photographs and the tenden-

cy of the photographs to incite and arouse the passions

of the jurors. Montgomery Ward asserts that these photo-

graphs may have contributed to the size of the jury ver-

dict which Montgomery Ward characterizes as excessive.

Dabney was permitted to offer eleven photographs; a

twelfth photograph was excluded as being duplicative.

App. 14

Dabney argues that the photographs show the extent and

nature of the injuries and also reflect the treatment and

healing process.

The admission of photographs is a matter within the

sound discretion of the district court. Hale v. Firestone

Tire & Rubber Co., No. 83-2406, 83-2407, slip op. at 16

(8th Cir. Mar. 13, 1985); Roberts v. Hollocher, 664 F.2d

200, 204 (8th Cir. 1981). The test to be applied is whether

the prejudicial effect outweighs the probative value of the

evidence. Hale v. Firestone Tire & Rubber Co., slip op.

at 16-17; Giblin v. United States, 523 F.2d 42, 44 (8th Cir.

1975), cert. denied, 424 U.S. 971 (1976). We hold that the

district court did not abuse its discretion in admitting the

photographs. The nature and extent of Dabney’s physical

injuries was an issue in this case.

Denial of Remittitur

Montgomery Ward argues that the district court erred

in denying its motion for a new trial or, in the alternative,

for remittitur of damages. Montgomery Ward argues that

the verdict rendered by the jury was excessive and the

product of passion and prejudice engendered in part by

the admission of inflammatory photographs. Montgomery

Ward also argues that the damage award was dispropor-

tionate to the actual injuries because Dabney presented

evidence of medical expenses totalling approximately

$62,000 and vague and insubstantial evidence of past earn-

ings, which was inadequate as a basis of an award for

loss of earnings or earning capacity. Montgomery Ward

argues that $1,938,174.83 is an excessive amount to be

awarded for pain and suffering, although Montgomery

Ward acknowledges that Dabney experienced substantial

pain, suffering and disability as a result of the fire.

App. 15

Dabney argues that the award of $2,000,000 is not ex-

cessive because of the nature and extent of the injuries

suffered. Dabney argues that she introduced the follow-

ing evidence of damages: $61,825 for medical expenses in-

curred to the time of the trial, $27,120 for prescription

drugs in the past and in the future, and $166,250 in lost

wages. Further, Dabney argues that she has been per-

manently damaged and disfigured: 36% of her total body

received second and third degree burns (on the face, chest,

neck, back, arms and hands); her lower body is badly

scarred because this area was used as donor sites of skin

grafts; her lungs are damaged; her tear ducts and sweat

glands are destroyed; her eyes still do not fully close; and

she suffers severe emotional problems and difficulty in fac-

ing the public.

“{E]}xcessiveness of a verdict is . . . a matter for the

trial court which has had the benefit of hearing the

testimony and of observing the demeanor of the wit-

nesses and which knows the community and its stand-

ards; . . . we shall .. . consider review ... not

routinely and in every case, but only in those rare

situations where we are pressed to conclude that

there is a ‘plain injustice’ or a ‘monstrous’ or ‘shock-

ing’ result.”

Vanskike v. Union Pacific R.R., 725 F.2d 1146, 1149-50

(8th Cir. 1984), citing Solomon Dehydrating Co. v.

Guyton, 294 F.2d 439, 447-48 (8th Cir.), cert. denied, 368

U.S. 929 (1961). An appellate court should be extremely

hesitant to overturn a verdict which includes damages for

pain and suffering. Vanskike v. Union Pacific Railroad

Co., 725 F.2d at 1150.

This court notes that the verdict for Dabney on retrial

was approximately twice the verdict in the first trial.

However, “we must expect substantial disparities among

juries as to what constitutes adequate compensation for

App. 16

certain types of pain and suffering.”’ Jd. We conclude

under the facts presented at the second trial that the ver-

dict was not so excessive that the district court can be

said to have abused its discretion in denying the request

for remittitur or a new trial.

Prejudgment Interest

Montgomery Ward argues that the district court erred

in denying its motion for an altered judgment. Mont-

gomery Ward sought a ruling tolling the accrual of inter-

est from the entry of the first judgment (September 23.

1981) to the entry of the second judgment (February 9,

1984). The judgment entered by the district court awarded

Dabney ‘“‘interest at the rate of 10% from the date of the

filing of the complaint, October 12, 1979, until the entry

of the second judgment, February 9, 1984; and with inter-

est from February 9, 1984 at the rate of 9.87% until paid.”

Montgomery Ward argues that this award of prejudgment

interest during the pendency of the appeal violates Iowa

Code § 535 (1983) and the Iowa Supreme Court’s holding

in Muchmore Equipment, Inc. v. Grover, 334 N.W.2d 605,

610 (1988).

Dabney agrees that Iowa law controls this question but

argues that § 535.3 (emphasis added) specifically states

“(t]he interest shall accrue from the date of the com-

mencement of the action.’”’ Dabney further argues that

Muchmore Equipment, Inc. v. Grover, cited by Mont-

gomery Ward, does not stand for the proposition that in-

terest does not accrue on the second judgment entered

in a cause during the pendency of appellate review of the

first judgment.

As we have previously indicated, “[w]e are guided by

the principle that the interpretation of state law by a dis-

re

App. 17

trict judge sitting in that forum is entitled to substantial

deference, in the absence of controlling state precedent.”

Nelson by Wharton v. Missouri Division of Family Serv-

ices, 706 F.2d 276, 278 (8th Cir. 1983), citing Renfroe v.

Eli Lilly & Co., 686 F.2d 642, 648 (8th Cir. 1982). The

district court held that the Iowa Supreme Court had not

addressed the specific question raised by this case, that

is, whether entry of a second judgment for plaintiff after

the first judgment was reversed on appeal entitles plain-

tiff to interest on the second judgment from the com-

mencement of the action. The district court further ob-

served that the debates surrounding the enactment of

§ 535 were not published in conjunction with the amend-

ment and consequently the court must attempt to deter-

mine legisiative intent. The district court held that it was

reasonable to assume that the Iowa legislature intended

to encourage settlements, fully compensate an injured

party if the injured party recovered a judgment, and

adopt the view that interest was to be viewed as compen-

sation, which view has been adopteu ‘n other jurisdictions.

See, e.g., Carlton v. H.C. Price Co., 640 F.2d 578, 576

(5th Cir. 1981) (Texas). The district court found support

for its position in the decision of the Iowa Supreme Court

in Arnold v. Arnold, 140 N.W.2d 874, 878 (1966), which

allowed interest to accrue from the original judgment date

on a judgment which was increased on appeal. After a

careful review of Iowa law on this issue, we conclude that

the district court’s analysis is not fundamentally deficient

or otherwise lacking in reasoned analysis and uphold the

district court’s award of prejudgment interest from the

date Dabney filed her complaint, including the time period

from the entry of the first judgment to the entry of the

second judgment.

App. 18

Accordingly, we affirm the judgment of the district

court.

A true copy:

ATTEST: /s/ ROBERT D. ST. VRAIN

Clerk, U.S. Court uf Appeals,

8th Circuit

;

App. 19

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

Civil No. 79-141-D-2

MARJORIE LOUISE DABNEY,

Plaintiff,

VS.

MONTGOMERY WARD & Co., INC.,

Defendant.

ORDER

This matter is now before the Court upon defendant’s

motion filed February 21, 1984 seeking a new trial or

altered judgment. A resistance thereto was filed by plain-

tiff February 29, 1984. The defendant’s motion seeks relief

on several grounds.

DIVISION I—DESTRUCTIVE TESTING

The Court allowed defendant’s expert to perform

destructive testing on the wall heater involved in this

litigation. In response to defendant’s pretrial application,

the Court allowed several sections to be removed from

the wall heater. However, the Court did not allow sec-

tions to be removed from the louvered portion of the

heater. Such a removal would have substantially altered

a critical portion of the wall heater and placed plaintiff

in an unfair position upon retrial of this case.

Defendant’s expert who conducted the destructive

testing testified at trial concerning his conclusions. The

App. 20

testimony included conclusions about the iouvered section

even though he did not specifically test that area of the

heater. His conclusions based on the testing were ade-

quately supported from the samples he did take from the

heater. Neither the plaintiff nor the defendant attempted

to question the validity of those conclusions on the grounds

that samples were not taken from the louvers themselves.

The test data secured from the samples actually ‘taken

clearly supported the expert’s conclusions and opinions;

and this Court can perceive absolutely no prejudice to de-

fendant’s case by its Order limiting the destructive testing

to areas other than the louvered portion of the heater.

DIVISION IIi—PHOTOGRAPHIC EVIDENCE

Throughout the trial, defendant continually objected to

the introduction of photographs depicting plaintiffs in-

juries claiming said photographs were cumulative. The

Court did sustain this objection with regard to one photo-

graph. However, the Court, after carefully reviewing this

series of photographs depicting plaintiffs injuries, con-

cludes that the various photographs either depicted dif-

ferent portions of plaintiffs injuries during the same time

period or depicted those injuries over an extended period

of time. The photographs received in evidence were rele-

vant and were not cumulative.

Division III—TEestimony OF C. S. KIRKPATRICK

During its deliberations, the jury requested this Court

to provide it with a transcript of Mr. Kirkpatrick’s testi-

mony. The Court denied that request. Mr. Kirkpatrick had

testified on the day before the jury commenced its de-

liberations. To provide the jury with a transcript of this

testimony or to have the court reporter read this testi-

mony back in its entirety would have unduly emphasized

,

App. 21

this testimony. For the reasons stated in the record at

the time it denied the request, the Court finds that its

denial of this jury request was proper.

DIVISION IV—COMPARATIVE FAULT

Although the Iowa Supreme Court has adopted the doc-

trine of comparative negligence in negligence actions, it

has not adopted that doctrine in connection with lawsuits

based on the doctrine of strict liability in tort. The Court

hereby reaffirms its ruling made prior to trial providing

that, absent evidence demonstrating assumption of the

risk, the comparative fault doctrine has no applicability

in Iowa in a case based on strict liability in tort.

Furthermore, even if the doctrine had been applied in

this case, the question of comparative fault would have

focused on plaintiff's failure to clean the inside portions

of the wall heater. There would have been little, if any,

evidence in the record to suppcrt the submission of com-

parative fault in the context of this lawsuit.

With regard to defendant’s contention that plaintiff

caused the fire involved herein through careless smoking,

this issue was presented to the jury as a proximate cause

issue and the defendant was allowed to present all of its

evidence in support thereof.

DIVISION V—INSUFFICIENT EVIDENCE

The testimony of Dr. Hall and Dr. Johnson provided

support for plaintiff’s theory as to how the wall heater

involved herein proximately caused the fire resulting in

plaintiffs injuries. The theory supported by this testimony

was consistent with the physical evidence which was pre-

sented concerning the origin of the fire. A jury issue was

clearly generated by the plaintiff as to the cause of the

fire.

App. 22

The statement contained in paragraph 16 of defendant’s

motion is a complete misstatement of the record. Gerry

Ballard did not testify as suggested by defendant in that

paragraph.

DIVISION VI—REMITTITUR

The damages awarded in the second trial were not ex-

cessive in light of the pain and suffering endured by plain-

tiff in connection with the injuries she received as a result

of this incident. This Court is unable to siate that the

verdict in the amount of $2 million was not within the

framework of the evidence. It was a permissible verdict

based upon the evidence of plaintiff's damages and can-

not be labeled as being a result of the jury’s passion and

prejudice or the assessment of punitive damages. Clearly,

the major portion of the award resulted from plaintiff's

pain, suffering, and disfigurement. The Court finds that

the damage evidence supports such an award.

DIVISION VII—INTEREST

As the result of an amendment to lowa Code section

535.3 which was enacted by the Iowa Legislature in 1980

and became effective on all judgments entered after Janu-

ary 1, 1981, a party may have interest accrue on a judg-

ment from the date the action was commenced. The pres-

ent case is before this Court on the basis of diversity

jurisdiction, and thus the question of interest becomes one

of prejudgment interest since federal law governs the in-

terest on a judgment entered. The Weitz Co. v. Mo-Kan

Carpet, Inc., No. 83-1118, 83-1157 slip op. at 6-9 (8th Cir.

Dec. 29, 19838).

The question presented by defendant’s post-trial motion

is whether prejudgment interest should accrue from the

App. 23

commencement of this action since the Eighth Circuit re-

versed the first judgment entered in this case and granted

the defendant a second trial. The second trial also resulted

in a verdict for the plaintiff.

The most recent case discussing section 535.3 is Much-

more Equipment, Inc. v. Grover, 334 N.W.2d 605 (Iowa

1983). In that case, the court stated that:

The assessment of interest on judgments may be

affected by an appeal. When a money judgment in

a law action is reduced in part on appeal, the judg-

ment creditor is entitled to interest at the statutory

rate for judgments. Poulsen v. Russell, 300 N.W.2d

289, 297-98 (Iowa 1981); see Annot., 4 A.L.R.3d 1223

(1968). Similarly, we held in Arnold v. Arnold, 258

lowa 850, 857, 140 N.W.2d 874, 878 (1966), that in

a divorce action if the judgment creditor appeals, and

the appeal results in an affirmance with increased

periodic alimony, interest on any amount overdue

because of the increase or for another reason is not

suspended and is allowed from the original date of

judgment. This relating-back is also obtained in other

civil suits where a money judgment is affirmed and

increased. Hetherington Letter Co. v. O. F. Paulson

Construction Co., 192 N.W.2d 808 (Iowa 1971). In Ar-

nold we further held that when additional specific

relief is allowed on appeal, it draws interest from the

date of procedendo; however, relief that requires fur-

ther determination by the district court draws in-

terest from the date of that court’s supplemental

decree. Arnold, 258 Iowa at 858-59, 140 N.W.2d at

879. We noted in Arnold that “the matter of suspen-

sion of interest pending appeal is governed by the

nature of the case and results obtained.” 258 Iowa

at 857, 140 N.W.2d at 878; see 47 C.J.S. Interest and

Usury § 66 (1982). Generally, when a judgment is

modified on appeal and the only action required in

the trial court is compliance with the mandate of the

appellate court, the interest runs from the date of

the original judgment; however, when a judgment is

oe

App. 24

reversed the interest is not generally computed and

accrued during pendency of the appeal. 47 C.J.S. In-

terest and Usury § 68.

Id. at 610. The Court is unaware of any case of the lowa

Supreme Court which addresses the interest question gen-

erated by entry of a second judgment for plaintiff after

the first judgment was reversed on appeal.

Neither the debates surrounding the enactment of this

amendment nor the legislators’ intentions were published

in conjunction with this amendment; consequently, the

Court must speculate at the intent of the legislators. A

logical interpretation of the legislature’s action in enacting

this amendment is that the legislature adopted the view

that interest was to be viewed as compensation. This view

has been adopted in other jurisdictions. See Carlton v.

H. C. Price Co., 640 F.2d 573, 576 (5th Cir. 1981); Busik

v. Levine, 63 N.J. 351, 307 A.2d 571, 575 (1973); Lightcap

v. Mobil Oil Corp., 221 Kan. 448, 562 P.2d 1, 14 (1977);

Nelson v. Travelers Insurance Co., 306 N.W.2d 71, 76-77

(Wis. 1981); Schaefer & Associates, P. A. v. Schirmer, 3

Kan. App. 2d 114, 590 P.2d 1087, 1092 (1979); Benke v.

Mukwonago-Vernon Mutual Insurance Co., 329 N.W.2d

243, 249 (Wis. App. 1982). This “time value’”’ theory has

been described in this manner:

The purpose of prejudgment interest recognizes that

the injured party was injured at the moment the

cause of action accrued, and that the injured party

is entitled to be made whole as of that moment.

Thus, the purpose of prejudgment interest is to put

a plaintiff in a position he would have been in had

he had a trial and recovered his judgment immediate-

ly after his injury.

ame capes

App. 25

Carlton v. H. C. Price Co., 640 F.2d at 576.1

The Iowa Supreme Court’s ruling in Arnold which was

discussed in Muchmore appears to adopt this concept.

It is reasonable to assume that the Iowa Legislature

amended section 535.3 to include the accrual of interest

from the date the action is commenced because they

wanted to induce settlements and fully compensate an in-

jured party if the injured party recovered a judgment.

The decision of the lowa Supreme Court in Arnold

wherein the increased judgment on appeal was allowed

to draw interest from the original judgment date indicates

that the lowa Court would interpret 535.3 as embodying

the “time value” theory to the extent that the plaintiff

should be placed in the position he would have been in

had the judgment been entered the date he filed the law-

suit.

The judgment entered by the Clerk February 9, 1984

correctly reflects the interest plaintiff is entitled to

recover.

IT IS THEREFORE ORDERED that defendant’s mo-

tion for a new trial or altered judgment be and is hereby

denied.

Dated this 22nd day of March, 1984.

/s/ R. E. Longstaff

U. S. Magistrate

1 Other jurisdictions have ruled that when their interest statutes

state that interest accrues on ail judgments, the judgment debtor,

in order to halt the accrual of interest during an appeal, must

either deposit the amount of the judgment with the court or

tender the amount of the judgment. Henley v. Mabrey, 125 Ga.

App. 293, 187 S.E.2d 309, 310 (1972); Schaefer & Associates, P.A.

v. Schirmer, 3 Kan. App. 2d 114, 590 P.2d 1087, 1092 (1979):

Phillips v. Mills, 14 Md. App. 272, 286 A.2d 798, 801 (1972).

App. 26

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRC CiT

September Term, 1984

No. 84-1537-SI.

MARJORIE LOUISE DABNEY,

Appellee,

VS.

MONTGOMERY WARD & Co., INCORPORATED,

Appellant.

Appeal from the United States District Court

for the Southern District of Iowa

Appellant’s petition for rehearing en banc has been con-

sidered by the Court and is denied

Petition for rehearing by the panel is also den ed.

July 1, 1985

em ates cts Ow

LAO

App. 27

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1984

No. 84-1537-SI.

MARJORIE LOUISE DABNEY,

Appellee,

VS.

MONTGOMERY WARD & Co., INCORPORATED,

Appellant.

Appeal from the United States District Court

for the Southern District of Iowa

Appellee’s motion to certify a question to the Iowa Su-

preme Court has been considered by the Court and is

denied.

July 1, 1985