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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 904

## Text

——

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0626%3A1. Public record. Not legal advice.