Dorothy Kittle and Floyd Kittle, Her Husband v. Clairol, Inc., Appellants in No. 71-1921, et al.joseph Brulato, Individually and T/a Jon's House of Beautyand Darlene Waterman Schweighardt, Appellants Inno. 71-1918, and Clairol, Inc.,third-party Plaintiffs, v. Dr. Alphonsus L. Doerr, Third-party Defendant, 483 F.2d 965 (3d Cir. 1973)Annotate this Case
Bennett & Bennett, and Alvin D. Hersh, Shurkin, Hersh & Fershing, Newark, N. J., for appellants Joseph Brulato, Individually and t/a Jon's House of Beauty and Darlene Waterman Schweighardt.
Bernard Chazen, Englewood, N. J., for appellant Clairol, Inc.
David W. Hanis, Passaic, N. J., for plaintiffs-appellees.
John A. Willette, Willette & Luongo, East Orange, N. J., for third party defendant Doerr.
Argued Sept. 28, 1972.
Before STALEY, VAN DUSEN and ROSENN, Circuit Judges.
Reconsidered Under Third Circuit Rule 12(6) March 29, 1973.
Before SEITZ, Chief Judge, and STALEY, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN and HUNTER, Circuit Judges.
OPINION OF THE COURT
The court is in agreement that there was no error in the district court's determination of the liability issues involved in these appeals.
The court is also in agreement that the damage award to appellee Floyd Kittle cannot be disturbed except insofar as it clearly appears that the district court inadvertently allowed the jury to award the amount of Dorothy Kittle's lost wages of $3,840 to her husband, thereby duplicating to that extent the award to his wife. A new trial on the issue of his damages will therefore be required unless he agrees to a remittitur in the sum of $3,840, representing the amount of Dorothy Kittle's lost wages.
The court is evenly divided on the issue of whether the district court abused its discretion in refusing to grant appellants a new trial on their claim that the damages awarded appellee Dorothy Kittle were excessive. Affirmance is therefore required.
The judgment of the district court in favor of appellee Dorothy Kittle will be affirmed. The judgment of the district court in favor of appellee Floyd Kittle will be affirmed on the condition that he agree to remit $3,840 of his judgment. If he does not so agree, the district court shall grant a new trial on the issue of his damages.