483 F2d 965 Kittle v. Clairol Inc 71-1921 Brulato 71-1918

483 F.2d 965

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 Beauty
and Darlene Waterman Schweighardt, Appellants in
No. 71-1918, and Clairol, Inc.,
Third-Party Plaintiffs,
v.
Dr. Alphonsus L. DOERR, Third-Party Defendant.

Nos. 71-1918, 71-1921.

United States Court of Appeals,
Third Circuit.

Argued Sept. 28, 1972.
Submitted for Rehearing en banc on March 29, 1973.
Decided July 18, 1973.

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

PER CURIAM.

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1

The court is in agreement that there was no error in the district court's determination of the liability issues involved in these appeals.

2

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.

3

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.

4

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.