author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Alfred John THOMPSON, Appellant.
    No. 73-1412.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1973.
    Decided Jan. 24, 1974.

      David Garcia, Devils Lake, N. D., for appellant.
    Eugene K. Anthony, Asst. U. S. Atty., Fargo, N. D., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       W. C. STUART, District Judge, Southern District of Iowa, sitting by designation.

   STEPHENSON, Circuit Judge.

Alfred John Thompson, an Indian, appeals his conviction of assaulting his wife, Diane Marie Thompson, with a dangerous weapon, a .22 caliber rifle, with intent to do bodily harm, in violation of the Major Crimes Act, 18 U.S.C. § 1153. The Act “authorizes the prosecution in federal court of an Indian charged with the commission on an Indian reservation of certain specifically enumerated offenses.” Keeble v. United States, 412 U.S. 205, 205-206, 93 S.Ct. 1993, 1994, 36 L.Ed.2d 844 (1973).

At the close of trial, the United States District Court for the District of North Dakota instructed the jury both as to assault with a dangerous weapon with intent to commit murder, charged by the indictment, and as to the lesser included offense for which appellant was convicted.

Appellant assigns several errors on appeal. The most significant is the failure of the district court to instruct upon the lesser included offense of simple assault, appellant’s failure to request such an instruction notwithstanding. See, United States v. Grant, 489 F.2d 27, at 29-30 (CA8 filed Dec. 7, 1973).

The criminal act leading to appellant's conviction took place on the Devil’s Lake Sioux Indian Reservation, North Dakota. The record establishes that on the evening of December 9, 1972, appellant and his wife had an argument at a bar in Oberon, North Dakota. Appellant eventually left the bar alone. His wife, accompanied by friends, left subsequently by automobile owned by William and Martina Kazena. At approximately 1:30 a. m., the Kazena car, driven by one Glen Richard Walking Eagle, arrived in neighboring Fort Totten, North Dakota. Upon arrival in Fort Totten, a car driven by appellant approached the Kazena car from the rear and blinked its lights, causing the Kazena car to stop. Appellant also stopped, and armed with a .22 caliber rifle, walked over to the Kazena car, opened its driver’s side door and ordered his wife to “get out.” As Mrs. Thompson started to get out she heard a shot fired and threw herself down upon the floor of the rear seat. Three men in the front seat then jumped appellant and wrestled the rifle away. The men then took appellant to the Fort Totten police station in his own car. At the police station they told officer Homer Joseph White Buffalo that appellant had shot at them and that the bullet had hit the car. Officer White Buffalo examined the weapon and found a live round jammed in the chamber.

After appellant had been taken from the scene of the assault, Mrs. Thompson told Martina Kazena that she had been shot. Mrs. Kazena testified that she felt the back of Mrs. Thompson’s head, that “it was all wet with blood,” and that she drove Mrs. Thompson to the Devil’s Lake hospital. Dr. Arvin S. Ro-sen, a treating physician testified that the wound was “jagged” and that “there appeared some black, brownish particles in the wound” which he assumed to be burnt powder. Dr. Rosen acknowledged that the wound was consistent with a gunshot wound.

An inspection of the Kazena car subsequent to the incident revealed a slight dent on the roof of the ear over the driver’s side. Also, blood was found on the car’s interior. The owner of the vehicle, William Kazena, testified that to the best of his knowledge the dent was not there prior to the shooting. The record discloses that the .22 caliber rifle used by appellant belonged to Alan Chris Knatterud and that it had been stolen from the cab of his pick-up truck on the night of the incident. Mr. Knatterud testified that although there were no shells in the rifle’s chamber when it was stolen, there were shells in the magazine. He also indicated that this particular rifle had never accidentally discharged while in his possession.

Among the requirements for either party to be entitled to an instruction upon the lesser included offense, “the proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.” And, “if there is no dispute about the additional fact or facts which, coupled with the lesser included offense, do constitute a greater offense charged originally in the indictment, then the defendant has no right to a lesser included offense charged to the jury.” United States v. Grant, supra, 489 F.2d 27 (CA8 1973); United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314, 317 & n. 8 (1971); accord, Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965).

In the case before us, the evidence offers no justification for an instruction on simple assault. First, an element differentiating the crime for which appellant was convicted from a simple assault is that the former must have been committed with a “sharp or dangerous weapon.” North Dakota Century Code, supra, § 12-26-08. On the basis of this record, the character of the weapon used by appellant was not an open question. The evidence establishes that when the assault was made, appellant was armed with a loaded .22 caliber rifle; that appellant was waiving the rifle in the air when he ordered his wife out of the Kazena vehicle; and that a shot was fired as Mrs. Thompson attempted to exit the vehicle ostensibly causing the injury to the back of her head. It is our view that this loaded rifle when used in the manner shown by the evidence in this case, constituted a dangerous weapon per se. See, United States v. Davis, 429 F.2d 552, 555 (CA8 1970) (interpreting North Dakota law), rev’d on other grounds, see, Keeble v. United States, supra, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973).

Secondly, the record clearly demonstrates that appellant’s drinking did not cause the nature of his intent to be in dispute to such an extent that the jury could have convicted him of simple assault if it were presented with that option. E. g., United States v. Grant, supra, 489 F.2d 27 No. 73-1168 (CA8 filed Dec. 7, 1973); compare, Keeble v. United States, supra, 412 U.S. 205, 213, 93 S.Ct. 1993, 1998, 36 L.Ed.2d 844 (1973).

It is undisputed that on the night of the assault, appellant had been drinking heavily. However, he drove to the scene of the incident under his own power. He sought out the Kazena car and caused it to stop. Then, while armed with a .22 caliber rifle which he had stolen just prior to the assault, appellant ordered his wife to remove herself from the Kazena car. There is ample support in the record that at the time of the assault and at the time of his subsequent arrest appellant was coherent, that he had no difficulty understanding or being understood, and that he had no trouble walking.

The record is so incumbered with the physical facts and conduct of appellant that a foundation for such an instruction is lacking. We therefore hold that an instruction upon simple assault was not required.

Appellant next contends that it was error for the government, during rebuttal argument, to comment and dwell upon the fact that appellant had not called any witness. We disagree. The government is free to comment upon the defense’s failure to call any witnesses to refute or contradict the government’s case, excepting where the defendant alone has the information to do so. United States v. Lipton, 467 F.2d 1161, 1168 (CA2 1972); see, Baker v. United States, 115 F.2d 533, 544 (CA8 1940). We have reviewed the government’s rebuttal argument in its entirety and conclude that the comments in question do not constitute reversible error.

Appellant further contends that the district court erred upon voir dire by mot asking whether any of the jury panel were members of a social club whose membership was restricted to the Caucasian race. Appellant argues that he would have been in a better position to use his peremptory challenge if it were known that a prospective juror was a member of an organization which would have excluded appellant because he is an Indian. We are satisfied that the questions posed by the trial judge sufficiently interrogated the jurors upon the subject of racial prejudice. Moreover, “the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner.” Ham v. South Carolina, 409 U.S. 524, 527, 93 S.Ct. 848, 850, 35 L.Ed.2d 46 (1973). See, Ross v. United States, 374 F.2d 97,104-105 (CA8 1967).

Appellant’s final contention is that there was insufficient evidence to support a finding of guilt. Our review of the record discloses substantial evidence supporting appellant’s conviction.

Affirmed.

      . See, North Dakota Century Code § 12-26-08 (1960). As noted in Keeble, supra, at n. 13: “The Major Crimes Act provides that an Indian may be tried in federal court for the offense of assault resulting in serious bodily injury. The statute further provides that this offense ‘shall be defined and punished in accordance with the laws of the State in which such offense was committed.’ ”
      The instructions upon the lesser included offense of assault with a dangerous weapon with intent to do bodily harm (Nos. 13 and 14), were given at the request of the government. Appellant made no objection to the giving thereof.

      . Testimony of Acting Agency Special Officer Charles H. Cruse, Bureau of Indian Affairs, Officer White Buffalo, Richard Walking Eagle and William Kazena.

      . We note from the record that appellant made no objection to the government’s rebuttal argument. It was responsive.

      . The following questions were posed to the jury by the trial judge:
      THE COURT: Now, I believe it is charged in the indictment that Alfred John Thompson, the Defendant, is an Indian.
      Do any of you have any prejudice against the Indian race?
      (No response.)
      THE COURT: Are there any of you that feel if you were selected as a member of the jury that it would not be possible to give this Defendant the same consideration that you would give to any other Defendant that might be brought into court on this charge? (No response.)
      THE COURT: Do any of you feel that you have been influenced in any way by the recent publicity in the newspapers and news media relating to incidents involving the Indian people, for example, at Wounded Knee or anywhere else?
      (No response.)
      THE COURT: Do any of you feel that this would in any way influence you?
      (No response.)
      THE COURT: Remember, the object of a trial and the object of the Courts is to do justice; and that everybody who comes into court is entitled to justice based on the evidence and based on the law governing us as it has been adopted and determined by the Congress of the United States.
      Are there any of you who feel that you could not do justice in this case if you were selected as a member of the jury?
      (No response.)


source: Caselaw Access Project

author: GODBOLD, Circuit Judge:

license: Public Domain

text:
    Phillip Morris JONES, #037175, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Etc., Respondent-Appellee.
    No. 73-2543
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    Rehearing Denied April 3, 1974.

      Robert C. Stone, Stanley L. Seligman, Andrew L. FrieDrich, Hollywood, Fla., for petitioner-appellant.
    Nelson E. Bailey, Asst. Atty. Gen., Frank B. Kessler, West Palm Beach, Fla., for respondent-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

      . Among the questions to be explored are the following: Was the witness subpoenaed? If not, why not? Were her whereabouts unknown? If so, what efforts did the prosecution make to find her? Had she given statements to the prosecution that would tend to show whether, she could or could not identify the robber? Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

   GODBOLD, Circuit Judge:

This appeal is from the denial, without an evidentiary hearing, of the ha-beas petition of a Florida state prisoner under a life sentence. The petitioner was denied his right to a speedy trial as guaranteed by the sixth and fourteenth amendments to the United States Constitution. The state concedes, and the Florida state court has found, that petitioner was not promptly tried. Jones v. Florida, 255 So.2d 712 (4 DCA), cert, denied, 260 So.2d 515 (Fla. 1972). The critical issue concerns whether from that denial he suffered prejudice in the form of impairment of his defense. Petitioner’s position is that he was seriously prejudiced by the absence at trial of a material witness.

The state record indicates that a lone armed gunman robbed a theater on March 29, 1968, at approximately 10:50 p. m. The robbery occurred in a well-lighted room, and the two victims were the assistant manager Bennett and the cashier Linda Ruscue. Only Bennett testified at the trial, and he identified petitioner as the robber. Shortly after the robbery Bennett had examined numerous police mug photographs but made no identification. There is no evidence that he was shown petitioner’s photograph on that occasion. Thereafter, in October, 1968, upon being shown another photo spread, Bennett identified a photo of petitioner as that of the robber. An arrest warrant issued based on that identification. When arrested and until trial petitioner was incarcerated on a federal charge in the State of Washington.

At the Florida trial, some 25 months after the robbery and 18 months after petitioner’s arrest, cashier Ruscue was not present and had not been subpoenaed by either prosecution or defense. As to her absence, petitioner claimed:

In the ease at hand, the trial was delayed over a period of eighteen months. This resulted in the actual prejudice to the Petitioner in that his ability to marshall an adequate defense was fatally prejudiced by the loss of a material witness and the inability to produce any defense witnesses.
The testimony of the eyewitness for the State clearly reflects that there was another eyewitness * * * ; however, the State did not produce this second witness at the time of trial. Considering the conflict in the testimony of the State’s witness [Bennett] * * * as to whether the police officer indicated that the Defendant was guilty prior to the identification by the witness, it is very possible that the Defendant was seriously prejudiced by not having access to the other eyewitness to the alleged crime. The Defendant was attempting to obtain details of the crime with which he was charged some fifteen months before the trial of this cause. Had the State given him the speedy trial to which he was entitled, it is possible that this witness could have been located in his behalf. By the time of the trial, not even the State was able to produce this witness.

The District Court, in denying the petition, held:

Now to the most important subeate-gory of prejudice, impairment of the defense. Petitioner attempts to show prejudice by attributing to the delay the State’s failure to subpoena for the trial the second victim of the robbery, Linda Ruscue. The record is silent as to why she was not called. An assumption that her absence resulted from the delay does not weigh in petitioner’s favor. Petitioner makes not even an allegation that her presence would have aided the defense. If petitioner had alleged that the victim Ruscue had previously identified someone other than petitioner as the robber, or perhaps even that she could not identify the petitioner, prejudice would appear. But, without even an allegation to that effect, there is no basis to conclude that petitioner was prejudiced by her absence. Petitioner points to no defense witnesses who were unavailable as a result of the delay, or to any witness whose memory was impaired as a result of the delay.

This was an overly technical construction of petitioner’s claim. Fairly read, his pleadings alleged that the testimony of the only available witness was unreliable because tainted by the suggestive photo display, and that the best means of countering the prejudicial effect of the testimony — production of another eyewitness — was denied him through the state’s fault. True, he did not allege that Ruscue had identified someone else or that she could not identify him. But his claim of prejudice is not directed to what Ruscue would say but to the allegedly state-caused denial of the opportunity to find out what she would say and to attempt to use the information if favorable.

We agree with the state that it had no duty to marshal the evidence for the petitioner, but that is not the duty claimed to have been breached. What petitioner says is that the state-caused delay made it impossible for him to marshal his own case. We hold that in these circumstances his pleadings are sufficient to open the door to an evidentiary hearing. We do not, of course, exclude the possibility that in another situation all the pleadings, the state’s as well as petitioner’s, might make clear that the absent witness’s testimony would have been favorable to the prose-eution, immaterial, or redundant, or that the absence was not caused by the delay. In such a case no evidentiary hearing would be required. But here it is undisputed that Ruscue was one of two eyewitnesses to a serious crime. She had an excellent opportunity to observe the robber, and was a person whom the prosecution normally would be anxious to produce, yet the state’s pleadings do not explain her nonappearance. In short, her knowledge was so vital and her absence so unusual as to forbid dismissal of the petition without an eviden-tiary hearing.

Having decided that a hearing is necessary, we address ourselves to the allocation of the burden of proof. Placing the burden may be critically important or even dispositive where speedy trial has been denied and the issue is whether the defense has been impaired. As the author of this opinion noted elsewhere:

The most substantial problem generated by the prejudice requirement involves the allocation of the burden of proof. As might be expected from the generally cautious and restrictive approach which the courts have taken towards speedy trial claims, this obligation has been imposed upon the accused, and the courts have required concrete evidence to meet it. In some cases, the accused has successfully shouldered the burden, but more often he has been unable to do so. The task is not so difficult where the accused contends that he was prejudiced through “anxiety and concern,” or through “undue and oppressive” incarceration prior to trial, for in such cases the dispute typically does not revolve around the presence or absence of these factors but rather around the more or less subjective judgment of whether their effect is sufficiently more grievous than the normal hardships of prosecution, thus warranting condemnation. But in cases where the accused contends that his ability to defend himself was impaired, the burden of proof may be crucial. Although the disappearance of witnesses or documentary evidence may be subject to proof, demonstrating their materiality may be more difficult and “measur[ing] the cost of delay in terms of the dimmed memories of the parties and available witnesses” may be almost impossible. In some instances, 'however, the rigors of this requirement have been mitigated. Moved by such factors as intentionally dilatory prosecution tactics or extremely protracted delays, the courts have either required the prosecution to prove the absence of prejudice or, in what amounts to the same thing, have presumed the existence of prejudice. In the case of long delays the presumption of prejudice is rationally grounded upon judicial recognition that, at least with regard to testimonial evidence, the events of years past are not as well remembered as those of yesterday.

Godbold, Speedy Trial — Major Surgery for a National Ill, 24 Ala.L.Rev. 265, 283-84 (1972) (footnotes omitted). We hold that in the present case the state must come forward at an evidentiary hearing with the facts available to it concerning the circumstances of Ruscue’s nonappearance at trial. It is not only fair but common sense as well that the state should be required to reveal to the court what it knows. In the performance of its investigatorial and prosecutorial functions it is more likely to have accumulated information concerning Ruscue’s knowledge of the crime and her availability as a witness at trial. The petitioner, incarcerated 2,000 or more miles away (and repeatedly demanding trial), is not nearly so likely to possess relevant information. But we hold that to the extent that he does have information, he too must be required to show his hand at an evidentiary hearing.

In a case in which the delay in trial was much longer this Circuit has suggested in dictum that a presumption of prejudice may arise. See Hoskins v. Wainwright, 485 F.2d 1186, 1193 n. 9 (CA5 1973). There may be circumstances under which the Hoskins concept should be applied to allegations of impairment caused by missing witnesses. But we think the concept is not applicable where, as here, the defendant’s claim is, pure and simple, that an important witness was absent at the delayed trial, the absence is unexplained, the content of the witness’s testimony is unknown, and there exists a possibility, but only a possibility, that the testimony might have been favorable to the accused.

There is no merit to appellant’s second point, which is that he was denied counsel of his choice at his merits trial. On that issue the decision of the District Court was correct.

Affirmed in part, reversed in part and remanded for an evidentiary hearing.

      . The District Judge, with care and precision, examined the factors laid down by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and concluded that the delay was attributable to the state. He examined the elements of prejudice and eliminated all except possible impairment of the defense.

      . In United States v. Burnett, 476 F.2d 726 (CA5 1973), defendant, in a direct appeal from, a conviction for draft evasion, contended that during a 30 months delay in trial the government destroyed records that “could have been relevant” in his defense. We reversed and remanded on other grounds but stated:
      “We are unable to determine from the record on this appeal what degree of prejudice, if any, Burnett may have suffered from the destruction and intimate no ruling on the merits of this point. However, if Burnett chooses to pursue this issue on remand, the district court is directed to examine this contention, and determine just what records were destroyed and whether their destruction prejudiced Burnett in his defense. If prejudice is found the teaching of Barker [407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101] and Dyson [5th Cir. 469 F.2d 735] would mandate dismissal.”
      Id. at 729-730.

      . Placing the burden of persuasion upon the prosecution in all cases in which the prejudice allegedly caused by trial delay takes the form of missing witnesses, would erode the requirement that the defense have been impaired and would force the state to produce at trial unnecessary witnesses.


author: JAMESON, District Judge: EUGENE A. WRIGHT, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mark Craig ZANNINI, Defendant-Appellant.
    No. 73-2358.
    United States Court of Appeals, Ninth Circuit.
    Jan. 25, 1974.

      Jerome Fishkin (argued), San Francisco, Cal., for defendant-appellant.
    James R. Browning, Jr., U. S. Atty., Chester G. Moore III, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.
   OPINION

Before ELY and WRIGHT, Circuit Judges, and JAMESON, District Judge.

JAMESON, District Judge:

Appellant was convicted in a jury-waived trial of refusal to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a).

Appellant registered for the draft on November 15, 1966. He received a pre-induction physical on February 9, 1968 and was found acceptable for induction. He was last classified 1-A on June 17, 1970 and did not appeal this classification. On September 11, 1970 appellant was ordered to report for induction on September 23, 1970. He failed to report. On January 22, 1971 he was handed a “continuing duty” order to report on February 1, 1971. Again he failed to report. A third induction order was mailed to appellant on October 13, 1971, with a reporting date of November 16, 1971.

On November 15, 1971 appellant completed and signed a “Statement of Personal History”, in which he answered in the affirmative the following questions:

“Do you have a history of mental or nervous disorders?
“Are you now or have you ever been addicted to the use of habit forming drugs such as narcotics or barbiturates ?”

In explanation of his answer appellant stated:

“I’ve had depressions and intense feelings of insecurity for most of my life. They have kept me from functioning to the full extent of my mental and physical potentials. In the last couple of years I have used barbiturates to ease these feelings, although they have not helped my ability to function (that is — pursue my talents or, earn my living). Dr. Rei-der advised me to enter therapy at Mt. Zion Hospital, but I declined believing that it would not relieve my anxiety and depressions.”

Appellant reported to the Armed Forces Entrance and Examining Station (AFEES) on November 16, 1971. In his “Report of Medical History”, completed as a part of his medical examination, appellant checked in the affirmative the items “Depression or excessive worry” and “Nervous trouble of any sort”. In response to the question “Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years for other than minor illnesses?” appellant answered: “Consulted Dr. Norman Rei-der for advice on severe depressions.”

Appellant presented to the AFEES examining physician, Dr. N. J. Hawthorne, a letter dated May 21, 1971 from Dr. Norman Reider, a psychiatrist. This letter, which was not presented to appellant’s local board, recites that appellant “came to see” Dr. Reider on April 8, 1971 “for a psychiatric evaluation in regard to his draft status”. Dr. Reider’s report of his examination reads:

“Examination shows that since childhood he has been in a chronic neurotic depression. He has been withdrawn, sleeps a lot, can’t get along with other people. Three years ago the loss of a girl-friend deepened his apathetic depression. Since he needs to be left alone and cannot stand authority, he could not stand the idea of the Army and, with an apathetic attitude, therefore refused to report for induction.
“Part of his depression manifests itself in his mental block on doing things. In the past, if he didn’t feel like going to school, he wouldn’t and then one day of absence would stretch into a week. He had considered the need for psychiatric help, but in typical depressive attitude, he didn’t think he’d get anything out of it. He obsesses over decisions and can’t make up his mind to do anything. When asked if he considered himself a CO, he replied that he didn’t believe in anything. Therefore he couldn’t consider himself anything. “Impression: Depressive Neurosis, chronic, severe, with schizophrenic features.
“I believe that Zannini is unsuitable for service in the Army, and has always been. He should be disqualified under AR 40-501. I further believe that an adequate psychiatric examination at the time of his physical would have revealed his unsuitability.”

In his “Report of Medical Examination” Dr. Hawthorne made this notation: “Letter 21 May 71 noted draft eval. only no other NP Rx” — an abbreviation for “draft evaluation only, no other neuro-psychiatric treatment”. In a space for the physician’s summary on the “Report of Medical History” Dr. Hawthorne wrote, inter alia, “depression /see letter/ N C D [not considered disqualifying] ”. The report of the examining physician was reviewed and approved by the medical officer.

After being processed for induction on November 16 appellant “was determined fully qualified for induction in all respects”. He refused to submit to induction.

Appellant testified at the trial that Dr. Hawthorne asked him whether he had ever been hospitalized or treated but asked no further questions regarding the letter from Dr. Reider. Appellant' stated on cross-examination that he had never undergone any psychiatric treatment following his examination by Dr. Reider. It was stipulated at the trial that appellant did not receive a psychiatric examination at AFEES and that his local board did not consider Dr. Reider’s letter in the classification process.

Appellant makes two related contentions: (1) that he “was medically unqualified for induction into the armed forces”; and (2) that “AFEES failed to evaluate [his] psychiatric claim properly”.

At the outset we recognize that “Absent some highly unusual circumstance, the courts are not permitted to inquire into [a] registrant’s physical fitness” and that “Ordinarily, the question of whether a registrant is mentally fit for the Army is a question for the military and the courts will not interfere.” United States v. Sowul, 447 F.2d 1103, 1105 (9 Cir. 1971), cert, denied, 404 U.S. 1023, 92 S.Ct. 698, 30 L.Ed.2d 672 (1972). The scope of judicial review “is the narrowest known to the law. * * * AFEES determines the medical acceptability of a registrant * * * and federal courts must be particularly cautious in reviewing basis in fact questions of a medical nature.” United States v. Wilson, 478 F.2d 475, 477 (9 Cir. 1973). On the other hand, “if the record indicates arbitrary action by AFEES or a deficiency in prescribed procedures that results in prejudice to the registrant, this court can take corrective action.” Id.

With these principles in mind we turn to the applicable regulations. Army Regulation 40-501, Section XVI reads in pertinent part:

“2-33. Psychoneuroses
“The causes for rejection for appointment, enlistment, and induction are—
“a. History of a psychoneurotic reaction which caused — •
“(1) Hospitalization.
“(2) Prolonged care by a physician.
“(3) Loss of time from normal pursuits for repeated periods even if of brief duration, or
“(4) Symptoms or behavior of a repeated nature which impaired school or work efficiency.
“6. History of a brief psychoneu-rotic reaction or nervous disturbance within the preceding 12 months which was sufficiently severe to require medical attention or absence from work or school for a brief period (maximum of 7 days).”

Army Regulation 601-270-4-20-h-(l) provides in pertinent part:

“(b) Psychiatric evaluation. A specific psychiatric evaluation will be made by the Chief, Medical Examining Section, whenever the examining physician has reason to question the examinee’s emotional, social, or intellectual adequacy for military service. Such examinees may be referred to a psychiatrist when the services of such a specialist are available within a a period of 2 days. When the services of a psychiatrist cannot be made available within 2 days, or when such referral is not deemed necessary, the medical officer will make the final psychiatric evaluation * *

Appellant argues that he presented a prima facie case for disqualification under subsections a(3), (4) and (b) of the regulation relating to “Psychoneuroses” and that this compelled a psychiatric evaluation. The Government argues, and the district court held, that the evaluation was discretionary, and that this discretion was properly exercised when the examining physician found “that Dr. Reider’s letter did not establish a psy-choneurotic disqualification”.

It is of course clear that a psychiatric evaluation is not required of every draft registrant; nor would the registrant’s request and his affirmative answers to the questions relating to depression and nervous disorders in themselves require a specific psychiatric evaluation. We have before us the narrower question of whether the evaluation was required by reason of Dr. Reider’s letter.

Dr. Reider, a psychiatrist, made a diagnosis of “Depressive Neurosis, chronic, severe, with schizophrenic features”. He believed appellant was “unsuitable for service in the Army” and that, “He should be disqualified under AR 40-501”. It is clear that Dr. Reider was familiar with the applicable regulation and expressed a positive opinion that appellant should be disqualified under that regulation.

The Army Regulation requires a specific psychiatric evaluation whenever the examining physician has “reason to question” an examinee’s emotional adequacy for military service. The natural import of the phrase “reason to question” does not suggest that an ex-aminee must establish a psychiatric disqualification before being granted a psychiatric evaluation. The Regulation itself implies that the purpose of granting an evaluation is to determine whether a psychiatric disqualification is justified. If an examinee is required to establish a disqualification before being granted an evaluation there would be no need for the evaluation. We hold that the requisite “reason to question” is supplied when an examinee presents a prima facie case, that is, facts which, if true, would justify the grant of a psychiatric disqualification. See United States v. Allen, 459 F.2d 563, 565 (9 Cir. 1972). Thus, the critical issue is whether appellant presented a prima facie case for psychiatric disqualification.

In arguing that the Reider letter did not afford a basis for a prima facie claim of psychiatric disqualification, the Government relies on our decision in United States v. Thrower, 483 F.2d 283 (9 Cir. 1973), where the court had under consideration a comparable letter from a psychiatrist consulted by the registrant. Thrower, however, is distinguishable. Thrower had been granted a neuro-psy-chiatric examination by AFEES. The issue in Thrower was not, as here, whether the psychiatrist’s letter presented a prima facie case for psychiatric disqualification, requiring a specific psychiatric evaluation, but whether the letter “constituted new information and required a review of that letter by the local board”. 483 F.2d at 284. Thrower simply held that all of the defects alleged in the psychiatrist’s letter “had been considered and evaluated previously”, and that “It cannot then be said, that the doctor’s letter constitutes new information such as to bring it within the applicable Army Regulations so as to have made a prima facie case requiring the board to reopen his classification.” 483 F.2d at 285.

We conclude that appellant made a prima facie case for psychiatric disqualification under Army Regulation 40-501, supra, and that this required a specific psychiatric evaluation. As in Wilson, supra, 478 F.2d at 478, we do not decide whether appellant is “medically disqualified from the military service”. We simply hold that he made a prima facie case for a specific psychiatric evaluation, and that the failure to provide for that evaluation in compliance with Army Regulations requires reversal.

Reversed.

EUGENE A. WRIGHT, Circuit Judge

(dissenting):

I dissent. I am not convinced that Dr. Reider’s letter presents a prima fa-cie case for the grant of a psychiatric disqualification, and I would yield to the AFEES examining physician’s determination that it did not.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

      . Appellant’s Selective Service file contains a “Report of Information” signed by appellant on September 1, 1971 at a “personal visit” reading, “Was contacted by Mr. Walters of F.B.I. concerning failure to report for induction September 23, 1970. Would like to submit to induction physical examination”.

      . Appellant had cheeked both of these in the negative in his Report of Medical History at the time of his pre-induction physical on February 9, 1968.

      . As shown by his medical history appellant’s one consultation with Dr. Reider was the only time he had consulted a physician or other practitioner within five years of his examination on November 16, 1971. In his medical history on February 8, 1968 the only reference to consultation or treatment within five years of that date was a statement that he had seen a physician “about numbness in legs”.

        . There is nothing in the record to suggest that the Army questioned Dr. Reider’s quali- . fications as a psychiatrist or the objectivity of his findings and conclusions.

      . The determination of whether appellant has presented a prima facie case is a proper matter for judicial inquiry. The district court concluded that such an inquiry is justified only in cases of “unusual circumstances”, relying upon our decisions in United States v. Sowul, supra, and United States v. Shunk, 438 F.2d 1204 (9 Cir. 1971), holding that absent unusual circumstances a court is not permitted to inquire into a registrant’s medical fitness. Here, however, the issue is not whether appellant is medically fit for induction, but whether AFEES followed prescribed procedures in processing appellant’s claim for psychiatric disqualification. See Wilson, supra, 478 F.2d at 477 and Shunk, supra, 438 F.2d at 1204, which hold that whether there is “a deficiency in prescribed procedures” is subject to judicial inquiry. See also Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970) and United States v. Allen, supra, which hold that the question of whether a registrant has presented his local board with a prima facie case for reclassification is subject to judicial review.

      . In Thrower the registrant had been examined on April 23, 1969. 1-Ie complained of “various ailments”, including depression and nervous trouble, a drug habit, and homosexual tendencies, but did not submit a letter or other supporting evidence. He submitted the letter to his board on May 5. It was referred to AFEES, which then requested that the registrant be directed to return for a psychiatric consultation, when he was found acceptable for induction. When he reported for induction in December, 1969 his papers, including the letter, “were reviewed by AFEES and neuro-psychiatric examination * * * was administered”. 483 F.2d at 284.

      . The court found that none of the doctor’s findings was “at variance with, nor in addition to, the findings with regard to [his initial] preindu'ction physical”. 483 F.2d at 285.


author: PER CURIAM:

text:
    Daniel W. WILLIAMS, Appellant, v. The HYDE COUNTY BOARD OF EDUCATION, a public body corporate of Hyde County, North Carolina and Richard O. Singletary, Superintendent of the Hyde County Board of Education Public Schools, Appellees.
    No. 73-1863.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1973.
    Decided Jan. 28, 1974.
    Charles L. Becton, Charlotte (J. Le-Vonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, on brief), for appellant.
    Edward N. Rodman, Washington, N. C. (Rodman, Rodman & Archie, Washington, N. C., on brief), for appellees.
    Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and FIELD, Circuit Judge.
   PER CURIAM:

Summary judgment went for the School Board in this action by a nontenured high school teacher whose contract was not renewed for the 1971-72 school year. He is a black male, and he alleged that the nonrenewal of his contract was because of his race. He further claims that he was entitled to an adversary hearing before the School Board on the Board’s decision of whether or not his contract should be renewed.

On appeal, he contends there was a material issue of fact stemming from his claim that his race was, at least, one of the motivating reasons for his release. He founds his claim upon his bare assertion that his race was the reason for his release, his testimony that he had been told by the school superintendent that the superintendent would get rid of him because of his involvement with the black teachers association and because of his claim that the adverse information accumulated in his personnel file was false and a pretext for his termination.

The depositions of most of the potential witnesses were taken. Though summary judgment was entered, it is apparent on the record now what much of the testimony would be if there were a trial on the merits. There are disputes about some of the adverse information in the file. He was tardy in the submission of certain reports, for instance, and he and the school principal are diametrically in disagreement as to whether or not he had the prior permission of the principal to be late. There are, however, uncon-troverted facts which negate the substance of the plaintiff’s claim.

On this record it is uncontroverted that at the end of the preceding school year, in the late spring of 1971, the black principal of his school recommended that the plaintiff’s contract be not renewed. Nevertheless, the School Board did renew his contract, but it wrote him a special letter stating that his re-employment was conditioned upon his elevating his performance in certain designated areas. The letter was a clear warning of probationary status.

The plaintiff began the next school year, 1970-71, by not showing up. When he did come in, he explained that he had not received the letter informing him of the date of the school opening, but the letter had not been received by him because he was not at his regular address to receive it and he had made no inquiry about the school opening date.

Later in the year, in the presence of his class, he applied a cane to the backside of nine of his pupils, two of whom were girls. The school principal promptly investigated the incident. The plaintiff denies that he lifted the skirts of the girls when administering corporal punishment- to them, and he denies that the pupils told the principal that he was lying when he denied that he had lifted the skirts of the girls, but there is no denial of all of the other essential facts of the incident.

The spanking incident was investigated by the Advisory Council to the» School Board. The Council is biracial and the investigators were three white adults and two black adults. At the conclusion of their investigation, they sent a letter to the plaintiff reprimanding him for what he had done.

In the Spring of 1971, the Advisory Council recommended to the School Board that it not renew the plaintiff’s contract. Two of the four members of the Council who made the recommendation were white and two were black. The testimony in the record shows that such recommendations from the Advisory Council carry great weight with the School Board and usually are routinely accepted.

We need not pause to state the deficiencies suggested by the Council members, for to some extent, at least, they are denied by the plaintiff. The Council receives reports from pupils and parents, and others, and is charged with a duty of teacher appraisal.

This is not a case of the discharge of a black teacher by an all-white school board. Nor is it one of a series of discharges of black school teachers, for this is the only black teacher leaving the school system in recent years, except by the teacher’s own volition. The initial recommendation that the plaintiff should not be retained as a teacher came from a black principal, and the effective Council recommendation in 1971 came from a group in which blacks were equal participants with whites. Moreover, as stated above, there is enough uncontroverted record of deficiencies on the plaintiff’s part to foreclose his claim that the stated reasons for his release were pretexts.

Under the circumstances, we are left simply with the plaintiff's bare assertion that he was discharged because of his race, which he can support only by his claim that the superintendent told him he would be let go because of his association with the black teachers association. The superintendent denied making any such statement, of course, and the other uncontroverted facts make it simply unbelievable. Other members of the black teachers association were not being discharged or threatened with being discharged, and when the recommendations that the plaintiff be not retained were coming from his black principal and the biracial Advisory Council, the plaintiff’s claim that his discharge was procured by his superintendent because of the plaintiff’s association with the black teachers association is simply incredible.

This court has had cases in which there was an appearance of discrimination against black teachers. In those cases we have not hesitated to give them judicial protection. North Carolina Teachers Association v. Asheboro City Board of Education (4 Cir., en banc) 393 F.2d 736; Chambers v. Hendersonville City Board of Education (4 Cir., en banc) 364 F.2d 189. This, however, is not such a case.

Since there was no credible issue of material fact, we conclude that the District Court properly entered summary judgment for the School Board.

After receipt of the recommendation of the Advisory Council, the School Board notified the plaintiff and gave him an opportunity to appear. He appeared, but declined to make any meaningful statement because he contended he was entitled to an adversary hearing. He contends here that he was entitled to such a hearing. We think not, for he did not have tenure, nor any “equivalent of tenure,” Johnson v. Fraley (4 Cir.) 470 F.2d 179, 181. When challenged in this action, the School Board has come forward with reasons for what it did, but at the public hearing to which the plaintiff was invited, there were no accusations against him. He was not discharged, and the letter informing him that his contract would not be renewed contains no derogatory information about him. What derogatory information there is in his personnel file is confidential and not available to prospective employers.

Under these circumstances the plaintiff is not entitled to a full due process hearing before the School Board. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570.

Affirmed.


author: FRIENDLY, Circuit Judge:

text:
    EAST HAMPTON DEWITT CORPORATION and General Accident Fire & Life Assurance Corporation, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY a/k/a State Farm Insurance Companies, Defendant-Appellee-Appellant. WARNER NATIONAL, INC., and Utica Mutual Insurance Company, Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY a/k/a State Farm Insurance Companies, Defendant-Appellant. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. Maurice L. ROSEN et al., Third-Party Defendants-Appellees. STATE FARM INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. EAST HAMPTON DEWITT CORPORATION et al., Third-Party Defendants-Appellees.
    Nos. 70-74, Dockets 73-1202, 73-1203, 73-1438, 73-1439, 73-1593.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 9, 1973.
    Decided Dec. 28, 1973.

      William S. Andrews, Syracuse, N. Y. (Bogart & Andrews, Syracuse, N. Y. of counsel), for plaintiffs-appellants.
    John C. Setright, Syracuse, N. Y. (Jerrold P. O’Brien, and Oot, Greene, Set-right, Hershdorfer & Sharpe, Syracuse, N. Y., of counsel), for defendant-appel-lee-appellant.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   FRIENDLY, Circuit Judge:

We owe these appeals, raising difficult issues of New York tort law for which no precise New York precedents have been cited, to the circumstance that defendant State Farm Insurance Companies (State Farm) is an Illinois corporation having its principal place of business in that state, whereas the plaintiffs East Hampton Dewitt Corporation (East Hampton) and Warner National, Inc. (Warner) are New York corporations with their principal offices in Syracuse. The trial alone consumed 16 days of the time of this undermanned district court, heavily pressed with state prisoner petitions under 28 U.S.C. §§ 1343(3) and 2254. There was, of course, never the slightest reason to think that these Syracuse-based plaintiffs could not have obtained full justice from the Supreme Court of New York for Onondaga County and on appeal to the Appellate Division and, if need be, to the New York Court of Appeals, respected appellate tribunals with a knowledge of and authority to declare New York law beyond anything that we possess. However, the case is here, and we must deal with it as best we can.

I.

East Hampton is the owner and managing agent of the Romax Office Building in Syracuse, which was erected in 1956 and 1957 by Rosen-Klein Construction, Inc. Maurice Rosen was president of both companies and, although plaintiffs now slightly dispute this, admitted to having had general supervision of the construction. In 1968 East Hampton leased a suite on the third floor of the building to State Farm.

s In the morning of February 27, 1969, a fire started in a small interior room, known as the “recorder room,” of State Farm’s suite. At the start it was not regarded as serious, and State Farm employees tried to fight it by filling wastebaskets with water and then by means of fire extinguishers. By 11 A.M. smoke was coming out one of the corridor doors of the main office, into which the recorder room opened. No alarm was given until 11:18 A.M., at least 18 minutes after the fire was discovered. When the engines promptly arrived, the firemen found smoke pushing from the outside windows of State Farm’s office; flames were mixed in with the smoke within the recorder room and at the door of that room, and possibly to some extent in the main office as well. Ultimately the fire spread throughout the third and fourth floors, on the latter of which Warner’s office was located, and there was water and other damage elsewhere. It is not disputed that total damage to East Hampton alone, including loss of rentals during repairs, was in the general range of $820,000.

Actions were brought against State Farm by East Hampton and Warner, each joined by its partially subrogated insurer. The claim was that State Farm had been negligent both in allowing the fire to start and in failing to turn in an alarm earlier, which, as plaintiff contended, would have permitted the fire to be contained in State Farm’s own suite. State Farm denied negligence and took the positions (1) that it was insulated from any liability to East Hampton by a clause in its lease, and (2) that the spread of the fire was due to faulty construction of the building; it claimed that but for such construction the fire, even after the delay in reporting it, would not have spread beyond the recorder room and certainly would not have extended so far as it did.

The two actions were tried together, which was a good idea, and the trial was bifurcated, which in this case may not have been. In theory the first trial was to be on liability and the second on damages. However, the first trial could more accurately be described as having been on State Farm’s negligence and the causal relation of this, standing alone, to “the spread of the fire.” For that reason the judge, over State Farm’s objection, refused to allow the introduction of evidence of faulty construction at that time; he had previously dismissed as insufficient in law State Farm’s defense based on the language of its lease. He submitted to the jury the two theories of State Farm’s negligence and the issue of proximate causation. The jury found for State Farm with respect to negligence in allowing the fire to start, and against it on negligence in delaying the alarm and on the proximate causation of the “spread of the fire” by this. With two exceptions, see note 1 infra, which have not been seriously pressed, State Farm has not contested these findings, although it continues to insist, with its eye on a possible new trial, that the question of how the fire “spread” in any actionable sense could not legitimately be submitted until the evidence on contributory negligence was in. In the second phase of the trial the judge, this time over East Hampton’s objection, admitted evidence of faulty construction of the building on the theory that the jury could properly take this into account by way of “mitigation” of damages. The' jury returned a verdict in favor of Warner in the sum of $25,000, very nearly the sum demanded and about whose amount no one complains, and in favor of East Hampton in the sum of $120,000, a figure whose derivation is inscrutable.

In simplified form the positions on appeal are about as follows: East Hampton claims that it is entitled to damages of $820,000 or thereabouts; that we should order the district court to enter such a judgment in its favor notwithstanding the verdict; or failing this, that there should be a new trial solely on the issue of damages from which considerations of any negligence in construction should be excluded. State Farm is willing to have us leave things as they are, indeed urges us to do so, except that it would like some way to make East Hampton contribute to the payment to Warner. However, if East Hampton wants to fight, State Farm will join in the fray. It says that judgment for $820,000 notwithstanding the verdict cannot possibly be awarded since the jury’s finding of liability on the part of State Farm was made in the absence of the evidence on faulty construction. It says further and for similar reasons that if we yield to East Hampton’s demand for a new trial, such a trial must cover both liability and damages, with evidence of negligent construction to be admitted in the liability phase. Alternatively, and still only if we are favorably impressed with East Hampton’s claims, State Farm urges us to reverse Judge Port’s dismissal of its defense based on the language of its lease. In view of our disposition of East Hampton’s claims, we shall not have to reach any of these issues. There are also some peripheral questions about the court’s denying two applications of State Farm to serve a third party complaint under F.R.Civ.P. 14; we will deal with these in the final section of this opinion.

II.

East Hampton devotes some effort to •a semantic battle. It says in effect that the second phase of the trial was to be devoted solely to damages, and it was improper for the judge to allow, on a theory of “mitigation,” the introduction of evidence of conditions that had long existed, about which East Hampton could do nothing after the fire started, and which are not claimed to have diminished the value of the building. We may grant the correctness of this as an abstract proposition, without accepting the conclusion East Hampton would have us draw from it. As already noted, despite confusing verbiage about “liability” and “damages”, what the judge did in effect was to deal in the first phase of the trial solely with State Farm’s negligence and its causal relation to “the spread of the fire,” reserving the claim of faulty construction for the second phase. If the jury had found no negligence by State Farm, or lack of proximate cause of the spread of the fire from State Farm’s negligence, that would have ended the case; if it found negligence and initial causation, the trial could go on to the second phase where all other issues would be considered. No contention is or could be made that admission of evidence of faulty construction occasioned unfair surprise. If, as a matter of law, there was an issue in regard to East Hampton’s contributory negligence and this was properly put to the jury in the second phase of the trial, we will not reverse simply because of a misnomer.

A contention of East Hampton requiring much more consideration is that the concept of contributory negligence simply had no place in a case like this. Here East Hampton relies on three lines of New York decisions — cases holding that where a railroad engine starts a fire on plaintiff’s premises, it is of no consequence that the plaintiff had inflammable material near the tracks; personal injury cases holding that a defendant takes the plaintiff “as he finds him” and cannot avoid or reduce liability because an ordinary plaintiff would not have been injured or injured so much; and cases upholding the insulating effect of an “intervening cause”.

Before discussing these cases, it will be useful to state what our view would be if New York precedents do not compel us to take a different one. We have here a rather special problem in the area of contributory negligence; in fact it might be better to phrase the question in terms of a plaintiff’s right to recover for consequences which would not have occurred but for his fault. It is common ground that a plaintiff cannot recover for such consequences if the fault occurs after the accident. Here, for example, if the fire had started at night as a result of a State Farm employee’s having negligently left a burning cigarette in a wastebasket and a watchman employed by East Hampton had seen the fire but failed to turn in an alarm, it is plain that plaintiff could not recover for damages that a prompt alarm would have prevented. 2 Harper & James, Torts § 22.10 at 1231-32 (1956); Restatement of Torts 2d § 918(1) (Tent. Draft No. 19, 1973). This principle has been long ac-cep ted in New York. Indeed, one of the classic formulations is Chief Judge His-coek’s statement in Den Norske Amerie-kalinje Actiesselskabet v. Sun Printing & Publishing Ass’n, 226 N.Y. 1, 7, 122 N.E. 463, 465 (1919) :

The rule is of general and widespread application that one who has been injured either in his person or his property by the wrongful act or default of another is under an obligatory duty to make a reasonable effort to minimize the damages liable to result from such injury, and that if he does not make such reasonable effort he will be debarred from recovering for those additional damages which result from such failure.

The social policy behind this is evident. Whatever considerations justify imposition of liability for harm negligently caused by a defendant, these do not extend to damages the plaintiff could reasonably have avoided. A rule denying compensation for such damages supposedly promotes careful conduct by plaintiffs just as the imposition of liability for consequences unavoidable by plaintiffs supposedly promotes such conduct by defendants. From the standpoint of risk sharing, plaintiffs, at least in a situation such as that hypothesized, can insure against loss from their own negligence as well as can defendants.

We see no reason why the same policy considerations should not apply, at least as a general matter, where the plaintiff’s failure to take reasonable precautions against the aggravation of negligent damage fairly to be anticipated occurs before the defendant’s negligent act, although a variant of the last clear chance doctrine may then rescue plaintiff in a proper case, and the standard of what constitutes reasonable action by plaintiff may be more difficult to apply and the apportionment of the total damage between that which such action would and would not have avoided may be harder to effectuate. The principle that no social end is served by mulcting a defendant for damage a plaintiff could reasonably have prevented is equally applicable. Although admittedly with some restriction where evidence on which to base apportionment is lacking, on which see Section IV infra, this is the view of the Restatement of Torts 2d § 465 at 511 and Illustration 1, and of the leading texts. 2 Harper & James, Torts, supra, § 22.10 at 1233-34; Prosser, Torts § 65 at 423-24 (4th ed. 1971). Against this stands the much debated decision, heavily relied on by East Hampton, in Mahoney v. Beatman, 110 Conn. 184, 147 A. 762 (1929), that the excessive speed at which a plaintiff was driving should not be taken into account although this greatly aggravated the damage, and the later consistent decisions in Guile v. Greenberg, 192 Minn. 548, 257 N.W. 649, 650-651 (1934), and Hamilton v. Boyd, 218 Iowa 885, 256 N.W. 290, 291-292 (1934). However, other state eases had earlier reached contrary conclusions, see Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, 214-215 (1866), and O’Keefe v. Kansas City Western Ry., 87 Kan. 322, 124 P. 416 (1912), and still other decisions, involving a plaintiff’s failure to have his seat belt fastened, are inconsistent with Ma-honey. See Barry v. Coca Cola Co., 99 N.J.Super. 270, 239 A.2d 273 (1967) (but refusing to allow speculative apportionment between unavoidable and avoidable damage), and other cases cited in Prosser, supra, at 424 n. 75. Justice Maltbie’s dissent in Mahoney appears much more sensible to us than the majority opinion, which is heavily larded with the opaque adjectives about causation characteristic of the time. Two eminent Connecticut scholars have described Mahoney as “quite inconsistent with the other Connecticut cases and the reasoning which generally prevails in this country today,” 2 Harper & James, Torts, supra, § 22.10 at 1233. Finally, the Restatement of Torts 2d § 465 Illustration 1, supra, takes the very facts of Mahoney and reaches Justice Maltbie’s conclusion, see also Appendix at 295. In the absence of New York authority dictating a contrary view, we would therefore predict that the New York Court of Appeals would reject Mahoney and follow Justice Maltbie’s dissent.

It is from this background that we approach East Hampton’s contention that New York cases do require a contrary prediction. The two railroad fire cases cited, Fero v. Buffalo & State Line R.R., 22 N.Y. 209, 215 (1860), and Kalbfleisch v. Long Island R.R., 102 N.Y. 520 (1886), do not bear the weight East Hampton places upon them. In holding that an adjacent landowner’s recovery was not affected, or at least need not be affected as a matter of law, by his placing inflammable materials near the tracks, the courts were giving effect not merely to some hostility to railroads but also to the principle, later stated in LeRoy Fibre Co. v. Chicago, M. & St. P. Ry., 232 U.S. 340, 349, 34 S.Ct. 415, 417, 58 L.Ed. 631 (1914): “That one’s uses of his property may be subject to the servitude of the wrongful use by another of his property seems an anomaly.” See Prosser, Torts, swpra, § 65 at 425. State Farm is not seeking to impose a “servitude” on East Hampton’s property; it is saying that if East Hampton failed to comply with standards laid down in the Syracuse Building Code, or inherent in the concept of reasonable care, for the protection of tenants, other persons in the building, the public and itself, it cannot recover damages due to such noncompliance.

The personal injury eases, typified by the well-known decision in McCahill v. New York Transp. Co., 201 N.Y. 221, 94 N.E. 616 (1911), likewise do not sufficiently advance East Hampton’s cause. While that case held a negligent defendant liable for the death of an injured plaintiff who developed delirium tre-mens which would not have occurred “except for the pre-existing alcoholic condition of the intestate,” 201 N.Y. at 223, 94 N.E. at 617, there was no suggestion that the decedent had been at fault; indeed, the concurring opinion indicates that McCahill was a rather moderate drinker. 201 N.Y. at 226, 94 N.E. at 618 (Vann, J.). Courts are understandably reluctant to review a plaintiff’s life history and hold him guilty of contributory fault because of some previous overindulgence in a habit common to many which adds to the joy of life although at some risk to longevity. See also Nichols v. Colonial Beacon Oil Co., 284 App.Div. 581, 132 N.Y.S.2d 72 (3d Dep’t 1954). East Hampton has cited no New York case contrary to O’Keefe v. Kansas City Western Ry., supra, 87 Kan. 322, 124 P. 416, where plaintiff was intoxicated at the time of defendant’s wrongful act and the harm caused by the defendant might have been minimized had he been sober at that time. Contrast Dunham v. Village of Canisteo, 303 N.Y. 498, 104 N.E.2d 872 (1952) (evidence existed that deceased was intoxicated at time of a prior injury which defendant’s wrongful act then aggravated). Intoxication by the plaintiff having a causal relation to the accident is a classical case of contributory negligence, Woods v. Board of Comm’rs, 128 Ind. 289, 27 N.E. 611 (1891); cf. Packard v. Quesnel, 112 Vt. 175, 182, 22 A.2d 164, 167 (1941); but contrast Prosser, Torts, supra, § 32 at 154, and we see no reason for a different rule when it enhances the damages, e. g., if, after an automobile was disabled by an accident caused by defendant’s negligence, an intoxicated occupant was injured from having weaved across the road rather than walking along the side.

We find even less force in East Hampton’s argument about “intervening cause.” This rests heavily on the Ma-honey case, already discussed. While it is doubtless impossible to reconcile all the New York cases, it is now widely recognized that not every new force insulates a negligent defendant from liability or a plaintiff guilty of contributory fault from the consequences. The principle is limited to “intervening causes which could not reasonably be foreseen, and which are no normal part of the risk created.” Prosser, Torts, supra, § 44 at 281. Under the Restatement of Torts 2d §§ 440-53, only certain intervening forces constitute a “superseding cause” so as to relieve from liability. One principle of particular relevance here, is enunciated in § 442B:

Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.

The very purpose of the substantive provisions of the Building Code here in question was to prevent the spread of fire; it is inconceivable that if the building was faultily constructed and someone on the fourth floor had been killed by the fire, East Hampton could have escaped liability because of the “intervention” of the fire — the very hazard at which the regulations were aimed. We perceive no reason for a different result when the issue is how far East Hampton’s contributory culpability should decrease its own recovery.

This being the law as we see it, we can find no fault of which plaintiff can complain in the manner in which the judge told the jury to handle the case if it found the plaintiff to have been negligent. He said that “if the damage would not have been avoided or minimized even if there was no negligence” by the plaintiff, that was the end of the matter. “However, if the absence of negligence on the part of the plaintiff would have avoided or minimized the damage, you may not make any award for such damages. In other words, whatever damages he brought about himself, you don’t award him money for.” This seems clear enough to us; if it was in any respect erroneous, which we doubt, the error would have favored plaintiff. In any event East Hampton’s only objection was “to any charging whatsoever on mitigation of damages.”

We therefore hold that the alleged faulty construction of the building was properly an issue and that there was no reversible error in the way in which the effect of any such construction on State Farm’s liability was submitted to the jury.

III.

We must next consider whether there was sufficient evidence that faulty construction had occurred and that the fire would not have spread nearly so far without it, and whether the judge instructed the jury properly on how to evaluate such evidence. The evidence with respect to faulty construction was exceedingly diffuse. Our understanding of it is as follows:

The general basis of State Farm’s claim of faulty construction was that the building lacked adequate fire stops to prevent either horizontal or vertical spread of fire. Each floor had a “false” ceiling, with a space, called the plenum, between it and the concrete floor above. Sheetroek partitions were carried only to the false ceiling and not through the plenum, which would have prevented or retarded lateral spread. Each of the four floors had its own furnace. There were holes in the concrete floor, covered by grates, and the cold air falling through them into the plenum was sucked through the plenum by fans into the furnaces. According to State Farm, this had the result that once fire entered the plenum, it would spread throughout the building.

There was also much evidence as to alleged departures from the Syracuse Building Code effective in 1956-57, a violation of relevant provisions of which would constitute evidence of negligent construction. The Code contained a provision that after floors were constructed, no opening greater than two square feet should be cut through them unless suitable metal framing or reinforcing was provided around the opening and that after pipes or conduits were in place, all openings around them should be filled in solidly with fireproof material unless approved, close-fitting individual sleeves were provided. East Hampton appears to be correct in contending that this provision was inapplicable, even if the cold air returns had been drilled after construction rather than created when the concrete was initially poured, since the holes were less than two square feet in area. Another provision of the Code, however, was important. This was that floors in certain buildings, apparently including the Romax Building, “shall have a fire resistance of two hours or more.” State Farm adduced evidence that the cold air returns prevented the concrete floors in the Romax Building from having a fire resistance of anything close to this duration. It adduced other evidence to show that, to compensate for this defect and provide substantial compliance with the Code requirement, the plans approved by the Department of Engineering of the City of Syracuse had called for %" gypsum fireboard to be attached to the top of the acoustical tile in the false ceiling; that the owner altered the plans to omit this; that, with the gypsum fireboard in place, the false ceiling would have had a fire rating of one hour- — an interval considerably longer than that between the onset of the fire and the arrival of the firemen after the delayed alarm; but that the fibre acoustical tile had no fire rating. Hence, State Farm argued, the omission of the gypsum behind the false ceiling, which took the building outside even substantial compliance with the Code requirement that the floor have two hour fire resistance, permitted the fire to enter the plenum, and thence to spread both vertically (through the cold air returns) and laterally (since the sheetrock partitions stopped at the false ceiling).

Somewhat apart from the alleged violation of the requirement that floors have a fire resistance of two hours, State Farm contended that the history just outlined demonstrated violation of another Code requirement, namely, that any desired changes in the plans or specifications bearing on Code provisions must be submitted for approval to the Superintendent of Buildings, having been signed by the architect or engineer in charge of the construction. No record of any such application for a modification in construction of the Romax Building could be found at the Department of Engineering — although it must be said that the records there for this period were “chaotic,” as the judge told the jury. State Farm therefore claimed that the omission of the .gypsum fire-board was made without approval of the Superintendent of Buildings; that in such an instance the very purpose of the filing and approval requirement is to prevent spread of fire; and thus that omission of the gypsum was evidence of negligence under the Code in a second way.

East Hampton suggested at trial and has suggested on appeal a long series of answers to all this, only the more serious of which we will be able to deal with here, and none of which we consider adequate reason to find prejudicial error in the judge’s charge or otherwise to set aside the verdict. First, it pointed out that it was not required to construct a building perfect by present standards but only one meeting standards recognized in 1956-57. The judge accepted this point and instructed the jury to that effect; evidence on the issue was conflicting — in large part, but not exclusively, because as we shall next see, there was sufficient evidence for the jury to find violations of the Code then in effect with ^ causal relation to most of the damage. We will not disturb the jury’s resolution of the question.

Second, with regard to Code violations themselves, plaintiff adduced considerable evidence that almost all buildings constructed fifteen or twenty years ago had holes in the floors, and it argues on appeal that the Code requirement of two hours’ fire resistance in floors must therefore have referred to the resistance of the material of which the floors were constructed but not to the floors inclusive of holes. It says we cannot read into the Code then in effect any requirement with respect to holes beyond the explicit one quoted earlier in this opinion, which the Romax Building did not violate. While the argument is not without force, the jury was entitled to find from (1) a Code requirement that the floor “have a fire resistance of two hours or more” and (2) testimony that the fire spread rapidly upward through the concrete floor — albeit via holes — that plaintiff was in violation of the Code. The judge correctly instructed the jury that a Code violation would be “some evidence of negligence.” East Hampton also claims that the state of the records of the Department of Engineering negates any inference that an approval of modified plans was never obtained. The judge warned the jury to be cautious in drawing any such inference, and plaintiff was entitled to no more.

Third, plaintiff claims there was insufficient evidence that any faulty construction caused even part of the damage, in the but-for sense required (correctly in our view, see note 2 supra) by Judge Port’s charge. In particular, plaintiff tried to show that the extent of the fire was due not to the defects alleged by State Farm but to the fire’s spreading through the door of State Farm’s suite and then being carried upward because of a common “curtain wall” construction, in which the innermost layer of the outer wall consists of aluminum which tends to buckle or distort out from the edge of the concrete floors in intense heat. There was also testimony, however, that the fire would never have reached the outer wall of the building if it had not passed into the plenum so that it could circumvent the sheetrock vertical partitions. Indeed, if the jury had found that construction flaws caused all the damage outside the recorder room in a but-for sense, there would have been testimony to support the finding. In light of this, and leaving aside for the moment the question whether the jury had any rational basis for the amount of its verdict, it follows a fortiori that there was evidence to support a finding that some $700,000 of damage, see note 7 infra, would not have occurred absent faulty construction. We note that plaintiff did not request any particular charge about the evidence on causation beyond the one given requiring but-for cause.

Finally, East Hampton argued that it was entitled in any event to rely on the architect and other experts it had employed and on the building’s having repeatedly passed city building inspections. We know of no principle that a building which has passed inspection is per se absolved from a claim of negligent construction, and plaintiff requested no particular charge on the weight to be given that fact. As to the remainder of plaintiff’s argument with respect to reliance on expertise, the judge once again accepted East Hampton’s view and charged, substantially as requested, that the company had “a right to rely on architects, engineers, furnace people, experts, within the area of their particular competence.” In consequence East Hampton can prevail on this issue only if it was entitled not simply to an appropriate charge but to a directed verdict. This is what East Hampton now seems to claim, citing Hardie v. Charles P. Boland Co., 205 N.Y. 336, 98 N.E. 661 (1912); Ryan v. Feeney & Sheehan Building Co., 239 N.Y. 43, 145 N.E. 321 (1924); and Person v. Cauldwell-Win-gate Co., 187 F.2d 832, 835 (2 Cir.), cert, denied, 341 U.S. 936, 71 S.Ct. 855, 95 L.Ed. 1364 (1951), for the proposition that an owner or contractor is justified in relying on the experience and skill of an architect except where, as said in Person, quoting Hardie, 205 N.Y. at 340, 98 N.E. at 663, plans are “so obviously defective that a contractor of average skill and ordinary prudence would not have attempted the construction according to the plan.”

One answer to this is that plaintiff’s motions for a directed verdict did not make this point with the specificity fairly to be required after such a long and confused trial. A less technical answer is that the reliance defense would have been inapplicable to what was probably State Farm’s most important contention, namely, the omission of the fire-resistant gypsum backing to the acoustical tile, allegedly a change in the architect’s plans initiated by the contractor. It would thus have been error to direct a verdict.

The judge might have done better to refrain from reading from the Building Code as extensively as he did, since, as he told the jury, some of the sections he had read had clearly not been violated. But counsel objected “to the submission of any sections in regard to the Building Code,” which plainly went too far, and did nothing to help the judge pick and choose among sections. We thus hold there were jury issues with respect to faulty construction and causation of most of the damage thereby, and no reversible error in the manner of submission.

IV.

This brings us to the most troubling aspect of the case, the lack of any mathematical basis in the record for the verdict of $120,000 in favor of East Hampton.

Apart from the evidence submitted by Warner in support of its $27,000 claim, all that the jury had before it was an estimate that the cost of repairing the recorder room was between $5,000 and $6,000 (of which plaintiff’s expert would substantiate only $1,000 as reasonable), that the cost of repairing State Farm’s suite was between $15,000 and $20,000 (of which plaintiff’s expert would substantiate only between $5,000 and $6,000), and that the cost of repairing the entire building, for loss of rentals, etc., was approximately $820,000 (of which plaintiff’s expert substantiated fully $663,000 as reasonable by a procedure which omitted certain significant, admittedly legitimate items of damage). The absence of any other figures doubtless reflected the trial strategies of the parties, with East Hampton insisting it was entitled to the total damages since it was not at fault or, even more important, since any prior fault on its part was irrelevant, and State Farm contending that if it was liable at all, despite the provision in the lease, this was at most for damage to its own suite since the fire would not have spread further if the building had been properly constructed.

While one can conjecture that the $120,000 verdict was a compromise or that the jury adopted a rule of comparative negligence which New York has not yet been wise enough to establish we prefer to think it followed the judge’s instructions and did the best it could with the meagre data the parties had furnished. In other words, it agreed with State Farm that the fire would not have spread so rapidly and widely if the building had been properly constructed but disagreed that the damage would have been contained quite so narrowly as State Farm had urged. The argument for setting the verdict aside, or for ruling that the jury should never have been allowed to attempt an allocation, really comes down to a claim that the damages were —or at least on the present record are —incapable of reasonable apportionment between the negligent plaintiff and the negligent defendant, and therefore if the defendant is responsible for some damage, it should be held for all. See Restatement of Torts 2d § 465, comment c. Despite the cross-reference in § 465 to the “rules” in § 433A, which deal primarily with the case of a non-negligent plaintiff against two or more negligent defendants and the case of a non-negligent plaintiff who suffers harm partly from the defendant’s negligence and partly from an innocent cause, and despite some mention of contributory negligence within § 433A, we are not at all sure the situations are parallel. Where both defendants are negligent and there is no ready basis for apportionment, it is better to allow the plaintiff a full recovery against either and, under the statutes now generally in effect, let the defendant so cast in damages fight the apportionment battle with the other. Again, when plaintiff’s injury is due in part to a defendant’s negligence and in part to an innocent cause and apportionment is so difficult as to entail serious risk of undercompensation, it is more just not to attempt it. But when both plaintiff and defendant have been negligent, even an unscientific apportionment is more likely to be just than none at all. See O’Keefe v. Kansas City Western Ry., supra, 87 Kan. 322, 124 P. 416. But cf. Barry v. Coca Cola Co., supra, 99 N.J.Super. 270, 239 A.2d 273 (1967). Indeed, it is not plain that § 465, comment c of the Restatement, by its invocation of § 433A, distinguishes clearly between those cases of jointly caused damage in which full liability should be imposed on defendant and those in which plaintiff should be altogether barred. Cf. § 433A, Illustration 17. A case where both plaintiff and defendant have been negligent bears a close resemblance to the situation of joint tort-feasors, and we find it not without significance that in the areas of contribution and indemnity, New York has recently departed from the former ritualistic distinction between “active” and “passive” negligence and has opted for a course that will necessarily call for apportionments between negligent defendants no more scientific than the jury made here. Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972).

It may well be that if East Hampton had not banked so heavily on getting a full recovery, a trial strategy we might well have followed had we been its counsel, it could have supplied intermediate figures that would have led to a higher award than the jury made. Having chosen to play for a 100% recovery, it cannot be heard to complain that, because of its failure to supply the jury with alternatives, it may have fared worse than it should. We are inevitably reminded of Judge Medina’s classic opinion in Achilles v. New England Tree Expert Co., 369 F.2d 72, 74 (2 Cir. 1966). This is a case of upstate New York justice, as that was of Vermont’s. Call the verdict what one will, “it does substantial justice and we will not disturb it.” Indeed we are not altogether sure we could. Cf. Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 484-485, 53 S.Ct. 252, 77 L.Ed. 439 (1933).

V.

In view of our disposition the only other matter requiring a ruling is State Farm’s appeals from the denials of two motions for leave to serve a third party summons and complaint under F.R.Civ. P. 14. Apparently resistance to these denials is the only real motive for State Farm’s appeal of the Warner verdict.

In the first motion, which was made shortly before the trial, State Farm sought to serve such a complaint on East Hampton with respect to any liability that might be imposed on State Farm with respect to Warner. In the second, filed long after the trial and, indeed, after the notices of appeal, it sought to serve not only East Hampton but also Rosen, M. L. Rosen Management Co., and Rosen-Klein Construction Co., Inc., with respect to the $25,000 liability to Warner which by then had been imposed on State Farm. It was urged that the situation had changed in view of the intervening decision in Dole v. Dow Chemical Co., supra, 30 N.Y.2d at 153, 331 N.Y.S.2d at 391-392, 282 N.E.2d at 295, holding that the “Right to apportionment of liability or to full indemnity, then, as among parties involved together in causing damage by negligence, should rest on relative responsibility and to be determined on the facts,” and repudiating the former “active-passive” negligence, test.

We see no reason to disturb the orders of the district judge. The court acted well within the discretion afforded by F.R.Civ.P. 14(a) in denying the first motion as untimely, and State Farm has conceded as much on appeal. Issue in the Warner case had been joined in January 1971, but the motion was not made for a year and was heard only on the eve of trial. As to the second motion the district court lacked power to grant this since appeals to this court had already been taken. See Merritt-Chapman & Scott Corp. v. City of Seattle, 281 F.2d 896 (9 Cir. 1960), overruled in part not directly relevant here, Ruby v. Secretary of U.S. Navy, 365 F.2d 385 (9 Cir. 1966), cert, denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); Ryan v. United States Lines, 303 F.2d 430 (2 Cir., 1962). Our affirmance of Warner’s judgment against State Farm is not intended to preclude the district court from acting on State Farm’s motion once the mandate has issued. Perhaps it may decide to let well enough alone.

The judgments are affirmed, with costs to Warner against State Farm and to State Farm against East Hampton.

      . In addition to the arguments outlined in text, State Farm devotes four lines of its brief to a claim that statements made by its employees after the fire was reported were improperly admitted. It does not cite the statements and we shall not search the record for them. State Farm also appears at times to go through the form of questioning whether its negligence was a cause of Warner’s loss. The jury was so clearly entitled to find that this was both a but-for and a proximate cause that such an argument would not merit discussion. Cf. section V infra.

      . Conceivably, as defendant suggests, the New York courts would hold, using contributory negligence language, that recovery by plaintiff is barred altogether if any portion (or any substantial portion) of the harm would have been avoided by proper construction, but cf. Dole v. Dow Chem. Co., 30 N.Y.S.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972), discussed in part IV infra; see also O’Keefe v. Kansas City Western Ry., supra, 87 Kan. 322, 124 P. 416. Even if we were to believe that New York would adopt such a rule, however, East Hampton obviously could not complain of a failure to apply it.

      . On the question of any special difficulties raised by the form of submission in this case because of the absence of an evidentiary basis on which the jury could apportion damage between causes, cf. section IV infra.

      . We reject East Hamilton’s contention that while violation of a statute or regulation by a defendant can be considered as evidence of negligence, such violation by a plaintiff cannot be considered as evidence of contributory negligence. The reasons are well stated in Prosser, Torts, supra, § 36 at 203, and need not be repeated here.

      . Plaintiff relies heavily on Schectman v. Fils, 30 A.D.2d 878, 293 N.Y.S.2d 55 (2d Dep’t 1968), aff’d, 25 N.Y.2d 700, 306 N.Y.S. 2d 954, 255 N.E.2d 182 (1969), in support of this claim. As the claim is a factual one, it is difficult to see what mileage plaintiff gets out of Schectman.

      . State Farm argues that East Hampton “did not object to submitting the task of deciding the amount of damages to the jury, so is barred now from asserting that the decision of the jury is error.” It is difficult to see how much more objection plaintiff could have registered in advance to submission to the jury than to request a directed verdict and to object to any charge on mitigation of damages, both of which steps East Hampton took. Plaintiff could hardly be held to know in advance that the jury would reach a result plaintiff considers without mathematical basis ; and as soon as that result came in, plaintiff objected to it on precisely this ground in its motion for judgment notwithstanding verdict. In sum, plaintiff adequately protected its rights to appeal this point.

      . Indeed, it is not difficult to conceive a line of reasoning which the jury might have followed to reach the verdict that it did. Plaintiff’s expert testified that if the area of the State Farm suite was about 500 square feet, which he believed it was, then the cost of repairing it would have been between $5,000 and $6,000 — a ratio' of just over ten dollars per square foot. Plaintiff’s reply brief tells us that the area of the entire third floor was 11,000 square feet. The jury could have reasoned that the damage throughout the third floor would all have occurred, by spread of the fire through doorways and so on, regardless of quality of construction, but that - the fire department could have stopped the fire from climbing via the curtain walls had the gypsum been in place. If it applied the ratio of just over ten dollars per square foot to the entire 11,000-square foot third floor and chose to disregard or make only minor allowance for loss of rentals and for water damage to the lower floors, its verdict would be readily explicable.
      We do not mean by this to say that this is what the jury did or what we would have done. But if the jury had in fact done this, we surely would not set the verdict aside.


author: PER CURIAM.

text:
    Frank W. WILLEM, Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education, and Welfare, Appellee.
    No. 73-1399.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 14, 1973.
    Decided Jan. 25, 1974.
    Arnold M. Beilis, St. Paul, Minn., for appellant.
    Francis X. Hermann, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before GIBSON, Circuit Judge, MOORE, Senior Circuit Judge, and WEBSTER, Circuit Judge.

       LEONARD P. MOORE, Senior Circuit Judge, Second Circuit, sitting by designation.

   PER CURIAM.

This is an appeal from an order by the Honorable Philip Neville, United States District Judge for the District of Minnesota, granting summary judgment in favor of the Secretary of Health, Education and Welfare on the ground that substantial evidence supported the hearing examiner’s denial of disability insurance benefits to claimant, Frank W. Wil-lem. We reverse and remand to the district court with directions to remand the claim to the Secretary for further development of the record.

Willem, 59 years old with an eighth grade education, has had several years experience as a welder and welder supervisor. He suffered injuries when he fell from a ladder on March 19, 1965 and when he was again injured at work on or about October 20, 1966. He received medical treatment for these injuries, including an operation for an anterior disc excision and interbody fusion in August, 1968.

In 1967 and 1968, Willem filed applications to establish a period of disability and for disability insurance benefits, 42 U.S.C. §§ 416, 423. Following the denial of both these applications, Willem filed a third application on May 12, 1970, claiming that persistent pain and discomfort prevented him from carrying on gainful employment. When this application was denied, Willem demanded and received a hearing, which was held in Minneapolis, Minnesota, on August 25, 1971. Willem testified and was represented by counsel.

The medical evidence before the hearing examiner tended to support the claimant’s contention that he did experience pain, although there was some disagreement concerning whether the pain was attributable to physical impairments or whether its source was primarily psychological. The record also indicates that Willem performed no work from the time of his 1966 injury until April 3, 1971, when he returned to work on a part-time basis as a welder supervisor or in a similar capacity. From April 3, 1971 at least up until the time of his hearing, he worked two to four hours per day, three to four days per week, and his wage was $3.70 per hour. During that period, his employer permitted him to lie down and stop work frequently. Willem often missed work altogether, although his work was described as necessary to his employer and not “made work”. The record contains no other vocational evidence of Willem’s present capabilities.

The hearing examiner saw it his task to determine whether the claimant’s impairments were of sufficient severity to constitute a disability within the meaning of the statute and, if so, to fix the duration thereof. 42 U.S.C. §§ 416, 423. After reviewing the evidence, he concluded that

. at all times herein material the claimant’s impairments, either singly of in combination, were not sufficiently severe so as to preclude him from engaging in any substantial gainful activity. In light of Mr. Wil-lem’s age, education and extensive vocational experience, I conclude that he has at all times been able to perform his former job as a welder supervisor. There is no doubt that his impairments do prevent him from performing heavy sustained physical exertion. However, this limitation does not in any way prevent him from exercising his supervisory functions.

When Willem sought review, the district court sustained that conclusion as one supported by substantial evidence and granted the Secretary’s motion for summary judgment.

We hold that further development of the record is necessary because the hearing examiner failed to develop appropriate evidence of the claimant’s vocational capabilities. See Garrett v. Richardson, 471 F.2d 598 (8th Cir. 1972):

The burden of producing [a vocational expert] must rest with the hearing examiner and in the absence of substantial evidence from other sources bearing directly on the issue of ‘substantial gainful actiyity,’ the testimony of a vocational counselor is essential for the affirmance of an examiner’s findings.

471 F.2d at 603-604.

In the instant case, the only evidence relating to Willem’s ability to serve as a welding supervisor was the testimony of Willem himself, who described the grave difficulties he experienced in attempting to perform such work even under terms of employment which had been modified to suit his condition. See Wilson v. Richardson, 455 F.2d 304 (4th Cir. 1972). Nevertheless, the hearing examiner found Willem capable of working in that particular vocation, for he reasoned that:

[w]hile the claimant’s current work arrangement may not, in and of itself, constitute substantial gainful activity, I find that it does nonetheless indicate that the claimant has the residual capacities to actually engage in substantial gainful activity. (Social Security Regulations Section 404.1532)

This case is not unlike Johnson v. Richardson, 486 F.2d 1023 (8th Cir. 1973), wherein the only testimony regarding the claimant’s ability to serve as a taxicab dispatcher was elicited from the claimant himself, who testified he could not serve in such a capacity because he was unable to sit for any length of time. The administrative trial judge concluded, nonetheless, that the claimant could serve in the specific vocation of cab dispatcher. We remanded, observing that “ [wjhere . . . the essential issue relates to the capacity of the claimant to perform a specific job and there is no other evidence directly on that issue, in order for the record to be fully and fairly developed, a vocational expert should be called.” Id. at 1025 (emphasis in original).

The judgment is reversed and remanded to the district court with directions to remand the claim to the Secretary of Health, Education and Welfare for a further hearing.

      . Willem has also had less extensive experience as a shop foreman, layout man, shear operator, and drill press operator.

      . On March 2, 1971 Gregg W. Erickson, rehabilitation counselor with the Minnesota Vocational Rehabilitation Division of the Department of Education, wrote to claimant’s counsel advising that “any type of vocational planning should be held off until Frank’s physical condition improved” and “[u]ntil his physical condition improves to a point where he can be dependable to work or retrain on a day to day basis his prognosis is guarded.”

      . The medical opinions as to whether he could work in such a capacity were conflicting. Willem’s own treating physicians supported his disability claims, while one consulting physician, after examining the claimant, suggested that his impairments should not prevent him from working, and another opined that he “should get well and return to work.” We said in Garrett v. Richardson :
      ‘Once proper medical evidence, buttressed by subjective evidence from claimant has shown a sufficiently severe impairment, it must be determined if such impairment, plus claimant’s educational and work status, preclude any substantial, gainful activity. . . . [W]here the claimant alleges inability to engage in substantial, gainful activity, . and his personal physician, the man in whose charge claimant has entrusted his health, claims likewise, if examining physicians are to dispute this contention, they must give the medical basis for their opinions. It is not sufficient to say that a man suffers some form of physical impairment yet can do “light work.” It must be shown medically that he can perform the physical activities certain jobs require without serious aggravation to present physical impairment or to general health. Otherwise, the Hearing Examiner’s findings would amount to pure speculation.’ Clemochefsky v. Celebrezze, 222 F.Supp. 73, 78 (D.C.Pa.1963) ; Floyd v. Finch, 441 F.2d 73, 83 (6th Cir. 1971). See Massey v. Celebrezze, 345 F.2d 146, 157 (6th Cir. 1965).
      471 F.2d at 602-603.

      . “[The claimant’s] sporadic and transitory activities may demonstrate not his ability but his inability to engage in substantial gainful activity.” 455 F.2d at 307.