author: GEWIN, Circuit Judge:

text:
    In the Matter of Jack Raymond Goff, Jr., and Peggy Jean Holloway Goff, et al., Bankrupts. Jack Raymond GOFF, Jr., Bankrupt, Appellant, v. The RUSSELL COMPANY, Appellee.
    No. 73-1916.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1974.

      Roy M. Lilly, Jr., Bogalusa, La., for appellant.
    John N. Gallaspy, Bogalusa, La., for Russell Co.
    Richard F. Knight, Bogalusa, La., for trustee.
    Before TUTTLE, GEWIN and RO-NEY, Circuit Judges.
   GEWIN, Circuit Judge:

Jack Raymond Goff, Jr., a voluntary petitioner for a discharge in bankruptcy, appeals from a district court order affirming the referee’s denial of a discharge pursuant to section 14(c) (2) of the Bankruptcy Act. *The referee determined that Goff, without justification, failed to keep books or records from which his financial condition might be ascertained. We agree and affirm the order of the district court denying the discharge.

Mr. Goff operated several retail stores with gross sales totaling approximately $20,000.00 per week. Although adequate books and records had been kept in the past, since 1969 such books had not been maintained. Sales receipts and other records were saved, but they were not in good order. After a hearing the referee found that the records were not sufficient, without substantial additional work, to determine the financial condition of Mr. Goff. This finding of fact cannot be labeled “clearly erroneous”, and hence is binding upon us. The evidence indicates that the records were inadequate to allow preparation of a tax return for 1969. Bank statements could not be reconciled with the cash deposited and withdrawn, and assets of the various stores had been commingled even though they operated with separate bank accounts. The available records apparently filled several large boxes.

The appellant appears to make two principal contentions on appeal. Initially, he asserts that his records were adequate under the Bankruptcy Act since his financial condition might be ascertained with sufficient additional work. Secondly, he contends that even if his records fail to satisfy the requirements of the Bankruptcy Act his failure to keep books or records should be deemed justifiable in the circumstances.

Many years ago this court enunciated general principles underlying the requirements of § 14(c)(2) for keeping books or records.The court recognized that full detail is not required but that there should be written evidence, orderly made and preserved, from which the present and past financial condition of the bankrupt may be ascertained with substantial completeness and accuracy. Other courts have followed substantially similar tests.

There are several Ninth Circuit decisions dealing with essentially the same issue presented here. In Burchett v. Myers the court stated that § 14(c)(2) protects creditors, and they are not required to risk the withholding or concealment of assets by the bankrupt under cover of a chaotic or incomplete set of records. A more recent Ninth Circuit per curiam opinion, In Re Yeaton, held that difficulty in preparing a tax return would be an indication of the inadequacy of records. In the present case the referee found that the tax return could not even be prepared from these records.

Noroian v. Hern presents a situation which in one respect is closely analogous to the case at bar. There a court-appointed accountant testified that an unlimited amount of time or funds would be required to determine the bankrupt’s financial condition. Extensive inquiries would have been required of those with whom the bankrupt did business. In the instant case the court found that substantial additional work would be required, although it was able to place possible limits as to time and money upon that work. We do not regard this distinction as being so critical as to mandate a result different from that reached in Noroian — denial of a discharge.

Importantly, the limits mentioned by the district court and the referee, three months and $2,500.00, were not certainties but rather they were possibilities. Nevertheless, had there been estimates established with more exactitude we believe it would be erroneous to regard these records as fulfilling the requirements of the Bankruptcy Act. The object of the statutory provision is to enable interested parties to determine a bankrupt’s financial condition. This could not be accomplished with the records in their present state.

When additional work on the records is necessitated the statute provides an appropriate method of analysis. The failure to keep adequate books or records may often be “justified under all the circumstances.” **Obviously, an unsophisticated wage earner dealing primarily in cash should not be denied a discharge because he failed to keep books of account. A higher standard of care is required, however, from a merchant actively engaged in credit transactions. Considerations relating to the assets, liabilities and complexity of the business are preponderant.

Goff’s business was of sufficient size and complexity to require at least the orderly assembling of records if not the maintenance of books. His liabilities at the time of adjudication exceeded $193,000. As indicated earlier, the gross sales from the various enterprises totaled approximately $20,000.00 per week. He was extended credit by several businesses. Once an objector has shown reasonable grounds to believe that the books or records are inadequate, the burden of justification shifts to the bankrupt to explain why they were not kept in a proper and satisfactory manner. Goff explains that the business was failing and he was busily trying to keep it alive. The implication is that he did not have time to worry about record-keeping. Of course, bankrupt businesses rarely thrive and frequently are a source of much anguish and concern to the owner. Therefore, to accept Goff’s justification here would be tantamount to countenancing circumvention of the statutory requirements.

Trial courts have wide discretion in determining whether books or records are adequate under the terms of the statute and the facts of each case. This determination should not be disturbed unless there has been a clear abuse of discretion. There has been no such abuse here. Indeed, the referee and the district court displayed a clear understanding of both § 14(c)(2) and the need to avoid harsh denials of discharge. However, considering all the facts and circumstances disclosed by the record, we conclude that it would be appropriate to remand the case to the district court in order to permit it to consider, in its sound discretion, whether to allow the bankrupt, at his own expense, a reasonable time in which to place his books and records in a condition that will substantially reflect his financial status. If the district court elects to pursue this course, and if the bankrupt is able to restore his records, that court may, in its discretion, require the referee to reconsider Goff’s petition for discharge.

Affirmed and remanded.

      . 11 U.S.C. § 32(c)(2) (Supp.1973). The section provides:
      (c) The court shall grant the discharge unless satisfied that the bankrupt has . . .
      (2) destroyed, mutilated, falsified, concealed, or failed to keep or preserve books of account or records, from which his financial condition and business transactions might be ascertained, unless the court deems such acts or failure to have been justified under all the circumstances of the case;

      . The Referee did grant a discharge to the wife of the bankrupt, finding that she was not involved in the allegedly deficient bookkeeping methods of her husband in connection with his various business enterprises.

      . An accountant testified that lie might be able to reconstruct the records if he did nothing else for three months. The referee found that this possibly could have been accomplished at a cost of $2,500.00, but the possibility of success turned on whether the bank statements could have been reconciled.

      . See International Shoe Co. v. Lewine, 68 F.2d 517, 518 (5th Cir. 1934). Although this section was amended in 1938 there was no change in the substantive law as established by amendment in 1926. See 1A W. Collier, Bankruptcy 1f 14.30, at 1353 (14th ed. 1972, J. Moore) [hereinafter cited as Collier].

      . See 1A Collier, If 14.32, at 1359.

      . See Burchett v. Myers, 202 F.2d 920 (9th Cir. 1953); Noroian v. Hern, 422 F.2d 1092 (9th Cir. 1970); Rhoades v. Wikle, 453 F.2d 51 (9th Cir. 1971); In Re Yeaton, 457 F.2d 803 (9th Cir. 1972). All of the above cited cases have affirmed orders denying a discharge when the trial court determined the records to be inadequate.

      . 202 F.2d 920, 926 (9th Cir. 1953).

      . 457 F.2d 803, 804 (9th Cir. 1972).

      . 422 F.2d 1092, 1094 (9th Cir. 1970).

      . See note 3, supra.

      . 11 U.S.C. § 32 (c) (2) (Supp.1973).

      . Other examples are certainly conceivable: small farmer, traveling salesman, or student. Far from carrying any derogatory connotation this grouping merely indicates that normal people in these classifications have un-complex financial affairs which do not require books or substantial records. See 1A Collier If 14.32, at 1368.

      . J. MacLachlan, Law of Bankruptcy § 106 at 93 (1956); Baker v. Trachman, 244 F.2d 18 (2d Cir. 1957); 1A Collier K 14.32, at 1369.

      . B. g., Texas National Bank v. Edson, 100 F.2d 789, 791 (5th Cir. 1939); 1A Collier U 14.32, at 1374.


source: Caselaw Access Project

license: Public Domain

text:
    Virginia DIXON, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 73-3205.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1974.

      Steven Gottlieb, Atlanta, Ga., M. Victor Geminiani, Brooklyn, N. Y., for plaintiff-appellant.
    John W. Stokes, Jr., U. S. Atty., Char-ney K. Berger, Julian M. Longley, Jr., Asst. U. S. Attys., Atlanta, Ga., Carl H. Harper, Regional Atty., Dept, of H. E. W., Carol C. Conrad, Asst. Reg. Atty., Atlanta, Ga., Eloise E. Davies, Dept, of Justice, Civil Div., App. See., Morton Hollander, Dept, of Justice, Chief, App. Sec., Washington, D. C., for defendant-appellee.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   GEWIN, Circuit Judge:

This is an action to review the decision of the Secretary of Health, Education and Welfare denying Virginia Dixon’s claim for disability benefits. The hearing examiner’s decision became the Secretary’s final decision when the Appeals Council approved it. Upon review in the district court summary judgment was granted in the Secretary’s favor. On this appeal Mrs..Dixon makes a two pronged attack. First, she alleges that it has been erroneously determined that she is not medically disabled within the terms of the statutory scheme *and the regulations promulgated pursuant thereto. Second, she contends that the statutory scheme is unconstitutional because it violates the due process clause of the fifth amendment. Finding merit in appellant’s first argument we reverse and remand the order of the district court granting summary judgment in order to permit further consideration by the Secretary. Although it is not necessary to reach the merits of the appellant’s constitutional claim and we expressly decline to do so, we do note that the claim may be rendered impotent by a recent decision of this court in Sullivan v. Weinberger, 493 F.2d 855 (5th Cir. 1974).

As is the case with many married women, Mrs. Dixon does not have a sufficient work history to entitle her to disability benefits on her own account. Her husband, however, was fully insured at his death in 1968, and Mrs. Dixon is entitled to benefits as his widow. Section 223(d)(2)(B) of the Social Security Act defines disability for widows claiming under their spouse’s account as follows:

(B) A widow, surviving divorced wife, or widower shall not be determined to be under a disability (for purposes of section 202(e) or (f)) [42 U.S.C.A. § 402(e) or (f)] unless his or her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.

Pursuant to the statutory plan the Secretary has formulated regulations in order to evaluate the disability of such widows. These regulations provide that an individual’s medical impairments must be considered in combination.

Mrs. Dixon is a fifty-four year old obese black woman with a fourth grade education who suffers from a variety of physical and mental impairments. In 1965 she underwent a surgical procedure on her intestines which necessitated a colostomy. She testified that at times she still has no control over her bowels. The appellant also complains of daily vomiting, weakness of her knees and hot flashes. At various times she has suffered from back pains and “pin like” pains in her side and chest.

The appellant also has a long and detailed history of psychiatric disorders and treatment. Her condition has alternatively been described as chronic undifferentiated schizophrenia, depression neurosis and anxiety attacks. Symptoms have included hearing voices, tension headaches, hallucinations and pulling out all of her hair. A consulting psychiatrist notes that she speaks in a low voice marked by some retardation. He estimates her verbal intelligence in the dull normal range. Her condition fluctuates from moderate to severe, but apparently her symptoms can be somewhat controlled by medication and supportive therapy.

On occasion Mrs. Dixon has been employed as a maid, but most of her time has been spent fulfilling the duties of a housewife. After the death of her husband she attempted to perform heavy manual work in a cotton mill, but she was terminated after approximately one year because of her physical disability. An examining physician has found her unfit for manual labor and because of her advanced age and limited education he would not recommend retraining. He did find, however, that with adequate treatment she should be able to work as a domestic servant or babysitter. Babysitting and domestic work are considered “gainful activity.”

Based upon the evidence of record the hearing examiner concluded that the appellant had failed to establish that she had an impairment or impairments of the severity listed in the Secretary’s regulations or that her impairments were the medical equivalent of those listed. As a reviewing court it is our duty to scan the entire body of evidence, including that which is opposed to the Secretary’s view. Only if a review discloses that the Secretary’s decision is supported by substantial evidence and that proper legal standards have been applied should the decision be affirmed.

The appellant alleges that when each of her medical problems is considered in combination with the others as required by 20 CFR 404.1504 she then meets the Secretary’s test of disability. She contends that her severe anxiety attacks render her emotionally unable to deal with the embarrassment of not being able to control her bowels.

The hearing examiner concluded that her impairments, considered separately or collectively, do not reach such a level of severity as to preclude any gainful activity. In drawing this conclusion he appropriately places heavy reliance on the reports of two physicians, Dr. Hamm and Dr. McDonald. Dr. Hamm was the physician designated by the Secretary to give a medical judgment in light of the medical evidence. He concluded that the appellant’s impairments are not the medical equivalent of those listed in the Secretary’s regulations. In both Dr. Hamm’s reports, however, there is no mention of the appellant’s physiological problems, including her colostomy. Although Dr. McDonald, a consulting psychiatrist, discussed both the physiological and psychiatric impairments in his report, there is little discussion of their combined effect.

A review of the record suggests that the cumulative effect of Mrs. Dixon’s medical impairments may indeed preclude her participation in any gainful activity. On the present record, however, we decline to make that determination. Nevertheless, we do find that the record does not contain substantial evidence to support the hearing examiner’s conclusion on the collective effects of Mrs. Dixon’s impairments. It is appropriate, therefore, to remand this case in order that the Secretary may give further consideration to the combined effect of Mrs. Dixon’s medical problems. On reconsideration any additional evidence relevant to this issue should be received and considered.

During the course of oral argument this court was made aware of the close issue with respect to substantial evidence. The able counsel for the Secretary was interrogated on this issue, and while the point was not conceded, counsel would neither affirm or deny the existence of substantial evidence.

Accordingly the order of the district court granting summary judgment in favor of the Secretary is reversed and the case is remanded to that court with directions to remand the case to the Secretary for further consideration.

Reversed and remanded with directions.

      . See 42 U.S.C.A. § 402(e); 42 U.S.C.A. § 423(d)(2) (B).

      . See 20 CFR. 404.1504.

      . 42 Ü.S.C.A. § 423(d) (2) (B).

      . 20 CFR § 404.1504 provides:
      A widow or widower shall, for purposes of section 202(e) or (f) of the Act [42 U.S.O.A. § 402(e) or (f)], be determined to be under a disability only if, in the absence of evidence that he or she is engaged in substantial gainful activity — •
      (a) His or her impairment or impairments meet the duration requirement in § 404.1501 and are listed in the appendix to this subpart; or
      (b) His or her impairment or impairments are not listed in the appendix to this subpart, but singly or in combination' meet the duration requirement in § 404.-1501 and are determined by the Secretary to be medically the equivalent of a listed impairment.
      Such an individual shall not be found under a disability however, where he or she is engaged in substantial gainful activity. (Emphasis added)

      . The appellant was found to have a limited fund of general information. She did not know the identity of the current President of the United States or the current Governor of her home state, Georgia.

      . Mrs. Dixon was terminated at the cotton mill on May 23, 1970. She alleges that she became disabled May 22, 1970.

      . See text accompanying note 3, supra.

      . Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Blanks v. Richardson, 439 F.2d 1158 (5th Cir. 1971).

      . Green v. Gardner, 391 F.2d 606, 607 (5th Cir. 1968).

      . Dr. Hamm was involved in both the initial determination and the reconsideration request filed by the appellant.

      . The following exchange transpired at oral argument:
      [Counsel for the Secretary]
      I suppose that in the time that the appellant has preserved he will address the substantial evidence question. I think that I will rest upon the record there. I will not try to persuade the court that she either is or is not medically disabled. If she can meet the strict medical disability test, and if tliere is substantial evidence to show that she did, or if the hearing examiner should have required more evidence than he required, of course the proper course for this court would be a remand to take additional medical evidence, but I don’t think this is the case that requires that the baby be thrown out with the wash. It’s possible for the determination to be considered on the substantial evi-deuce issue without reaching the constitutional issue.
      [The Court]
      Are you suggesting though, that there may not be substantial evidence to support the finding?
      [Counsel]
      I would suggest that the court look very closely into the substantial evidence ques- ' tion. Yes, your honor.


author: GODBOLD, Circuit Judge:

text:
    Jessie JAMES, suing in his own behalf and on behalf of all others similarly situated, Plaintiff-Appellee, v. James PINNIX, d/b/a Pinnix Used Cars, individually and as representative of all others similarly situated, Defendant-Appellant.
    No. 73-1866.
    United States Court of Appeals, Fifth Circuit.
    June 10, 1974.
    Richard B. Wilson, Jr., Charles R. Gear, Francis S. Bowling, Jack S. Parker, Sp. Asst. Atty. Gen., Jackson, Miss., for defendant-appellant.
    John L. Maxey, II, Barry H. Powell, John L. Walker, Jr., Community Legal Services, Jackson, Miss., for plaintiff-appellee.
    Before BROWN, Chief Judge and GODBOLD and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

Jessie James, the appellee, bought a used Ford sedan from the appellant,' James Pinnix, for $495. He paid $200 down and signed a contract in which he agreed to pay off the balance at $15 per week. The contract provided that upon default by appellee the appellant could take possession of the car and sell it with or without notice. Appellee eventually stopped making payments, and at the end of about a half-year the appellant repossessed the car via “self-help,” towing it away from in front of appel-lee’s house without first initiating suit or otherwise invoking official processes, and without affording appellee presei-zure notice or opportunity to be heard. Appellee then brought suit, alleging a 42 U.S.C. § 1983 cause of action and 28 U. S.C. § 1343(3) jurisdiction. The District Court permitted the suit to go forward as a class action, ordered the car returned to appellee, and enjoined appellant from taking the car again without affording appellee prior notice and an opportunity for preseizure hearing, absent a knowing and intelligent waiver by appellee of his possessory rights. Also, the court declared Mississippi Code 1972 Ann. § 75-9-503 (§ 9-503 of the Uniform Commercial Code) void and unenforceable insofar as it authorizes summary seizure. Finally, the court enjoined appellant and the members of his class from further summary seizures.

On this appeal appellant urges that since repossession of collateral by self-help does not involve state action, appel-lee has failed to state a claim under 42 U.S.C. § 1983. Like the two circuit courts that have already considered the matter, we hold that there was no state action and therefore reverse.

Appellee has no federal right to redress for appellant’s interference with his property interests unless that interference involved state action. To support the existence of state action appel-lee urges the applicability of the leading case of Hall v. Garson, 430 F.2d 430 (CA5, 1970), in which this circuit found state action in the behavior of a Texas landlady who entered a tenant’s apartment without giving notice or resorting to official processes and seized goods to satisfy the tenant’s past due rent liability. In Hall we held that

the action taken, the entry into another’s home and the seizure of another’s property, was an act that possesses many, if not all, of the characteristics of an act of the State. The execution of a lien, whether a traditional security interest or a quasi writ of attachment or judgment lien has in Texas traditionally been the function of the Sheriff or constable. Thus [the challenged lien statute under whose aegis the landlady had acted] vests in the landlord and his agents authority that is normally exercised by the state and historically has been a state function.

430 F.2d at 439 (footnote omitted). The Hall state function concept does not carry over to the present case with sufficient force to compel a finding of state action. In Hall the landlady seized goods to satisfy a debt arising out of an agreement having nothing to do with the goods. Such a taking closely resembles a seizure in satisfaction of a judgment —a function traditionally performed by a sheriff or other state agent. In the present case, by contrast, the appellant-creditor possessed and claimed no roving commission to extract appellee’s goods to satisfy a separate debt. Rather, he had a specific purchase money security interest in a particular item, and he seized only that item. His action, moreover, was by long Mississippi tradition the sort of action performed by private persons, not state officials. See Commercial Credit Co. v. Spence, 185 Miss. 293, 184 So. 439 (1938). Finally, seizure by entry into a dwelling, in Hall a major decisional factor because it was deemed an indicium of state-like behavior, was absent from the instant case.

Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), does not compel a holding of state action. There the Supreme Court rejected the argument that the Pennsylvania Liquor Control Board’s pervasive regulation of a liquor-licensed private club amounted to such significant state involvement as to make the club’s racially discriminatory guest policy state action. The Court also held, however, that application of a liquor board regulation requiring all clubs to adhere to their own constitutions and by-laws would result in invoking the sanctions of the state to enforce discriminatory rules in those instances where the private provisions required racial discrimination, and that therefore the regulation was enjoinable.

Appellee suggests that § 9-503 overtly encourages private interference by secured creditors with property interests in a manner analogous to the operation of the offending liquor board regulation. The analogy has some validity. One can erect an argument that § 9-503 backs up creditors in enforcing contracts providing for procedureless interferences with property interests just as the regulation in Moose Lodge backed up and gave effect to private clubs’ racially discriminatory by-laws. We cannot avoid the force of the analogy by labelling § 9-503 “neutral” or by stating that it does not “encourage” creditors to interfere with debtors’ property. Nevertheless, Moose Lodge is still distinguishable, because it involved racial discrimination, behavior that since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), courts have come to look upon as very nearly malum in se. The outer boundaries of “imputed” state action have been charted primarily in race discrimination cases. We are unwilling to push out the frontiers still farther in a case devoid of racial overtones.

The same consideration compels us to reject appellee’s argument based on Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L.Ed.2d 830 (1966). There again racial discrimination was involved. Moreover, the indicia of state involvement were much stronger, because, as the opinion made clear, the purpose of the challenged state constitutional amendment was to authorize private discrimination in the transfer of real property where before it had been barred by statute.

A number of courts in § 9-503 cases have rejected debtors’ Reitman contentions by holding that the UCC did not “create the right” to repossess via self-help, that the right flows exclusively from contract and was recognized at state common law. We prefer not to follow that line of analysis-by-characterization. See Judge Byrne’s dissent in Adams, 492 F.2d at 338. Were we to follow it, the answer it would yield when applied to Mississippi law would be uncertain. There is a reasonable, albeit conceptual, argument that the Mississippi legislature intended Article 9 of the UCC to supplant preexisting law and that therefore the power to repossess flows from § 9-503 today even though it was recognized in pre-UCC Mississippi common law. Even setting that argument to one side, the fact is that Mississippi cases did not sanction self-help repossession except when provided for in the parties’ contract, whereas § 9-503 allows it even when the contract is silent on the point. Thus the creditor’s arguments that § 9-503 merely carried forward the former Mississippi practice and that the contract is the sole source of summary repossession power, lose some force.

No bright lines can be drawn in this area, and we draw none. Some state involvement in the Reitman-Moose Lodge sense may be present here, but it is simply not enough, given the nonracial nature of the case, to constitute state action. See Kirksey v. Thelig, supra, at 732-733.

We reject appellee’s contention that Mississippi creditors are joint participants with the state under United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). Nor is Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963), apposite. There a store manager’s action in asking ten black youngsters to leave the “whites-only” area of a restaurant and in calling upon the police to speed their departure became state action, because the state had “commanded a particular result,” had “become involved” in it, and had “removed [the] decision [whether or not to maintain segregated facilities] from the sphere of private choice.” 373 U.S. at 248, 83 S.Ct. at 1121, 10 L.Ed.2d at 326. Peterson obviously involved racial discrimination and turned upon the existence of a city ordinance requiring segregation in restaurants. Whatever else it may do, § 9-503 assuredly does not require creditors to contract for or to exercise the power of summary repossession.

Reversed.

      . $150 in cash and $50 in the form of a traded-in 1962 Chevrolet.

      . Appellee claimed he had experienced difficulties with the car and that appellant, upon being informed of them, had told him to make no more payments. Appellant denied having been told about any difficulties. Because of the view the District Court took of the legal issues, this factual dispute and several other factual matters were not resolved below.

      . Appellant in an affidavit stated that when he located the car in front of appellee’s house, it was missing two wheels and its battery.

      . Appellant’s affidavit stated that he knocked on appellee’s door just before effecting the repossession, but that no one answered although noise and music were coming from inside the house.

      . Appellee’s class was composed of all residents of the State of Mississippi whose property may in the future be seized by a secured creditor under a security agreement, without use of judicial process and without the consent of the owner of the property, without prior notice and without affording the opportunity for a judicial pre-seizure hearing to determine possessory rights to the property. The appellant’s class was composed of all creditors who hold security interests in personal property situated in the State of Mississippi and owned by individuals residing in the State of Mississippi.

      . Section 75-9-503 reads in relevant part: Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.

      . Adams v. Southern California First National Bank, 492 F.2d 324 (CA9, 1973); Bichel Optical Laboratories v. Marquette National Bank, 487 F.2d 906 (CA8, 1974).

      . Based on this facet of Moose Lodge, we reject appellee’s argument that the pervasive state regulation of • credit transactions — as shown by Miss.Code 1972 Ann. §§ 75-9-502 to 75-9-507, 63-19-31 (regulating the details of installment sales contracts), etc.— makes self-help repossession state action. See Adams, supra, 492 F.2d at 334.

      . See Kirksey v. Thelig, 351 F.Supp. 727, 731 & nn. 7-8 (D.Colo.1972).

      . See Oiler v. Bank of America, 342 F.Supp. 21, 23 (N.D.Cal.1972).

      . But not when the contract expressly forbids it. Section 9-503 reads, “Unless otherwise agreed,” self-help is permitted.

      . The class of debtors defined in the order of the District Court conceivably could include persons whose goods were summarily seized even though the contracts they signed contained no clause authorizing such action.


author: PER CURIAM:

text:
    Norwood E. JONES and William Scott Winans, Plaintiffs-Appellants, v. Norman A. CARLSON, Director U. S. Bureau of Prisons, et al., Defendants-Appellees.
    No. 73-3672.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.

      Norwood E. Jones, William Scott Win-ans, pro se.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for defendants-appellees.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

       Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Jones, an inmate of the United States Penitentiary at Atlanta, Georgia, and Winans, an inmate of the United States Penitentiary at Terre Haute, Indiana, appeal the district court’s dismissal of their action for injunction and other relief arising out of the alleged interference with their correspondence concerning pending litigation.

We deem it unnecessary to reach the merits of the ruling appealed since it appears that the appellants have not sought relief through the proper administrative channels before presenting their grievances for judicial review. As the Court stated in Paden v. United States, 5 Cir. 1970, 430 F.2d 882, 883:

“[I]n the administration of federal prisons primary responsibility for supervision is delegated by statute to the Bureau of Prisons under the direction of the Attorney General, 18 U.S.C. § 4001 and § 4042. Under that authority the Bureau has promulgated rules and regulations for the proper administration of the various prisons and has established effective means to review actions taken by local prison officials. Green v. United States, 283 F.2d 687 (3d Cir. 1960). In line with these regulations, grievances of prisoners concerning prison administration should be presented to the Bureau through the available administrati [ve] channels. Only after such remedies are exhausted will the court entertain the application for relief in an appropriate case.”

See also Waddell v. Alldredge, 3 Cir. 1973, 480 F.2d 1078; Ledesma v. United States, 5 Cir. 1971, 445 F.2d 1323; Williams v. United States, 5 Cir. 1970, 431 F.2d 873.

The judgment of the district court is vacated, and the cause remanded with directions that the action be dismissed in order that the appellants may exhaust their administrative remedies in accordance with Bureau of Prisons policy statement 2001.6 (February 14, 1974) .

Vacated and remanded.

      . See Thompson v. U. S. Prison Industries, 5 Cir. 1974, 492 F.2d 1082 [1974]; Ross v. Henderson, 5 Cir. 1974, 491 F.2d 116 [1974].


author: MOORE, Circuit Judge.

text:
    William A. BELTZER and Sharon Beltzer, Plaintiffs and Appellants, v. UNITED STATES of America, Defendant and Appellee.
    No. 73-1539.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 16, 1973.
    Decided April 19, 1974.
    Robert V. Dwyer, Jr., Omaha, Neb., for appellant.
    Arthur L. Bailey, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before VAN OOSTERHOUT and MOORE, Senior Circuit Judges, and WEBSTER, Circuit Judge.

       LEONARD P. MOORE, Senior Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.

   MOORE, Circuit Judge.

Plaintiffs-appellants, William A. Beltzer and Sharon Beltzer, husband and wife, brought suit against the United States of America (hereafter the “Government”) to obtain a refund of income taxes allegedly improperly assessed against them for the calendar years 1966 and 1967. After pre-trial proceedings (interrogatories and admissions), the Government moved for summary judgment in its favor which was granted. From the judgment that “Plaintiffs take nothing” they appeal.

The facts material to the decision are as follows:

Taxpayer, together with his brother and sister, were co-executors of the Estate of Oren A. Beltzer, their father. At the time of their father’s death (September 22, 1959), there were shares of stock of Grand Island Trust Company and Grand Island Safe Deposit Company in the Estate. For estate tax purposes the value of these closely held corporate shares had to be ascertained. The executors valued the stock of Grand Island Trust Company in their estate tax return at $147,515 and the stock of Grand Island Safe Deposit Company at $15,840.

Taxpayer’s inherited portion of these stocks, so valued, was $50,981.73 for the Trust Company and $8,731.68 (after audit adjustments) for the Safe Deposit Company, a total of $59,713.41. On May 6, 1966, taxpayer sold these shares for $140,000, thus incurring a substantial capital gain of somewhat over $80,000.

By that time the executors had paid the estate tax on the stock values so reported and adjusted. The time for further adjustments and assessments against the Estate expired by virtue of the statute of limitations on December 23, 1963.

In an affidavit dated February 20, 1973, taxpayer claims that his older brother, co-executor James, handled the estate tax return and that he relied upon him. This reliance might well have been justified because if the figures which taxpayer now advances had been used, the value of the Estate would have been increased by some $175,000 and the tax for which the heirs would have been liable increased by some $58,000.

Taxpayer concedes that in 1966 when he was thinking of selling his stock he became aware of the valuation situation and requested a Certified Public Accountant to present his thoughts as to what a proper value of the stocks should have been. Under date of May 27, 1967, the Accountant expressed the view that the stock as of September 22, 1959, (date of death) was “undervalued.” He gave the taxpayer a rather wide range of choices as to value and summarized these by saying “the estimated market value of the Grand Island Trust Co. ranges from $82.90 per share to $454.67 per share.” This range is attributable to the various accounting principles which the Accountant applied to the Trust Company’s financial statements.

Taxpayer asserts (Br. p. 3) that he “before selling the stock in 1966, sought the advice of a certified public accountant with regard to the fair market value of the stock in 1966.” The Accountant responded on May 27, 1967, as aforesaid, “Recently, you requested me to review the value of the [stocks in issue].” From the Accountant’s somewhat wide range of values, taxpayer chose a figure which, by his claim of May 30, 1972, would have enhanced (in his now considered judgment) his share of those stocks which he received from, his father’s' estate from $59,713.41 to $118,019.64, despite the fact that, except for his unwitting reliance, he had signed the estate tax return at the lesser figure and received the benefit of the lesser estate tax. For capital gains purposes taxpayer would benefit greatly by having a base of $118,019.64 instead of $59,713.41.

Quite naturally, on this state of facts, the Government has invoked the doctrines of “quasi-estoppel” and “duty of consistency.” This doctrine, as suggested by Stearns v. United States, 291 U.S. 54, 54 S.Ct. 325, 78 L.Ed. 647 (1934), and formally expounded in Alamo National Bank v. Commissioner, 95 F.2d 622 (5th Cir.), cert. denied, 304 U.S. 577, 58 S.Ct. 1047, 82 L.Ed. 1541 (1938), was summarized in'the case of McMillan v. United States, 64-2 U.S.T.C. ¶ 9720 (S.D.W.Va.1964), see also, Griffith v. United States, 71-1 U.S.T.C. ¶ 9280 (N.D.Tex., 1971), as placing a taxpayer under a duty of consistency when:

(1) the taxpayer has made a representation or reported an item for tax purposes in one year,

(2) the Commissioner has acquiesced in or relied on that fact for that year, and

(3) the taxpayer desires to change the representation, previously made, in a later year after the statute of limitations on assessments bars adjustments for the initial tax year.

Taxpayer attacks McMillan and Griffith as being unwarranted extensions of the upper court cases. We do not agree. A taxpayer in this situation, innocent or otherwise, who has already had the advantage of a past alleged misstatement —such advantage now beyond recoupment — may not change his posture and, by claiming he should have properly paid more tax before, avoid the present levy. As the Fifth Circuit stated in Alamo, supra:

In adjusting values the Commissioner in effect represents the interest of all other taxpayers who must bear what the particular taxpayer unjustly escapes. It is no more right to allow a party to blow hot and cold as suits his interest in tax matters than in other relationships whether it be called es-toppel, or a duty of consistency, or the fixing of a fact by agreement, the fact fixed for one year ought to remain fixed in all its consequences, unless a more just general settlement is proposed and can be effected.

95 F.2d at 623.

Nor do the cases cited by taxpayer support a contrary conclusion. Northport Shores, Inc. v. Commissioner, 31 B.T.A. 1013 (1935), and Rodgers v. Commissioner, 31 B.T.A. 994 (1935), dealt with issues of estoppel not quasi-estoppel and indeed those eases arose before the latter doctrine had been clearly established. Quasi-estoppel is now accepted by the Tax Court. Mayfair Minerals, Inc. v. Commissioner, 56 T.C. 82 (1971), aff’d, 456 F.2d 622 (5th Cir. 1972). Ford v. United States, 276 F.2d 17, 149 Ct.Cl. 558 (1947), involved taxpayers who were minors at the time the representation was made to the Government. Since they did not legally participate in the transaction, they .were not held to be bound. Crosley Corp. v. United States, 229 F.2d 376 (6th Cir. 1956), involved a mistake of law, not a misrepresentation of fact and thus the doctrine of quasiestoppel was found inapplicable. Lofquist Realty Co. v. Commissioner, 102 F.2d 945 (7th Cir. 1939), was decided in favor of the Commissioner, and therefore that court’s discussion of what facts were within the taxpayer’s knowledge does not lend support to the assertion that actual knowledge is a prerequisite for quasi-estoppel.

The Pennsylvania Company for Banking & Trusts v. United States, 51-2 U.S.T.C. 9392 (E.D.Pa.1951), involved the issue of the taxability of a particular exchange made in 1930. The determination that it was not taxable was made in an audit by a revenue agent in 1932 after a total disclosure of the relevant facts and therefore taxpayer did not list the exchange on his return. Thereafter taxpayer’s trustee was held not to be estopped from asserting that the exchange was in fact taxable and that the basis for the calculation of capital gain was the value of the property in 1930. The court noted :

If, in the present case, the facts relating to the exchange, which the grant- or had deemed nontaxable and had not reported, had not been in the possession of the Commissioner before the grantor’s income tax liability for 1930 had been “walled up” by the Statute of Limitations * * * [t]he Court would then have to give effect to the doctrine, akin to that of estoppel, which holds a taxpayer to a position taken by him in some earlier return or proceeding, which inured to his benefit taxwise, and precludes him from later on asserting an inconsistent, though legally correct, position.

51-2 U.S.T.C. at 16, 976.

The arguments raised by taxpayer having been considered and rejected, the decision of the court below is affirmed.

      . William A. Beltzer, as the inheritor of the stock, the value of which is in question, will be referred to as the “taxpayer”, although in some instances the word collectively includes Mrs. Beltzer, also, as an appellant.


author: EDWARDS, Circuit Judge.

text:
    James MICHIE et al., Plaintiffs-Appellees, v. GREAT LAKES STEEL DIVISION, NATIONAL STEEL CORPORATION, et al., Defendants-Appellants.
    Nos. 73-1405, 73-1406.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 4, 1973.
    Decided April 4, 1974.

      Leslie W. Fleming, on brief, Detroit, Mich., for Allied Chemical Corp.
    Richard Ford, Detroit, Mich., for Detroit Edison Co.
    Thorp, Reed & Armstrong, by Kenneth G. Jackson, Peter G. Veeder, Frank J. Clements, Pittsburgh, Pa., Hill, Lewis, Adams, Goodrich & Tait, by Douglas H. West, Alexander, Buchanan & Seavitt, by Robert J. Stowe, Detroit, Mich., for Great Lakes Steel Div., National Steel Corp.
    Donnelly W. Hadden, Detroit, Mich., for appellees; Ripple & Chambers, Detroit, Mich., on brief.
    Before EDWARDS and CELE-BREZZE, Circuit Judges, and KRUPANSKY, District Judge.

       The Honorable Robert B. Krupansky, United States District Judge for the Northern District of Ohio, sitting by designation.

   EDWARDS, Circuit Judge.

This is an interlocutory appeal from a District Judge’s denial of a motion to dismiss filed by three corporations which are defendants-appellants herein. The District Court certified that the appeal presented a controlling issue of law and this court granted leave to appeal under 28 U.S.C. § 1292(b) (1970).

Appellants’ motion to dismiss was based upon the contention that each plaintiff individually had failed to meet the requirement of a $10,000 amount in controversy for diversity jurisdiction set forth in 28 U.S.C. § 1332 (1970).

The facts in this matter, as alleged in the pleadings, are somewhat unique. Thirty-seven persons, members of thirteen families residing near LaSalle, Ontario, Canada, have filed a complaint against three corporations which operate seven plants in the United States immediately across the Detroit River from Canada. Plaintiffs claim that pollutants emitted by plants of defendants are noxious in character and that their discharge in the ambient air violates various municipal and state ordinances and laws. They assert that the discharges represent a nuisance and that the pollutants are carried by air currents onto their premises in Canada, thereby damaging their persons and property. Each plaintiff individually claims damages ranging from $11,000 to $35,000 from all three corporate defendants jointly and severally. There is, however, no assertion of joint action or conspiracy on the part of defendants.

Additionally, plaintiffs jointly seek $1,000,000 from each defendant, presumably as exemplary or punitive damages, because the nuisance complained of was “wilful and wanton.”

This action was originally brought as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure but when defendants filed a motion to dismiss the class action aspect of the ease, plaintiffs conceded the motion and were allowed to substitute allegations of permissive joinder under Rule 20(a) of the Federal Rules of Civil Procedure. See Zahn v. International Paper Co., 414 U. S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973).

We believe the principal question presented by this appeal may be phrased thus: Under the law of the State of Michigan, may multiple defendants, whose independent actions of allegedly discharging pollutants into the ambient air thereby allegedly create a nuisance, be jointly and severally liable to multiple plaintiffs for numerous individual injuries which plaintiffs claim to have sustained as a result of said actions, where said pollutants mix in the air so that their separate effects in creating the individual injuries are impossible to analyze.

Appellants argue that the law applicable is that of the State of Michigan and that Michigan law does not allow for joint and several liability on the part of persons charged with maintaining a nuisance. They cite and rely on an old Michigan case. Robinson v. Baugh, 31 Mich. 290 (1875). They also quote and rely upon Restatement of Torts (First) § 881:

“Where two or more persons, each acting independently, create or maintain a situation which is a tortious invasion of a landowner’s interest in the use and enjoyment of land by interfering with his quiet, light, air or flowing water, each is liable only for such proportion of the harm caused to the land or of the loss of enjoyment of it by the owner as his contribution to the harm bears to the total harm.”

They also rely upon the comment under § 881:

“The rule stated in this Section is applicable whether or not there has been a physical or chemical union of materials and whether or not fumes or polluted matter sent out by the defendant have united with those sent out by others before entry upon the plaintiff’s land, since the unity of the means by which the harm is caused does not prevent recovery.”

See also 1 T. Cooley, Torts § 86 (4th ed. 1932).

Appellees rely strongly upon the opinion of the District Judge in denying the motion to dismiss:

This court is of the view that this is not the state of the law in Michigan with respect to air pollution. In the absence of any Michigan cases on • point, analogous Michigan cases in the automobile negligence area involving questions of joint liability after the simultaneous impact of vehicles and resultant injuries, are instructive.
In Watts v. Smith, 375 Mich. 120, 134 N.W.2d 194, quoting Meier v. Holt, 347 Mich. 430, 80 N.W.2d 207, the Michigan Supreme Court said :
“Although it is not always definitely so stated the rule seems to have become generally established that, although there is no concert of action between tort feasors, if the cumulative effects of their acts is a single indivisible injury which it cannot certainly be said would have resulted but for the concurrence of such acts, the actors are to be held liable as joint tort feasors.”

In Maddux v. Donaldson, 362 Mich. 425, [108 N.W.2d 33] the Michigan Supreme Court cites Landers v. East Texas Salt Water Disposal Company, 151 Tex. 251, 248 S.W.2d 731, a pollution case, in support of the above stated proposition. The court indicated that

“. . . [i]t is clear that there is a manifest unfairness in ‘putting on the injured party the impossible burden of proving the specific shares of harm done by each. Such results are simply the law’s callous dullness to innocent sufferers. One would think that the obvious meanness [sic] of letting wrongdoers go scot free in such cases would cause the courts to think twice and to suspect some fallacy in their rule of law’.”

Plaintiffs contend that the Maddux, id, and Watts, supra, language applies here since there is no possibility of dividing the injuries herein alleged to have occurred and that it is impossible to judge which of the alleged tort-feasors caused what harm.

It is the opinion of this court that the rule of Maddux, supra, and Lan-ders, supra, cited therein is the better, and applicable rule in this air pollution case.

On this point we affirm the decision of the District Judge. This complaint appears to have been filed under the diversity jurisdiction of the federal courts. All parties have agreed that Michigan law alone controls.

Like most jurisdictions, Michigan has had great difficulty with the problems posed in tort cases by multiple causes for single or indivisible injuries. Meier v. Holt, 347 Mich. 430, 80 N.W.2d 207 (1957); De Witt v. Gerard, 281 Mich. 676, 275 N.W. 729 (1937); De Witt v. Gerard, 274 Mich. 299, 264 N.W. 379 (1936); Frye v. City of Detroit, 256 Mich. 466, 239 N.W. 886 (1932). Compare Watts v. Smith, 375 Mich. 120, 134 N.W.2d 194 (1965); Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33 (1961).

The first four of these cases clearly support the rule of law argued for by appellants. But the last two represent the more recent rule adopted by the Michigan Supreme Court and relied upon by the District Judge.

We believe that the issue was decided in the lengthy consideration given by the Michigan court in the Maddux case. There Justice Talbot Smith (now Senior Judge, United States District Court for the Eastern District of Michigan, Southern Division) in an opinion for the court majority (joined by the writer of this opinion) held:

It is our conclusion that if there is competent testimony, adduced either by plaintiff or defendant, that the injuries are factually and medically separable, and that .the liability for all such injuries and damages, or parts thereof, may be allocated with reasonable certainty to the impacts in turn, the jury will be instructed accordingly and mere difficulty in so doing will not relieve the triers of the facts of this responsibility. This merely follows the general rule that “where the independent concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident, the courts generally will not hold the tort-feasors jointly and severally liable.”
But if, on the other hand, the triers of the facts conclude that they cannot reasonably make the division of liability between the tort-feasors, this is the point where the road of authority divides. Much ancient authority, not in truth precedent, would say that the case is now over, and that plaintiff shall take nothing. Some modern courts, as well, hold that his is merely the case of the marauding dogs and the helpless sheep relitigated in the setting of a modern highway. The conclusion is erroneous. Such precedents are not apt. When the triers of the facts decide that they cannot make a division of injuries we have, by their own finding, nothing more or less than an indivisible injury, and the precedents as to indivisible injuries will control. They were well summarized in Cooley on Torts in these words: “Where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert action.” Maddux v. Donaldson, 362 Mich. 425, 432-433, 108 N.W.2d 33, 36 (1961). (Footnotes omitted.)

The Maddux case has been the subject of an extensive annotation wherein the A.L.R. concludes:

American decisions, statutes, and rules of court have modified and liberalized the common-law rule as to join-der of defendants, and although there is apparently no satisfactory general rule as to when various persons acting independently may be joined in a tort action, many jurisdictions evidently would now permit joinder of two or more drivers who were involved in successive collisions or accidents with a plaintiff or his vehicle. See Am Jur Parties (1st ed §§ 40-43); Am Jur, Negligence (1st ed § 257); Prosser, Torts 2d ed § 46; 1 Harper and James, Torts § 10.1. 100 A.L.R.2d 16, 29 n. 13 (1965).

We recognize, of course, that the Mad-dux and Watts cases both involve multiple collisions causing allegedly indivisible injuries. Hence, appellants are free to argue that the rule stated does not necessarily ripply to the nuisance category of torts with which we deal here. Indeed, appellants call our attention to what appears to be a contrary rule applicable to nuisance cases referred to in the Maddux opinion. Restatement of Torts (First) § 881.

In the latest Restatement, however, both the old and the newer rule are recognized and as the Michigan court held in Maddux, the question of whether liability of alleged polluters is joint or several is left to the trier of the facts. Where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among the tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors subject, of course, to subsequent right of contribution among the joint offenders.

Perhaps the best summary of the rationale for such a rule is found in Harper and James:

In the earlier discussion of the substantive liability of joint tort-feasors and independent' concurring wrongdoers who have produced indivisible harm it was indicated that there were four categories into which these parties may be placed: situations in which (1) the actors knowingly join in the performance of the tortious act or acts; (2) the actors fail to perform a common duty owed to the plaintiff; (3) there is a special relationship between the parties (e. g., master and servant or joint entrepreneurs) ; (4) although there is no concerted action nevertheless the independent acts of several actors concur to produce indivisible harmful consequences.
•X -X- X -X- X X
While the Restatement of Torts contains a short and apparently simple statement of the rule in category four, this type of situation has caused a great deal of disagreement in the courts. Here joint and several liability is sometimes imposed for the harm caused by the independent concurring acts of a number of persons. In all the situations in which such recovery is permitted the court must find first that the harm for which the plaintiff seeks damages is “indivisible.” This can mean that the harm is not even theoretically divisible (as death or total destruction of a building) or that the harm, while theoretically divisible, is single in a practical sense so far as the plaintiff’s ability to apportion it among the wrongdoers is concerned (as where a stream is polluted as a result of refuse from several factories). In the first type of case almost uniformly courts will permit entire recovery from any or all defendants. There is conflict, however, in the second situation, with some well-reasoned recent cases recognizing that the plaintiff’s right to recover for his harm should not depend on his ability to apportion the damage but that this is a problem which is properly left with the defendants themselves. 1 F. Harper & F. James, The Law of Torts § 10.1 at 697-98, 701-02.- (1956) (Footnotes omitted.)

The text continues with a detailed discussion of Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952), cited by the Michigan Supreme Court in the Maddux case and relied upon by the District Court in the instant case. See 1 F. Harper & F. James, The Law of Torts, supra at 708-09.

Assuming plaintiffs in this case prove injury and liability as to several tort-feasors, the net effect of Michigan’s new rule is to shift the burden of proof as to which one was responsible and to what degree from the injured party to the wrongdoers. The injustice of the old rule is vividly illustrated in an early Michigan case, Frye v. City of Detroit, 256 Mich. 466, 239 N.W. 886 (1932). There a pedestrian was struck by an automobile, thrown in the path of a street car and struck again. Since his widow could not establish which impact killed him, a verdict was directed against her case.

Since our instant case has not been tried, we do not speculate about what the facts may show, either as to injury or liability. But it is obvious from the briefs that appellant corporations intend to make the defense that if there was injury, other corporations, persons and instrumentalities contributed to the pollution of the ambient air so as to make it impossible to prove whose emissions did what damage to plaintiffs’ persons or homes. Like the District Judge, we see a close analogy between this situation and the Maddux case. We believe the Michigan Supreme Court would do so likewise.

In this diversity case Michigan law is not finally and conclusively declared. The District Judge, under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), had to seek to establish what the Supreme Court of Michigan would do with this case on the basis of what it has already decided. Like the District Judge, we believe that the Michigan courts would apply the Maddux principles to the case at bar. Under Maddux, each plaintiff’s complaint should be read as alleging $11,000 or more in damages against each defendant. Therefore, the principle of Zahn v. International Paper Co., 414 U. S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), which would disallow aggregation of plaintiffs’ claims for the purpose of establishing diversity jurisdiction, does not apply to this case.

As to plaintiffs’ second count which purports to state a joint $1,000,000 punitive damage claim against all three defendants, we believe that no facts are pled which establish a joint right to punitive damages under Michigan law. On remand plaintiffs may amend to make such claims individually. Poledna v. Bendix Aviation Corp., 360 Mich. 129, 103 N.W.2d 789 (1960).

As modified, the judgment of the District Court is affirmed.

       28 U.S.C. § 1332 provides :
      “(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy, exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—
      * * s¡s :\i :¡:
      (2) citizens of a State, and foreign states or citizens or subjects thereof; and

      . Arguably there may be a federal common law of nuisance applicable to injuries by pollution of water or air across state boundaries. See Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972); Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971). Thus far, however, no case has been decided under federal nuisance doctrine except where the action has been brought by a state.
      Clearly, a suit for injunctive relief could have been (but was not) brought under federal environment law. See 42 U.S.C.' § 1857h-2 (Supp.1973).

      . Michigan law, of course, does not allow collection of the judgment more than once. Maddux v. Donaldson, 362 Mich. 425, 451, 108 N.W.2d 33 (1961) (Black, J., concurring). It also allows for the joint defendant who pays the judgment to seek contribution from his joint tortfeasors. Mich.Comp.Laws Ann. § 600.2925 (1967).


author: COFFIN, Chief Judge.

text:
    Carl B. HOITT, Jr., et al., Plaintiffs, Appellees, v. Joseph C. VITEK, etc., et al., Defendants, Appellees. Russell E. Collins et al., Plaintiffs, Appellants.
    No. 73-1351.
    United States Court of Appeals, First Circuit.
    Argued Jan. 7, 1974.
    Decided April 9, 1974.
    See also, 1 Cir., 497 F.2d 598.
    George Charles Bruno, Manchester, N. H., with whom Kurt Swenson was on brief, for appellants.

      John J. Donahue, John M. Roney, Providence, R. I., Max D. Stern, Burn-ham, Stern & Shapiro, Boston, Mass., Jack Greenberg, and Stanley A. Bass, New York City, on brief, for Rhode Island Legal Services, Inc. and N. A. A. C. P. Legal Defense and Educational Fund, amici curiae.
    Dina Lassow and R. Patrick Maxwell, Washington, D. C., on brief for National Legal Aid and Defender Association, amicus curiae.
    David W. Hess, Asst. Atty. Gen., with whom Warren B. Rudman, Atty. Gen., was on brief, for appellees.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This is an appeal from the district court’s denial of attorneys’ fees to the plaintiff intervenors represented below by New Hampshire Legal Assistance (NHLA). The suit, Hoitt v. Vitek, 361 F.Supp. 1238 (D.N.H.1973), was brought by prisoners against the warden of New Hampshire State Prison to redress alleged deprivations of civil rights in violation of 42 U.S.C. § 1983. The crux of the prisoners’ complaints rested in the prison authorities’ failure to provide procedural safeguards prior to administrative action effecting changes in their in-prison rights and privileges and in some cases prior to involuntary transfer out-of-prison. The district court granted relief to the prisoners by: (1) permanently enjoining transfer of prisoners out-of-state unless procedural requirements were observed; (2) prohibiting discipline for events occurring during a prison-wide lockup; (3) awarding compensatory damages to nine plaintiffs for work they missed because of transfers ; (4) awarding costs and reasonable attorneys fees to the plaintiffs. None of these orders was appealed. The challenge now before us is to a later order limiting the award of fees to the private counsel who shared responsibility for the case with New Hampshire Legal Assistance.

The district court in granting attorneys’ fees exercised its equitable discretion and concluded that the public interest had been forwarded by the suit. This option was available to the district court under equity doctrines elucidated in among other recent cases, Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) and Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Though neither party appeals the award to private counsel, we note that the court was well within the bounds of its discretion in determining that the public, as well as all present and future prisoners, benefits when the constitutionality of the treatment of prisoners is assured, and that the bar ought to be encouraged to give them legal aid and advice in order to secure their rights.

The district court, though taking this view, nonetheless denied fees to the NHLA attorneys. Both the private attorney and the NHLA attorneys below undertook the case without anticipation of reimbursement from their clients. Both pursued the case with dedication. The primary distinction between the two is a generic one. The private attorney earns his salary from private clients on a fee-paying basis. The private attorney may either be a salaried associate of a firm, a partner sharing its profits, or more directly dependent on the accumulated fees from his clients. The NHLA attorney is salaried through the federal Office of Economic Opportunity by an eighty per cent federally-funded project. Undertaking a non-fee paying case is his job and he cannot increase his income by an award of fees to the association.

Appropriate bases for fee awards include statutory authority for such grants, the desire to encourage settlement of cases, punishment of a losing party for misconduct or bad faith, and as here to encourage important policy enforcement through “private attorneys general”. See generally Natural Resources Defense Council, Inc. v. E. P. A., 484 F.2d 1331 (1st Cir. 1973).

None of these legitimate reasons for the exercise of the court’s equitable discretion turns on the nature of an individual attorney’s normal means of reimbursement. These grounds for fee award look to the past behavior of the parties and toward encouraging legal representatives in similar situations in the future. If the sole representative of the plaintiffs below had been NHLA and the district judge had reasoned, as he did, that the suit merited award under the “private attorney general” theory, we would find it difficult to discern the advancement of any legitimate policy by the denial of attorneys’ fees to NHLA. See generally, Note, Awards of Attorney’s Fees to Legal Aid Offices, 87 Harv.L.Rev. 411 (1973).

However, in this particular case, there were two representatives; the judge awarded fees only to one. The policy of encouraging future representation was secured by the award. The specific amount of attorneys’ fees is within the judge’s discretion. 6 Moore’s Federal Practice jf 54.77 [2], It would serve no equitable purpose to require the district court to make a token grant of fees where the purpose and theory of the equity doctrine is served :

“Plainly the foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation .... As in much else that pertains to equitable jurisdiction, individualization in the exercise of a discretionary power will alone retain equity as a living system and save it from sterility.” Sprague v. Ticonic National Bank, 307 U.S. 161, 165-167, 59 S.Ct. 777, 780 (1939) (Frankfurter, J.).

Affirmed.

      . The policies of this case are acknowledged by federal legislation in many areas. The Congressional policy favoring the provision of legal services to the poor, including those incarcerated may be found in e. g. Economic Opportunity Amendments of 1966, 42 U.S.C. § 2809(a)(3) (1970). The policy encouraging vindication of constitutional rights underlies 42 U.S.C. § 1983.

      . The “common benefit” rationale of Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) and Mills v. Electric Auto-Lite Co., is not listed only because it was not the premise for the grant below and it may have problems in this area not common to the other categories which we need not reach here. Note, Awards of Attorney’s Fees to Legal Aid Offices, 87 Harv.L.Rev. 411, 421 (1973).


author: WEBSTER, Circuit Judge.

text:
    Lorraine SANDEN, Appellant, v. MAYO CLINIC et al., Appellees.
    No. 73-1575.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 14, 1974.
    Decided April 17, 1974.
    Rehearing Denied May 24, 1974.

      Paul D. Tierney, Minneapolis, Minn., and John J. Doyle, San Francisco, Cal., for appellant.
    James H. O’Hagan, Minneapolis, Minn., for appellees.
    Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

Lorraine Sanden, a registered nurse residing in San Francisco, California, brought an action against the Mayo Clinic, the Mayo Foundation and two surgeons on the Clinic’s staff. In her complaint she alleged that defendants had subjected her to extensive anal surgery, which she had not authorized, including a negligently performed radical hemorrhoidectomy, as a result of which her anal sphincter was irreparably injured, causing her permanent incontinence of the feces, as well as other disabilities. Federal jurisdiction was premised on diversity of citizenship and an amount in controversy exceeding $10,000, 28 U.S.C. § 1332.

Following a seven-day trial, the jury returned a verdict in favor of defendants on May 30, 1973. Ms. Sanden appeals from the order of the District Court denying her timely filed motion for new trial. In this appeal, she asserts as prejudicial error a number of trial rulings by the District Judge, all of which are discussed infra.

I. DEFENDANTS’ FAILURE TO PLEAD FRAUD AS A SPECIFIC DEFENSE.

Ms. Sanden’s first assignment of error challenges the defendants’ introduction of evidence of fraud at the trial. It was the defendants’ position that Ms. Sanden, together with her San Francisco attorney, had planned to bring this lawsuit even before she had submitted to surgery at the Mayo Clinic; that she had faked the disabilities purportedly resulting from that surgery; and that she had attempted to introduce at trial fraudulent evidence to substantiate those disabilities. Ms. Sanden argues that since the defendants did not specifically allege fraud in their answer to her complaint, it was error to permit the introduction of such evidence at trial under Fed.R.Civ.P. 8(c) We disagree. Rule 8(c) requires that fraud and other matters in avoidance of the plaintiffs case be specifically pleaded in the defendants’ answer when invoked as affirmative defenses. However, “if the defense involved is one that merely negates an element of the plaintiff’s prima facie case * * * it is not truly an affirmative defense and need not be pleaded despite rule 8(c).” 2A J. Moore, Moore’s Federal Practice j[ 8.27 [2], at 1843 (2d ed. 1974). See Lomartira v. American Automobile Insurance Co., 245 F.Supp. 124 (D.Conn.1965), aff’d, 371 F.2d 550 (2d Cir. 1967). Cf. Goodwin v. Townsend, 197 F.2d 970, 971 (3d Cir. 1952); Feller v. McGrath, 106 F.Supp. 147, 149 (W.D.Pa.1952), aff’d mem. sub nom., Feller v. Brownell, 201 F.2d 670 (3d Cir.), cert. denied, 346 U.S. 831, 74 S.Ct. 24, 98 L.Ed. 355 (1953).

In contending that Ms. Sanden’s injuries were feigned and that the lawsuit was no more than a scheme for financial gain, the defendants in no way conceded any color to plaintiff’s claim, but were simply attempting to persuade the jury to reject her entire case as untrue. This assignment of error is frivolous.

II. REFUSAL OF THE DISTRICT JUDGE TO PERMIT THE PLAINTIFF’S PHYSICIAN TO ATTEND HER MEDICAL EXAMINATION BY DEFENDANTS’ EXPERT.

On the third day of trial, the District Court ordered Ms. Sanden to submit to an examination by defendants’ medical expert. The examination was to include an electromyographic study of the plaintiff’s anal sphincter; such a study distinguishes healthy and intact nerves from damaged nerves through the placement of electrodes in one’s muscles and through analysis of the reaction of those muscles to electro-chemical impulses.

Plaintiff requested that a physician of her choice attend this examination as an observer. The defense- counsel objected, and Judge Devitt sustained that objection. The examination was performed on behalf of the defendants by William R. Kennedy, M.D., Professor of Neurology, Director of the Neuromuscular Laboratory in the Department of Neurology, University of Minnesota, in Minneapolis. At trial Dr. Kennedy testified that the electromyograph indicated that the muscles and nerves in question were normal and that any abnormal reactions displayed by Ms. Sanden were the result of her purposeful efforts to determine the outcome of the test. The conclusions so drawn by Dr. Kennedy stand in direct contradiction to the findings of three other physicians who examined Ms. San-den and testified on her behalf.

In this appeal, Ms. Sanden urges that Judge Devitt’s refusal to allow one of plaintiff’s physicians to attend the adverse medical examination performed by Dr. Kennedy constitutes prejudicial error. She contends that this is so particularly because of the importance of the electromyographic study in resolving the disputed questions of fact and because of the conflicting testimony elicited on the test results. We uphold the District Court.

The manner and conditions of a court-ordered medical examination, as well as the designation of the person or persons to conduct such an examination, are vested in the sound discretion of the trial court. Fed.R.Civ.P. 35(a). Although the examined party will usually be permitted to have his or her oWn physician present, see 4A J. Moore, Moore’s Federal Practice ff 35.04, at 35-24, 35-25 n. 11 (2d ed. 1974); 64 A.L.R.2d 498-500 (1959), we find that under the circumstances of this case Judge Devitt did not abuse his discretion. No argument was advanced that a physician of her own choosing was needed to protect the privacy of Ms. Sanden, or to shield her from embarrassment. Cf. 64 A.L.R.2d 499-501 (1959). And properly so. She was a trained, registered nurse. We note that not only did plaintiff’s own physician examine her a few hours after the adverse examination but also, in addition to Dr. Kennedy’s testimony, the jury had before it extensive medical evidence from a variety of doctors from which to draw its findings of fact. In this context, we perceive no prejudice resulting from Judge Devitt’s refusal to permit Ms. Sanden’s own physician to attend the adverse examination.

III. SUBMISSION OF “FALSE EVIDENCE” TO THE JURY.

Plaintiff contends that during the course of the trial her attorney submitted to the defense counsel a tape of an electromyographic study performed on Ms. Sanden by Dr. Willibald Nagler. The tape, as allegedly submitted to the defense counsel, was attached to a demonstration tape showing damaged nerves and muscles of the anal sphincter. The defendants’ medical expert, Dr. Edward Lambert, testified that he was given only the demonstration tape, without Ms. Sanden’s tape attached; he further claimed that of a series of photographic projections purportedly made from Dr. Nagler’s electromyographic study of Ms. Sanden and later introduced as evidence, he had determined that at least one had been prepared from the demonstration tape.

Plaintiff would have us remand for a new trial on the ground that “false evidence” was submitted to the jury. She ar.gues that the defense counsel lost or destroyed Ms. Sanden’s tape and that, in any event, the disclosure of the discrepancy should not have been made before the jury without first apprising the plaintiff’s attorney of the problem.

A motion for a new trial is addressed to the sound discretion of the trial court and the action of the trial court should not be upset absent a strong showing of an abuse thereof. Farmers’ Co-operative Elevator Association Non-Stock of Big Springs, Nebraska v. Strand, 382 F.2d 224, 230-231 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S. Ct. 589, 19 L.Ed.2d 659 (1967); Bankers Life & Casualty Co. v. Kirtley, 307 F.2d 418, 423 (8th Cir. 1962). We discern no abuse of that discretion. The defendants’ expert witness did not testify falsely; he merely testified that a demonstration tape, without Ms. San-den’s tape attached, had been submitted to him and opined that at least one of the photographs introduced as evidence had been made from that demonstration tape. In addition, while counsel for the plaintiff interposed one objection at the outset of Dr. Lambert’s testimony — on grounds of irrelevancy and immateriality — , he made no further objection as this line of evidence was developed; in fact, plaintiff’s attorney explicitly answered in the negative when asked by the court whether such evidence would be harmful. The court thereupon permitted the defense to continue its questioning of Dr. Lambert.

After the entry of the verdict and the judgment thereon, Ms. Sanden submitted to Judge Devitt, together with her motion for a new trial, motions for an independent court-ordered medical examination and for an F.B.I. investigation of the disappearance of the plaintiff’s electromyographic tape. Judge Devitt denied each of these post-trial motions. It is not clear whether appellant attempted to preserve these points on appeal; in any event, we decline to disturb Judge Devitt’s orders, for we find them well within his discretion.

IV. THE MISCONDUCT OF THE DEFENSE COUNSEL AND THE TRIAL COURT’S FAILURE TO REPRIMAND HIM.

Appellant assigns as prejudicial error the trial court’s failure to disallow certain questions propounded by the defense in open court. The questions included, inter alia, suggestions that Ms. Sanden had administered to herself a pudendal nerve block in an effort to control the results of the adverse electromy-ograph; that she was romantically involved with her San Francisco attorney; that one of her medical witnesses regularly testified for a New York law firm; and that her entire case was fraudulent. Appellant further contends that on certain occasions when the attorneys had approached the bench, counsel for the defense repeatedly spoke loudly, within the hearing of the jury, in disregard of rulings from the bench not to do so.

We have studied the transcript and find no error requiring a new trial. The questions propounded by the defense counsel were properly phrased and were not argumentative. Some of the questioning challenged herein occurred during cross-examination by the defense of a character witness called on behalf of the plaintiff.

We also note that when the colloquy at the bench became too loud, the court admonished the defense to speak more softly; moreover, the trial court was in a better position than are we to determine the effect, if any, of these remarks on the jury. There was no motion for a mistrial at the time of the bench colloquy nor was this matter specifically mentioned when plaintiff moved for a new trial after the verdict had been rendered. As a result, this issue was not properly preserved for our review. Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967).

Finally, appellant contends that her case was prejudicially described as false and fraudulent during opening statement and closing argument. Normally, it is improper for an attorney to argue before the jury that the case of his opponent is false or fraudulent. See F. W. Woolworth Co. v. Wilson, 74 F.2d 439 (5th Cir. 1934); State v. Williams, 210 N.W.2d 21 (Minn.1973). Yet here the supporting facts were developed at trial and the conclusion, if such evidence was believed, was at least a permissible one. Further, there were no objections made during or immediately after either the opening or the closing argument. See St. Louis Southwestern Railway Co. v. Ferguson, 182 F.2d 949, 954 (8th Cir. 1950); Thomson v. Boles, 123 F.2d 487, 495-496 (8th Cir. 1941), cert. denied, 315 U.S. 804, 62 S.Ct. 632, 86 L.Ed. 1204 (1942); London Guarantee & Accident Co. v. Woelfle, 83 F.2d 325, 344 (8th Cir. 1936); Brinegar v. San Ore Construction Co., 302 F.Supp. 630, 641 (E. D.Ark.1969). We have reviewed the statements complained of and find no plain error.

V. PREJUDGMENT OF THE CASE ON THE MERITS.

Appellant contends that the trial court prejudged the case in favor of defendants-appellees as demonstrated by several prejudicially erroneous rulings. These include: refusal to allow a continuance, which Ms. Sanden requested when her original Minneapolis attorney withdrew from the case and was replaced by another; pre-trial comments to the effect that plaintiff had “no case”; and refusal to grant a new trial.

Motions for continuance lie within the broad discretion of the trial judge. An-zaldo v. Croes, 478 F.2d 446 (8th Cir. 1973). The record discloses no abuse of discretion. Judge Devitt granted one continuance and rescheduled the trial for precisely the date requested by the plaintiff’s second Minneapolis counsel, Paul D. Tierney.

During a pre-trial proceeding on May 7, 1973, Judge Devitt remarked:

I didn’t think there was any merit in the case because that’s what plaintiff’s attorney told me * * *.

This was in response to a statement of defense counsel and indicated a prior view of the case. Judge Devitt further explained that although the Minneapolis attorney who had withdrawn from the case favored dismissal of the case, he would grant no dismissal without the approval of Ms. Sanden and her San Francisco attorney. In fact, the record shows that although the defense twice moved that the complaint be dismissed, Judge Devitt did not dismiss the case but instead afforded Ms. Sanden a full and fair trial. Appellant's charges of prejudgment are without merit.

VI. THE TRIAL COURT’S QUASHING OF DEPOSITIONS AND ITS SCHEDULING OF THE DEPOSITION OF THE PRINCIPAL DOCTOR-DEFENDANT CLOSE TO THE TIME OF TRIAL.

Appellant claims as her final assignment of prejudicial error the quashing of notices to take two depositions and the scheduling of another in close proximity to trial. The record reveals that by an order dated May 8, 1973, following a hearing, Judge Devitt partially modified his original order terminating discovery, thereby enabling the plaintiff to take the deposition of Dr. Hill, the principal doctor-defendant as well as the depositions of certain witnesses in California and Florida. We find no error in Judge Devitt’s refusal to modify further the original date for completion of discovery, which resulted in the quashing of the deposition of Dr. Quan, one of plaintiff’s experts who was unable to appear as a witness at trial, and the effective quashing of the deposition of Dr. Manson, one of the doctor-defendants, who did testify at trial.

Nor do we find any abuse of the trial court’s discretion in the scheduling of the deposition of Dr. Hill, the principal doctor-defendant, two days before the commencement of the trial. Rule 26(c) expressly permits the trial judge to protect a party from any undue burdens of discovery by, inter alia, ordering that “the discovery may be had only on specified terms and conditions, including a designation of time or place * * *” (emphasis added). Moreover, the record indicates that during the pre-trial hearing before Judge De-vitt on May 7, 1973, Mr. Tierney, eoun-sel for the plaintiff, described as “satisfactory” an arrangement to depose the defendant on “the day before trial”.

Affirmed.

      . Several attorneys have represented Ms. Sanden since the inception of this action. The complaint was initially filed by Thomas F. Burns and Associates, a Minneapolis law-firm, and John J. Doyle, a San Francisco attorney. Subsequently, Paul D. Tierney of the Minneapolis lawfirm of LeVander, Zimp-fer & Tierney, Ltd. replaced Thomas F. Burns and Associates as Ms. Sanden’s local counsel; Mr. Doyle continued to serve as co-counsel.

      . Rule 8(e) provides in part:

        Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. * * *

      . “At common law an affirmative defense should give color to the opposing party’s claim, i. e., admit an apparent right in the opposite party and rely on some new matter by which that right is defeated.” 2A J. Moore, Moore’s Federal Practice Tf 8.27 [3],. at 1856 (2d ed. 1974).

      . On direct examination by the defense, Dr. Kennedy testified in part as follows:
      Q. Now, do you have an opinion as to whether the patient was trying to contract when you asked her to? A. Well, yes. I concluded that she was not trying, because I had taken a neurological history and performed a neurological examination and looked for any diseases, neurological diseases, as we always do, and I found nothing to indicate that there were other reasons that she couldn’t contract when I asked her, that is, no brain damage or spinal cord lesions, et cetera.
      Q. So you' concluded, when you asked her to contract, the contraction didn’t come because she wasn’t trying; is that correct? A. Yes.

      . Dr. Willibald Nagler, head of the Department of Physical Medicine and Rehabilitation, New York Hospital and Cornell University, testified that he found the nerves which supply the anal sphincter muscles to be damaged. Dr. Essam Awad, a professor at the University of Minnesota Medical School, specializing in neuromuscular diseases, testified that he had discovered “definite evidence of denervation in the inner sphincter.” Dr. Joseph Engel, a physician in private practice in Minneapolis, answered in the affirmative when asked whether there was de-nervation of Ms. Sanden’s anal sphincter.

      . Rule 35(a) :
      (a) Order for examination. When the mental or physical condition * * * of a party * * * is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician * * *. 'The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

      . In so finding, we express no disapproval of those cases in which the examined party has been allowed to have his or her own physician present.

      . A total of eighteen medical doctors testified by appearance or by deposition at the trial.

      . The “demonstration tape” was a tape provided by a Dr. Rogoff of New York who makes such tapes to teach the proper methods of interpreting electromyographic studies. During oral argument before this court, counsel for Ms. Sanden explained that 15 to 20 feet of Ms. Sanden’s tape had been attached to a much longer demonstration tape.

      . See Fed.R.Civ.P. 59; Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350 (4th Cir. 1941).

      . The tape was then played before the jury so that they might decide whether the voice thereon was that of Dr. Nagler or that of the demonstration instructor, Dr. Rogoff.

      . Following oral argument before this court, Ms. Sanden asked us to order an independent court-appointed electromyographic study of her anal sphincter to resolve the eviden-tiary discrepancies adduced at trial. An order denying that request was entered March 5, 1974.

      . It is apparent from a reading of the record that the District Judge was confronted with numerous problems in the management of this case which must have taxed his patience, not to mention his credulity. Despite an atmosphere permeated by charges and counter-charges of professional misconduct, Chief Judge Devitt conducted the trial with fairness and with full consideration of the rights and needs of the parties.

      . At the hearing, defendants had objected to taking the depositions and had sought protection by means of a motion to quash, which the court apparently treated as a Rule 26(c) motion for protective order. We need not consider the procedural requirements of Fed.R.Civ.P. 26(c), since the challenge was only to the prejudicial effect of the order.

      . See General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204, 1212 (8th. Cir. 1973), cert. denied, 414 U.S. 1162, 94 S. Ct. 926, 39 D.Ed.2d 116 (1974):
      Since the granting or denial of a protective order is within the discretion of the trial court, 4 Moore’s Federal Practice If 29.68 at 26-491, only an abuse of that discretion would be cause for reversal.