author: FAIRCHILD, Circuit Judge. STEVENS, Circuit Judge

text:
    Virginia R. HERZBRUN et al., Plaintiffs-Appellees and Appellants, v. MILWAUKEE COUNTY et al., Defendants-Appellants and Appellees.
    Nos. 72-1625, 72-1626.
    United States Court of Appeals, Seventh Circuit.
    Argued June 18, 1973.
    Decided Oct. 17, 1974.
    Rehearing Denied Nov. 15, 1974.
    Stevens, Circuit Judge, concurred with opinion.

      John S. Williamson, Jr., Milwaukee, Wis., for Virginia Herzbrun.
    Robert G. Polasek, Asst. Corp. Counsel, Milwaukee County, Milwaukee, Wis., for Milwaukee County.
    Before KILEY, Senior Circuit Judge, and FAIRCHILD and STEVENS, Circuit Judges.

       Judge Kiley indicated an intention to approve this opinion before he died on September 6, 1974. elude the deputy director of the Department, and the chief examiner and members of the county Civil Service Commission.

   FAIRCHILD, Circuit Judge.

The individual plaintiffs are employees of the Department of Public Welfare of Milwaukee County, Wisconsin. They brought action under 42 U.S. C. § 1983 against the county and a number of its officers to set aside the discharge of plaintiff Virginia Herzbrun and the suspensions of other employee plaintiffs. The district court decided in favor of plaintiffs, declaring the discharge and suspensions void, ordering backpay and other relief, and enjoining defendants from acting against the employees on the basis of the charges involved in the action. Defendants appealed, and plaintiffs cross-appealed from denial of attorneys’ fees.

Plaintiffs have Civil Service type tenure pursuant to Sections 63.01-63.17, Wis.Stats. They may not be removed except in accordance with those provisions, although they may be suspended for not more than ten days. Sec. 63.10 calls for a specific complaint by the chief executive officer of a department when he believes that an employee “has acted in such a manner as to show him to be incompetent to perform his duties or to have merited demotion of dismissal.” Notice and hearing are required, and “At the termination of the hearing the commission shall determine whether or not the charge is well founded and shall take such action by way of suspension, demotion, discharge or reinstatement, as it may deem requisite and proper under the circumstances and as its rules may provide.” Under Sec. 63.-14(1), “no factor or influence other than the fitness of a person to perform the duties of the office or position in which he is acting or employed, shall affect the determination of suspensions or discharges. . ” Sec. 63.02 requires the commissioners to adopt rules and regulations.

The Commission’s Rule VII, Section 4 is entitled “Cause for Suspension, Demotion, or Discharge,” Subsec. (1) provides, in part: “The following are declared to be cause for suspension, demotion, or Discharge.” Subsec. (1) pro-ployee from the classified service of the County of Milwaukee, though charges may be based upon causes and complaints other than those here enumerated, namely:

“(k) is guilty of acts or omissions unbecoming an incumbent of the particular office or position held, which render his suspension, demotion, or discharge necessary or desirable for the economical or efficient conduct of the business of the county or for the best interest of the county government.”

Paragraph (k) is here challenged as vague and overbroad.

On August 24, 1970, defendant Silver-man made written charges against plaintiff Herzbrun. He charged that she had violated paragraphs (1) and (1) (k) of the Rule, and, specifically, that on August 21 she

“(1) Methodically interfered with the telephonic communications system at the Welfare Center Building by removing telephone receivers from their cradles and by inserting broken pencils therein in the manner hereinafter described, thereby creating a ‘busy’ line at the central switchboard resulting in a major backup of incoming calls for the reason that the central switchboard could not be cleared to service them.

“(2) That such conduct effectively destroyed the ability of internal departments to communicate with each other or to the outside for the reason that the number of phones in various service blocks apparently in use as a result of such conduct exceeded the maximum capacity of those blocks and made all other phones in the block appear dead.

“(3) That she counseled others to act in similar fashion and as a result phones throughout the Welfare Center Building were de-activated by the removal of the receivers from their cradles and by the placement of broken pencils, filter cigarette ends, folded paper, metal clips and other objects which when properly positioned held the receiver, while partially in its cradle, away from the disconnect buttons so that the phone appeared to be in service but in fact was not.

“(4) That such conduct persisted throughout the day of the 21st of August despite repeated attempts by supervisory and other personnel to clear the lines by replacing the telephone receivers in their cradles and removing foreign objects therefrom.

“(5) That such deliberate and persistent sabotage of the communications system was intended to and did result in the substantial isolation of the Welfare Center from inside and outside communication and prevented the department from carrying on its functions which often involve emergency situations requiring immediate response and which always involve the needs of the people whom it is the mission of the agency to serve.”

A hearing was held August 31. The Commission made its finding and decision as follows:

“We further find from the evidence and testimony presented at the hearing that the charges so proven are sufficient to and do justify this Commission in its judgment to discharge Virginia R. Herz-brun from the classified service of Milwaukee County under authority of Section 4, Rule VII of the Milwaukee County Civil Service Rules and Section 63.10, Wisconsin Statutes: Said Virginia R. Herzbrun is hereby discharged from the classified service.”

Mrs. Herzbrun was president of the union local. The labor agreement with the county required the county to provide bulletin boards for notices regarding union affairs, but provided for removal, on notice from the employer, of material deemed libelous and the like. During the previous week there had been a dispute concerning cartoons posted on the boards and deemed by management to be improper under the agreement. As a result, management removed the boards the night of August 20. Employees were angered, and disrupted telephone communication for several hours in the manner described.

At the hearing, Mrs. Herzbrun minimized her responsibility for the disruption, testifying she was not in control of the situation, and had attempted to discourage others from more violent measures. There was support in the record for the charges, however, and we interpret the findings of the commission as sustaining the charge of active participation and counseling of others by her.

After the discharge of Mrs. Herzbrun, Mr. Silverman suspended the other plaintiffs for periods of ten days or less, citing Rule VII, Section 4(1) (k) in each notice.

The district court was of the opinion that although plaintiffs’ conduct was probably not protected by the First Amendment, plaintiffs nevertheless had standing to challenge paragraph (k) as vague and overbroad, and that the paragraph is unconstitutional for those reasons. In a case involving events preceding those in this case, but decided after the events and before the decision in this case, the district court held the paragraph unconstitutionally vague and overbroad. Zekas v. Baldwin, 334 F.Supp. 1158 (E.D.Wis.1971). In Zekas, the predecessors of defendants were enjoined from using paragraph (k) against Zekas on account of his public statements and participation in a demonstration.

It seems to us there can be little question that an employee’s deliberate promotion of and participation in a massive and prolonged disruption of the telephone communication system of a very large departmental office is “hard core” conduct which any reasonable person must know would be cause for discipline or dismissal from employment whether described in a rule or not. Plaintiff Herzbrun, found on sufficient evidence to have engaged in conduct so clearly within paragraph (k), however narrowly construed, does not have standing to challenge paragraph (k) for vagueness, in ordinary due process terms. Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). See Parker v. Levy, 417 U.S. 733, 754-757, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); United States v. Ramsey, 503 F.2d 524, p. 527 (7th Cir. No. 73-1580, 1974). We do not understand that the other plaintiffs, who were merely suspended, claim that their conduct was significantly different in this respect from Mrs. Herzbrun’s. The conduct of plaintiffs who were permitted to challenge a somewhat similar rule for vagueness in Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974) consisted of written expression of opinion and was surely not “hard core.”

Turning now to the challenge for overbreadth: As pointed out in Broadrick, at p. 612, 93 S.Ct. at p. 2916, “the Court has altered its traditional rules of standing to permit — in the First Amendment area — ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite, narrow specificity.’ Dombrowski v. Pfister, 380 U.S. [479] at p. 486 [85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965)]. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” See, United States v. Dellinger, 472 F.2d 340, 355-357 (7th Cir. 1972). Cf. a discussion of the appropriate analysis of a challenge for overbreadth on Fourth Amendment rather than First Amendment grounds. United States v. Ramsey, 503 F.2d 524, (7th Cir. No. 73-1580, 1974).

Challenge for First Amendment over-breadth has been upheld where the sanction threatened by official rule was discipline of a public employee as well as where it was a criminal penalty. Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970). But see Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

Several decisions by the Supreme Court, reached since the decision by the district court herein, and, indeed since submission of this appeal, require careful scrutiny with respect to an over-breadth challenge here.

In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), the Supreme Court considered whether the standards established under the Lloyd-LaFollette Act, 5 U.S.C. § 7501, for the removal of nonprobationary federal employees, are facially overbroad. Subsec. (a) of See. 7501 provides that “[a]n individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.” 5 U.S.C. § 7501(a). This language is further defined by Civil Service Commission and OEO regulations providing that “employees . ‘avoid any action which might result in, or create the appearance of [ajffecting adversely the confidence of the public in the integrity of (OEO and) the Government,’ and that employees not ‘engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful or other conduct prejudicial to the Government.’ ” Arnett v. Kennedy, 416 U.S. p. 142, 94 S.Ct. p. 1638.

The Court noted the difficulties inherent in drafting a “general standard, not for the purpose of defining criminal conduct, but in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection,” and emphasized that “the Act is not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency.” 416 U.S. p. 159, 162, 94 S.Ct. pp. 1647, 1648. The Court concluded that the statutory and regulatory scheme at bar was not facially overbroad.

Comparing the language utilized in the Milwaukee County rule with that considered in Arnett v. Kennedy, we cannot conclude that the county rule is significantly less precise or substantially more broad in terms of arguable applicability to constitutionally protected speech. Paragraph (k) applies to acts or omissions which are “unbecoming an incumbent of the particular office or position held.” The specification is further narrowed by the requirement that the act or omission render the discipline “desirable for the economical or efficient conduct of the business of the county or for the best interest of the county government.” Sec. 63.14(1), Wis.Stats., requires that no factor or influence other than the fitness of a person to perform the duties shall affect suspensions or discharges. We see no significant difference between the predicate for discharge in Arnett and that in paragraph (k), in terms of the scope of protected conduct arguably within their terms.

We note, though the context is quite dissimilar, that the Supreme Court recently rejected the contention that Articles 133 & 134 of the Uniform Code of Military Justice (providing for punishment for “conduct unbecoming an officer and a gentleman” and proscribing “all disorders and neglect to the prejudice of good order and discipline in the armed forces”) are facially invalid because of their overbreadth. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). See Secretary of the Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974).

In deciding to reject the over-breadth challenge in Arnett, the Court held “that the language ‘such cause as will promote the efficiency of the service’ in the Act excludes constitutionally protected speech.” 416 U.S. p. 162, 94 S.Ct. p. 1648. There has been no corresponding pronouncement by a Wisconsin court expressly with respect to paragraph (k), although Wisconsin courts have often said, generally, that they must construe a statute so as to sustain its constitutionality if possible to do so. Building Height Cases, 181 Wis. 519, 527, 195 N.W. 544 (1923); State ex rel. Miller v. Manders, 2 Wis.2d 365, 373, 86 N.W.2d 469 (1957). The central justification for allowing challenges for over-breadth in the area protected by the First Amendment is a “juidcial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916. An authoritative limiting construction is significant in avoiding overbreadth. The dissenting justices in Arnett noted that the majority’s pronouncement of exclusion of constitutionally protected speech is not really a limiting construction. In terms of efficacy in avoiding a chilling effect, we do not deem this particular pronouncement in Arnett with respect to a federal statute and the absence of a similar pronouncement by a Wisconsin court with respect to paragraph (k) an adequate ground for distinguishing the cases.

In Broadrick, decided June 25, 1973, the Supreme Court recognized that the application of the First Amendment ov-erbreadth doctrine is “strong medicine,” and articulated the principle, applicable to some types of statutes, that over-breadth must not only be real but substantial as well. Broadrick, 413 U.S. at 613, 93 S.Ct. 2908.

The Court said, at p. 615, 93 S.Ct. at p. 2917:

“But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ towards conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-175, [89 S.Ct. 961, 22 L.Ed.2d 176] (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”

As we understand this test of substantial overbreadth, when evaluating statutes covering both speech and unprotected conduct once a court determines that there is an area of possible impermissible applications, the court is to compare that area with the “plainly legitimate sweep” of the statute in order to determine that the former is substantial.

Paragraph (k) operates on “acts or omissions,” which may include speech and writing, i. e., pure expression, and conduct demonstrating protest, as well as conduct in which expression is minimal. Under Broadrick, the fact that some pure expression or demonstration of protest which arguably is unbecoming an employee and meets the other standards of paragraph (k) may be constitutionally protected is not necessarily enough to sustain an overbreadth challenge. Rather a judgment must be made that the degree to which that may be true is sufficient to warrant the use of the “strong medicine.”

It is clear that both the federal statute considered in Arnett v. Kennedy and the county rules before us here are directed at employee behavior including a wide spectrum of harmful, constitutionally unprotected conduct, not intended to convey any message and manifestly subject to state regulation. Nonetheless, the language of the rules is also susceptible to application in some circumstances where the First Amendment would protect the employee uttering criticism from discipline or discharge. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Although the courts may ultimately vindicate an employee who is dismissed for engaging in protected conduct, others who would engage in similar conduct may not do so for fear of risking their jobs. See Arnett v. Kennedy, 416 U.S. 134, p. 161, 94 S.Ct. 1633 (Marshall, Douglas & Brennan, JJ., dissenting).

Upon consideration of the rejection of the overbreadth challenge by the Supreme Court in Arnett, in an area so closely comparable to the one before us now, we consider ourselves required to reject the overbreadth challenge to paragraph (k), and leave “whatever over-breadth may exist [to] be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick, 413 U.S. at 615-616, 93 S.Ct. at 2918.

We take note of but reject plaintiffs’ contention that the judgment in Zekas, rendered while the present action was pending, including a declaration that paragraph (k) is in violation of the constitution, and not appealed from, binds the virtually identical defendants here by collateral estoppel. Although the district court referred to Zekas in the opinion in this case, it does not appear that plaintiffs raised the claim of estoppel in a pleading or motion. Moreover, present plaintiffs are different from the Zekas plaintiffs, and the Supreme Court has observed:

“Authorities have been more willing to permit a defendant in a second suit to invoke an estoppel against a plaintiff who lost on the same claim in an earlier suit than they have been to allow a plaintiff in the second suit to use offensively a judgment obtained by a different plaintiff in a prior suit against the same defendant.” Blonder-Tongue v. University Foundation, 402 U.S. 313, 329-330, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971).

We conclude that the over-breadth challenge fails. We have previously indicated our assumption that the character of the conduct of plaintiffs other than Mrs. Herzbrun was the same, for the purpose of this case, as the conduct in which she was found to have engaged. If any other plaintiff deems himself in a position significantly to distinguish the facts of his conduct, such plaintiff will not be foreclosed from doing so on remand. We note, however, with respect to damages out of the treasury of Milwaukee County, as appear to have been awarded initially, 42 U.S.C. § 1983 does not make a county liable, and the district court had no jurisdiction of the complaint against the county under 28 U.S.C. § 1343. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Hampton v. City of Chicago, Cook County of Illinois, 484 F.2d 602, 610 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471. Except for Mrs. Herzbrun, the individual damages were far less than the jurisdictional amount under 28 U.S.C. § 1331.

Mrs. Herzbrun, individually, claims that her discharge, in contrast with the suspensions of others, denied her equal protection of the laws. We are unable to find that the difference in treatment was outside the broad range of discretion of the county officers.

In view of our disposition of defendants’ appeal, we need not consider plaintiffs’ appeal from the denial of attorney fees.

The judgment appealed from is reversed and the cause remanded for dismissal of the action unless an individual plaintiff demonstrates a right to proceed further. The parties shall bear their own costs on appeal.

STEVENS, Circuit Judge

(concurring) .

With one reservation I concur in Judge Fairchild’s opinion. I question whether these plaintiffs have standing to invoke the First Amendment as a bar to a disciplinary proceeding based on the kind of conduct disclosed by this record. That conduct was not even arguably communicative

Our, interest in encouraging a free interchange of ideas and information provides the raison détre for oberbreadth adjudication. When rules dealing exclusively with communication have been attacked, the Supreme Court has not required the challenge to be made by a litigant who claims that his own activity was constitutionally protected. In such cases the Court has concluded that the cost to society of permitting some unprotected speech to go unpunished was outweighed by the danger that protected speech might be deterred by an overly broad prohibition.

The rationale of those cases may justify an overbreadth attack on some rules that prohibit both speech and nonexpres-sive conduct. But if such an attack on a rule applicable both to speech and to nonexpressive conduct should be successful, the rationale for the exception would not necessarily justify a total invalidation of the mixed rule. The interests protected by the First Amendment would be adequately vindicated by a holding that the rule is invalid insofar as it purports to prohibit or to regulate speech or expressive conduct. The cost to society of permitting unprotected speech to go unpunished is acceptable and should be borne to avoid inhibiting protected speech; but our interest in freedom of speech does not justify incurring the cost of permitting harmful conduct to go unpunished if that conduct is not even arguably communicative and is plainly unprotected by the Constitution.

Since the overbreadth exception should not be enlarged beyond the reason for its existence, a successful over-breadth attack would be of no benefit to a litigant whose own conduct is entirely noncommunicative. In the case before us, even if we should conclude that a rule against “unbecoming conduct” contains an excessive threat to punish protected speech, in my judgment the appropriate relief would merely foreclose enforcement of that rule against speech or expressive conduct. Such relief would be of no benefit to plaintiffs whose own conduct was not even arguably communicative. I would therefore conclude that they do not have standing to challenge Rule VII, § 4(1) (k) on First Amendment grounds. However, since a majority of the panel has reached a contrary conclusion on this issue, I join in Judge Fairchild’s opinion on the merits.

      . Local 594, a union of public welfare employees, is also a plaintiff. Defendants in-

      . Although the action taken was concerted response in a dispute witli management about the bulletin boards, we think the physical interference with communication and the conduct of public business was too deliberate, substantially disruptive, and prolonged to be classified as symbolic speech and protected expression.

      . Arnett, dissenting opinion by Mr. Justice Marshall, 416 U.S. p. 206, 94 S.Ct. 1633.

      . Indeed, it deliberately frustrated communication between persons in need of help and those employed by the State to serve them.

      . As a predicate for its overbreadth analysis in Gooding v. Wilson, the Court stated: “Section 26-6303 punishes only spoken words.” 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408. Similarly, in his dissenting opinion in Karlan v. City of Cincinnati, 416 U.S. 924, 94 S.Ct. 1922, 40 L.Ed.2d 280 (1974), Mr. Justice Douglas prefaced his discussion of overbreadth by stating: “These eases all involve convictions under ordinances and statutes which punish the mere utterance of words . . . .”

      . “In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830.

      . “But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ towards conduct and that conduct— even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining coin-preliensive controls over harmful, constitutionally unprotected conduct.” Broadrick, supra, 413 U.S. at 615, 93 S.Ct. at 2917.

      . It might be necessary to evaluate the importance of the “danger zone” in which protected expression might be inhibited. See Dombrowski v. Pfister, 380 U.S. 479, 494, 85 S.Ct. 1116, 14 L.Ed.2d 22. Since there is a sharper demarcation between expressive conduct and nonexpressive conduct than between protected speech and unprotected speech, prohibiting enforcement against any speech or expressive conduct would not, it seems to me, leave room for any significant danger zone in which protected speech would be deterred.

      . The holding in Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214, to the extent that it rests on the First rather than the Fourteenth Amendment, is not inconsistent with this analysis. For the Cincinnati ordinance which was held invalid on its face dealt exclusively with the right of assembly which, like the right to speak freely, is expressly protected by the First Amendment. The record in that case disclosed “that the appellant Coates was a student involved in a demonstration and the other appellants were pickets involved in a labor dispute.” Id. at 612, 91 S.Ct. at 1687. They were all, therefore, engaged in a kind of expressive activity which, for the purpose of determining standing, might appropriately be treated as at least arguably protected by the First Amendment.


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    Clara GALARD, Plaintiff-Appellee, v. Dean JOHNSON, Defendant-Appellant.
    No. 73-1815.
    United States Court of Appeals, Seventh Circuit.
    Argued May 24, 1974.
    Decided Oct. 25, 1974.

      Timothy W. Woods, South Bend, Ind., for defendant-appellant.
    Samuel J. Bernardi, Jr., Valparaiso, Ind., for plaintiff-appellee.
    Before PELL and STEVENS, Circuit Judges, and LARAMORE, Senior Judge.

       Senior Judge Don N. Laramore of the United States Court of Claims is sitting by designation.

   PELL, Circuit Judge.

This is a personal injury case in which negligence was admitted by the defendant, Dean Johnson, and the only issue presented to the jury was the amount of damages, if any, to which the plaintiff, Clara Galard, was entitled for any injuries she sustained as a result of an automobile accident. The jury returned a verdict in the amount of $45,000 for the plaintiff. The principal issue on appeal is whether the district court erred in denying Johnson’s motion for a new trial on the ground that the verdict was excessive, being against the manifest weight of the evidence.

I

A motion for a new trial on the ground of inadequate or excessive damages is addressed to the discretion of the trial court. Fronz v. Pennsylvania R. R. Co., 239 F.2d 639, 640 (7th Cir. 1956); Bucher v. Krause, 200 F.2d 576, 586 (7th Cir. 1952), cert. denied, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404 (1953). To reverse the judgment below, we must conclude that the verdict was so “gross” or “monstrously excessive” that the trial judge abused his discretion in permitting it to stand. Quilter v. Elgin, Joliet & Eastern Ry. Co., 409 F.2d 338, 340 (7th Cir. 1969); Price v. H. B. Green Transp. Line, Inc., 287 F.2d 363, 365 (7th Cir. 1961). As the Second Circuit has noted, “[t]he very nature of the problem counsels restraint.” Dagnello v. Long Island R. R. Co., 289 F.2d 797, 806 (2d Cir. 1961). Damages assessed by a jury are largely discretionary with it. “Just as the trial judge is not called upon to say whether the amount is higher than he personally would have awarded, so are we appellate judges not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand.” Dagnello v. Long Island R. R. Co., supra at 806; Bucher v. Krause, supra, 200 F.2d 587.

The evidence in the present case indicated that in the accident, which occurred in August 1968, the automobile in which Mrs. Galard was riding was struck from the rear and thrown into a line of motorcycles resulting in a second impact. The collision caused the plaintiff, who was riding in the back seat, to be thrown forward and sideways and pinned between the front and back seats of the ear.

Mrs. Galard testified, at the trial, that prior to the accident, she had never had any headaches or any problems with her abdomen, back, or legs. According to the plaintiff, her health in general before the accident was “A-l.” Mrs. Gal-ard testified that immediately after the accident she was in great pain and was taken to a hospital. She stated that, at that time, she had a bump on her forehead and severe pain in her shoulders, back, neck, abdomen, and left leg. There were bruises, Mrs. Galard testified, over large parts of her body and her left calf was swollen. The plaintiff remained in the hospital for four or five days before going home.

Mrs. Galard testified that since the accident and continuously until the time of the trial five years later, she had headaches and severe pain in her back, abdomen and left leg. The plaintiff also stated that, on occasion, she experienced difficulty walking. Mrs. Galard further testified that, due to the pain, she could no longer do heavy work around the house but could do only light household chores. Finally, Mrs. Galard testified about the various costs which she had incurred as a result of her injuries.

Much of Mrs. Galard’s testimony was supported by that of her daughter, Judy Witek. Mrs. Witek testified that, prior to the accident, her mother never complained of pain and was always able to do her housework. Mrs. Witek stated that, after the accident, the plaintiff complained of pain, was unable to do housework, and, on occasions, had difficulty walking.

In addition to the testimony of Mrs. Galard and her daughter, the jury also heard extensive medical testimony concerning the extent and cause of Mrs. Galard’s injuries. The two physicians who had treated Mrs. Galard after her initial hospitalization both testified, by deposition, on behalf of the plaintiff.

Johnson argues that since this testimony was by way of deposition, this court is at no peculiar disadvantage visa-vis the trial court and jury with respect to seeing and observing these two witnesses. While testimony introduced in deposition form cannot be the basis of credibility determinations of the type to which the live witness is subjected, such as demeanor on the stand, here Mrs. Galard, as a live witness whose credibility was exceedingly important to her cause, was subjected to these witness-chair tests. She apparently was not found wanting. Further, insofar as the live medical testimony introduced by the defense was concerned, the credibility determination could have taken the form of discrediting. The coin is two-sided.

Dr. George Downes, a general practitioner, testified that from July 1972 until the time of the trial in May 1973, Mrs. Galard had visited him once or twice a week. Dr. Downes stated that his examinations of the plaintiff revealed tenderness in the abdomen and lower back, a muscle spasm in the lower back, hardening of the left calf, and. limitations in movement in the neck, hips, and left knee. Dr. Downes also testified that, in his opinion, Mrs. Galard’s headaches and pains in her neck, back, and leg were the result of the accident and were permanent in nature. The doctor stated that he himself had not seen x-rays of the plaintiff’s back and, therefore, did not know whether Mrs. Galard had arthritis, but that his diagnosis would remain the same even if she did in fact have arthritis. Finally, Dr. Downes testified that, in his opinion, Mrs. Galard was truthful about her symptoms and was not a malingerer.

Dr. Elsie Eng, an osteopathic physician specializing in internal medicine, testified that she treated Mrs. Galard from September 1968 until August 1970. Dr. Eng, like Dr. Downes, stated that her examinations of the plaintiff revealed tenderness in the neck, back, abdomen, and leg as well as limitation in movement in the neck and back. Dr. Eng also noted a hardening of the tissue in the plaintiff’s left calf. In August 1970, at the time of her last examination of Mrs. Galard, the plaintiff, according to Dr. Eng, was unable to bend forward and had pain when assuming an upright position. An x-ray examination indicated, Dr. Eng stated, that Mrs. Galard had an arthritic condition in her back. Dr. Eng testified that the automobile accident could, and probably did, aggravate the arthritic condition to a point where it was causing somewhat constant pain. Dr. Eng concluded that the plaintiff’s symptoms were, in all likelihood, related to the automobile accident and that the back injury and pain were permanent in nature.

The defense medical experts, on the other hand, testified essentially, that any injuries or pains that Mrs. Galard suffered as a result of the accident were not long lasting or permanent. If Mrs. Galard did continue to experience pain, such pain, according to these medical experts, was caused by medical conditions unrelated to the automobile accident, including arthritis, hardening of the arteries, and high blood pressure. In addition to reliance on these medical experts, the defendant points to certain apparent contradictions in the testimony of Dr. Eng. The defense contends that, on the basis of the medical testimony presented by the defense, the judgment should be reversed.

The defendant’s argument that the defense medical experts should be believed (and the plaintiff’s experts discredited) is essentially the same argument that he made to the jury and later to the district judge in the motion for a new trial. Both the jury and the district judge heard the evidence and observed the demeanor of most of the witnesses. It was, of course, the function of the jury to weigh the contradictory evidence and inferences, to judge the credibility of witnesses, and to draw the ultimate conclusions as to the facts. We cannot say that the expert testimony of Dr. Downes and Dr. Eng was so incredible that the jury could not have relied upon it in reaching its verdict. Both of these physicians had treated Mrs. Galard for extended periods of time and both apparently concluded that she was being truthful about her pains, that her symptoms were the result of her automobile accident, and that at least some of the ailments were permanent in nature. The defense was free to argue that Dr. Eng had made apparently contradictory statements on other occasions. Resolving such conflicts within a witness’s testimony is a matter for the jury. Moreover, the very nature of the issue presented- — the extent and cause of the plaintiff’s pain — made the matter of Mrs. Galard’s credibility particularly important. Here again, we cannot say that this testimony was so incredible that the jury could not have relied upon it.

The amount of the verdict, $45,000, is no doubt sizable. Indeed, a very few decades ago it might well have been deemed outlandish. Viewing it, however, in the context of present-day verdicts, it does not seem as startling and when contrasted with the prayers of complaints of the current period of personal injury litigation, it has almost an aura of insignificance. The day of the umbrella policy is at hand and not surprisingly the advent of no-fault insurance has been precipitated. The factor of inflation undeniably has contributed to the change. Juries undoubtedly are considering “the pattern of steadily increasing wages and the decreasing purchasing power of our currency.” Quilter v. Elgin, Joliet & Eastern Ry. Co., supra, 409 F.2d at 340.

In the present case, Johnson’s vigorous efforts on appeal to fight against the tide may well have been initiated by the fact that upon admission to the hospital following the accident, Mrs. Galard was found by the treating physician, an orthopedic surgeon, to be suffering only from multiple minor bruises and a general feeling of illness. Experienced defense counsel need not be reminded that severe and permanent injuries are not necessarily presaged by immediate dire symptoms.

In any event, as stated before, it is not our function to substitute our view of a proper award for that returned by the jury. The only question before us is whether the district court abused its discretion in concluding that the jury did not abuse its discretion. Fronz v. Pennsylvania R. R. Co., supra, 239 F.2d at 640. Viewing the evidence, as we must, in the light most favorable to the plaintiff, Seifert v. Solem, 387 F.2d 925, 929 (7th Cir. 1967), we cannot say that the district court abused this discretion.

II

In addition to the contention that the verdict was excessive, the defendant presented two other grounds in support of his motion for a new trial. The district court rejected both of these additional grounds and the defense now claims that this requires reversal.

The defense contends that the district court erred in admitting into evidence certain medical, prescription, doctor, housecleaning, and cab fare bills. The defendant states that, under Indiana law, the measure of damages for medical services is “the reasonable and fair value of medical expenses necessarily incurred’’ by the plaintiff. Herrick v. Sayler, 160 F.Supp. 25, 29 (N.D.Ind.1958); Kampo Transit, Inc. v. Powers, 138 Ind.App. 141, 161, 211 N.E.2d 781, 793 (1965).

We agree with the district judge that there was evidence at the trial indicating that the bills were necessarily incurred as a result of treatment for injuries suffered in the accident and that there was no evidence to show that the bills were unreasonable in amount. With respect to the cab fare bills, Mrs. Galard’s undisputed testimony was that she did not drive and that she incurred cab fares in visiting the doctors’ offices and in picking up prescriptions from the drugstore. On the question of the household bills, Mrs. Galard testified that, due to the pain resulting from the accident, she was unable to do housework for a period of time after the accident and that she paid to have someone perform these chores. With respect to the medical and prescription bills, both Mrs. Galard and the physicians who treated her testified that the plaintiff received pain-producing injuries in the accident and that treatment and drugs were necessary to relieve this pain. Given this evidence and the fact that the defense made no showing of unreasonableness in amount, the district court did not err in denying a new trial on this ground.

Finally, the defendant contends that a new trial is necessary because one witness, Judy Witek, was permitted to testify at the trial although she was not listed in the pretrial order as a witness for the plaintiff. The defense, however, knew prior to the trial that the plaintiff intended to call Mrs. Witek as a witness and knew the specific subject of her testimony. While the testimony was helpful to the plaintiff’s case and presumably therefore hurtful to the defense, the defendant has shown no prejudice from the fact that the witness’s name was not included in the pretrial order. Under these circumstances, the district court properly denied the defendant’s motion for a new trial on this ground.

Affirmed.

      . It is well settled that even in a ease in which jurisdiction of the district court is based on diversity of citizenship and in which the appropriate state law controls on all substantive questions, the standard of review with respect to a motion for a new trial on the basis of excessive damages is determined by federal law. Blasky v. Whealey Trucking, Inc., 482 F.2d 497, 498 (6th Cir. 1973) ; Novak v. Gramm, 469 F.2d 430, 434 (8th Cir. 1972) ; Humble v. Mountain State Constr. Co., 441 F.2d 816, 820 (6th Cir. 1971) ; 11 Wright & Miller, Federal Practice & Procedure: Civil § 2802 (1973).

      . Dr. Eng saw Mrs. Galard approximately seven times in 1968; one time in 1969; and seven times in 1970.

      . The defense medical experts included Dr. Edward Mladick, the orthopedic surgeon who examined Mrs. Galard at the hospital immediately after the accident; Dr. Morris Friedman, an orthopedic surgeon; and Dr. Martin Feferman, a neurological surgeon. The latter two doctors had each examined Mrs. Galard on one occasion.

      . The defendant did not object to the instruction given to the jury concerning the elements of damages they could consider in arriving at their verdict. The elements of damages listed in the instruction were:
      “1) The nature and extent of injuries;
      2) Whether the injuries are permanent or temporary;
      3) The physical pain and mental suffering experienced and reasonably certain to be experienced in the future as a result of the injuries;
      4) The reasonable expense of necessary medicines, treatments and services, and reasonable expense of future medicines, treatments and services;
      5) The aggravation of pre-existing injury, disease or conditions ; and
      6) The past and future inability of the plaintiff to perform her normal functions in life, including her household duties.”

      . The defendant argues that the determination of excessive damages is a question of law to be decided by the court after a detailed analysis of all of the evidence. No doubt, “there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law.” Dagnello, supra, 289 F.2d at 806. The thrust, of the defendant’s argument in the present case, however, appears to be that we should weigh the evidence, and on a balancing of the evidence, which here was certainly conflicting, determine that as a matter of fact the verdict was not justified. We, in any event, have reviewed the evidence and declined to say that the upper limit has been surpassed.

      . The prescription bills over a five year period totaled $131.48; the cab fare bills amounted to $51.10; the household bills amounted to $595.00.

      . The defendant points out that Dr. Eng stated that she also prescribed diet and high blood pressure pills for the plaintiff on occasions and that the plaintiff’s weight and high blood pressure were not necessarily related to the accident. Mrs. Galard testified, without dispute, however, that all of the prescription exhibits which were introduced at trial were connected with her injuries from the accident.


author: HOLLOWAY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bert Glenn MUNZ, Defendant-Appellant.
    No. 73-1868.
    United States Court of Appeals, Tenth Circuit.
    Argued July 8, 1974.
    Decided Oct. 23, 1974.

      Donald C. McKinlay, Denver, Colo. (Stephen E. Snyder, Holme, Roberts & Owen, Denver, Colo., on the brief), for defendant-appellant.
    Rodney G. Snow, Asst. U. S. Atty., Salt Lake City, Utah (C. Nelson Day, U. S. Atty., Salt Lake City, Utah, on the brief), for plaintiff-appellee.
    Before SETH and HOLLOWAY, Circuit Judges, and TALBOT SMITH, District Judge.

       Senior District Judge, of the Eastern District of Michigan, sitting by designation.

   HOLLOWAY, Circuit Judge.

This appeal is taken from a conviction and 25-year sentence on an information charging defendant-appellant Munz with robbery of a federally insured bank in Salt Lake City on October 6, 1971, and assaulting and putting in jeopardy the life of a teller by use of a rifle, in violation of 18 U.S.C.A. § 2113(a) and (d). After a hearing and review of a medical report the trial court on February 8, 1972, found defendant competent to stand trial. A jury trial followed on February 16, 1972, resulting in a guilty verdict and judgment was entered thereon. That judgment was vacated by this court on April 30, 1973, and the cause was remanded. This appeal is from an amended judgment of conviction and 25-year sentence entered on July 30, 1973.

At trial the facts concerning the robbery were stipulated. The only issue raised at trial was defendant’s mental competence to commit the offense. On this appeal defendant Munz argues that the trial court erred in that: (1) the court’s questions and comments during trial and its instructions on the issue of mental competency did not comply with the standard previously promulgated by this court, and (2) the jury was provided with an improper standard for judging defendant’s competence as the result of an incorrect and uncorrected statement by the government’s expert witness concerning the standard to be applied. From the trial record and the instructions as a whole, we are convinced there was substantial prejudice to the defendant in the submission of the competency issue, and remand for a new trial.

At trial the prosecution undertook the burden of establishing defendant’s competence, primarily through the testimony of an examining psychiatrist, Dr. Bliss. He testified that he had examined the defendant at a medical center in January, 1972, taking a medical and psychiatric history, and giving simple psychological tests.

Dr. Bliss concluded that defendant had a very low IQ of 71, and was almost mentally defective, “almost a moron.” He determined that defendant was apparently driven by impulses to get money to buy explosives to detonate, which apparently is his source of sexual gratification. He concluded that the defendant was a borderline mental defective, that he probably was a schizophrenic in partial remission, and that he had strong impulses and had been preoccupied for many years with explosives, which apparently has been a dominant theme in his life. He further concluded that defendant had been intermittently psychotic or schizophrenic over the course of many years, and that at one time or another he had heard voices and had delusions but was free of both delusions and hallucinations when the doctor saw him. (Tr., 5, 9).

In October, 1970, defendant had been released from the Veteran’s Hospital where he had been treated with tranquilizing drugs. He was supposed to continue the medication. Dr. Bliss said defendant told him he had taken the tranquilizers for a while after his release. However, he had stopped taking the medication and had been without sleep for three nights before the robbery. Dr. Bliss stated his opinion that at the time of the offense the defendant was not suffering from hallucinations or delusions, in reply to questions by the court.

The doctor testified, however, that there was no question but that defendant was very strongly driven “by this impulse, this overwhelming urge to get the money to buy explosives to detonate and so derive some sexual gratification.” And he said apparently this urge was “strong enough to drive him to perform the act.” Dr. Bliss did not believe the defendant had an irresistible impulse in the sense that he would have committed the act if policemen had been around, but he believed the defendant had a strong urge related to the explosives.

Two lay witneses also testified. The bank teller said that defendant spoke in just a normal voice and did not appear particularly nervous or agitated at the time of the robbery. Defendant spoke about three phrases, repeated each twice, pausing between the phrases. (Tr., 30-31). The warehouse foreman where defendant worked testified that he had known defendant approximately two and a half years, and that defendant was an employee under his supervision. He stated that defendant was a little slow in some respects; that when he was asked to pull an item he would wander through the warehouse looking at each item; and that he couldn’t remember exactly where they were placed. He said defendant was a good worker and that he had not noticed anything unusual about the way he acted. (Tr., 33-34).

The defense proof included documents concerning defendant’s hospitalization in 1967 for an indeterminate period. An order for hospitalization showed that two physicians examined defendant in September, 1967, and gave a diagnosis of schizophrenic reaction, finding that defendant was mentally ill and in need of hospitalization for an indeterminate period. The doctor’s report left a blank after the form question whether defendant’s 'conduct was apparently dominated by delusions or hallucinations.

A hospital summary from the Veteran’s Administration Hospital at Salt Lake and other medical records were also introduced. The summary stated that in 1942 defendant had joined the Service and went overseas to participate in the invasion of Guam. He related that at that time he liked the sound of explosives and claimed that when soldiers asked him why he froze up when they were fired on, he claimed he had a chill go down his back, a tingling sensation. The summary stated defendant set off explosives in Salt Lake City in 1955, for which he spent some time in jail and was then committed to the Utah State Hospital. He broke into a sporting goods store a few months later to steal guns and ammunition, and was rehospitalized for 7% years. On discontinuation of medication after release in 1964, defendant again broke into a sporting goods store and was returned to the Utah State Hospital. In March, 1968, an examining physician at this hospital gave a diagnosis of defendant as a “chronic undifferentiated schizophrenic reactive with paranoid feature, ANA character disorder individual.” The Veteran’s Hospital summary reveals that defendant was hospitalized there from March, 1968, to October, 1970. At the time of discharge another psychiatrist at the Veteran’s Hospital gave a diagnosis of antisocial personality and mental deficiency, primary, with a full scale IQ of 71.

Thus the proof raised a very serious question concerning the defendant’s competency to commit the offense. It is the instructions, questioning and comments of the trial court dealing with this issue which the defendant challenges on this appeal.

First, defendant says that the court’s questions and comments during trial and its instructions on the competency issue did not comply with the standard promulgated by this court, relying primarily on Wion v. United States, 325 F.2d 420 (10th Cir.) (en banc), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309. More specifically defendant argues that the court erred by failing to inform the jury that one is deemed mentally incompetent if he lacks substantial capacity to control his conduct and that there is no requirement that mental impairment be total. And defendant says the court erred by informing the jury that it could find defendant incompetent if his acts were the result of a delusion, whereas the proper test imposes no requirement that incapacity result from a delusion or any other particular type of mental impairment.

There was considerable discussion of delusions during the trial and in the instructions. The prosecution’s expert, Dr. Bliss defined the term delusion “as a mistaken idea, concept, which has little or no basis with reality.” He gave examples such as believing one is God or Napoleon or the feeling that one is being followed. However, the witness did not classify the defendant’s mental condition with regard to setting off explosives to obtain sexual gratification as a delusion. Instead he testified that defendant was not under the influence of a delusion at the time of the offense, at least by all the information the defendant gave him, although there was no question but that the defendant was strongly driven by an overwhelming urge to get money to buy explosives to detonate to derive some sexual gratification (Tr., 8). And, as stated, defendant’s medical exhibits did not indicate that his conduct was apparently dominated by delusions or hallucinations. In the court’s questioning and comments during trial the emphasis repeatedly was on whether the defendant had a delusion, while the prosecution and defense proof showed not a delusion but a serious mental disease or defect of a different sort as evidenced by the strong drive from which defendant admittedly suffered.

The prosecution’s expert witness distinguished the defendant’s mental condition from a delusion, while the trial court appeared to focus on delusions:

THE COURT: Well, do you think he was — assuming that he had the mental competence to know and understand what he was about, do you think he was so influenced by an insane delusion that he didn’t have any control over his conduct?
THE WITNESS: So far as I know, he was not under the influence of a delusion at the time, at least by all the information he gave me. There is no question in my mind that he was very strongly driven by this impulse, this overwhelming urge, to get the money to buy explosives to detonate and so derive some sexual gratification. I couldn’t estimate, really, quantify, the intensity of this. Apparently it was strong enough to drive him to perform the act. Would he have performed this if there had been policemen at his side? I really can’t answer that question. I am not sure. My guess is: Pi’obably not. (Tr., 8-9)

The trial court instructed the jury in part along lines similar to those of the Wion standard, saying that they must ask themselves whether defendant had the brain power to entertain the criminal intent, and that having the brain power, was he nevertheless under a driving force so compelling that he was deprived of his free will and choice, if what he was doing was the product of those forces in him rather than his voluntary choice (Tr., 51-52). However, the charge focused repeatedly on whether the defendant was driven by an insane delusion. Shortly after posing the questions referred to above, the court told the jury there was another thing to consider:

Was his conduct at that time and place and under the circumstances there in the bank his free voluntary choice, exercise of his own free choice and will? Was he willing the result or was he driven by some insane delusion to do what he did? (Tr., 52)

We are convinced that the defendant was prejudiced by the way the issue was submitted to the jury, viewing the record as a whole. In Wion v. United States, supra, 325 F.2d at 430, this court made clear its adoption of the A.L.I. standard on criminal responsibility and discussed the instructions which should be given on this issue:

When as here, therefore, the mental capacity of the accused to commit the offense charged is put in issue, the jury is to be told in substance that it is an essential element of the crime charged; that before convicting the accused, the jury must be satisfied beyond a reasonable doubt not only that the accused committed the unlawful act, but that he was criminally responsible for his conduct; and, that a person is not criminally responsible for his conduct if, at the time of such conduct, as a result of mental disease or defect, .he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The jury is then to be told that, as applied to their case, the test for criminal responsibility means that before they may return a verdict of guilty, they must be convinced beyond a reasonable doubt that at the time the accused committed the unlawful act, he was mentally capable of knowing what he was doing, was mentally capable of knowing that it was wrong, and was mentally capable of controlling his conduct.

Wion uses the general terms “mental disease or defect” to permit the scientists “full freedom to put their professional findings and conclusions before the court and jury.” Wion, supra at 430. It rejects any requirement .of coming within particular labels or classifications of mental disease or defect. See United States v. Freeman, 357 F.2d 606, 620-623 (2d Cir.); Model Penal Code § 4.01, Comment 3. Where such labels are used it is important that they be treated with great care so that they do not seem to limit the full disclosure of the defendant’s- mental condition. Cf. United States v. Chandler, 393 F.2d 920, 926, n. 17 (4th Cir.).

As stated earlier, in some portions of the instructions the trial court did phrase the issue along the lines of the Wion test, and of course we must look at the •charge as a whole. However, there were repeated references in the instructions and in the court’s comments during the trial focusing heavily on whether the defendant had a “delusion.” In referring to the testimony of Dr. Bliss about defendant’s condition the court stated that the doctor says “that is a kind of a delusion.” (Tr., 51). The difficulty is that the doctor actually distinguished the defendant’s drives from a delusion, and defendant’s medical proof showed no “delusion.” The doctor testified he did not believe defendant was suffering from delusions at the time of the crime — and defined and illustrated a delusion as a disorder clearly different from the defendant’s drives. We are convinced the jury may well have been misled and confused by the trial court’s focusing attention on “delusions,” to the serious prejudice of the defendant. See Bollenbach v. United States, 326 U.S. 607, 612-613, 66 S.Ct. 402, 90 L.Ed. 350; Government of Virgin Islands v. Carmona, 422 F.2d 95, 99 (3d Cir.).

Moreover there was no explanation in the instructions that the question was whether defendant lacked “substantial capacity” to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law. Instead the court in its questioning asked whether defendant was so influenced by an insane delusion that he “didn’t have any control over his conduct” (Tr., 8) (emphasis added). Defendant points out also that the prosecution’s expert witness said he doubted very much that defendant would rob a bank if there had been a policeman at his elbow at the time, adding however that there was a strong urge. On this record it was thus especially important that the jury be told, in accordance with Wion, that the question was one of “substantial capacity” of the defendant to appreciate the wrong-fiilness of his conduct or to conform his conduct to the requirements of the law. This is an important feature of the A.L.I. test, as adopted in Wion, supra, 325 F.2d at 430; see United States v. Frazier, 458 F.2d 911, 917 (8th Cir.); Blake v. United States, 407 F.2d 908, 915 (5th Cir.); United States v. Shapiro, 383 F.2d 680, 685, (7th Cir.) and it should have been clearly explained to the jury.

We are convinced that the cumulative effect of the instructions, questions and comments by the trial court prejudiced the defendant here in submission of the sole issue of competency which the jury decided, so as to constitute reversible error. See Marcus v. United States, 422 F.2d 752, 753 (5th Cir.); Getchell v. United States, 282 F.2d 681, 691 (5th Cir.).

The Government argues that the defendant did not object to the instructions or the doctor’s remark on cross-examination about the legal criterion concerning a policeman at your elbow. See n. 4, supra. Therefore it says such errors may not be considered in view of Rule 30, F.R.Crim.P., and the requirement for making such objections at trial before appellate contentions on such points may be urged. Under these principles this court does generally decline to consider contentions not made at trial, except in a case of plain error affecting substantial rights of the defendant. See Rule 52(b), F.R.Crim.P.; Lowther v. United States, 455 F.2d 657, 665 (10th Cir.), cert. denied, 409 U.S. 857, 887, 93 S.Ct. 114, 139, 34 L.Ed.2d 102.

In determining whether there was plain error we must view the record from all four corners. Wright v. United States, 301 F.2d 412, 414 (10th Cir.). The issue of competency to commit the offense was clearly raised by strong evidence. Since the presumption of sanity was dissipated, the mental capacity of the accused to commit the offense became an essential element of the offense to be proved by the prosecution by competent evidence beyond a reasonable doubt. See United States v. Bettenhausen, 499 F.2d 1223, 1228 (10th Cir.). Competency was the only issue tried. By focusing the jury’s attention on whether the defendant suffered from a delusion, and by not submitting the question as whether the defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, the Wion standard was not applied. We feel we must notice such prejudice to the defendant’s substantial rights. United States v. Owens, 460 F.2d 268, 269 (10th Cir.); Wright v. United States, supra, 301 F.2d at 414. “A conviction ought not to rest on an equivocal direction to the jury on a basic issue.” Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350.

In addition the Government contends that in any event the trial court’s instructions on the issue of mental competence substantially complied with the standard prescribed by this court, relying on Coffman v. United States, 290 F.2d 212 (10th Cir.), and Wion. For reasons stated earlier we are convinced that on this record as a whole the substance of the charge required by Wion was not made clear to the jury and that the defendant was prejudiced by the manner of submission of the issue.

Accordingly the judgment must be reversed and the case remanded for a new trial.

      . The defendant had prosecuted an appeal from denial of motion to vacate under 28 U.S.C.A. § 2255. The Government moved for remand, indicating that appellant Munz was not advised of his right to appeal at the time of sentencing, and this court vacated the judgment and remanded. At resentencing, after allocution and advice of the right to appeal, a judgment of conviction and sentence for a 25-year term was again entered.

      . The parties agreed that the facts concerning the robbery were essentially as follows: On October 6, 1971, at approximately 1:45 p. m. defendant Munz entered the bank and went to the cage of teller Nancy Vaughn carrying a 7mm. Mauser rifle and a grocery sack. He showed her the gun, handed her the sack, and told her to fill it up and to hurry up. She-placed $1,734.00 in the sack, whereupon Munz said “that’s enough,” and grabbed the sack and walked through the back door of the bank carrying the gun and sack full of money. Defendant was arrested at 6:35 that evening by FBI agents with $1,730.00 in his possession, including money placed in the sack by the teller.

      . This definition by the prosecution witness follows the standard definition of delusion as a false belief. Borland’s Illustrated Medical Dictionary (24th ed.), 395; Taber’s Cyclo-pedic Medical Dictionary (12th ed.), D-12. The latter dictionary defines the term as: “A false belief, as the individual’s believing he is Napoleon.”

      . Defendant argues that the expert incorrectly stated the legal standard of competence in his testimony (Tr., 18) :
      A I can’t really — I don’t know what an “irresistible urge” is, honestly. All I know is that some urges are stronger than others, and some seem to be very, very forceful indeed. I think lie bad a strong urge, but the legal criterion of having a policeman at your elbow — I don’t think it was that strong. That there was a strong urge I would not deny. It apparently was sufficiently strong to keep him awake three nights.