text:
    Bernard TILLMAN, Jr., Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
    No. 74-1446.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.

      Robert B. Sessums, James León Young, Jackson, Miss., for plaintiff-appellant.
    Joe H. Daniel, Jackson, Miss., for defendant-appellee.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

Plaintiff Tillman brought this Mississippi diversity action to recover damages for injuries he sustained when he fell from a scaffold while engaged in construction of a building as an employee of a company to which the defendant, Travelers Indemnity Company (Travelers), was the workmen’s compensation insurance carrier. Although Travelers has paid workmen’s compensation benefits to the plaintiff as provided by its contract, Tillman seeks an additional recovery because of Travelers’ alleged negligence in providing certain safety engineering services or accident prevention surveys. With no controlling Mississippi cases, he relies primarily upon § 324A, Restatement of Torts, Second, which develops a theory of liability to third persons for the negligent performance of services undertaken for another. After careful examination of the briefs and record in this case, and after hearing extended oral argument, we believe the evidence failed to establish a breach of the duty imposed by that section. We affirm the directed verdict entered in Travelers’ favor.

I.

Sometime before June 1967, H. A. Lott, Inc. (Lott) entered into a contract with the City of Jackson, Mississippi, for the construction of a building to be known as the “Municipal Auditorium.” Prior to construction beginning, the Travelers Indemnity Company issued a workmen’s compensation insurance policy to Lott to be effective January 1, 1967. A provision of that policy permitted, but did not require, Travelers to conduct periodic accident prevention surveys of the work being done by Lott at the auditorium. Pursuant to this policy Travelers’ safety engineering representative, Charles L. Pope, made a series of accident prevention surveys at the auditorium site. After each of these inspections, Pope would prepare a report, which was forwarded to various Lott officials, recommending remedying of unsafe conditions and requesting Lott’s “compliance” with those recommendations.

On January 26, 1967, Mr. Pope made an accident prevention survey while work was being performed on the outside of the auditorium. In his report of that inspection, he noted:

A substantial outside handrail and toe board should be installed on the bricklayers scaffolding which is now at a height of sixty feet and scheduled to be eventually erected to a height of approximately eighty-five feet.

The ensuing February 1967 report indicated that Lott had complied with this recommendation by Travelers.

The survey nearest in time to the date of Tillman’s accident was made on June 6, 1967. Although at this time there had been work going on inside of the auditorium for approximately five weeks, there was no evidence presented of where the bricklayer’s scaffolding was located and to what height it had risen on the day of the inspection. It is clear that on that date there was no scaffolding along the east wall balcony, the point from which Tillman fell. Testimony also indicates, however, that at no time were handrails being used on the scaffolding inside of the auditorium. In any event, the survey report of the June 6 inspection contained no indication of unsafe practices and no job safety recommendations.

On June 13, 1967, the day of the accident, Tillman was working for H. A. Lott, Inc., during the summer vacation between his junior and senior years of high school. He had first worked for Lott on the municipal auditorium job during the Christmas holidays of 1966 as a laborer whose job it was to supply bricks, blocks and mortar to the bricklayers on the job. When he returned to the auditorium job at the end of the school year, he began doing essentially the same type of work.

On the day of the accident, the particular bricklayers with whom Tillman was working were laying blocks on the inside east wall of the auditorium above a ledge which was later to constitute a side balcony. This ledge itself was approximately twenty feet above the floor of the auditorium and the tubular steel scaffolding being used by the bricklayers was at a height of about eighteen to twenty feet above the ledge.

Tillman’s work that day consisted of filling a wheelbarrow with mortar from a crane bucket on the west side of the auditorium, rolling the filled wheelbarrow over the floor of the main balcony to the east side, shoveling mortar from the wheelbarrow into a five gallon bucket, carrying the bucket out onto the scaffold where the bricklayers were working, and dumping the mortar onto mortar boards situated beside each bricklayer. The scaffolding surface was approximately five feet wide. The bricklayers and mortar boards took up approximately three feet of that surface closest to the wall, leaving approximately two feet or so on which Tillman had to walk with the mortar bucket.

Immediately prior to his fall, Tillman had made his normal trip to the west side of the auditorium and filled his wheelbarrow with mortar. After he had returned the wheelbarrow full of mortar across the main balcony to where the scaffolding began on the east side, he washed out his mortar bucket, and filled it with mortar. He then walked out onto the scaffold and proceeded to empty the bucket onto a mortar board. When he turned the bucket upside down to empty it, the mortar did not come out as usual, so he shook the bucket. The entire batch of mortar then came out of the bucket all at once. This caused Tillman to lose his balance and fall backwards off the scaffold. He fell approximately twenty feet to the ledge, bounced off the ledge, and fell the remaining twenty feet to the concrete floor of the auditorium. He sustained extensive injuries as a result of the fall.

At the conclusion of the presentation of Tillman’s case on the merits, Travelers moved for a directed verdict pursuant to Fed.R.Civ.P. 50(a), specifying various reasons therefor. After extensive argument of counsel, the district court granted the motion and dismissed the complaint with prejudice. On this appeal the sole issue presented for review is whether the trial court erred in granting Travelers’ motion at the close of plaintiff’s case. The standard to be applied by a district court in ruling on such motions was clearly stated in Boeing Co. v. Shipman, 411 F.2d 365, 374—375 (5th Cir. 1969). We must decide whether there was “substantial evidence to create a jury question.”

II.

Tillman based his action against Travelers on the legal principles expressed by § 324A of the Restatement of Torts, Second:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The specific act or omission alleged as the basis for the suit against Travelers was the failure of its safety engineer who inspected the project to require that handrails be utilized on scaffolding being used by bricklayers inside the building. According to plaintiff, this negligence proximately caused or contributed to his fall and injuries.

We have recently held that the principles of § 324A should be applied as Mississippi law in a diversity case. Judge Clark, writing for the court in Stacy v. Aetna Casualty & Surety Company, 484 F.2d 289, 292 (5th Cir. 1973) said:

While we find no Mississippi case precisely in point, we assume from the favorable citation of a related section, § 325 of the First Restatement of Torts, in Long v. Patterson, 198 Miss. 554, 22 So.2d 490, 492 (1945), that the Mississippi courts would now adopt the rule of 324A.

In Stacy, a Mississippi laborer sued his employer’s workmen’s compensation carrier directly for negligent performance of safety engineering services. This Court held that since there was no evidence in that case to establish that the workmen’s compensation carrier had undertaken to inspect the particular location of the employee’s accident, the case should not have been submitted to the jury to determine whether its failure to do so amounted to negligence. As a second basis for its decision, the Stacy panel found that there was no evidence of the insurer’s assumption of a duty owed by Stacy’s employer to its employees, and no evidence that Stacy’s injury resulted from reasonable reliance, by him or his employer, on the insurer’s undertaking. In the absence of such evidence, the requirements for the cause of action set out in § 324A had not been met.

It should be noted that the Stacy court, since it found no evidence to establish a cause of action, did not need to decide whether the insurance company was immune from suit for plenary damages because of the exclusive liability provisions of the Mississippi Workmen’s Compensation law. Miss.Code 1972 Ann. § 71—3—9. We take the same approach in this case. Neither must we consider many of the other ramifications of the law of third party liability which may stem from voluntary safety inspections by workmen’s compensation insurance carriers. See generally Hammond & Poust, Safety Service Liability — A Growth Area?, 1969 ABA Sec.Neg. & Comp.L. 259; Larson, Workmen’s Compensation Insurer As Suable Third Party, 1969 Duke L.J. 1117; Comment, The Workmen’s Compensation Insurance Carrier As A Third Party Tortfeasor, 1 Conn.L.Rev. 183 (1968); Comment, Insurer’s Liability for Negligent Performance of Voluntary Safety Inspections, 3 Cumberland-Samford L.Rev. 118 (1972); Comment, Workmen’s Compensation—The Carrier’s Reserved Right of Inspection and the Injured Employee, 16 DePaul L.Rev. 89 (1966); Note, Workmen’s Compensation Insurers — A Duty to Inspect?, 34 La.L.Rev. 856 (1974).

The case sub judice is clearly distinguishable from Stacy as to the first basis for the decision. In Stacy, Aetna had only undertaken to conduct safety engineering services in those areas where the employer’s safety director or the occurrence of prior accidents indicated consultation was needed. Because of this policy, Aetna’s safety man had never inspected the room where Stacy’s accident occurred. This is not the case presented here. As is indicated by the various safety inspection reports prepared by Travelers, the inspections of the Lott Construction Company site were of the “entire project.” It is undisputed that on June 6 Mr. Pope did inspect the inside of the auditorium, where Tillman was injured. Thus, there was sufficient evidence to at least make a jury question as to whether Travelers did “undertake to render services to another which [it] should recognize as necessary for the protection of a third person” under § 324A.

As to the second basis for the Stacy decision, however, this case is indistinguishable. In neither case was there evidence presented which satisfied the injured workman’s burden of going forward with evidence as to any of the three alternative conditions required by Restatement § 324A. Something more than the undertaking of safety inspections and a failure to exercise reasonable care in connection therewith is required. For liability to attach, it must be shown that either (a) the insurer’s negligence increased the risk of harm to the employee; or (b) the insurer undertook to perform a duty owed by the employer to the employees; or (c) the harm is suffered because of reliance of the employer or the injured employee upon the undertaking.

As to subpart (a), as in Stacy, there is no contention in this case that any act or omission by the insurer, Travelers, increased the likelihood of harm to the employees within the meaning of § 324A.

As to subpart (b), there was no proof in either case that the workmen’s compensation insurer undertook to perform a duty owed by the employer to the employees. In each case the employer had a legal obligation to exercise reasonable care in maintaining a safe place in which its employees could work. Long v. Woollard, 249 Miss. 722, 163 So.2d 698 (1964). In each case the employer had its own safety program and consulted with a representative of the insurer regarding recommendations for safety improvements. More importantly, in each case the record was void of any indication that the employer had delegated to the insurer any part of its direct and primary duty to discover unsafe conditions. Proof that the insurer conducted its own safety inspections and consulted with the employer afterwards “falls far short of systemwide assumption of [the employer’s] .duty to discover . . . hazards.” Stacy v. Aetna Casualty & Surety Co., supra, 484 F.2d at 294.

Finally, as to subpart (c), there was no evidence in either case that the injured workman’s accident occurred because of reliance by either the plaintiff himself or by his employer on the insurer’s undertaking. In the instant case Tillman offered no testimony that he had ever heard of Travelers prior to his injury or had ever seen a safety inspector from that insurer at the municipal auditorium job site. He relies heavily, however, upon alleged reliance by his employer, Lott. He points to the fact that whenever Travelers made safety recommendations (e. g., when it noted in its January 1967 report that handrails and toe boards were needed on the bricklayers’ scaffolding), they were complied with by Lott. According to the plaintiff, this supplies the reliance factor which was missing in Stacy.

Plaintiff misinterprets the type of reliance we referred to in Stacy and in our earlier case of Hill v. United States Fidelity & Guaranty Co., 428 F.2d 112 (5th Cir. 1970), cert. denied, 400 U.S. 1008, 91 S.Ct. 564, 27 L.Ed.2d 621 (1971) (Florida diversity case):

The carrier may also be liable if the employer so relied on the insurer’s undertaking that it neglected its own safety inspection program to his [the employees] detriment.

Stacy v. Aetna Casualty & Surety Co., supra, 484 F.2d at 295. The evidence in this case fails to establish that Lott had relied on Travelers’ inspection services to Tillman’s detriment. Although it was clearly shown that Lott consulted with Travelers’ safety representative and complied with his recommendations for safety improvements, there is no indication in the record that because of Travelers’ surveys Lott neglected or reduced its own safety program. Thus, as in Stacy, there was no evidence of the type of reliance required by § 324A.

In short, in applying the principles expressed in § 324A of the Restatement of Torts, Second, as elucidated upon in Stacy, most favorably to the facts of the instant case, we find no evidence which would satisfy plaintiff’s burden of proof as to any of the three conditions imposed by § 324A. Consequently, we affirm the decision of the district court in granting a directed verdict in Travelers’ favor.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM!: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel Mark SCHEFFER, Defendant-Appellant.
    No. 74-2101
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.
    Opinion Withdrawn March 27, 1975.
    Daniel Mark Scheffer, pro se.
    Anthony J. P. Farris, U. S. Atty., Edward B. McDonough, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM!:

Appellant Scheffer was convicted by a jury on charges related to the illegal importation of cocaine, in violation of 21 U.S.C. § 174, and was sentenced to three concurrent eight-year terms. That conviction was reversed by this Court for reasons involving the warrantless search of appellant’s home. United States v. Scheffer, 5 Cir. 1972, 463 F.2d 567. Scheffer was re-tried, convicted again and the same sentence was imposed. Appellant unsuccessfully appealed this second conviction, United States v. Collins, 5 Cir. 1973, 478 F.2d 837, cert. denied, 414 U.S. 1010, 94 S.Ct. 373, 38 L.Ed.2d 248, and then moved the district court for a reduction of his sentence. The motion was denied; Scheffer appeals.

We cannot say either that the sentence was illegal or that the district judge abused his discretion in refusing to reduce appellant’s sentence. United States v. Johnson, 5 Cir. 1973, 476 F.2d 1251, cert. denied, 414 U.S. 852, 94 S.Ct. 146, 38 L.Ed.2d 101. The record shows, however, that Scheffer was nineteen years old at the time of his offense and thus was eligible for sentencing pursuant to the Federal Youth Corrections Act. 18 U.S.C. § 5010. The district court order denying appellant’s motion for reduction of sentence offers no indication that the court considered the propriety of sentencing Scheffer under the Act, even though Scheffer submitted several affidavits which raised the issue. We therefore vacate appellant’s sentence and remand the case to district court for an express determination of whether Scheffer would benefit from treatment under the provisions of the Federal Youth Corrections Act. Dorszynski v. United States, 1974, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855; United States v. Usher, 5 Cir. 1974, 500 F.2d 388.

Vacated and remanded.

ON PETITION FOR REHEARING

PER CURIAM:

The original opinion in this ease, 506 F.2d 922, is withdrawn and the appeal is dismissed as moot.

Dismissed.


author: PER CURIAM:

text:
    UNITED STATES of America ex rel. Carl M. ROBINSON, Petitioner-Appellant, v. Leon J. VINCENT, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.
    No. 300, Docket 74-1294.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 5, 1974.
    Decided Dec. 6, 1974.
    Paula Van Meter, New York City, for petitioner-appellant.
    David R. Spiegel, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirschowitz, First Asst. Atty. Gen., of counsel), for respondent-appellee.
    Before KAUFMAN, Chief Judge, and ANDERSON and OAKES, Circuit Judges.
   PER CURIAM:

Robinson’s case is no stranger to us, this being the second time he has sought to reverse the denial of his application for a writ of habeas corpus. On his first appeal, we found that the petitioner was denied his right to counsel at the police station showup, see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Accordingly, we reversed the district court with instructions to determine whether there was clear and convincing evidence of an independent source for the in-court identification. United States ex rel. Robinson v. Zelker, 468 F.2d 159, 163 (2d Cir. 1972), cert. denied, 411 U.S. 939, 93 S.Ct. 1892, 36 L.Ed.2d 401 (1973). Following an evidentiary hearing, the district judge found that there was clear and convineing evidence of such a source. We believe Judge Cooper applied the appropriate Wade standard in weighing the evidence, see United States ex rel. Robinson v. Vincent, 371 F.Supp. 409, 415, 418, 423 (S.D.N.Y.1974), and we are of the view that his factual findings were not clearly erroneous. The alleged prejudicial errors committed by the state trial judge, the District Attorney, and petitioner’s counsel during the state trial were not raised below, and therefore cannot be considered on appeal. United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2d Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 331 (1971). Accordingly, we affirm.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry Ray WELLS, Defendant-Appellant.
    No. 74-2317.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.
    Theodore J. Sakowitz (Court-appointed), J. V. Eskenazi, Federal Public Defender, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Samuel A. Alter, Jr., Kerry J. Nahoom, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
    Before DYER, SIMPSON and CLARK, Circuit Judges.
   DYER, Circuit Judge:

Wells was indicted on eight counts of possession with intent to distribute, and distribution of a controlled substance, LSD. The eight counts involved four sales. He relied solely on the defense of entrapment. The jury found him not guilty as to the first transaction (Counts 1 and 2), but guilty as to the last three (Counts 3 — 8). Wells appeals from the guilty verdict, assigning as error an instruction given by the trial court. Finding no error, however, we affirm.

The jury was instructed that its task was to decide whether or not the defense of entrapment was available to the defendant. The court properly concentrated on the necessity of the government’s proving beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; United States v. Mosley, 5 Cir. 1974, 496 F.2d 1012; United States v. Workopich, 5 Cir. 1973, 479 F.2d 1142. After giving a general definition of entrapment, the court elaborated as follows:

If then the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case the defendant was ready and willing to commit crimes, such as charged in the indictment, whenever opportunity was afforded and that government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment.
On the other hand, if the evidence in the case should leave you with a reasonable doubt whether this defendant had the previous intent or purpose to commit any offense of.the character here charged and did so only because he was induced or persuaded by some officer or agent of the Government, then it is your duty to acquit him.

The propriety of the above charge is not here in question. However, additional instruction became necessary when the jury paused in its deliberation to ask this question:

If we find the defendant was entrapped, is* he therefore not guilty on all counts or can we find that he was initially entrapped on Counts 1 and 2 and guilty on the remainder counts? It is the court’s response to this question which is attacked here.

The court solicited recommendations from each party. The defense attorney stated the belief that the sequence of events was “one operation,” leading to the conclusion that “if the fellow was entrapped to begin with, then he should stand acquitted on all counts. This case is unique in that respect because you can’t separate the activities.” The government took the position that the original instruction was proper, but offered no further suggestion. The court, over defense objection, then instructed the jury as follows:

You must determine whether or not the defense of entrapment is applicable to any or all counts. Each count must be considered separately. Your verdicts may be the same or they may be different. Each verdict must be agreed to by all members of the jury.

The nub of Wells’ argument on appeal is that the jury should have been instructed on “course of conduct” in accord with Sherman v. United States, supra. In that case, the Supreme Court reversed a conviction for three narcotics sales finding that the government’s own undisputed evidence established entrapment as a matter of law. A government informer met Sherman in a doctor’s office where both were being treated for narcotics addiction. The informer made repeated requests and finally induced Sherman to supply him with narcotics, in the course of which Sherman was re-addicted. After several transactions, the informer notified the Bureau of Narcotics that Sherman was a seller. Agents observed three further transactions, for which Sherman was tried and convicted. The court indicated in passing:

It makes no difference that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement. Sherman v. United States, 356 U.S. at 374, 78 S.Ct. at 822 (emphasis added).

The Court is commenting here on the argument that if there was inducement, it produced acts which occurred prior to those for which Sherman was convicted.

In our case, there are no prior sales. Here, the government’s inducement allegedly produced only those acts for which Wells was tried. Further, there is no question of narcotics addiction produced by the original inducement. Unless the evidence established as a matter of law that there was a “course of conduct,” it would have been error to charge, as the defense requested at trial, that Wells was either guilty of all or innocent of all. But Wells asks us here to charge the district court with error for failing to instruct the jury that it might find that the series of sales was a “course of conduct” induced by the activity of the government. However, the instructions, fairly read, imply that the jury was free to so find, and there was therefore no error. The trial court cannot be expected to extract from Sherman an incidental paragraph which, although the case was decided in 1958, has not, so far as our research reveals, been relied upon by any court in a similar situation.

The district court instructed the jury that in order to find guilt it must find that the defendant was predisposed to commit the crime. It later instructed the jury to consider each count separately. Taken together, these instructions indicate that the jury could find Wells guilty of any or all the charges. It was unnecessary for the court to re-instruct on predisposition at the time it answered the jury’s question, because it is well settled that the reviewing court must look at the entire charge and assess its full meaning. United States v. Jackson, 5 Cir. 1972, 470 F.2d 684, 688; United States v. Green, 5 Cir. 1970, 433 F.2d 946; January v. United States, 5 Cir. 1969, 409 F.2d 31; Gurleski v. United States, 5 Cir. 1968, 405 F.2d 253, cert. denied, 1969, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769.

Admittedly, the problem in this situation is that it would be improper for the jury to consider the first crime, in which the defendant was entrapped, as evidence of his predisposition to commit the others. However, when the whole charge is considered, the jury was properly instructed to determine whether Wells was predisposed to commit each crime. The fact that the jury asked the question indicates that while contemplating the original predisposition charge, it was ready to discriminate among the various sales. Discriminate it did, finding that he was entrapped on the first, but that thereafter he was not.

If there were no substantial evidence on the record to support the guilty verdicts, then we might infer that the jury did not understand the charge. But in this case, taking the view most favorable to the government, there is substantial evidence to support each finding of guilty. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 499, 86 L.Ed. 680.

Two government agents were involved, the confidential informant, Kane, and the Drug Enforcement Administration Special Agent, Milford. The initial contacts were with Kane, who introduced Wells and Milford. Presumably Kane was responsible for any entrapment in the first sale, which took place at Wells’ and Milford’s first meeting. Thereafter, Kane’s role diminished to that of telephone intermediary for the other two parties. The sales were all between Milford and Wells, and the jury found that at the point that Milford took over, the entrapment ceased. Much of the conflict between Wells’ and Milford’s testimony consists not so much of disputed facts, but of the color placed on the facts. Again, we consider them in the light favorable to the government.

Agent Milford testified that at their first meeting, Wells sold him 950 LSD tablets and indicated his willingness to continue doing business. Wells said he was one of only two people on the east coast who had available to him the quantity of LSD he had, and that he could handle larger quantities. Wells’ source was a “friend” named Kevin. At the second sale, Wells asked Milford if he was interested in buying cocaine, and later on the same day called him and offered to get cocaine for $1,100 per ounce. Wells gave Milford his phone number and again discussed the California source for the LSD.

The third sale was larger, 5 grams. The source and the location were new. “Ron” supplied the drug, and Wells and Milford drove to his house in southwest Miami to make the buy. Again, Wells and Milford discussed the possibility of obtaining more. The last sale was for 950 tablets, this time for a reduced price. Wells told Milford that he would have to make this purchase before he could get larger amounts from California.

The sales took place over the space of a month, in at least two different locations. There were three different sources furnishing LSD to Wells. Wells made numerous phone calls to Milford and vice versa. Wells was knowledgeable about the entire process, both manufacture and sale. There was no testimony that Wells was reluctant to continue selling once he had started. The evidence is sufficient for the jury to find that at a time between the first and second sales, when Kane faded from the scene and Milford took over, Wells stopped acting at the instance of the government, and began acting freely on his own, and was willing to commit the crime whenever the opportunity was afforded. Finding no error in the charge to the jury, the judgment of conviction is

Affirmed.

      . We find only one case in which the defendant seems to have relied on Sherman in seeking a “course of conduct” instruction. We do not glean enough facts from the Tenth Circuit opinion to know how similar that situation was to this. Suffice it to say that the court found no prejudicial error. United States v. Perez, 10 Cir. 1974, 493 F.2d 1339, 1345.


author: AINSWORTH, Circuit Judge:

text:
    Wilburn M. BRITT, Plaintiff-Appellant-Cross Appellee, v. CORPORACION PERUANA DE VAPORES and Vox Steamship Company, Defendants-Appellees-Cross Appellants, Texas Employers’ Insurance Association, Intervenor.
    No. 73-3757.
    United States Court of Appeals Fifth Circuit.
    Jan. 17, 1975.
    Rehearing Denied Feb. 26, 1975.

      David Yancey White, Corpus Christi, Tex., for plaintiff-appellant-cross appellee.
    Theodore Goller, Houston, Tex., for Vox Steamship Co.
    Charles D. Kennedy, Houston, Tex., for Corporación Peruana.
    Owen W. Cecil, Houston, Tex., for Tex. Employers’ Ins. Assn.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

These are consolidated suits under the general maritime law by Wilburn Britt, a longshoreman, against Corporacion Peruana de Vapores (Peruana), the owner of the SS MARANON, to recover damages for personal injuries sustained on board that vessel on October 23, 1969, and against Vox Steamship Company (Vox), the owner of the M/V GLAFKI, to recover damages for personal injuries allegedly sustained on board that vessel on January 9, 1970. After an extended trial to the court and extensive expert and other testimony, the court determined that Britt had suffered, as a result of injuries to his back from the two accidents, damages of $40,000 for permanent disability and loss of wage earning capacity. The court also found that Britt had pain and suffering damages amounting to $20,000 which resulted from the back injuries. Of this $60,000 award, Peruana was deemed responsible for 25 per cent of the total injury, and Vox was found liable for 20 per cent of the injury. The court found that Britt’s preexisting ailments and subsequent injuries not attributable to the two defendants were responsible for 55 per cent of his injuries and losses. In addition to the general award for Britt’s back injuries, the court awarded Britt damages for lost pay, medical costs for a future operation, and injury to his hand resulting from the injury aboard the GLAFKI, and then subtracted from the awards medical expenses previously paid for Britt’s treatment. Thus Britt received a net recovery of $22,600.69.

Britt appeals from various findings of the court which resulted in an award which he claims is inadequate by at least $300,000. Vox and Peruana do not directly attack the court’s factual conclusions, but assert that imposing any liability on them is incorrect as a matter of law. After a close and deliberate review of the record, we have determined that there are no compelling reasons to conclude that the district court’s findings were clearly erroneous, and thus we affirm.

I. BRITT’S CONTENTIONS

Britt objects most to the trial court’s determination that preexisting and subsequent injuries not attributable to the MARANON and GLAFKI accidents were a substantial cause of Britt’s disability. Evidence was introduced showing that Britt had engaged in vigorous manual labor until the MARANON accident, that he was diagnosed as having an acute back sprain immediately after the accident, that he was able to return to light work after the accident, and that only six weeks after the second accident on board the GLAFKI, he was suffering such damage to and pain in his back that he was unable to return to work. Medical evidence was introduced to establish that an operation which Britt subsequently underwent might have been necessitated by injuries such as Britt described.

Vox and Peruana, however, introduced evidence showing that Britt had first suffered a back injury in 1951, and that in 1958 Britt suffered a more severe back injury. The doctor who treated Britt in 1958 diagnosed a degenerative lumbosacral intervertebral syndrome and recommended that Britt undergo surgery, including a laminectomy and spinal fusion. Britt did not submit to surgery, but was warned that he should do no heavy lifting. The record shows that Britt did not follow his doctor’s advice and the only work he has done since 1958 has been manual labor. Moreover, when Britt was required to have an operation in 1970, it was a laminectomy and spinal fusion- — -the same operation recommended in 1958.

The defendants also introduced evidence showing that when Britt sought medical treatment following the January 9, 1970 injury aboard the GLAFKI, he sought treatment only for an injury occurring to his hand, and made no complaints about any back injury or pain to the attending physician. In fact, in five visits to physicians subsequent to the GLAFKI incident, Britt made no reference to any back injury resulting from the accident. Britt did, however, seek medical assistance for severe back pain on February 20, 1970. When Britt sought treatment on February 20, Dr. Dolch made an entry on Britt’s medical record based on what Britt told him about his back condition. The entry was as follows: “Last Saturday pitched flour and got backache that night and have had a backache since.” (Britt’s work records showed that on February 14, 1970, Britt had worked 12.5 hours loading bagged flour.) One expert witness testified that it was conceivable that the flour-pitching could have necessitated the surgery, and that, since Britt had returned to rather vigorous activity after the October 23, 1969 injury aboard the MARANON, there was a reasonable medical probability the bulged disc Britt suffered from was associated with an incident subsequent to the October 1969 injury.

One of Britt’s rejoinders to this evidence is that Britt’s statement to Dr. Dolch and the medical entry resulting from the conversation relative to pitching flour on February 14 were not competent evidence on which the trial court could properly rely. This contention is without merit, since statements made for purposes of medical diagnosis or treatment which describe medical history or the general cause of an ailment are not excluded by the hearsay rule. 6 Wigmore on Evidence §§ 1718—20 (3d ed. 1940); McCormick on Evidence § 292 (2d ed. 1972); Proposed Federal Rules of Evidence § 803(4) and comment. Yet there was more than this contradiction which could have led the judge to discount Britt’s testimony. Britt’s credibility was shown, through intensive cross-examination and the introduction of substantial evidence at odds with his testimony, to be so suspect that the district judge commented that “the Court would be justified in disbelieving Plaintiff when what he says is even impliedly contradicted.” Confronted as we are with substantial evidence that supports the district court’s conclusion, and with the court’s determination that Britt’s testimony is not believable, we are not “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Thus, the lower court’s findings are not clearly erroneous. Fed.R.Civ.P. 52(a). We are particularly reluctant to set aside the court’s findings when to do so would require us to accept the testimony of a witness found not to be credible by the lower court. See Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774, 776.

Britt also contends that the trial court’s findings were wrong because Vox and Peruana had an obligation to show by the preponderance of the evidence that a subsequent injury or prior condition were producing causes of Britt’s injuries and damages, and the record does not support a conclusion that they sustained such burden. We think Britt misconceives his own responsibilities. In order to recover under the theory he advanced at trial, Britt was required to show that the GLAFKI and MARANON accidents were the proximate cause of his injury. Vox and Peruana were not obligated to prove they were not responsible for damages suffered by Britt in order to avoid liability.

We also uphold the lower court’s finding that Britt’s loss of ability to have sexual relations was not attributable to either one or both of the defendants. Britt testified his inability to have sexual relations commenced after his fall of January 9, 1970, on the SS GLAFKI, and denied having any such difficulties prior to that time. But a Dr. York testified, and his records showed, that on December 17, 1969, over three weeks prior to the GLAFKI incident, Britt complained of an inability to have sexual relations, of pain in his left testicle, and of cold genitalia. That same day, Britt filled a prescription for Afrodex, an aphrodisiac commonly used to aid impotency, at the Taylor Pharmacy. Furthermore, there was evidence that a few months after the 1958 accident previously referred to, Britt complained to his doctor of pain in his left testicle— again, the same symptom Britt attributed to his accidents some twelve years later. There was further evidence that, even assuming Britt’s condition was physiological in origin, his inability to have sexual relations was not logically associated with his back condition because the area of injury to Britt’s back did not involve the area of the nerve distribution system to the penis and genital organs. Thus, the district court’s conclusion is supported by substantial evidence and therefore not clearly erroneous.

Britt’s remaining contentions are of less merit, and we address them only briefly.

(1) The contention that the award of damages for permanent disability and loss of wage earning capacity is grossly inadequate cannot be sustained. It must be remembered that the court found that a substantial part of Britt’s disability could not be attributed to the defendants or to the accidents on the MARANON and the GLAFKI. If that premise is correct, and we have concluded that it is, there was no error in the court’s refusal to hold Vox and Peruana liable for the totality of Britt’s diminished earning capacity. Moreover, Dr. Wilk, who performed part of the back surgery on Britt, stated that Britt should be able to return to longshoreman work as long as he is in a supervisory capacity or does not engage in lifting objects in excess of 50 pounds. While Britt contends that he has been unable to perform any substantial work, doubt was cast on this assertion when defendants introduced evidence linking Britt to paint contracting work. In sum, we cannot say that the quantum of damages under these peculiar circumstances is so clearly out of measure as to be clearly erroneous. See Neal v. Saga Shipping Co., 5 Cir., 1969, 407 F.2d 481, 487, cert. denied, 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775.

(2) Britt is correct in contending that the trial court erred in not entering judgment for $4,144.31 for past medical expenses already paid by Texas Employers’ Insurance Association. Both Vox and Peruana recognize that entry of such a judgment was proper. While we have been informed that Texas Employers’ will forego asserting their medical lien for this amount, the better procedure is for the lower court to correct its judgment by awarding Britt the amount owing for past medical expenses.

(3) The failure of the court to enter an award of interest is not erroneous. The award of prejudgment interest is discretionary with the court, and 28 U.S.C. § 1961 entitles Britt to postjudgment interest calculated from the date of entry of judgment. See Sandoval v. Mitsui Sempaku K. K. Tokyo, 5 Cir., 1972, 460 F.2d 1163, 1171.

(4) During discovery, Britt’s counsel requested Vox to furnish pictures showing the configuration of the GLAFKI and the area of the ship in which the accident occurred. At the time counsel for Vox replied to this request, such photographs were not in existence. He subsequently obtained them, but did not provide copies to Britt’s counsel. The introduction of these photographs at trial served to impeach Britt and undermine his credibility. Britt contends that the district court should have imposed sanctions against Vox for its counsel’s failure to provide Britt with these photographs prior to their use at trial. Counsel for Vox admitted at oral argument that the photographs had been requested, and that he should have furnished them to plaintiff. Counsel’s excuse was that he forgot to do so. Such behavior is not to be tolerated, but the district court’s decision not to invoke sanctions was correct. There was no order by the court compelling the production of photographs which was ignored. Under the circumstances in this case, only violation of an order compelling discovery issued under Fed.R.Civ.P. 37(a) could be punished by the sanctions permitted under Fed.R.Civ.P. 37(b). See C. Wright, Law of Federal Courts § 90, at 395—396 (2d ed. 1970). Britt requests on appeal that we reverse this inaction, but it appears that the decision whether to impose sanctions for a failure to make discovery rests with the district judge and not the appellate courts. See Diaz v. Southern Drilling Corp., 5 Cir., 1970, 427 F.2d 1118, 1126, cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115; Notes of Advisory Committee on Rules accompanying Rule 37(b).

II. PERUANA’S CONTENTIONS

Britt’s injury on the MARA-NON occurred when climbing down a ship’s ladder into the hold. Bulk zinc ore, which was being loaded into the hold, had packed around and behind the rungs of the hatchway ladder, causing Britt to slip and fall off the ladder while descending. It is not disputed that the zinc ore was packed around the ladder as the district court found, nor is it disputed that Britt hurt his back in the fall. Peruana claims first that the presence of an alternative, safe route into the hold precludes a finding that the MARANON was unseaworthy. There were, in fact, “safety ladders” available which apparently did not have zinc ore packed around them. The problem with Peruana’s argument is that it necessarily supposes that Britt voluntarily assumed a risk when he went down the main ladder, a risk for which he then bore the consequences. Peruana would thus have us do what is not permissible — invoke the doctrine of assumption of risk against the longshoreman. The Arizona v. Anelich, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075 (1936); Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1938). Of course, mere knowledge of unseaworthiness does not preclude recovery. Manning v. M/V Sea Road, 5 Cir., 1965, 358 F.2d 615, 617; Smith v. United States, 4 Cir., 1964, 336 F.2d 165, 169. While knowledge of an alternative, safe route could possibly have indicated comparative negligence or contributory fault, Manning v. M/V Sea Road, supra, 358 F.2d at 617; Smith v. United States, supra, in no case can it be a bar to recovery. Palermo v. Luckenbach S. S. Co., 355 U.S. 20, 78 S.Ct. 1, 2 L.Ed.2d 3 (1957). Thus, in Manning v. M/V Sea Road, 5 Cir., 1969, 417 F.2d 603, we reversed the decision of a lower, court which held that the choice of one route over another in effect made the longshoreman wholly responsible for injuries resulting from taking the unsafe route. 417 F.2d at 605-607.

Apparently anticipating the lack of success of its first argument, Peruana argues next that, as a matter of law, Britt negligently contributed to his own injury. While contributory negligence is an elusive concept, Dean Prosser described it as “conduct which involves an undue risk of harm to the actor himself.” Prosser, Law of Torts § 65, at 418 (4th ed. 1971). We know from this record that Britt was the second man to descend the ladder in question; in fact, Pedro Gonzales, reached the bottom of the ladder without mishap. We cannot say that anyone descending a ladder presenting possible danger, but which has just been passed safely by a co worker, is, as a matter of law, unreasonably risking harm to himself. Thus, we decline to displace the trial court’s decision which found no contributory fault.

III. VOX’S CONTENTIONS

Vox, like Peruana, does not seek to have us set aside the lower court’s findings of fact. Rather, it contends that, even accepting those findings, as a matter of law no case for liability has been made out concerning the accident on the GLAFKI. Britt maintained that he had been standing on top of a hatch coaming, serving as a signalman directing the loading of grain into the GLAFKI. He claimed that while pulling on a rope attached to the grain spout, the rope broke and he fell to the deck; he also claimed to have fallen from the hatch coaming because there was no catwalk on which to stand while doing his job.

Vox introduced photographs showing that the GLAFKI did have catwalks, and claimed that it was unlikely that Britt actually fell from a hatch coaming. Vox also introduced the testimony of one Wessendorf, who had been loading the grain with Britt. Wessendorf’s testimony in large part contradicted Britt’s story. Wessendorf stated that Britt had been on a catwalk, not a coaming, and that they had not been using ropes or tag lines in the manner described by Britt. Vox maintains that this evidence exonerates it as a matter of law from any liability.

There are important shortcomings in Vox’s argument. While the court noted that Britt’s credibility was dubious, it also commented that Wessendorf was not altogether believable. Wessendorf maintained he never saw Britt take any fall, but we know that Britt did in fact have an accident aboard the GLAFKI, one which resulted in serious injury to his hand and thumb and some injury to his back. Wessendorf also admitted that the work was being done in rainy, misty weather, and that he did find Britt on his back after Britt fell to the deck. With such conflicting testimony we cannot say that the trial court erred in accepting some of each witness’ testimony and finding negligence on the part of the vessel which caused Britt’s injury.

The judgment below is affirmed, and the ease is remanded to the district court to amend the judgment in accordance with this opinion.