author: EDWARDS, Circuit Judge.

text:
    Barbara J. REID, Plaintiff-Appellant, v. VOLKSWAGEN OF AMERICA, INC., a Foreign Corporation, Defendant-Appellee.
    No. 74-1576.
    United States Court of Appeals, Sixth Circuit.
    March 21, 1975.
    William J. Garlington, Garlington & Smiley, Jack R. Sluiter, Wyoming, Mich., for plaintiff-appellant.
    Peter R. Tolley, Vander Veen, Freihofer & Cook, Grand Rapids, Mich., for defendant-appellee.
    Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   EDWARDS, Circuit Judge.

The diversity of citizenship jurisdiction of the federal courts requires us to decide this close, complicated and undecided question of Michigan law. It also requires us to risk “the hazards of prophecy” as to how the Michigan Supreme Court will ultimately decide the same issue. Although our decision itself may directly affect relatively few Michigan cases, it could, if similarly decided by the Michigan Supreme Court, have enduring ramifications on Michigan’s products liability law. If the Michigan Supreme Court ultimately decides to adopt a different view than ours, that too will have wide ranging results, and it would leave our instant decision applicable only to the case immediately at hand.

The facts underlying this appeal as alleged in plaintiff’s complaint are simple — if that cannot be said of anything else which will follow.

Barbara Reid, the plaintiff, was injured April 19, 1969, when the new Volkswagen which she was driving was struck from the rear by another automobile. Plaintiff had purchased the Volkswagen approximately one month earlier from an authorized Volkswagen dealer. Plaintiff alleges that the Volkswagen she was driving was manufactured and distributed by defendant-appellee, Volkswagen of America, Inc. She also alleges that she was injured in the accident by reason of the fact that on impact, the left front seat of the Volkswagen broke loose from the floor of the car, causing plaintiff to be thrown about the car, resulting in injuries for which she seeks damages.

On August 14, 1972, plaintiff filed this suit in the United States District Court for the Western District of Michigan, Southern Division, claiming that her injuries resulted from defendant’s breach of express and implied warranties of fitness of the automobile, citing two sections of Michigan’s Uniform Commercial Code, M.S.A. § 19.2313 (M.C.L.A. § 440.-2313 (1967)) and M.S.A. § 19.2315 (M.C. L.A. § 440.2315 (1967)).

The filing date was more than three years and less than four years after the happening of the accident. Defendant promptly filed an answer, claiming plaintiff’s claim was barred by the general statute of limitations. M.C.L.A. § 600.-5805 (1968), which provides:

Injuries to person or property
No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
(1) The period of limitations is 2 years for actions charging assault, battery, and false imprisonment.
(2) The period of limitations is 2 years for actions charging malicious prosecution.
(3) The period of limitations is 2 years for actions charging malpractice.
(4) The period of limitations is 2 years for actions against sheriffs . charging misconduct or neglect of office by themselves or their deputies.
(5) The period of limitations is 2 years after the expiration of the year for which a constable was elected for actions based on his negligence or misconduct as constable.
(6) The period of limitations is 1 year for actions charging libel or slander.
(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property. (Emphasis added.)

Plaintiff thereupon moved to strike defendant’s affirmative defense, citing M.C.L.A. § 440.2725(1) (1967), the Michigan Uniform Commercial Code limitation section for contract actions applicable when consequential damages include personal injuries, which provides:

Statute of limitations in contracts for sale, contractual reduction; accrual, tolling
(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it. (Emphasis supplied.)

Another section of the Michigan Uniform Commercial Code authorizes a breach of warranty action for consequential damages which result in personal injuries:

Buyer’s incidental and consequential damages
Hs sfc * sfc sje Jfc (2) Consequential damages resulting from the seller’s breach include
(b) injury to person or property proximately resulting from any breach of warranty.
M.C.L.A. § 440.2715(2)(b) (1967).

Michigan’s Uniform Commercial Code containing the limitation provision above had been adopted in 1962, to be effective in 1964. The tort limitation statute previously quoted was last reenacted in 1961, to be effective in 1963 — one year prior to the Michigan Uniform Commercial Code. The Code, however, contained no general repealer section and made no reference to the three-year personal injury limitation in the earlier general limitation statute.

The question in this case, therefore, is whether a products liability personal injury action in Michigan is governed by Michigan’s general personal injury limitation of three years, or Michigan’s Unifo- m Commercial Code limitation of four years.

Both parties have assured us that the Michigan courts have not decided this question. The District Judge held that the three-year statute applied and cited and relied upon three Michigan cases: State Mutual Cyclone Insurance Co. v. 0 & A Electric Cooperative, 381 Mich. 318, 161 N.W.2d 573 (1968); Baatz v. Smith, 361 Mich. 68, 104 N.W.2d 787 (1960); Harrington v. Nelson, 32 Mich.App. 347, 188 N.W.2d 679 (1971).

All of these cases, however, deal with causes of action accruing prior to Michigan’s adoption of the Uniform Commercial Code. While we recognize that these cases do (as the District Judge held) apply the Michigan three-year statute of limitations, none of them dealt with or in anywise settled our current question.

The only discussion of our instant problem is to be found in Parrish v. B. F. Goodrich Co., 46 Mich.App. 85, 207 N.W.2d 422 (1973), where the Michigan Court of Appeals specifically reserved decision on the Michigan Uniform Commercial Code limitation:

Under this interpretation we need not decide whether the limitation period in causes of action seeking recovery for personal injury on breach of warranty theory is three years according to State Mutual Cyclone Insurance Co., supra, or four years, according to M.C.L.A. § 440.2725, supra, since plaintiffs filed their complaint within three years of discovery of the breach.
Parrish v. B. F. Goodrich Co., supra at 91, 207 N.W.2d at 426.

This case is now pending on appeal to the Michigan Supreme Court, but it appears unlikely to us that it necessitates decision of the question we must decide.

The question of application of the tort statute of limitations versus the applicable state version of the Uniform Commercial Code statute of limitations has divided the courts which have written on the subject. The following apply the tort limitation: Natale v. Upjohn Co., 356 F.2d 590 (3d Cir. 1966) (Delaware law); Tyler v. R. R. Street & Co., 322 F.Supp. 541 (E.D.Va.1971) (Virginia law); Maynard v. General Electric Co., 486 F.2d 538 (4th Cir. 1973) (West Virginia law); Abate v. Barkers of Wallingford, Inc., 27 Conn.Super. 46, 229 A.2d 366 (1967).

Other states apply the Uniform Commercial Code limitation: Berry v. G. D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974); Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207 (1969); Redfield v. Mead, Johnson & Co., 512 P.2d 776 (Or.1973); Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964); Stanford v. Leseo Associates, Inc., 10 U.C.C.Rep. 812 (D.D.C.1972).

Still other states apply the Uniform Commercial Code limitation where privity of contract has been alleged, but apply the tort limitation where it has not: ALASKA, Compare Anderson v. Fairchild Hiller Corp., 358 F.Supp. 976 (D.Alaska 1973) with Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska 1971); INDIANA, Compare Helvey v. Wabash County REMC, 278 N.E.2d 608 (Ind.Ct.App.1972) with Withers v. Sterling Drug, Inc., 319 F.Supp. 878 (S.D.Ind.1970); NEW JERSEY, Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973); OHIO, Compare Mahalsky v. Salem Tool Co., 461 F.2d 581 (6th Cir. 1972) with Val Decker Packing Co. v. Corn Products Sales Co., 411 F.2d 850 (6th Cir. 1969) (Ohio law); OKLAHOMA, Kirkland v. General Motors Corp., 521 P.2d 1353 (Okl.1974); RHODE ISLAND, Compare Kelly v. Ford Motor Co., 110 R.I. 83, 290 A.2d 607 (1972) with IUOE Local 57 v. Chrysler Motors Corp., 106 R.I. 248, 258 A.2d 271 (1969); TENNESSEE, Compare Hargrove v. Newsome, 225 Tenn. 462, 470 S.W.2d 348 (1971) with Layman v. Keller Ladders, Inc., 224 Tenn. 396, 455 S.W.2d 594 (1970).

While the question is a close one, this court believes the Michigan Supreme Court would adopt the Uniform Commercial Code limitation in the present situation. Our reasons are as follows:

1) Plaintiff’s complaint is filed under and in specific reference to Michigan’s Uniform Commercial Code. It provided in part:

5. That as of the date of said purchase Plaintiff received from Defendant both an expressed warranty as to the quality and fitness of the automobile as provided in Section 2313 of Act 174 of the Public Acts of 1962, as amended, being M.S.A. 19.2313, and an implied warranty of fitness for a particular purpose as provided in Section 2315 of Act 174 of the Public Acts of 1962, as amended, being M.S.A. 19.-2315.
sk * sk sk sk ¡k
10. That as a direct consequence of Defendant’s breach of both its express and implied warranties, Plaintiff suffered serious bodily injuries.

2) The plain language of Michigan’s Uniform Commercial Code limitation section encompasses plaintiff’s case. See M.C.L.A. § 440.2715 (1967) and M.C.L.A. § 440.2725 (1967) as quoted above.

3) The Michigan Uniform Commercial Code’s limitation section was adopted to be effective January 1, 1964, subsequent to the general limitation section which was adopted effective January 1, 1963, and hence, should be regarded as having amended it (by implication) as it pertains to warranty actions. See 1962 Mich.Pub. Acts, No. 174 § 2725, and Michigan’s Revised Judicature Act of 1961, 1961 Mich. Pub.Acts, No. 236, § 5805.

4) The Michigan Uniform Commercial Code limitation is specific as opposed to the general limitation statute, and hence, should be given effect. Val Decker Packing Co. v. Corn Products Sales Co., 411F.2d 850, 854 (6th Cir. 1969); Sinka v. Northern Commercial Co., 491 P.2d 116, 119 (Alaska 1971); Redfield v. Mead, Johnson & Co., 512 P.2d 776, 780 (Or.1973).

5) Generally the courts (absent a showing of prejudice on the part of defendant) tend to favor the longer of two limitation statutes. See, e. g., Striker v. Martindale, 372 Mich. 578, 581, 127 N.W.2d 306 (1964); Crawford County Trust & Savings Bank v. Crawford County, 66 F.2d 971 (8th Cir. 1933); Reid v. Doubleday & Co., 109 F.Supp. 354 (N.D.Ohio 1954).

6) Although nationwide the courts are divided on whether a state tort limitation statute or the Uniform Commercial Code limitation statute prevails, we believe the Uniform Commercial Code statute is the only uniform statute possible and that adoption of its limitation will favor uniformity amongst the states in an important area of commercial law. The Michigan Uniform Commercial Code itself states this principle:

Construction of act; purposes; variation by agreement
(1) This act shall be liberally construed and applied to promote its underlying purposes and policies.
(2) Underlying purposes and policies of this act are
(a) to simplify, clarify and modernize the law governing commercial transactions;
(b) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties;
(c) to make uniform the law among the various jurisdictions.
M.C.L.A. § 440.1102(1) & (2) (1967).

See also R. Peterson, Civil Procedure, 16 Wayne L.Rev. 501, 507 (1970); M. Shanker, Strict Tort Theory of Products Liability and the Uniform Commercial Code, 17 Case W.Res.L.Rev. 5, 16 — 17 (1965).

Finally, appellee contends that if the limitation section of the Michigan Uniform Commercial Code is held applicable, the dismissal of this action is still mandated because of lack of privity. We do not, however, so construe the Michigan law or the Michigan Uniform Commercial Code.

Michigan’s rejection of the privity requirement in products liability cases is, as we see it, both sweeping and complete. Spence v. Three Rjvers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958); Manzoni v. Detroit Coca-Cola Bottling Co., 363 Mich. 235, 109 N.W.2d 918 (1961); Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N.W.2d 129 (1965); Williams v. Pol-gar, 391 Mich. 6, 215 N.W.2d 149 (1974).

In this last case (the impact of which the District Judge in our instant case could not have had an opportunity to consider) the present Michigan Supreme Court said:

C. Privity Conclusion
Michigan’s own jurisprudence records the categorical elimination of privity. This Court had previously extended abstracter liability consonant with the historical growth in reliance and use of abstracts and the corresponding changes in the law to known relying third-parties. Confronted now as of first impression with the question of abstracter liability to foreseeable relying third-parties, we have but to apply our own persuasive precedent of categorical elimination of privity to an analogous situation and we do so. * * * * * *
On the basis of Three Rivers and a plethora of jurisdictions in the United States a good case is made for abolishing contractual privity and permitting suit in “negligence or implied warranty” by any foreseeable third-party who would and does rely on the abstract. Williams v. Polgar, supra at 18, 215 N.W.2d at 154.

It seems clear to us that Michigan’s rejection of privity is not limited to tort actions as opposed to actions based on warranty whether express or implied.

Further, we note that the Uniform Commercial Code was drafted so as to leave the question of privity to state law in recognition of the exact situation already existing in Michigan which was one of the leading states in rejecting the privity defense:

2. Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract. They may arise in other appropriate circumstances such as in the case of bailments for hire, whether such bailment is itself the main contract or is merely a supplying of containers under a contract for the sale of their contents. The provisions of Section 2-318 on third party beneficiaries expressly recognize this case law development within one particular area. Beyond that, the matter is left to the case law with the intention that the policies of this Act may offer useful guidance in dealing with further cases as they arise.
Uniform Commercial Code § 2 — 313, Official Comment 2.
The code takes no comprehensive position on the requirement of privity in warranty claims. Thus Michigan decisions on privity are not affected by adoption of the code. For cases dealing with this problem see, * * * Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, [90 N.W.2d 873] (1958).
R. Steinheimer, Practice Commentary, 21 M.C.L.A. 363 (1967), following M.C. L.A. § 440.2313.

For these reasons, we believe plaintiff-appellants have stated a viable claim under the Michigan Uniform Commercial Code and its four-year limitation statute.

Reversed and remanded for trial.

      . Nichols v. Eli Lilly & Co., 501 F.2d 392, 393 (10th Cir. 1974).


source: Caselaw Access Project

author: BOREMAN, Senior Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Drayton CURRY, Appellant (two cases). UNITED STATES of America, Appellee, v. Howard Langston MANLEY, Appellant.
    Nos. 74-1097, 74-1098 and 74-1873.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1974.
    Decided April 3, 1975.

      Neill H. Fleishman, Fayetteville, N. C., for appellant in Nos. 74-1097 and 74-1873.
    Milton E. Moore, Williamston, N. C. (Regina A. Moore, Williamston, N. C., on brief), for appellant in No. 74-1098.
    Joseph W. Dean, Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., and Christine A. Witcover, Asst. U. S. Atty., on brief), for appellee in Nos. 74 — 1097, 74-1098, and 74-1873.
    Before BOREMAN, Senior Circuit Judge, WIDENER, Circuit Judge, and THOMSEN, Senior District Judge.
   BOREMAN, Senior Circuit Judge:

These appeals stem from the convictions of Drayton Curry (No. 74-1097) and Howard Langston Manley (No. 74-1098) for numerous violations of federal drug laws. Since the appellants were tried together and their respective challenges to the judgments of conviction raise several identical legal issues, the appeals of those cases were consolidated. We have joined with those appeals consideration of the appeal by Curry from the district court’s denial of his motion for a new trial (in No. 74-1873).

NOS. 74-1097 AND 74-1098

The Government’s evidence, if believed, shows that in October 1972 appellant Curry, at the request of one Ellis Sutton who was then in prison, undertook to collect a debt owed by Ben and Joan Brooks to Sutton arising from a sale of heroin. At that time Curry offered to sell additional heroin to the Brookses. On October 29, 1972, the Brookses and others met with the appellants Curry and Manley and observed them distributing heroin. Four eyewitnesses testified to the transactions. One week later, on November 2, 1972, Curry and Manley offered to sell additional heroin to the Brookses — one-eighth of a kilo for $3600. Several hours later the Brookses, who were joined by one Tammy Myles, called Curry to set up the purchase. Curry agreed to sell the heroin. Manley then met the Brookses and Miss Myles at the place arranged by Curry and sold them the heroin. The Brookses and Miss Myles testified to the transaction. Two and one-half weeks later Myles made an $1800 purchase of heroin from Manley, Curry was not present at this transaction.

Appellant Curry assigns as error the district court’s denial of his motion for a continuance. Such a motion is addressed to the sound discretion of the court and denial thereof is not error unless it constitutes an abuse of discretion. United States v. Inman, 483 F.2d 738 (4 Cir. 1973); United States v. Pigford, 461 F.2d 648 (4 Cir. 1972). Curry’s counsel argues that he did not have adequate time in which to prepare a defense. The record demonstrates that Curry made no effort to retain trial counsel between August 20, 1973, at which time he retained counsel for purposes of representation at arraignment only, and November 27, 1973, just seven days prior to trial when he employed his present counsel. Had Curry acted with reasonable dispatch in employing counsel for trial, no continuance need have been requested. Where the defendant has unreasonably delayed retention of counsel to represent him and such delay is the sole result of defendant’s dilatory tactics it is not an abuse of discretion to deny a request for a continuance based upon an allegation that additional time would be “helpful” in preparing a defense. In any event, defense counsel did have seven days for preparation. We find no merit in this assignment of error.

Curry also charges that the court erred in denying his motion to sever his trial from that of appellant Manley. Specifically, Curry contends there was a misjoinder of defendants in violation of Rule 8(b), Federal Rules of Criminal Procedure. We reject this contention as without merit. The indictment charged and the evidence, if believed, proved that Curry and Manley jointly participated in the series of transactions charged, and they could, therefore, be joined pursuant to Rule 8(b). Although the court could have ordered separate trials pursuant to Rule 14, Fed.R. Crim.P., there was no persuasive reason urged or presented for doing so. Much of the evidence with respect to Manley which Curry argues was prejudicial to him would have been admissible against Curry even if he were tried separately since a conspiracy was alleged.

Both Curry and Manley assign as error the prosecutor’s disclosure of Jencks Act material in the presence of the jury. We are in agreement with the views of the Second, Fifth, Seventh, and the District of Columbia Circuits that, upon the request of counsel, Jencks Act disclosures should ordinarily be made outside the presence of the jury. We might be somewhat troubled that the prosecutor’s actions in this respect were unduly emphasized by the trial court when it read the Jencks Act to the jury. However, careful review of the record reveals that no objection was made to the prosecutor’s actions until late in the trial and after this procedure had been followed repeatedly without objection. The trial court read the Act to the jury on that occasion so they might better understand the nature of the dispute between counsel and to preclude any inference by the jurors that evidence was being withheld from them. Additionally, we note that defense counsel made frequent reference to the Jencks Act material while cross-examining witnesses; this procedure made the existence of the material known to the jury and precluded any objectionable inference of the type which the court found sufficient to require reversal in Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966). See United States v. Gardin, 382 F.2d 601, 605-606 (2 Cir. 1967). In light of all the circumstances we conclude that any error in this respect was harmless.

Both Curry and Manley object to the court’s failure to instruct the jury regarding the weight to be accorded the testimony of a witness who has been granted immunity. No timely objection was made to the judge’s charge and reversal is warranted only if the error is “plain error.” See United States v. King, 420 F.2d 946, 947 (4 Cir. 1970). Since all witnesses who were granted immunity were accomplices and since the court instructed the jury that the testimony of an accomplice is “to be received with caution and weighed with great care,” the jury were thus instructed to give their testimony special scrutiny. The jurors were informed of those wit-' nesses who had been granted immunity and were given a general instruction on the credibility of witnesses which told them to consider the “interest” of each witness in the outcome of the case and whether each witness has “any motive or reason for being truthful or untruthful in his testimony.” In view of these facts, we conclude that the court’s failure to give an instruction specifically relating to the weight to be accorded the testimony of a witness who had been granted immunity was not “plain error” which would command reversal.

The court told the jury on two occasions that Willie Curry and Willie Swinson, who were originally co-defendants in this case and whose names appeared in the indictment, had entered pleas of nolo contendere to the charge in the first count, and would not be tried with the others. Appellants concede “an aura of mystery would be present if no explanation at all were given to the absence of co-defendants” but suggest that the jury should not be told that the co-defendants had entered pleas of nolo contendere. While it might be preferable to tell the jury only that the case against the co-defendants had been disposed of previously and that they had been eliminated from the present trial, it was not error, under the circumstances, to reveal to the jury the pleas of the original co-defendants. Wood v. United States, 279 F.2d 359 (8 Cir. 1960). Any prejudice which might have arisen from this information was cured when the court told the jury not to consider those pleas “in any manner as relates to these defendants,” and specifically instructed that “it is not to be taken as [evidence of] any guilt of the remaining defendants on trial.”

Both Manley and Curry objected to the following question posed by the prosecutor to Sheriff Broughton, a go ver n-merit rebuttal witness, and moved to strike the response:

Q. Do you know what his [Manley’s] character and reputation is for dealing in drugs?
A. About a year ago I had information he was dealing in drugs.

The court overruled the objections and denied the motions to strike. For the reasons to be stated we agree that the question was improper and that the court erred in denying Manley’s motion to strike the answer.

The question is faulty in that it seeks to inquire about the sheriff’s “knowledge” of the “character” of the defendant. “Since the whole inquiry . is calculated to ascertain the general talk of people about defendant, rather than the witness’ own knowledge of him, the form of inquiry, ‘Have you heard? ’ has general approval, and ‘Do you know? ’ is not allowed.” Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948) (footnote omitted). Additionally, the question is directed to the “character” as well as the “reputation” of the defendant; the permissible inquiry is limited to the reputation of the accused, what those in the community perceive him to be, and not his character, what he actually is. Torcía, Wharton’s Criminal Evidence § 230 (13th ed. 1972).

The question to the sheriff and the response thereto were clearly improper. There is no indication that the sheriff’s information was the consensus of opinion of the defendant’s reputation in the relevant community. If the source of that information was a police report or some other nonpublic source it is not admissible to show the defendant’s reputation. A witness called by the prosecution to rebut the defendant’s evidence of his good reputation can only testify as to the consensus of opinion about the defendant which he has heard circulating in the relevant community concerning the defendant.

Whether by inadvertence or design, the Government’s examination of Sheriff Broughton allowed him to make a personal and vindictive attack upon the “character” of the accused. Although the court did exclude part of the Sheriff’s intemperate remarks, his testimony was more inflammatory than informative.

We are also troubled by the narrow scope of the prosecutor’s question. Where the prosecution seeks through its own rebuttal witnesses to challenge the defendant’s evidence of his own good general reputation it is limited to showing his bad general reputation. Of course, the prosecutor is free upon cross-examination to inquire of the defendant’s reputation witnesses whether they have heard particular rumors about the defendant or have heard about specific instances of misconduct on his part but such inquiries are for the purpose of revealing inconsistencies between what the witness has heard and the conclusion about the defendant’s reputation which the witness expressed upon direct examination, and not for the purpose of proving the defendant’s bad reputation. While narrow questions about specific traits of the accused are proper rebuttal in some circumstances, the prosecution is not permitted to elicit testimony from its own rebuttal witnesses concerning specific traits of the defendant for the sole purpose of repudiating the defendant’s evidence of his general reputation. Evidence of a specific trait is not sufficiently relevant to the defendant’s general reputation to outweigh the likelihood that such evidence will prejudice the defendant by characterizing him as the type of person who is likely to commit the particular crime charged.

We conclude that the court erred in overruling Manley’s objection to the prosecutor’s question and in denying his motion to strike the answer. The probability that this improper evidence unduly influenced the jury and denied Manley a fair trial is so great that we cannot treat the error as harmless. We think that the conviction of Manley must be set aside and that he is entitled to a new trial.

Although this evidence was so prejudicial to Manley that he is entitled to a new trial we do not believe that it resulted in prejudice to Curry. The jurors were instructed that, “Each defendant is entitled to have his case determined from his own acts and statements, and the other evidence in the case which may be applicable to him,” and were warned that “the fact that you may find one defendant guilty should not control your verdict as to the other defendant.”

However, we find merit in Curry’s contention that his sentence is . improper because it imposes consecutive sentences for two offenses which, under the facts of this case, merge into a single offense. In United States v. Atkinson, et al., 512 F.2d 1235 (1975), decided by this court subsequent to the trial of this case and its presentation on appeal, we held that where there is no evidence of possession with intent to distribute a controlléd substance apart from evidence of the actual transfer of the substance pursuant to a sale, the offenses of possession with intent to distribute, 21 U.S.C. § 841(a)(1), and distribution, 21 U.S.C. § 841(a)(1), merge into a single offense. In the instant case the evidence of the sale was relied upon to prove Curry’s “intent to distribute” at the time of his possession. The gravamen of each offense is the distribution of a controlled substance: when the intent is carried out by a successful sale the offenses merge. To paraphrase the language of the Supreme Court on a similar point, we hold, therefore, that when Congress made either distribution or possession with intent to distribute a crime it intended that the maximum punishment for distribution should remain at fifteen years but, even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for fifteen years for possessing with the felonious intent. See Prince v. United States, 352 U.S. 322, 329, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). In light of our conclusion concerning the consecutive sentences imposed on Curry this case will be remanded to the district court for the purpose of resentencing.

No useful purpose would be served by discussion of the other alleged errors cited by appellants. We have carefully examined them and are not persuaded that they require reversal. Nor are we persuaded by Curry’s contention that the cumulative effect of those alleged errors plus the other alleged errors discussed previously requires a reversal of his conviction. It has been said that there is no such thing as a perfect trial. It is seldom possible to conduct a trial free of error; innocent mistakes of a technical and inconsequential nature occur in the most carefully planned and skillfully conducted trials. The law does not require that a trial be free of error; it only requires that the trial be fair and free of prejudice to the defendant. Our review of the proceedings below convinces us that any error therein was harmless with respect to appellant Curry and that his conviction, subject to resentencing, must be affirmed.

NO. 74-1873

Curry prosecutes a separate appeal from the district court’s denial of his motion for a new trial. Curry asserts that subsequent to his trial he learned of the existence of several tape recordings of government agents’ conversations with Ellis Sutton who was a government witness in the instant case. Apparently those conversations were had primarily with respect to another case and another trial and, although the Assistant United States Attorney who tried the instant case was present at some of those conversations and knew of the existence of three of the tapes, he was unaware of the tapes of the other conversations. The Assistant United States Attorney states that the three tapes of conversations which he knew existed were not presented pursuant to Curry’s Jencks Act motion because (1) the tapes were never transcribed, (2) the tapes did not form the basis for any indictment or information, (3) all information in those conversations at which the Assistant United States Attorney was present which he believed relevant to appellant Curry was furnished to Curry’s counsel in the form of handwritten notes, and (4) most of the contents of those tapes were unrelated to Sutton’s testimony at trial.

The district court made an in camera examination of all nine tapes and concluded that one short segment of one of the tapes contained incidental references to Curry. That particular tape was one of the three tapes known to exist by the Assistant United States Attorney who, as the district court noted, “upon feeling they were not relevant erroneously made the decision not to mention them.” In an unreported opinion the district court made a thorough examination of the case law and concluded that since the information revealed by the relevant portion of that tape was identical to information which had previously been supplied to the defense by way of the transcript of Sutton’s grand jury testimony, any error in failing to reveal the contents of that tape to the defense was harmless. This court has made an independent review of that particular tape and concludes that the district court was correct in its determination that the error was harmless. We believe that the vigorous cross-examination of Sutton by defense counsel, the availability of Sutton’s grand jury testimony, and the fact that Sutton’s testimony at trial did not directly implicate Curry places this case within that narrow group of cases where an unintentional violation of the Jencks Act should be excused. See United States v. Missler, 414 F.2d 1293 (4 Cir. 1969).

For the foregoing reasons, we affirm Curry’s conviction and remand for resentencing in No. 74 — 1097; we reverse Manley’s conviction and remand for a new trial in No. 74-1098; we affirm the district court’s denial of Curry’s motion for a new trial in No. 74-1873.

      . The Government’s evidence tended to show a single continuing conspiracy to make illicit sales of controlled substances and anything said or done by one of the conspirators during the existence of the conspiracy in furtherance of the common design is admissible as to all the conspirators. United States v. Sapperstein, 312 F.2d 694 (4 Cir. 1963). The Government’s evidence, if believed, established a single conspiracy involving both appellants of which the alleged transactions were a part; hence, we are not faced with the kind of prejudice we warned against in United States v. Vaught, 485 F.2d 320 (4 Cir. 1973) where one of the offenses charged was not part of a conspiracy involving all the defendants and evidence thereof was inadmissible against those not involved. See James v. United States, 416 F.2d 467 (5 Cir. 1969).

      . United States v. Frazier, 479 F.2d 983 (2 Cir. 1973).

      . Beaudine v. United States, 414 F.2d 397 (5 Cir. 1969).

      . United States v. Nielsen, 392 F.2d 849 (7 Cir. 1968).

      . Johnson v. United States, 121 U.S.App.D.C. 19, 347 F.2d 803 (1965).

      . In Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966), the court held it was error for the trial court to require defense counsel to make a Jencks Act motion in the presence of the jury since it might lead the jury to infer that the material represents prior consistent statements unless it was used to cross-examine the witness. Since the Jencks Act material in the instant case was used extensively by the defense in cross-examination any unfavorable inference which the jury may have drawn was invited by the defense.

      . There may be merit in the procedure for handling Jencks Act material outlined by the Second Circuit in United States v. Gardin, 382 F.2d 601 (2 Cir. 1967). As that case points out, in appropriate circumstances it is entirely proper for the jury to be informed that Jencks Act material has been provided to the defense. That procedure may possibly reduce the likelihood that the jury will draw inferences prejudicial to either side.

      . In Eley v. United States, 117 F.2d 526 (6 Cir. 1941), the prosecution attempted to rebut the defendant’s evidence of his good reputation by showing other unrelated convictions and other specific acts which tended to denote bad character and would normally create a bad reputation. In reversing the conviction because of the admission of such rebuttal testimony, the appellate court stated, at page 529:
      “We are unable to follow the reasoning of the court which led it to admit the challenged evidence not to establish specific acts but for the limited purpose of showing the general reputation of the defendant. There was no proof that the prior convictions and the subsequent unlawful acts of the appellant were known to the community, or that they in any wise impaired the reputation of the appellant as a man of honesty and integrity. . . . ”

      . It is desirable in this connection to note the difference between one’s reputation and a rumor about the person. Professor Wigmore has suggested two distinctions between reputation and rumor which may account for admission of the former but not of the latter on direct examination. “On the one hand, reputation implies the definite and final formulation of opinion by the community; while rumor implies merely a report that is not yet finally credited. On the other hand, a rumor is usually thought of as signifying a particular act or occurrence, while a reputation is predicated upon a general trait of character. . . . ” 5 J. Wigmore, Evidence § 1611 (3rd ed. 1940). The sheriff’s answer in the instant case appears to refer to a rumor rather than to the defendant’s reputation.

      . When the prosecutor asked Sheriff Broughton about Manley’s general character and reputation, the Sheriff responded, “I would say bad, he would do anything to make a fast dollar.” Manley’s objection and the motion to strike were overruled and the Sheriff repeated his answer in a more distinct fashion. The next day the court ordered that the comment be stricken and told the jury to disregard it. In view of our ultimate disposition we need not decide whether this belated curative instruction was sufficient.

      . The following quotation from United States v. Lewis, 157 U.S.App.D.C. 43, 482 F.2d 632 (1973), addresses this point:
      “The accused may elect to advance one or more of his character traits as evidence of his innocence. If he does, his proof is confined to evidence of his reputation in the community for those traits. His presentation, in terms of number of such traits, may be as narrow or as broad as he chooses so long as it remains germane to issues on trial.
      “The Government’s options as to character-proof depend upon what the accused undertakes to do. The prosecutor cannot offer bad-character evidence unless the accused first introduces evidence of good character; even then, the prosecutor’s proof is restricted to community reputation, and to the trait or traits to which the accused’s own character evidence related.” Id 482 F.2d at 637-638 (footnotes omitted).

      . Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

      . Shimon v. United States, 122 U.S.App.D.C. 152, 352 F.2d 449, 453-454 (1965); Mannix v. United States, 140 F.2d 250, 252 (4 Cir. 1944).

      . Where evidence of a particular trait is offered for some purpose other than to rebut the defendant’s evidence of his good general reputation it may be admissible. See Aaron v. United States, 397 F.2d 584 (5 Cir. 1968) (Government’s evidence of defendant’s bad reputation limited to specific traits put in issue by the defendant); United States v. Fink, 502 F.2d 1, 5-6 (5 Cir. 1974) (Evidence of defendant’s reputation as a drug smuggler admitted to show predisposition to commit the crime and thereby rebut entrapment defense).

      . Cf. United States v. Harrell, 436 F.2d 606 (5 Cir. 1970); Salgado v. United States, 278 F.2d 830 (1 Cir. 1960).


author: ALDRICH, Senior Circuit Judge.

text:
    COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Plaintiff-Appellant, v. Hector GONZALEZ et al., Defendants-Appellees.
    No. 74-1132.
    United States Court of Appeals, First Circuit.
    Argued Feb. 3, 1975.
    Decided March 11, 1975.

      John A. Perkins, Boston, Mass., with whom Jeffrey Swope and Palmer & Dodge, Boston, Mass., were on brief, for plaintiff-appellant.
    Harvey B. Nachman, San Juan, P. R., and James E. Beasley, Philadelphia, Pa., with whom Beasley Hewson, Casey, Kraft & Colleran, Philadelphia, Pa., Nachman, Feldstein & Gelpi, Antonio M. Bird, Jr., and Bird & Bird, San Juan, P. R., were on brief, for defendants-counterclaimants-appellees, and S. Polanco-Abreu, San Juan, P. R., with whom George L. Weasler, San Juan, P. R., was on brief, for Hector Gonzalez and Conquest Airways, Inc., appellees.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

On December 6, 1968, a Twin Beech aircraft, carrying ten passengers and a pilot, took off from the St. Thomas, Virgin Islands, airport at 6:19 PM, but failed to clear a hill beyond the runway and crashed in a residential area. Seven persons, including Mars, the pilot, were killed, and twelve were injured. The plane was owned by Conquest Airways, Inc., a Puerto Rico corporation, of which one Gonzalez was president, and was insured for hull and liability by Commercial Insurance Company of Newark, New Jersey. Commercial promptly brought this action in the Puerto Rico district court for a declaration of non-liability. Counterclaims on behalf of Conquest, Gonzalez and all persons killed or injured were duly filed seeking recovery under Puerto Rico’s direct action statute. Commercial appeals from judgments based upon a jury determination of liability, four jury verdicts assessing claimants’ damages in excess of two million dollars, and court awards of attorneys fees for “obstinacy.”

Liability.

Simply put, although substantively complex, Commercial disclaimed on the grounds that Mars did not have the experience required to meet the policy’s specifications, and because there should have been a co-pilot in any event. Again, speaking broadly, the district court held, inter alia, that the provisions of the policy upon which Commercial relied to deny recovery were ambiguous and should be construed by the jury in claimants’ favor; e. g., that a “command pilot” was different from a “pilot in command,”, and that a flight, although exclusively during the night as defined by Federal Aviation Administration (FAA) regulations, was not a “night flight.”

Pilot Qualifications.

As originally written, the policy covered a single plane, a Dornier, and certain named pilots. There was a provision under which other planes could be added by agreement, by which the Twin Beech was subsequently included. Under an Open Pilot Clause, Endorsement 2, certificated pilots could be added at will, provided they had a certain accumulated experience and Commercial was notified. Mars was hired three days before the accident. To qualify under the Open Pilot Clause he was required to have “logged a minimum flying time of 2,500 hours as command pilot [to include not less than] 1000 hours on multi-engine aircraft . . . and 100 hours total time during the last 12 months.” (Emphasis suppl.) Mars had not logged the requisite hours if “command pilot” means “pilot in command,” a term defined in the FAA regulations as applying, in the case of a multi-engine plane, only to the first pilot. However, although at first blush the terms might look the same, we agree with claimants that “command pilot” may have a broader meaning by virtue of the regulations. 14 C.F.R. § 61.39(c) provides with respect to a pilot’s qualifying for a certificate,

“(c) Pilot in command time. A private or commercial pilot may log as pilot in command only the flight time during which he is the only manipulator of the controls of an aircraft for which he is rated or the flight time during which he is the only occupant of the aircraft.”

If under this section a pilot in command cannot count as command time the hours he surrenders the controls to the second pilot, there would seem at least a permissible inference that the second pilot is, pro tanto, accumulating his own “command time,” even though not as “pilot in command.” This inference may be thought reinforced by section 61.39(d).

Commercial could have contradicted any unfavorable inference by using the regulations’ word of art, pilot in command. We may agree that the 2d-pilot’s “command time” is not the full equivalent of pilot in command, since he does not have full responsibility for the aircraft. However, when parties contract with reference to an industry whose terms are defined by an active supervising agency like the FAA, it is to be assumed in the absence of evidence to the contrary, that they have that terminology in mind. Cf. Superior Business Assistance Corp. v. United States, 10 Cir., 1972, 461 F.2d 1036, 1039; Arc & Gas Welder Associates, Inc. v. Green Fuel Economizer Co., 4 Cir., 1960, 285 F.2d 863, 868, cert. denied, 366 U.S. 919, 81 S.Ct. 1095, 6 L.Ed.2d 241; Petro v. Ohio Cas. Ins. Co., S.D.Cal., 1950, 95 F.Supp. 59, 62. When Commercial failed to use the regulation-defined phrase, the jury was warranted in finding it intended not what otherwise might be thought an ellipsis, but a lesser meaning; particularly so if the regulation itself suggested that lesser meaning.

We observe, further, that the notification form supplied by Commercial for pilots claiming to qualify under the Open Pilot Clause did nothing to lessen this inference, and if anything, reinforced it. Instead of providing space for listing “pilot in command” hours, it supplied three columns, headed “1st Pilot,” “Co-Pilot” and “Total.” If “command time” in the Open Pilot Clause meant only pilot in command time, the form could easily have been more specific. Failing this, we cannot say the jury was required to interpret the policy as Commercial contends. Gonzalez testified that he gave Mars the form, telling him it was to record his “command time.” Inter alia, Mars wrote 3400 hours as CoPilot of multi-engine planes, and opposite it, as “Total,” 1700 hours. Although the question may be close, and was made perhaps closer by other evidence suggesting that the 3400 hours figure itself was a considerable exaggeration, we cannot say that the jury could not conclude that Mars had satisfied the Open Pilot Clause’s requirements.

Next, Commercial points to a provision in the Open Pilot Clause which required pilots to be cheeked out “in type by Dornier Factory or Professional Pilot Checkout Organization.” Gonzalez explained that this was because the Dornier plane had some peculiarities, and that he subsequently asked that this restriction be lifted. Quite possibly in response to this, Endorsement 7, under which the Twin Beech was added, incorporated “Endorsements 1, 2 (without requisite to be checked out by Dornier Factory).” Commercial claims it was still necessary to be checked out by a professional pilot organization. However, it was meaningless simply to omit checking by Dornier Factory as a “requisite.” Checking by Dornier never was a requisite; there was always the alternative. We cannot quite say, when Commercial used this phrase in the endorsement following Gonzalez’ request, that it was not open to the jury to find that it meant to remove the entire checkout requirement, so that the fact that no organizational checkout was made is of no consequence.

The Absence of a Co-Pilot.

We mention briefly Commercial’s disclaimer based on the presence of a tenth passenger seat, a violation of a recent FAA regulation unless there were two pilots, which, concededly, there were not. Mars had been instructed by Conquest’s chief pilot to remove the tenth passenger seat, but he did not do so. The policy provided that it did not apply,

“(4) while [the aircraft is] being operated under circumstances requiring a special permit or waiver from the Civil Aeronautics Authority (even though granted).”

If violation of this regulation fell within this exclusion clause, that is the end of the case. Arnold v. Globe Indem. Co., 6 Cir., 1969, 416 F.2d 119, 122; Underwriters at Lloyd’s of London v. Cordova Airlines, Inc., 9 Cir., 1960, 283 F.2d 659, 665; Bruce v. Lumbermen’s Mut. Gas. Co., 4 Cir., 1955, 222 F.2d 642, 645. Exclusion clauses, however, are to be strictly construed. We agree with the court in Roach v. Churchman, 8 Cir., 1970, 431 F.2d 849, that if every violation of a regulation exempted the insurer, it is likely that almost any accident would be excluded, and that such an interpretation is to be avoided if reasonably possible. It may be that a fair meaning of this clause would be to confine it to those FAA regulations in which there are express provisions for waiver or amendment. Cf. Cordova Airlines, Inc., ante. We need not decide this point, however, because of Conquest’s breach of the two-pilot requirement contained in the policy itself.

Night Flight.

In the negotiations for the policy Gonzalez was told that the company would require two pilots for night flights. The policy, when issued, provided in Endorsement 1,

“Warranted co-pilot to be carried on all instrument flight rules or night flights.”

The court charged the jury, without exception by defendants, that this provision “in which the insured warrants that a co-pilot will be carried on night flights is valid and binding upon the insured, provided it is not ambiguous, and [if] there is a breach of warranty there is no coverage and no recovery permitted under the policy.” This was correct. Coffey v. Indiana Lumberman’s Mut. Ins. Co., 6 Cir., 1967, 372 F.2d 646, 648; Fidelity-Phenix Fire Ins. Co. v. Pilot Freight Carriers, Inc., 4 Cir., 1952, 193 F.2d 812, 815-16, 817-18; Henjes v. Aetna Ins. Co., 2 Cir., 1943, 132 F.2d 715, 718-19, cert. denied, 319 U.S. 760, 63 S.Ct. 1316, 87 L.Ed. 1711. Claimants defend on the ground that the warranty was in fact ambiguous in respect to the term night flight.

The FAA regulations define night as follows;

“ ‘Night’ means the time between the end of evening civil twilight and . the beginning of morning civil twilight, as published in the American Air Almanac, converted to local time.” 14 C.F.R. § 1.1, Definitions.

It was stipulated that on the day in question the sun set at 5:37, civil twilight ended at 6:07, and the plane took off at 6:19, or 12 minutes after FAA night had commenced. In this posture claimants note that neither the policy nor the regulations define night flight. They then point to section 61.47(b), which reads as follows:

“(b) Night experience. No person may act as pilot in command of an aircraft carrying passengers during the period beginning 1 hour after sunset and ending 1 hour before sunrise (as published in the American Air Almanac) unless, within the preceding 90 days, he has made at least five takeoffs and five landings to a full stop during that period of the day.”

This regulation was made much of during the trial, and was presented to the jury by claimants as “defining night flying.” This involves so many errors that it is difficult to know where to begin. In the first place, quite apart from the seeming illogic of night meaning one period of time, and a night flight another, 14 C.F.R. § 1.1, contains, alphabetically, over one hundred definitions, and following night gives no separate definition for night flying or night flight. If, for any reason, a different one was intended, this would have been the place for it. We do not accept claimants’ criticism of Commercial as seeking to “engraft” the definition of night “into the term night flight.” The manifest purpose of the word night is to refer to activities that occur at a certain time. Secondly, as the court charged the jury, n. 9, ante, section 61.47(b) did not even purport to be a definition; it is apparent that the section is simply a “refresher” provision, not a definition of night flight. The selection of a high degree of darkness, see n. 10, post, to achieve the maximum benefit from this review exercise, and the failure to make the requirement applicable to a lesser degree of darkness, is not to be read as creating an ambiguity contradicting the regulation’s explicit definition of “night,” or its application to regulations specially directed thereto.

Finally, claimants’ contention proves too much. The regulations contain many provisions relating to night flights, and if because of this special section the word night, when modifying flight, does not mean what it is otherwise defined as meaning, the entire scheme of the regulations would be upset. It cannot be that because of section 61.47(b) this particular flight though obliged to carry “night” equipment, section 135.153, and subject to a regulation for “night” takeoff, section 135.87, was not subject to “Visual flight rules (night). For VFR flight at night,” section 91.33(c). These pari materia provisions were brought into the policy by virtue of Exclusion (d), which provided that the policy did not cover operation “in violation of any air navigation regulations or instructions applying to . night flying.” To say under such circumstances that because one dictionary meaning of night is darkness, and some of the witnesses said there was still light, the regulations for night flying applied, but it was not a night flight with respect to the two-pilot requirement, would be to abuse beyond recognition the rule that insurance policies are to be construed against the company. As we said with relation to “command time,” persons engaged in the aviation industry must be presumed to contract with relation to the accepted industry terminology to which they are subject unless there is something affirmative to the contrary. Here there was nothing. The absence of a second pilot was a material breach of the policy.

The Policy.

Commercial attached to its complaint a copy of what it alleged to be the insurance policy, including six allonges entitled Endorsements 1, 2, 3, 4, 5 and 7, viz., with no endorsement number 6. The endorsements added benefits, for an extra premium, e. g., 4 and 7, or imposed restrictions, e. g., 5. Although there was no endorsement numbered 6 attached, Endorsement 7, the one which added the Twin Beech plane to the coverage, contained the following provision.

“It is further understood and agreed that:
(1) Such insurance as is provided hereunder with respect to the above described aircraft applies subject to the same purposes of use, geographical limits and pilot warranties as expressed in Items 7, 8 and 9 of the ‘Declarations,’ as completed/extended by Endorsements 1, 2 (without requisite to be checked out by Domier factory) and 6 of this policy;”

As against this implication that there was an Endorsement 6 which Commercial had failed to reproduce, when Gonzalez was deposed a few months after suit and exhibited the original policy it, too, had no such endorsement. After introducing the policy at the trial Gonzalez first said that he could not say whether it was complete, because the pages were “separated.” He was reminded that they were in that condition when he produced them at the deposition, and had said they were complete. The separated pages as introduced at the trial, and numbered and initialed by notary at the deposition, clearly showed there was no endorsement 6.

Later during the trial, although conceding that Gonzalez and counsel for Commercial had stated that this was the whole policy, counsel for claimants demanded of Commercial that it produce Endorsement 6. A sidebar conference took place, during which the court stated, “If you inform the Court there is no endorsement 6 that’s all right.” Commerical’s counsel repeated that claimants’ counsel had been told that there never had been such an endorsement. After some further argument between the attorneys, counsel for the insured interjected, “So far as Conquest Airways, I would like the Judge to instruct the jury that the fact that there is no endorsement 6 does not help either of the parties or hurt them.” The court closed the bench conference by saying it would hear all parties when instructions were discussed.

If the court’s remark was not a positive statement that Commercial need do nothing further, it was at least reasonably capable of being so understood and it was apparent that Commercial’s counsel so took it. Nevertheless, when the court came to charge the jury it said,

“The insurance company at no time introduced Endorsement Number 6 to the policy, nor did it offer any evidence to show that Endorsement 6 was not available to them.
“I instruct you that under the law of Puerto Rico, you must presume that the provisions of Endorsement #6 to the policy contain material unfavorable to the insurance company’s case.”

Quite apart from the improper direction “must” rather than “may,” this charge would seem to permit a finding than an endorsement 6 had eliminated any condition the jury chose, without the need of analysis or further consideration. However, before reaching the question of new trial, our first consideration is whether the absence of an endorsement 6 deprived Commercial of its right to a directed verdict because of the breach of the night flight provision.

The court nowhere suggested what “material unfavorable to the insurance company” the jury could find was contained in the absent endorsement, and, as we noted ante, charged the jury in positive terms that the night flight provision in Endorsement 1 was binding on the insured. Nor did claimants’ counsel, in their summation, make any reference to the absence of an endorsement. We will, however, consider the question in the light most favorable to claimants, namely their present suggestion that although Endorsement 7 incorporated Endorsement 1, the absent endorsement may have removed the night flight two pilot requirement therefrom. We note at the outset, however, that there can be no rational suggestion that it removed it simply for the Twin Beech. Not only did Gonzalez receive Endorsement 7 unaccompanied by Endorsement 6, but Endorsement 7, as has already been noted, contained a special modification of Endorsement 1 with respect to the Twin Beech and would presumably have contained any other if any other had been intended. The issue, therefore, is whether it could be inferred that the company issued a general revocation of the two pilot requirement, without cost, because Gonzalez never paid for it or by accepting agreed to pay for it, and which, because of some mistake, Gonzalez never received.

It is elementary that if a party has evidence, here, allegedly, a document, in its control and fails to produce it, an inference may be warranted that the document would have been unfavorable. However, there are two conditions. Not only must it appear that the evidence is available, and specially available, cf. Kean v. Commissioner of Internal Revenue, 9 Cir., 1972, 469 F.2d 1183, 1187 — 88; United States v. Johnson, 1 Cir., 1972, 467 F.2d 804, 808, cert. denied, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 270 to the non-producing party, but it must appear that that party had some reason to suppose that non-production would justify the inference. This not only means a “factual area in which [the inference] can logically operate,” see Wilson v. United States, 8 Cir., 1965, 352 F.2d 889, 892, cert. denied, 383 U.S. 944, 86 S.Ct. 1199, 16 L.Ed.2d 207; Jenkins v. Bierschenk, 8 Cir., 1964, 333 F.2d 421, 425, but, what is determinative here, the totality of the circumstances must bring home to the non-producing party notice that the inference may be drawn. Here, not only was the insured the party possessing the policy, but it disclaimed knowledge of an endorsement number 6, which was in itself substantial evidence that it did not exist, thereby undercutting the court’s patently erroneous charge affirmatively accepting existence and stating that Commercial had done nothing to show it was not available. But of more importance, the record had been left, in light of the court’s statement that counsel’s representation made it “all right,” that Commercial’s counsel had been led to believe that there was no burden on him to do anything further.

In view of this, Commercial’s position was little different from the defendant in Case v. New York Central R.R., 2 Cir., 1964, 329 F.2d 936. There the defendant introduced hearsay testimony that its absent employee witnesses had said they could contribute nothing. The court said, “That finishes that.” The court of appeals held that in these circumstances no inferences were to be drawn from their non-production, and that if the plaintiff had been dissatisfied he should have taken steps. So here claimants, with, as they themselves point out, seven days left before the end of trial, could have served a subpoena duces tecum. However, although knowing of the court’s statement and its effect on counsel, they did nothing. This was not to be excused by any theory that the burden of proof was on Commercial because it had brought the suit; Commercial had satisfied its burden.

More important substantively, even if inferences were permitted to be drawn we would be hard put to think that a jury could be allowed to speculate that the company, unbeknownst to Gonzalez, had issued a free waiver of the requirement that there be two pilots on night flights. Gonzalez testified that before purchasing the policy he shopped around for the lowest cost, a matter of significance when the insured is seeking a broad interpretation of the policy. Cf. American Employers’ Ins. Co. v. Maryland Cas. Co., 1 Cir., 1975, 509 F.2d 128. That a low premium company, which insisted from the outset on two pilots for night flights, should thereafter, without charge, issue an endorsement renouncing that substantial safeguard, is hard to conceive. As the court said in Jenkins v. Bierschenk, ante, 333 F.2d at 425, “The supposition must rise above the level of mere possibility.” Moreover, there was an opposing inference. Endorsement 5 had been a restriction. If one could suppose that there was in fact an endorsement 6 which the company, in preparing the copy of the policy, had overlooked, it could have been one that Gonzalez, in studying the policy preparatory to defending the suit, found detrimental. His separating the pages, and his failure to produce an endorsement 6, could be due to the fortunate discovery from examining the pleadings that the company had overlooked it, so that its disappearance would pass unnoticed. As was held in Felice v. Long Island R.R. Co., 2 Cir., 1970, 426 F.2d 192, 195, cert. denied, 400 U.S. 820, 91 S.Ct. 37, 27 L.Ed.2d 47, if the court instructs that an inference may be drawn against one party, it must point out, where appropriate, that there is an opposing inference that the jury must consider as well.

In sum, to infer on this record that there had been a waiver of the requirement that there be two pilots on night flights would seem the rankest speculation. We need not, however, decide this question. Since an inference that the policy was other than as identified by the insured and introduced in evidence was precluded in any event, not only was the charge erroneous but, on the agreed evidence as to the time of takeoff and absence of a second pilot, a verdict of non-liability should have been directed.

The judgments against Commercial are vacated and the case remanded with directions to enter judgments in its favor on the complaint and on the counterclaims.

      . The notification form was required to be filed within 15 days. Mars had made one out, and it was filed within the time. Neither party takes anything from the fact that it was not filed before the accident. We mention this point only to reject a suggestion that Mars had 15 “free” days even if his qualifications were deficient. We take the issue to be simply whether, in fact, he met the qualifications.

      . We agree with claimants that “logged” does not necessarily mean recorded in some log, but merely that it had occurred.

      . Again, we agree with claimants that “total time” includes time not in command.

      . “ ‘Pilot in command’ means pilot responsible for the operation and safety of an aircraft during flight time.” 14 C.F.R. § 1.1.

      . “(d) Second in command time. A private or commercial pilot may log as second in command that flight time during which he is performing the duties of a second in command. He may be credited with not more than 50 percent of that kind of flight time toward the total flight time required for a higher certificate or rating.”

      . The statement in Commercial’s reply brief, “The pilot information form expressly uses the terms ‘Pilot in Command’ and ‘Co-Pilot’ in contradistinction to each other,” perhaps the keystone to its argument that there is no ambiguity, is simply not so. Quite apart from section 61.39(c)’s indication that all hours spent as 1st pilot do not count as pilot in command time, to call for a combined total is not to emphasize distinctions.

      . We remark that this does not mean what the court on several occasions charged the jury, “Whenever you find that an ambiguity does exist, you must resolve all questions in favor of the insured.” In light of the court’s apparent misunderstanding of our decision in Marston v. American Employers Ins. Co., 1 Cir., 1971, 439 F.2d 1035, we note that grounds, including appropriate extrinsic evidence, may be found to show that the unfavorable interpretation was the one reasonably understood by both parties. See Marston, ante, at 1040. That the court misunderstood this is apparent, not only from its charge, but from the fact that in awarding counsel fees for “obstinacy” one of its reasons, (relating to night flight, post), was that the company sought to persuade the jury that the circumstances warranted a particular interpretation in its favor, which we read not as weighing the sufficiency of its reasons, but simply as penalizing the company for trying at all. It is only when an ambiguity finally remains that it is to be construed against the company.

      . This conclusion is not only a close one, but attributes substantial carelessness to the preparer of Endorsement 7, a fact perhaps worth noting when another aspect of Endorsement 7 is considered, post,

      . Singularly, the court, although it read the provision in full, then charged the jury, without exception, “This is not a definition, but a safety operating rule.”

      . There are, of course, degrees of darkness, viz., end of civil twilight, nautical twilight, and astronomical twilight. See Webster’s Third New International Dictionary. Darkness also varies from day to day, depending on weather conditions; scarcely a test for the operation of a commercial airline.

      . As a final effort, claimants attempt to make an inocente out of Gonzalez. On his own testimony, however, he had had a pilot’s license, requiring knowledge of the regulations, since 1958, and a commercial pilot’s license since 1962, with 3400 hours of logged time in 1968 when he applied for the policy. In addition, he had had experience with aircraft insurance. No amount of tempering the wind to “a reasonable person, unacquainted with the niceties of insurance,” see Marston, n. 7, ante, 439 F.2d at 1039, could permit him to claim that he did not understand the word “night” when used in connection with flying. We somewhat regret the brevity of our quoted expression in Marston, because of the court’s apparent misunderstanding and overextension. Naturally, we meant a reasonable person in the position of the insured. A businessman or a professional entering into a contract is expected to have the usual sophistication and understanding of those in the industry to which the contract relates. Porto Rico Sugar Co. v. Lorenzo, 1912, 222 U.S. 481, 32 S.Ct. 133, 56 L.Ed. 277.

      . Parenthetically, it will be recalled that if we had not previously assumed the preparer of Endorsement 7 to be careless, the case would have ended then and there. See n. 8, ante.

      . The statement in claimants’ brief that the company was the “custodians (sic) of the original policy” is, of course, erroneous. An insuranee company keeps records, but the policy is customarily delivered to the insured, and was in this case.

      . We do not mean by this to charge Gonzalez with dishonesty. He and the company were in accord as to the content of the policy. We merely say that if claimants under these circumstances choose to make charges of concealment, it is not a one-way street. We may add, what perhaps should have prefaced the Policy portion of this opinion, that we have grave reservations whether, in the absence of proof of collusion, a direct action statute can permit a claimant, who stands in the shoes of the insured, to assert that the policy differs from what the insured and the insurer agree were its terms.

      . We have not hitherto mentioned that Gonzalez and Conquest filed counterclaims for injury to their business caused by Commercial’s denying liability under the policy. These, too, must fail.


author: COFFIN, Chief Judge.

text:
    William KOLLIOS et al., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1416.
    United States Court of Appeals, First Circuit.
    Submitted March 5, 1975.
    Decided April 1, 1975.
    Theodore C. Garabedian, Worcester, Mass., on brief for appellants.
    James N. Gabriel, U. S. Atty., and Marshall D. Stein, Asst. U. S. Atty., Boston, Mass., on brief for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and MeENTEE, Circuit Judges.
   COFFIN, Chief Judge.

On January 24, 1974 each appellant commenced in the district court an action to recover from the government for damages sustained as a result of a 1968 vehicular accident. The district court dismissed the cases as barred by the applicable statute of limitations, 28 U.S. C.A. § 2401(b), which relevantly provides:

“A tort claim against the United States shall be forever barred unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”

We have concluded that oral argument will not be of assistance with regard to the narrow issue presented on appeal, and thus proceed on the basis of the briefs submitted by the parties. First Circuit Rule 12.

Appellants’ administrative claims were denied by letter dated July 23, 1973. The district court applied the so-called “modern doctrine” for the computation of the six-month period, excluding the initial or trigger day and including the last day of the period. Using this method of calculation and taking July 23 as the trigger day, it is clear that the six-month period described by the statute ended on January 23, 1974.

In order to prevail, then, appellants must establish that July 23 was not the trigger day, and in support of that position they have fashioned a tortuous argument. They emphasize that section 2401(b) requires initiation of the action within six months “after the date” of mailing, and urge that for that reason their concession that they did not file within six months “after the mailing” or “from the mailing” does not dispose of this case. They would have us hold that the first point in time “after the date of mailing” was July 24, which therefore must be regarded as the trigger day.

Appellants have referred us to no authority supporting their position, and our independent research has discovered none. Their argument might have some force if the time of the day at which a document is filed affected the computation of time under federal statutes or rules, but that is not the case. Moreover, the utilization of different systems for computation depending on whether an event or a “date” is taken as the starting point would run strongly counter to efforts to establish a uniform system of computation for the convenience of both litigants and the courts. Pursuant to F.R.A.P. 31(a), for example, the appellant must file his brief “within 40 days after the date' on which the record is filed”. The appellee, however, must file within 30 days “after service” of appellant’s brief, and appellant in turn may file a reply brief within 14 days “after service” upon him of appellee’s brief. If these various formulations mean what appellants say they do, then the trigger day for the computation with regard to appellant’s brief is the day after the record is filed, while measurement for appellee’s brief and the reply thereto begins on the very day of service.

Despite our lack of enthusiasm for any “technicality” which prevents individuals from presenting for adjudication the claims which they have against the government, the construction of section 2401(b) suggested by appellants would serve no useful end while wreaking havoc on the hitherto orderly computation of time under federal rules and statutes.

Affirmed.

      . See Fed.R.Civ.P. 6(a); F.R.A.P. 26(a); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1163.

      . See also the various formulations of time measurement in F.R.A.P. 4, some starting from an event and some from a date.


author: PER CURIAM:

text:
    Robert GWATHMEY and William Durham, suing on his own behalf and on behalf of all others similarly situated, Plaintiffs-Appellants, v. TOWN OF EAST HAMPTON et al., Defendants-Appellees.
    No. 326, Docket 35160.
    United States Court of Appeals, Second Circuit.
    Submitted March 13, 1975.
    Decided March 20, 1975.
    Before LUMBARD, WATERMAN and ANDERSON, Circuit Judges.
   PER CURIAM:

Our decision in this case dated December 24, 1970, 437 F.2d 351, was remanded by the Supreme Court on July 8, 1974, for reconsideration in light of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971).

Plaintiffs initially sought the convening of a three-judge court to consider the constitutionality of N.Y.Gen.Bus.Law § 136(a) and an injunction against the prosecution of Gwathmey who had been arrested for violating that statute and who was then free on bail pending a hearing. The district court denied both requests.

Since we found the New York statute to be unconstitutional in Long Island Vietnam Moratorium Comm. v. Cahn, 437 F.2d 344 (2d Cir. 1970), affd., 418 U.S. 906, 94 S.Ct. 3197, 41 L.Ed.2d 1153 (1974), there is no reason to convene a three-judge court. However, in light of Younger and Samuels, we now affirm the district court’s refusal to enjoin an ongoing state criminal proceeding.