author: WILKEY, Circuit Judge:

text:
    UNITED STATES of America v. AMERICAN RENAISSANCE LINES, INC., Appellant.
    No. 72-2109.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 29, 1973.
    Decided Feb. 27, 1974.

      Julius Kaplan, Washington, D. C., for appellant.
    David V. Hutchinson, Atty., Dept, of Justice, for appellee. Harold H. Titus, Jr., U. S. Atty., Robert E. Kopp and Kieron F. Quinn, Attys., Dept, of Justice,were on the brief for appellee.
    Before BAZELON, Chief Judge, and WILKEY, Circuit Judge and VAN PELT, United States Senior District Judge for the District of Nebraska.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   WILKEY, Circuit Judge:

This appeal was taken from an order of the District Court which, in effect, held that the Commodity Credit Corporation [CCC], a government agency, could enforce an oral charter agreement with a private shipping firm, the American Renaissance Lines, Inc. [ARL]. The District Judge denied defendant ARL’s motion for judgment on the pleadings, however, believing that there was “a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The District Judge certified the oral contract question to this court for an interlocutory-appeal. After consideration of the certified question, we view the matter differently from the District Court and remand for action consistent with this opinion.

I. THE NATURE OF THE CHARTER AGREEMENT

In May 1966 the CCC issued by telephone and telegraph a general invitation to private enterprise to bid on the carriage of a large amount of foodstuffs from the United States to South Vietnam. The invitation to bid required that all offers be delivered either in person or by telephone. Acting through its agent Universal Shipping Corporation, ARL entered a bid. On 9 May 1966 oral agreement was reached with CCC’s agent, the Ocean Transportation Division of the Foreign Agricultural Service of the U.S. Department of Agriculture. ARL proposed the SS Eviliz to transport the foodstuffs under charter to the U.S. Government. The oral agreement was subject to the terms of the telegraphed invitation to bid, and the USDA Grain Charter Party (1 March 1963 Revision). On 11 May 1966 the parties orally agreed through their agents to allow ARL to substitute another ship for the SS Eviliz, which ARL had been unable to purchase.

ARL repudiated the oral agreement on 18 May 1966 and refused performance. However, ARL did offer by telegram to pay any extra storage charges until other carriage was obtained. This refusal of performance occurred before any written charter or contract had been signed. The failure of the agreement caused the Government additional storage, handling, and shipping costs, in the amount of $40,309.67.

In November 1971 the United States brought suit in District Court for the additional costs of $40,309.67 plus interest from May 1966. This dormant claim was thus revived 5% years after the oral agreement had been breached, and several months after ARL had won a suit against the Government in the U.S. District Court for the Eastern District of New York on an unrelated admiralty action in the amount of $43,421.00. ARL answered the government complaint and sought a judgment on the pleadings, in part on the ground that the CCC could not enforce a government charter agreement made orally only. After denial of the motion by the District Court, ARL moved for reconsideration or alternatively certification of the oral contract question to the Court of Appeals for an interlocutory appeal. The District Court did not grant the substantive motion but did grant certification. We allowed the appeal by order of 13 October 1972.

II. THE ENFORCEABILITY OF THE ORAL CONTRACT BY THE GOVERNMENT

The issue before this court is limited to the question whether the CCC, a government agency, can obtain damages for an unperformed oral contract for carriage. We believe that both the relevant statutes and regulations require that government contracts such as the charter agreement here be written in or-der to be enforceable by the Government. Hence, in answer to the certified question we hold that this oral contract is unenforceable.

A. The Statute

In 1955 the Congress, troubled by executive spending, enacted § 1311(a)(1) of the Supplemental Appropriation Act. This section provided that

After August 26, 1954 no amount shall be recorded as an obligation of the Government of the United States unless it is supported by documentary evidence of—
(1) a binding agreement in writing between the parties thereto, including Government agencies, in a manner and ' form and for a purpose authorized by law, executed before the expiration of the period of availability for obligation of the appropriation or fund concerned for specific goods to be delivered, real property to be purchased or leased, or work or services to be performed.

The original purpose of the statute was to prevent executive officials from excessive or inappropriate spending.

The parties to this litigation urge contrary interpretations of this provision. On the one hand, the Government urges that the statute is simply a recordation statute to facilitate auditing and has no effect on government contracts with private parties. On the other hand, ARL argues that the provision, in conjunction with certain regulations, establishes virtually a statute of frauds for such government contracts as involved here. Sustaining the government position here would remove reciprocally the protection of the Government which was the initial intent of the statute, and this we decline to do.

We hold that the statute does establish a requirement that government contracts of this type be in writing, and that contracts which are merely oral are not enforceable. We agree with the Government that this statute does not follow the typical statute of frauds format. But we do not believe that to be determinative. Rather, we feel that the Congress was concerned that the executive might avoid spending restrictions by asserting oral contracts, and so enacted the requirement of a writing-.

The Supreme Court long ago considered a similar question in Clark v. United States. Although the statute there involved has since been repealed, it was similar to the statute here in that it required government contracts of certain departments to be in writing. The Supreme Court held that this statute effectively established a statute of frauds. The oral agreement made by the Government to charter a steamer from a private party was hence void. The Court, however, did allow the owner of the steamer to recover from the Government for the value of services rendered, on a theory of quantum meruit. Justice Bradley wrote for the Court:

The facility with which the government may be pillaged by the presentment of claims of the most extraordinary character, if allowed to be sustained by parol evidence, which can always be produced to any required extent, renders it highly desirable that all contracts which are made the basis of demands against the government should be in writing. Perhaps the primary object of the statute was to impose a restraint upon the officers themselves, and prevent them from making reckless engagements for the government; but the considerations referred to make it manifest that there is no class of cases in which a statute for preventing frauds and perjuries is more needed than in this.

While the Clark case dealt with a private party trying to collect from the Government, the principles enunciated above remain true when the situation is reversed and the Government is seeking damages. The requirement of a written contract protects both sides from the possibility of fraud or misinterpretation by the other. And, on the principle of mutuality, it is not appropriate for the Government to assert the lack of a writ-ten contract when it wishes an agreement to lapse, but to waive such an objection when it wishes to enforce an agreement.

In fact, if the Government’s position of no mutuality were accepted, the agreement would not meet the basic contractual prerequisite of consideration from each contracting party. For if the Government could avoid its part of the bargain by asserting lack of a written contract, the Government would be making merely an illusory promise: the Government would pay the agreed price for the services only if it wished and if it had complied with the statute (and regulations, infra). The Government could avoid payment by citing the statute and its own failure to follow its own regulations, and then the private party would be limited to quantum meruit. Such an arrangement clearly would not satisfy the requirement of mutual consideration.

The Supreme Court decision in 1915 of United States v. New York and Porto Rico SS Co. can be distinguished from the present case. In that earlier ease, the Government sought to recover from a private steamship company which had not performed its written agreement to ship coal. The company raised as a defense the failure of the Government to comply with the exact writing requirements of the same statute as involved in Clark, by not producing proper copies and seals. The Court held that the Government could waive the requirements because it was the only intended beneficiary of the protection. The private company “needs no such protection against a written undertaking signed by himself.” In the case at bar, however, what is lacking is not simply the proper form or seal but a written contract in its entirety. Such of the entire agreement as was made was made orally, and no writing was sent until after the agreement was repudiated. ARL claims that vital provisions were never agreed upon, and disputes the CCC version of what was actually agreed to, e. g., whether long or short tons were meant is still in controversy. Protection for the private company, as well as the Government, is necessary under these circumstances.

A somewhat related issue was considered by the Court of Claims in Escote Manufacturing Co. v. United States. There the court stated that an oral contract to buy surplus government property was as binding on the private party as if it had been in writing. However, the facts in Escote are markedly different from this case. In Escote the private bidder had sent a written bid and check for deposit in response to the Government’s invitation to bid for surplus goods. The Government then sent the bidder a letter containing three copies of a form headed “Invitation, Bid, and Acceptance” for signature by the bidder. The bidder sought to avoid the contract on the ground that the contracting officer of the Government had not signed the form, but his name was only typewritten. Thus, the issue was not whether there was a written agreement, but simply whether the signature of the contracting officer was required.

Although Escote was decided after the 1955 statute requiring written contracts, the Court of Claims stated that the parties had not identified any statute requiring a writing. The court felt that the contract forms sent by the Government to the private buyer, which were not signed, were merely part of the Government’s bookkeeping system. At no time in its opinion did the court give consideration to the statute or regulations in effect here. Consequently, the Escote opinion is of limited value in deciding this case.

We view the statute as establishing a requirement that a government contract as involved here be in writing before either party may be allowed to obtain court enforcement of the agreement. The statute admittedly is not phrased as the typical statute of frauds. It is more specific, in that it requires that the contract be supported by documentary evidence of a binding agreement in writing. Although the statute simply bars recording oral contracts as obligations of the Government, this does not mean that recordation is the only purpose or effect of the statute. If the Government does not fulfill the recordation requirements, it can neither automatically take the benefit of an agreement it has allegedly made, nor can it be hurt by another party alleging an agreement. Mutuality of protection is thus provided, and we do not see by the Government’s interpretation of the statute anything but one-sided protection would be afforded.

We believe that this interpretation of the statute is in accordance with the legislative intentions. The House Conference Report on the provision offers a succinct summary of the legislative view:

Section 1311(a)(1) precludes .the recording of an obligation unless it is supported by documentary evidence of a binding agreement between the parties as specified therein. It is not necessary, however, that this binding agreement be the final formal contract on any specified form. The primary purpose is to.require that there be an offer and an acceptance imposing liability on both parties. For example, an authorized order by one agency on another agency of the Government, if accepted by the latter and meeting the requirement of specificity, etc., is sufficient. Likewise, a letter of intent accepted by a contractor, if sufficiently specific and definitive to show the purposes and scope of the contract finally to be executed, would constitute the binding agreement required.

B. The Regulations

Several regulations of the Executive branch further support our view that a written contract is necessary to bind ARL here. The regulations include general Federal Procurement Regulations and regulations specific to the CCC.

The Federal Procurement Regulations [FPR’s] were promulgated pursuant to the Federal Property Act to regulate all government agency procurement. Specifically FPR § 1-1.208 provides a definition of contract:

“Contract” means establishment of a binding legal relation basically obligating the seller to furnish personal property or nonpersonal services (including construction) and the buyer to pay therefor. It includes all types of commitments which obligate the Government to an expenditure of funds and which, except as otherwise authorized, are in writing. In addition to a two-signature document, it includes all transactions resulting from acceptance of offers by awards or notices of awards; agreements and job orders or task letters issued thereunder; letter contracts; letters of intent; and orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance. It also includes contract modifications. (Emphasis added.)

FPR § 1-1.219 defines “contract modification” to be “written alteration.”

The Government urges that § 1-1.208 merely says that a contract is the “establishment of a binding legal relation” and is broadly defined to include oral agreements. We believe that the Government has misinterpreted the definition. The regulation requires a writing, except as otherwise authorized. It does not require a formal two-signature document, but it does require some form of writing, whether letters of intent, or purchase orders, or some other written manifestation.

It must be noted that the scope of the FPR’s is limited by the Federal Property Act, which states in relevant part that the Act and accompanying regulations shall not be interpreted to impair the authority of any executive agency with respect to any phase, including transportation,

of any program conducted for purposes of resale, price support, grants to farmers, stabilization, transfer to foreign governments, or foreign aid, relief, or rehabilitation: Provided, That the agency carrying out such program shall, to the maximum extent practicable, consistent with the fulfillment of the purposes of the program and the effective and efficient conduct of its business, coordinate its operations with the requirements of said chapters and the policies and regulations prescribed pursuant thereto.

Thus, while the FPR’s are not mandatory, and agencies may carve out exceptions, there is strong pressure on the CCC to conform to them insofar as possible.

The CCC has not adopted regulations exempting it from the writing requirement in the FPR definition of contract. Not only do CCC regulations explicitly adopt the FPR’s, but also CCC’s own regulations incorporate an additional writing requirement. And, the Government has pointed to no cases wherein the CCC has stated that it rejects the requirement of a writing. The Government does suggest that the CCC’s charter instructs it to follow the usual and customary channels of trade and commerce, and that oral contracts to be followed by written charters are customary. Whether such oral agreements are customary in shipping, we do not believe that the CCC charter provision was intended to cover the formalities of a contract; rather, it tells the CCC to use normal commercial, as opposed to governmental, means for transporting goods. In the face of the regulations governing the CCC, this charter provision should not be interpreted as removing the writing requirement.

A regulation more directly applicable to the CCC is 7 C.F.R. § 11.12(a), which provides specifically for ocean transportation of goods for the CCC:

The cost of ocean transportation will be financed by CCC only when specifically provided for in the purchase authorization. Unless the purchase authorization provides otherwise, this • section will apply to the financing of ocean transportation. Unless otherwise specifically provided in the applicable purchase authorization or unless otherwise requested by FAS, the pertinent terms of all proposed charters . and all proposed liner bookings must be submitted to the appropriate USD A Office . . . for review and approval prior to fixture of the vessel. Tentative advance approvals may be obtained by telephone or telegram, provided Form CCC 105, Ocean Shipment Data-PL 480 (“Request for Vessel Approval”), is furnished promptly confirming the information supplied by telephone or telegram. Approvals of charters and liner bookings will be given on Form CCC 106, “Advice of Vessel Approval.”

Thus, use of particular forms is required prior to “fixture” of a ship. While the regulation does not explicitly state that an oral contract is unenforceable, that meaning is apparent.

The Government objects that the CCC regulations are inapplicable because the foodstuffs were being shipped under Title II of PL 480, rather than Title I. The significance of this difference is that Title I provides for the sale of surplus agricultural commodities overseas and is administered by the U.S. Department of Agriculture. Title II provides for the donation of surplus agricultural commodities for relief and is administered by the State Department. The CCC regulations apply only to Title I. The State Department regulations do not provide any form or writing requirement for a contract.

As ARL correctly points out, there was no indication given by the Government that Title II rather than Title I activity was being undertaken. ARL was negotiating with the CCC and had a right to assume that the CCC would follow its own published regulations. Furthermore, while Title II regulations do not mention writing of contracts, AID has specifically adopted the FPR’s in general, with no exception from the definition of contract. So, even if Title II. were applicable, the FPR definition would still be effective.

The Government also argues that even if Title I were applicable, it merely establishes requirements for importing countries to produce written charters for ocean transportation to obtain USDA approval of financing. Whether or not the writing requirement is directed to importing countries or shippers, the fact remains that certain forms are to be used before USDA approval will be granted; USDA need not finance any non-conforming charters. We believe this suggests a requirement of a written contract, similar to the statutory requirement. Unenforcea-bility of any oral agreement determines the position of both parties: just as USDA could refuse to finance the oral charter here, so, too, can ARL raise the lack of a writing as a defense to an action for breach of contract.

III. CONCLUSION

We conclude that an oral agreement for charter of a ship, such as involved in this case, is not sufficient to allow the Government to recover in a damage action for breach of contract. The applicable statute and regulations require a written agreement. We reach this conclusion not only on the basis of the statute and regulations, but also on two additional factors.

First, the parties themselves seem to have contemplated a written agreement, as indicated by the incomplete USD A Grain Charter Party which was to be used. Given the extent of the unfilled blanks in the form, it appears that the oral agreement did not represent a final meeting of the minds of the two parties.

Second, the nature of the contract at issue here is lengthy and complex. The parties do not agree now on all of the proposed terms of the agreement. Where such complex transactions are involved, there is a policy favoring written agreements.

Recapitulating our analysis of the position of the parties in regard to the statute, we can readily see that the wording of the 1955 Act, cast as it is in the phraseology “no amount shall be recorded as an obligation of the Government,” and enacted for the primary purpose of keeping free-spending officials in check, does not carry an inescapable interpretation as a statute of frauds. Yet the 1955 statute does call for “documentary evidence of a binding agreement in writing between the parties thereto,” and the impact of this requirement does inescapably fall on both the Government and the private party to the contract. Most persuasively perhaps, it appears impossible to give effect to the avowed primary objective of Congress without construing the 1955 Act as a statute of frauds. We have here the Government seeking damages on the basis of a purely oral agreement, admittedly incomplete or confused on some terms argued to be vital to the obligations of the parties, intended to be but never reduced to writing before repudiation. If we enforce the Government’s claim here on a purely oral charter contract, the next case arising may well be similar to Clark v. United States, i. e., a claim by the private party likewise based on a purely oral agreement, in which the facts hypothetically might show that the government official blithely ignored all the required written safeguards of the 1955 Act. If we adopt the Government’s theory here, the very restricted interpretation of the 1955 Act, in our hypothetical next case the Government could not successfully urge the unenforceability of a purely oral charter — it would have been stripped of this external defense and concomitantly of protection against the very internal abuses which even the Government here agrees was Congress’ primary objective in the 1955 statute.

It is thus dubious that the Government would want to contract orally, or that it should. This decision, by requiring that the Government comply with statutes and its own regulations by requiring a writing before an agreement of this type may be enforced by the courts, is in the long-range interest of the Government and the public.

      . 28 U.S.C. § 1292(b) (1970). If the District Judge so finds, the statute directs him to so state in his order. The Court of Appeals may then in its discretion permit an appeal.

      . The telegram invitation to bid stated: “For full cargoes USDA Grain Charter Party dated March 1, 1963 (Revised) to be used.” Appendix to Appellant’s Brief at 6. A sample of the charter party is provided in the Appendix at 8-15. Examination of the sample charter party shows the document to be a highly detailed eight-page agreement, with blank spaces provided for insertion of material pertinent to each particular contract.

      . See Brief for Appellant at 5-6.

      . This was pursuant to 28 U.S.C. § 1292(b). See note 1 supra.

      . The District Court’s certification to the Court of Appeals is reproduced in Appendix at 99. Our order allowing the appeal is in Appendix at 100.

      . See, e. g., 100 Cong.Rec. 13056-57 (1954).

      . 68 Stat. 830, 31 U.S.C. § 200(a)(1) (1970).

      . Other subsections of § 200(a) provide that documentary evidence of valid loan agreements, orders required by law to be placed with a government agency, and so forth will also meet the requirements.

      . The House Report noted the purpose of the provision:
      Over a period of years numerous loose practices in handling appropriated funds have grown up in various agencies of the government. The most difficult problem in this area arises from the recording of various types of transactions as obligations of the government when, in fact, no real obligation exists. This situation has become so acute as to make it next to impossible for the Committee on Appropriations to determine with any degree of accuracy the amount which has been obligated against outstanding appropriations as a basis for determining future requirements. It has become necessary to set forth definitively in the law the types of transactions which will be recognized as true obligations and secure accurate reporting thereon in order that it may be possible for the Committee on Appropriations to have a sound basis for its operations. Section 1111 therefore has been included in the bill to accomplish this purpose.
      H.Rep.No.2266, 83rd Cong., 2d Sess. 49-50 (1954).

      . See Brief for Appellee at 14-16.

      . See note 9 supra.

      . 95 TJ.S. 539, 24 L.Ed. 518 (1877).

      . The statute provided
      That it shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior, immediately after the passage of this act, to cause and require every contract made by them severally on behalf of the government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof, a copy of which shall be filed by the officer making and signing the said contract in the “returns office” of the Department of the Interior ... as soon after the contract is made as possible, and within thirty days, together with all bids, offers, and proposals to him made by persons to obtain the same, as also a copy of any advertisement he may have published inviting bids, offers, or proposals for the same; all the said copies and papers in relation to each contract to be attached together by a ribbon and seal.

        Id. at 541. The statute, known as Rev.Stat. 3744, was repealed in 1941. 55 Stat. 743.

      . This was detrimental to the private party, for the- ship was wrecked while in government hands. The oral contract had provided that the Government would bear the risk of destruction. But since the oral contract was void, the owner could not utilize that provision and was forced to bear the risk of destruction himself.

      . 95 U.S. at 541-542.

      . See 1 A. Corbin, Contracts § 145 at 628 (1963) : “an illusory promise is neither enforceable against one making it nor is it operative as a consideration for a return promise.” The Government’s “promise” would be illusory if it could avoid it at will. See also 1 S. Williston, Contracts § 105 at 417 (3rd ed. 1957).

      . 239 U.S. 88, 36 S.Ct. 41, 60 L.Ed. 161 (1915).

      . See note 13 supra.

      . 239 U.S. at 93, 36 S.Ct. at 42.

      . 169 F.Supp. 483, 144 Ct.Ol. 452 (1959).

      . Similarly unhelpful is the Court of Claims decision in Penn-Ohio Steel Co. v. United States, 354 F.2d 254, 173 Ct.Cl. 1064 (1965). The Court of Claims again asserted that federal law did not require a contract to be in writing. The context of this decision was an action by a steel products plant lessee against the Government for alleged breach of a lease by the Navy, the lessor. Again, no citations to the statute at hand in the case at bar appear in the Court of Claims opinion.

      . See p. 1062 supra for the precise statutory language.

      . The Government argues that 31 U.S.C. § 200(a) (8) dissipates the requirement of a writing which we believe is established by § 200(a)(1). Section 8 provides that the re-cordation requirements will be satisfied by documentary evidence of “any other legal liability of the United States against an appropriation or fund legally available therefor.” We do not believe that section 8 was intended to swallow up the other provisions, but instead it was intended to develop another, independent category requiring documentary evidence.

      . H.Rep.No.2663, 83rd Cong., 2d Sess. 18 (1954).

      . 41 O.F.R. §§ 1-1.208, 1-1.219 (1973).

      . 7 O.F.R. § 11.12(a) (1973).

      . 40 U.S.C. § 486(c) (1970).

      . 40 U.S.C. § 474(2) (1970).

      . See also FPR § 1-1.009-2, requiring deviations to be minimized, and § 1-1.009-1 defining deviations.

      . 41 C.F.R. § 4-1.104-1 (1967) : “Procurement by the Department of Agriculture is subject to the FPR . . . except as may be otherwise authorized by law.”

      . The CCC regulations are discussed in detail infra.

      . 15 U.S.C. § 714b (b), 714c. In particular, § 714e requires that in the transporting of agricultural commodities, the Corporation shall, to the maximum extent practicable consistent with the fulfillment of the Corporation’s purposes and the effective and efficient conduct of its business, utilize the usual and customary channels, facilities, and arrangements of trade and commerce.
      Neither of the parties has cited to this court any cases interpreting the CCC charter, and we have found none ourselves.

      . § 11.12(a), in text supra.

      . See 22 C.F.R. Part 211 (1967). However, § 211.5(b) should be noted. This provides that
      A separate Transfer Authorization will be issued to cover the ocean freight financed by the United States. Disbursement to carriers shall be made by USDA upon presentation of Standard Form 11-13, three copies of SF ll-13a, three copies of the ocean bill of lading, and a signed copy of the booking agreement.
      This would seem to indicate that something must be written before USDA will pay. The effect of this provision is weakened by § 211.10, which states that “AID may waive, withdraw, or amend, at any time, any or all of the provisions of this Part 211.”

      . 41 C.F.R. § 7-1.103 (1967), in effect when the agreement was made, states that
      Unless a deviation is specifically authorized in accord with AIDPR 7-1.107, or unless otherwise provided, FPR and AIDPR apply to all procurements ... of personal property and nonpersonal services to which AID is a direct party. This regulation does not apply to procurements by other parties, such as borrowers and grantees, which are financed under programs administered in whole or part by AID, nor to contracts entered into jointly by AID and the borrower or grantee to make a procurement from a third source for an overseas program or activity.
      Furthermore, 41 C.F.R. § 7-1.107-2 (1973), which became effective on 26 October 1967, states that
      It is the policy of AID that deviation from the mandatory requirements of FPR and AIDPR shall be kept at a minimum, and be granted only if it is essential to effect necessary procurement and when special and exceptional circumstances make such deviation clearly in the best interests of the Government.

      . See Brief for Appellee at 24.

      . Other eases have denied enforcement of an agreement where the parties contemplated but did not complete a written contract. See, e. g., Orient Mid-East Great Lakes Service v. International Export Lines, 315 F.2d 519, 523 (4th Cir. 1963) ; Banking & Trading Corp. v. Floete, 257 F.2d 765, 769-770 (2d Cir. 1958).

      . For example, see Brief for Appellant at 30.

      . See Orient Mid-East Great Lakes Service v. International Export Lines supra.


source: Caselaw Access Project

author:
PER CURIAM.
      VAN PELT, Senior District Judge,

license: Public Domain

text:
    Roy C. HAVEN, Jr., a minor by his next friend, et al., Appellants, v. Judson G. RANDOLPH, M.D., et al., Appellees.
    No. 72-1891.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 30, 1973.
    Decided Feb. 27, 1974.
    Van Pelt, Senior District Judge, filed a dissenting opinion.
    Leonard Joseph Keilp, Washington, D. C., for appellants.
    Paul M. Hyman, Washington, D. C., with whom Perry S. Patterson, Washington, D. C., was on the brief, for ap-pellee, Randolph.
    Frank J. Martell, Washington, D. C., with whom Richard W. Galiher, William H. Clarke and William J. Donnelly, Jr., Washington, D. C., were on the brief, for appellee, Coleman.

      Denver Graham, Washington, D. C., with whom Albert E. Brault, Washington, D. C., was on the brief, for appellee, Children’s Hospital of the District of Columbia.
    Before ROBB and WILKEY, Circuit Judges, and VAN PELT, United States Senior District Judge for the District of Nebraska.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   PER CURIAM.

We affirm the judgment below directing a verdict in favor of all defendants on both counts of the plaintiffs’ complaint. We rely primarily on the findings and reasoning set out in District Judge Flannery’s opinion, reported as Haven v. Randolph, 342 F.Supp. 538 (D.D.C.1972).

However, in his dissent Judge Van Pelt raises a question to which we should respond specifically. He believes that the jury could have reasonably inferred from the evidence produced at trial, particularly the testimony of Dr. Randolph himself, that Dr. Randolph had violated the applicable standard of care in administering the Hypaque dye to Roy Haven. We think that the trial court acted properly when it precluded the jury’s consideration of such an inference by directing a verdict.

In Kosberg v. Washington Hospital Center, 129 U.S.App.D.C. 322, 394 F.2d 947 (1968), we stated: “A prima facie case of medical malpractice must normally consist of evidence which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of.” 129 U.S.App.D.C. at 324, 394 F.2d at 949. The trial court concluded in this case that the plaintiffs had failed to clear the first hurdle of establishing the standard o'' care. The court stated- “[PjlainDpfs offered no expert medie-; i testimony which might be probative of the standard of care except for the testimony of defendant physicians themselves.” 342 F.Supp. at 543. Judge Van Pelt, however, responds that “negligence of a doctor can be shown either by expert testimony indicating that the community standards were not followed by him or by proven facts or by inferences which by_ common knowledge may be drawn from the facts.” Dissenting opinion, infra, p. 1072 (emphasis supplied). Allowing a jury to make its own inferences from the proven facts may be permissible when a physician has committed a blunder so egregious that a layman is capable of comprehending its enormity. An example is the case of a surgeon who leaves a sponge in an incision after removal of a kidney. See Rodgers v. Lawson, 83 U.S.App.D.C. 281, 284-285, 170 F.2d 157, 160-161 (1948). But where “the question turns on the merits and performance of scientific treatment, the issue may not be resolved by the jury without the aid of expert testimony.” Brown v. Keaveney, 117 U. S.App.D.C. 117, 118, 326 F.2d 660, 661 (1963).

In this case, Dr. Randolph performed a highly sophisticated transfemoral aortogram, which is the procedure of “injecting radio-opaque media into the renal artery by means of a catheter inserted into the femoral artery through an incision in the thigh near the groin, and moving it upwards to the renal artery, in order to visualize by x-rays the kidneys and surrounding areas.” Brief for Appellee Randolph at 5 n. 1. Clearly, in order to establish a standard of care applicable to administration of an aortogram and to demonstrate that Dr. Randolph breached that standard, expert testimony was necessary. None was supplied by plaintiffs in this case.

Despite the failure of plaintiffs to establish by expert testimony a standard of care and its breach, Judge Van Pelt argues that a jury could reasonably have inferred negligence from certain segments of Dr. Randolph’s testimony. These segments do not expose any fault in Dr. Randolph’s physical technique in administering the aortogram. They merely indicate that the doctor may have injected dosages that were hazardous to the patient, Roy Haven. In focusing on these isolated segments of Dr. Randolph’s testimony, we think our colleague does not adequately evaluate the doctor’s assertions that the hazards he created were necessary in order to treat Roy’s death-threatening condition properly. Evaluation of a doctor’s conduct in treating a patient requires examination not only of the risks inherent in the doctor’s method of treatment, but also of whether running those risks was justified as a prerequisite to correcting the patient’s condition.

The passages from Dr. Randolph’s testimony cited by Judge Van Pelt demonstrate at most that Dr. Randolph may have taken a substantial risk in administering the aortogram to Roy in the manner he did. True, Dr. Randolph admitted “that the adult dosage was 25 c.c.’s [and] that this dosage was proportioned down for children.” Dissenting opinion, infra, p. 1072. But he also testified that “drug scaling down becomes a matter of reason, a matter of judgment, a matter of experience.” Transcript at 739. Dr. Randolph’s reason, judgment, and experience told him that scaling down the dosage for Roy too drastically would have made the amounts injected “unworkable,” Transcript at 738, and thus ineffective for the purpose of revealing the location of the stenosis blocking Roy’s renal artery. The doctor further stated, “I could not proceed with surgery without demonstration of the artery and the possible blockage . . . . ” Transcript at 668. No one has contested the proposition that surgery to correct Roy’s stenosis was necessary to save his life. Therefore, Dr. Randolph’s testimony was that the risk inherent in injecting 9-10 ce.’s of Hypaque was necessary in order to correct Roy’s life-threatening condition.

The doctor also admitted that he administered a total of 19 cc.’s within a period of twenty minutes to Roy, and that such repetition of dosages should “be avoided whenever possible.” Transcript at 1133. However, he supplied sound medical reasons for the consecutive dosages:

Well, my best considered judgment at that time, based on some years of training in children’s surgery, based on the specific study of the problem of renal hypertension and aortography in children, told me that the best thing to do was to proceed with the second injection because this boy was under general anesthesia; we knew that any general anesthesia was a threat to him; the catheter was in place; there was already some hazard to the renal artery — excuse me — to his femoral artery, which is the site of the operation to put the catheter; and to try to double all of that in the face of the body of information, which was that no child had ever been parlyzed [sic] by this procedure before under the age of nine, seemed to me, in my judgment, a much better decision for the boy.

Transcript at 669. Only an expert could determine whether Dr. Randolph’s exercise of medical judgment in this case measured up to the standard of care for physicians in the community. This is manifestly not a case in which the jury should have been allowed to infer negligence from admissions that the treatment methods employed involved some hazard to the patient.

Affirmed.

VAN PELT, Senior District Judge,

dissenting:

I have no serious problem in affirming the directed verdict in favor of the hospital and Dr. Coleman. My dissent is based upon my conclusion that the case should have been submitted to a jury as to the negligence of Dr. Randolph.

A brief statement as to the legal principles involved is appropriate. It is clear that a doctor does not guarantee results. However, negligence of a doctor can be shown either by expert testimony indicating that the community standards were not followed by him or by proven facts or by inferences which by common knowledge may be drawn from the facts. The calling of a medical expert is unnecessary where the facts prove negligence, or where you can infer negligence from the proven facts. See, e. g., Hill v. Gonzalez, 454 F.2d 1201 (8th Cir. 1972). In Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949), the Court said, “that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.”

With this in mind, I turn to the evidence. Roy C. Haven was a child of two and one-half years at the time of the procedure performed by Dr. Randolph on May 21, 1964. The procedure was an aortogram in which a solution of Hy-paque was injected. The specific procedure is known as a trans-femoral retrograde aortogram. The transcript shows that a retrograde aortogram means essentially a trans-femoral retrograde aor-togram (T. 534). Following the aorto-gram the boy was discovered to have paraplegia or paralysis from the level of about T-10, thoracic vertebra 10, down (T. 553). Dr. Randolph testified that there was no question in his mind that the paraplegia was. caused because of the aortogram (T. 622) and that it was fair to say that the spinal cord was traumatized somehow. The paraplegia was noted about four hours after the aortogram (T. 624).

The history shows that on May 9 the boy was given Hypaque in an amount of 10 ec.’s administered through a wrist vein. On May 20 he was given an intravenous injection of 10 cc.’s of Hypaque. On May 21 he was given an injection several times referred to as 10 cc.’s in one steady squeeze. Dr. Randolph said as to the amount “make that 9 ce.’s.” (T. 664) A second injection was given of 10 cc.’s fifteen to twenty minutes later (T. 665) so that he received 19 cc.’s of Hypaque within twenty minutes (T. 666). Dr. Randolph testified that it was “important when you get a child — the difference between 9 and 10 and 8” (T. 664) and that he wanted to be careful whether he gave 9, or 10, or 8 (T. 665). He agreed that an aortography was a hazardous procedure. He agreed that the hazard was increased when you have an asthmatic, allergic child of two and a half years with high blood pressure, and it was increased even more when you give 19 cc.’s within a period of 20 minutes (T. 666, 667).

The testimony is not consistent as to whether the manufacturer’s recommendations were known to the Doctor on May 21 or followed. He did say that he was familiar with the inserts that the company had at the time and had read them (T. 726). He also testified that he had seen literature relative to aortogra-phy and that you proportion the injection down for children. This was true whether it was a trans-lumbar or a tran-femoral aortography (T. 749-754). He testified that he scaled it down from 25 cc.’s to 9 ce.’s, that 25 cc.’s was the adult dosage and that 9 cc.’s was a child’s dosage (T. 728*). He also testified that you generally try to give less in an artery than in a vein (T. 653, 654) and in this case that he twice gave the same amount in the artery that he would give in the vein (T. 653).

Dr. Randolph having admitted: 1) that the adult dosage was 25 cc.’s; 2) that this dosage was proportioned down for children; 3) that he administered a total of 19 cc.’s within a period of twenty minutes to a two and a half year old child; and 4) that the aortogram caused the paraplegia, I conclude that without other expert medical testimony that the evidence was sufficient for the jury to infer negligence from these proven facts.

Consequently, I conclude that the trial court should have submitted to the jury the question of whether Dr. Randolph was negligent in using Hypaque in excessive and repeated injections in this two and a half year old boy.

Under the circumstances of the offers as made I find no error in the failure to receive in evidence certain depositions. Portions of these were admissible had the relevant portions only been offered. The trial judge was correct in denying the “scoop shovel” approach.

      . There is some doubt about the magnitude of the risk since Roy’s extreme reaction to the Hypaque injection was apparently the first recorded instance of such a reaction to aortography in a child under nine years of age. Transcript at 651, 1094 (testimony of Dr. Randolph).

      . Dr. Randolph asserted that in his experience the 9-10 ce. dosage that he administered to Roy during each test represented the “upper limits of safe dosage.” Transcript at 1130 (emphasis supplied).


author: PER CURIAM:

text:
    Clarence DITLOW et al. v. Claude S. BRINEGAR, Secretary of the Department of Transportation, et al., Appellants.
    No. 73-1984.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 21, 1974.
    Decided Feb. 27, 1974.
    David M. Cohen, Atty. Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and Walter H. Fleischer, Atty., Dept, of Justice, were on the brief, for appellants. Morton Hollander, Leonard Schaitman, Attys., Dept, of Justice, also entered an appearance for appellants.
    Larry P. Ellsworth, Washington, D. C., with whom Ronald L. Plesser and Alan B. Morrison, Washington, D. C., were on the brief, for appellees.
    Before McGOWAN, ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

The only issue on this appeal is whether appellees have a right of access under the Freedom of Information Act, 5 U.S.C. § 552, to correspondence between the National Highway Traffic Safety Administration and automobile manufacturers in connection with pending safety defect investigations. The District Court, in an opinion reported at 362 F.Supp. 1321 (D.D.C.1973), ruled with respect to this correspondence that appellants had not made out their claims of exemption under exemptions 4 and 7 of the Act. We find it necessary to deal only with the latter.

Exemption 7 involves investigatory files compiled for law enforcement purposes, 5 U.S.C. § 552(b)(7). As the District Court recognized (at p. 1325), there is no dispute that the correspondence in question became part of NHTSA’s investigatory file. Although the court also recognized that the correspondence in question “could conceivably lead to a civil enforcement proceeding,” it went on to conclude that “the agency has not made the required showing that disclosure of the files sought is likely to create a concrete prospect of serious harm to its law enforcement efficiency,’ ” citing for this proposition, and quoting from, a decision of a division of this court. Weisberg v. Department of Justice, No. 71-1026 slip opinion dated February 23, 1973.

The division’s opinion in Weisberg was, however, subsequently vacated by an order granting rehearing en banc; and the en banc disposition by this court of Weisberg, 160 U.S.App.D.C. -, 489 F.2d 1195 (decided October 24, 1973), compels reversal of the result reached in this instance by the District Court. The court en banc in Weisberg held that, if the documents in issue are clearly to be classified as “investigatory files compiled for law enforcement purposes,” the exemption attaches, and it is not in the province of the courts to second-guess the Congress by relying upon considerations which argue that the Government will not actually be injured by revelation in the particular case. We have explored with care the question of whether the correspondence in issue was compiled for law enforcement purposes, and we are of the opinion that it patently was, as appeared also to be the view of the District Court. Under these circumstances, exemption 7 was applicable, and the District Court, not having the benefit of Weisberg en banc, erred in holding that the correspondence should be disclosed.

Reversed.

      . At issue also in the District Court were claims to disclosure of Book D of the submission of Genefal Motors Corporation to NHTSA, and a' report of the Office of Standards Enforcement concerning the enforcibility of Federal Motor Vehicle Safety Standards. The District Court’s action, after examining these items in camera, in allowing the first such claim and denying the second has not been appealed.

      . The District Court thought to find good reason to override the exemption in the circumstance that the correspondence was between the agency and the auto manufacturer being investigated. This suggested to it that there were “no apparent problems of confidential sources, premature revelation of suspects and the like;” and that there was “most certainly” no problem about the discovery of the information by the subject of the investigation.


author: MATTHEWS, Senior District Judge:

text:
    Bernice WILLIAMS v. STEUART MOTOR COMPANY, a corporation, Appellant, and Ford Motor Company, a corporation. Bernice WILLIAMS v. FORD MOTOR COMPANY, a corporation, Appellant, and Steuart Motor Company, a corporation
    Nos. 72-1302, 72-1306.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 19,1973.
    Decided Feb. 28, 1974.

      Frank J. Martell, Washington, D. C., with whom Richard W. Galiher, William H. Clarke and William J. Donnelly, Jr., Washington, D. C., were on the brief, for appellant in No. 72-1306 and appel-lee in No. 72-1302.
    John F. Mahoney, Jr., Washington, D. C., with whom Charles E. Pledger, Jr., Washington, D. C., was on the brief, for appellant in No. 72-1302 and appellee in No. 72-1306.
    Solomon L. Margolis, Washington, D. C., with whom Stanley H. Kamerow, Allan L. Kamerow, David S. Greene and Joel I. Hoffman, Washington, D. C., were on the brief, for appellee Williams.
    Before LEVENTHAL and ROBB, Circuit Judges, and MATTHEWS, Senior United States District Judge for the United Státes District Court for the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 294(c).

   MATTHEWS, Senior District Judge:

Bernice Williams, plaintiff in the District Court, sued Ford Motor Company (hereinafter Ford) and its authorized dealer, Steuart Motor Company (hereinafter Steuart), for damages for injuries sustained when a new Ford automobile suddenly plunged out of control, allegedly due to a defective accelerator return spring. Both defendants were charged by plaintiff with breach of warranty and negligence. The case was submitted to the jury under both theories of liability. It returned a general verdict against both defendants and awarded plaintiff $204,243.09 in damages.

Cross-claims were filed by the defendants, respectively, against each other claiming full indemnity or contribution. The trial court denied Ford’s cross-claim against Steuart in its entirety and granted indemnification to Steuart against Ford on Steuart’s cross-claim.

The defendants have appealed, presenting these questions:

(1) Was there sufficient evidence of negligence or breach of warranty to justify the submission of plaintiff’s claims against the defendants to the jury?

(2) Did the trial court commit reversible error in refusing to allow Dr. Robert Maddin to testify ?

(3) Was reversible error committed by the court in permitting counsel for Steuart to argue to the jury that a possible cause of the accident was the breaking of the accelerator return spring ?

(4) Were the cross-claims of the defendants against each other for indemnity or contribution properly disposed of by the court?

(5) Was there an abuse of discretion by the court in refusing to set aside the jury verdict and grant a new trial as to defendant Ford, or in refusing to grant a new trial or remitti-tur as to defendant Steuart ?

The record shows that the car in this case was manufactured by Ford, shipped to Steuart’s plant in Washington, D. C., and from there driven a mile or so to Steuart’s showroom in the same city. The record further shows that Steuart and Ford had an agreement whereby Steuart, before turning the car over to a purchaser, would inspect the car to check on its safety for sale and operation, and take such corrective action as might be indicated.

Plaintiff had told Steuart of her desire to turn in her old Ford ear and to acquire a new 1966 Ford Fairlane. Following negotiations and by prearrangement with Steuart, plaintiff picked up the new Ford Fairlane here involved on Friday, December 3, 1965, at 7:00 p. m.

At the outset we note that when plaintiff acquired the new automobile there was by operation of law an implied warranty from both the manufacturer and the dealer that the vehicle was fit and suitable for the ordinary purposes for which an automobile is sold and used. D.C.Code § 28:2-314 (1973 ed.).

We recognize that an automobile manufacturer owes to the public a duty irrespective of contract to use reasonable care in manufacture and to make reasonable inspection of construction prior to placing his vehicle in the stream of commerce as the nature of an automobile is such that it is likely to place life and limb in peril when negligently made. This doctrine was enunciated by Judge (later Justice) Cardozo in the celebrated ease of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), and has the approval of the great weight of modern authority. Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir.), cert, denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951); Duckworth v. Ford Motor Co., 320 F.2d 130 (3rd Cir. 1963); Hupp Motor Car Corp. v. Wadsworth, 113 F.2d 827 (6th Cir. 1940); General Motors Corp. v. Johnson, 137 F.2d 320 (4th Cir. 1943); Johnson v. Cadillac Motor Car Co., 261 F. 878 (2nd Cir. 1919); Birdsong v. General Motors Corp., 99 F.Supp. 163 (E.D.Pa.1951); Restatement (Second) of Torts, § 395; Prosser, Handbook of the Law of Torts, Ch. 17, § 96 (4th ed.). It was the duty of Steuart, the dealer, to exercise reasonable care in making the pre-delivery inspection and servicing of the car which it had agreed to perform.

In light of these principles, we discuss now the evidence which Ford and Steuart contend was insufficient to justify the submission to the jury of the plaintiff’s claims of breach of warranty and negligence.

I

The plaintiff’s testimony was as follows: After receiving the car from Steuart, Mr. Leftwich, a friend, drove the car home for her and noted a sticky accelerator pedal, and that the idle was faster than normal, all of which he attributed to the newness of the car. The couple had dinner and went in the new car to spend the evening with friends. Returning home, plaintiff drove the new car for the first time, experiencing no problem with the car’s operation other than a fast idle. She parked the car in the alley parking place next to her apartment building. Back in her apartment, however, she glanced out and noted that the rear end of the car was projecting slightly into the alley. She went out to repark the car in a safer position.

After starting the car, plaintiff moved her right foot from the accelerator pedal to the brake pedal, and moved her left foot from the brake pedal to the floor. Then she released the emergency brake with her left hand and used her right hand to shift the gear lever from neutral into drive position at which time the car plunged forward out of control even though she had her foot mashed down tightly on the brake pedal, and the car crashed into a concrete embankment about 75 to 100 feet away.

James McMillan, who lived across the street from plaintiff, testified that he was up at the time of the accident, heard the screeching of brakes, the racing of an engine, the “lamentation” of the vehicle, and a sudden boom or crash; that he immediately went to the crash scene, saw plaintiff and noted that broken bones were protruding from her left ankle; that he saw skidmarks in the alley leading to the rear wheels of plaintiff’s car; and that the car remained in its crash position over the weekend.

Hatie Wilborn, occupant of an apartment directly above that of plaintiff, testified that she was awakened by the sound of screeching brakes and went to her window where she could smell the odor of burning rubber; that later she went to the accident scene and observed skidmarks leading to the crashed vehicle.

Mr. Leftwich, plaintiff’s friend, who had driven the car Friday evening, testified that on his return to plaintiff’s apartment about six o’clock Saturday morning he saw the car in the alley in its crash position and examined it inside and out. He noted that the accelerator pedal was limp on the floor so that he could pick it up and on its release it would drop flat against the floor. He also saw skidmarks leading to the rear of the car and pointed them out in photographs introduced in evidence.

It was undisputed that the car had two miles on its odometer at the time it was delivered to plaintiff and 17 miles at the time of the crash.

Harry J. Brandt, an estimator for defendant Steuart, called by plaintiff, gave this testimony: He saw the car after it was towed into Steuart’s service lane the Monday following the crash. He examined the accelerator return spring under the air cleaner as well as the rest of the engine compartment. The accelerator return spring attaches at two points, i. e., the bellcrank and the carburetor, but was unattached and hanging loose at the bellcrank on plaintiff’s car. With the spring off at the bellcrank the car would operate at an excessive speed and would not be in proper operating condition.

The Pre-Delivery Service Sheet provided by Ford for its dealers contained a list of services to be performed by Steuart prior to delivering the car so as to check on whether the car was safe for sale and operation.

Richard Vanderhoof was called by plaintiff and qualified as an expert automotive mechanic. He testified that he had prepared the model being used at trial as Plaintiff’s Exhibit 39, that it correctly and accurately represented the engine in question, that he had not seen plaintiff’s actual car but had seen photographs of it, that he was familiar with this model and type car, its specifications and mechanical operation. He explained the workings of the car and its transmission, carburetor and accelerator systems. He said he had seen the schematic drawings provided by Ford of the car’s accelerator linkage system, as well as the Pre-Delivery Check List provided by Ford to Steuart.

On the basis of a hypothetical question by plaintiff’s counsel, Mr. Vander-hoof expressed an opinion that the probable cause of the car running away in the manner described was that the accelerator return spring came off at the bellcrank, resulting in the gas pedal pulling the throttle open and racing the engine. He also expressed the opinion that the probable cause of the spring coming off was an improper installation of the spring.

Further, Mr. Vanderhoof testified that the accelerator return spring will not come off in the normal operation of the car if the spring is properly installed. It was his opinion that the shifting of the gear from neutral to drive position caused the engine in the plaintiff’s ear to torque, thus causing the improperly installed spring to dislodge. He stated that the accelerator return spring can be improperly installed and still work, but sooner or later will either come off or seat itself properly, and that it is impossible to predict the movement which will finally cause the spring to dislodge. In his opinion the spring in plaintiff’s car did not come off in the crash of the vehicle, but prior thereto since the facts indicated that the car went out of control before the accident.

Concerning the services set out on the Pre-Delivery Service Sheet, Mr. Vanderhoof expressed the opinion that, had they been properly performed by Steuart, the improper installation of the spring should have been discovered; and that, had he performed the services described on the above-mentioned sheet, he would have discovered the fast idle and sticking accelerator pedal, which would have led him to the accelerator linkage system and the spring.

The principal witness for Ford was Robert Lee Frey, a products quality engineer employed by Ford. He testified that he oversees the quality of all the products and component parts that go into Ford automobiles, trucks and tractors, and that he understands the assembly processes for the type of car purchased by plaintiff. He had never seen, he said, the accelerator return spring which was on the plaintiff’s car, and did not know what became of it after it was replaced by Steuart following the crash.

According to Mr. Frey there are only two ways for the accelerator return spring to be released. One way is for someone to release it manually, and the other would be under a dynamic impact situation. As an expert witness _ responding to a hypothetical question propounded by Ford’s counsel, Mr. Frey’s opinion (contrary to that of plaintiff’s expert) was that the accelerator return spring on the plaintiff’s car probably became dislodged or unhooked from its bell-crank hole during the severe impact at the time of the crash.

Mr. Frey explained that every operation at the Ford plant is written up on an operation sheet, that the engine in a car is put together on the assembly line, that each car is driven in the plant a few car lengths by six to eight different workers, starting and stopping the engine so as to test its performance, and that Ford keeps records’ of all inspections on the motor as it goes along the assembly line. Upon being asked about the availability of such records for the plaintiff’s car, Mr. Frey indicated that they could not be produced because they were retained only for a year or so and then destroyed.

In a case of this sort, the plaintiff almost never has any direct proof of what occurred in an enclosed mechanism to cause its malfunction, and must resort to circumstantial evidence. Breach of warranty and negligence may be established by direct or circumstantial evidence or by a combination of the two kinds of evidence.

We conclude that there was an adequate evidentiary basis for submitting to the jury the breach of warranty and negligence claims of the plaintiff.

II

We turn now to the claim that the court improperly refused to allow Dr. Robert Maddin, Director of, the School of Metallurgy and Material Science, University of Pennsylvania, to testify for the defense.

Under the Pre-Trial Order the names of all prospective witnesses exclusive of impeachment or rebuttal witnesses were to be listed with the clerk by a specified time prior to trial. Dr. Maddin’s name was not on any such list.

In proffering Dr. Maddin as a witness the defendants claimed surprise. They said that a “new and novel theory of liability had been injected into the case through the testimony of plaintiff’s expert, Mr. Vanderhoof, namely, the improper mounting of the accelerator return spring.” Yet the record shows that both defendants had deposed Mr. Van-derhoof prior to trial, and that in the Pre-Trial proceeding and at trial plaintiff clearly relied on a charge of “Improper assembly of accelerator system, particularly the accelerator return spring.”

The testimony of Dr. Maddin was also sought on the ground that the model— Plaintiff’s Exhibit 39 — was an altered one. This requires a little background.

When Harry Brandt, Steuart’s employee, was called by plaintiff, he was asked to draw a diagram of the motor and parts in question. Noting Brandt’s inability to comply, the trial judge suggested that the parties and counsel examine plaintiff’s model and consider agreeing to its use. This was done. The model was examined by Mr. Frey, Ford’s expert, among others. Thereafter it was received without objection as Plaintiff’s Exhibit 39, and was used by all counsel.

Mr. Vanderhoof, plaintiff’s expert, in testifying used the model for explanation but at no time on direct examination was he asked to perform any demonstration. However, on cross-examination by counsel for Steuart, Mr. Vander-hoof was asked to demonstrate how the spring could be improperly installed so as to come off during operation and he complied. Then he was asked to work the linkage, which he did a few times, to demonstrate how the accelerator return spring can be improperly installed and yet permit the vehicle to function pending a movement causing dislodgment of the spring.

After completion of the cross-examination of Mr. Vanderhoof, which cross-examination did not explore the possibility of the bellcrank on the model differing from the bellcrank on a new car or the bellcrank which was actually on the plaintiff’s car, the plaintiff rested her case and Mr. Vanderhoof was released.

At this point counsel for defendants advised the court that during the previous evening representatives of Ford had examined the aperture of the bell-crank as it was assembled in the model, noting that the inside diameter of the bellcrank aperture was worn and did not resemble that of a new part or one which had been used for only 17 miles (the mileage on plaintiff’s vehicle at the time of the accident). In this situation, Dr. Maddin, having been contacted, made an examination of the bell-crank aperture in the model.

Counsel for defendants told the court that if allowed to testify Dr. Maddin would say “that the amount of wear shown on what is marked as plaintiff’s Exhibit 39 is abnormal for a car with 17 miles on it; and that is why that experiment was not a valid experiment,” referring to the experiment requested by defendant Steuart wherein Mr. Vander-hoof showed how a spring could be improperly installed and the linkage worked without such spring coming unattached.

In sustaining plaintiff’s objection to Dr. Maddin’s testifying, the trial judge stated that it would be unfair to plaintiff since her expert, who had assembled the model, had been released; that the defendants were attempting to renege of their stipulation as to the model being a replica of the parts in question; that the examination of the model by Dr. Maddin and Ford representatives had taken place out of the presence of and without notice to plaintiff’s counsel or to the court; that it would require plaintiff to seek out a metallurgist to counter such testimony at a late time in trial; and that Dr. Maddin was not on the pre-trial list of either defendant as a prospective witness.

Notwithstanding the exclusion of Dr. Maddin as a witness, the court, over plaintiff’s objection, permitted the same evidence that was proffered for Dr. Maddin to be fully brought out through Mr. Frey, Ford’s expert witness. A model produced by Ford was introduced in evidence and the jury was personally permitted to examine the parts of each model through a magnifying glass.

Under Rule 61 of the Federal Rules of Civil Procedure, no error in either the admission or exclusion of evidence is ground for granting a new trial unless refusal to take such action appears to the court inconsistent with substantial justice. Since the same evidence Ford sought to introduce through Dr. Maddin was adduced by Ford’s expert, Mr. Frey, we conclude that the court’s ruling as to Dr. Maddin, if erroneous, borders on harmless error.

There is a residual possibility that the jury verdict might have been different if the same testimony had been given by a witness who was independent in the sense of having no on-going relationship with a party. But the comparably independent witness called by plaintiff was released, after defense counsel announced cross-examination was concluded, at a time when there was no indication that defense counsel either proposed to call an independent expert witness not previously listed, or proposed to modify the previous stipulation concerning the model used by plaintiff’s witness. When the trial judge gave defense counsel some latitude in questioning Ford’s expert notwithstanding the stipulation, we think he made a reasonable accomodation in the interest of justice and see no reversible error.

Ill

We find without merit the claim of Ford’s counsel that the court erred in permitting other counsel to argue to the jury that a possible cause of the accident was the breaking of the accelerator return spring.

It was established that for the car to operate properly (and it did operate after a fashion for 17 miles), the accelerator return spring must be attached in some way at both ends. That the spring was unattached at one end after the accident was clearly shown. It follows that there must have been a time and a cause for the disengagement of the spring.

The record shows that the spring on plaintiff’s car was replaced. According to common experience, replacement of a good automobile part is not made. Only one witness — Mr. Brandt, Steuart’s employee^ — actually saw the spring on plaintiff’s car, this being after the accident. He noted that it was then unattached at one end and hanging loose, but he testified that he did not examine it to see why it was off at the bellcrank, and that he could not recall whether or not anything was wrong with the spring itself. In one of two estimates Brandt made of things to be done to rehabilitate plaintiff’s car, the replacement of the spring was indicated but the reason therefor was not noted or remembered by Brandt. He was unable to say what became of the spring removed from plaintiff’s car even though at the time of removal it was in Steuart’s possession.

It is true that there was no direct proof that the spring broke. Even so, from the underlying facts and circumstances in evidence and the witnesses’ testimony as a whole, we do not think permissible latitude was exceeded when, in argument to the jury, Steuart’s counsel touched on the possibility that the spring snapped.

IV

The ease having been submitted to the jury on the issues of breach of warranty and negligence as to each defendant, and the jury verdict having been a general one against both defendants, Ford maintains that the trial court erred in its rulings on the respective cross-claims of the defendants when it denied Ford’s cross-claim against Steuart in its entirety and granted Steuart’s cross-claim for complete indemnity.

Ford’s position is that if Steuart and Ford were joint tort-feasors, Ford’s negligence was passive or ■ secondary while Steuart’s negligence was active or primary (i. e., Steuart’s failure to discover and correct the defective condition of the car during Steuart’s pre-delivery inspection). Accordingly, Ford argues that, as the passive or secondary tort-feasor, Ford is entitled to full indemnity from Steuart.

Alternatively, Ford asserts entitlement to contribution from Steuart, alleging that the negligence of both tort-feasors contributed equally to causing the accident.

Challenging Ford’s version of its own negligence as passive or secondary, Steuart asserts that Ford’s negligence was active or primary and that of Steuart passive or secondary.

Further Steuart alleges that plaintiff’s judgment, although against both Ford and Steuart, was predicated on a defect in the car’s manufacture by Ford; that Steuart’s cross-claim against Ford was an indemnity action for breach of warranty rather than an action based on tort; that the only defense raised by Ford to Steuart’s cross-claim was that Steuart failed to discover and remedy Ford’s defect in manufacture; and that such defense cannot excuse Ford’s own breach of warranty of fitness of the car involved.

Thus Steuart maintains that the trial court correctly granted it full indemnity based on Ford’s breach of warranty to Steuart as to the merchantable quality of the car in question.

The principle of primary versus secondary negligence and the consequences flowing therefrom were dealt with in Washington Gas Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712 (1896). There a pedestrian had been injured when she stepped into a “deep and dangerous hole” in the sidewalk of a city street, and had recovered a judgment against the District of Columbia on the ground that the District had breached its duty to maintain the street in a reasonably safe condition. The District then sued the Gas Company for indemnity asserting that the “deep and dangerous hole” causing the pedestrian’s injury was an open gas box placed in the sidewalk by the company for its own use and benefit and which it was its duty to maintain, that by neglect of this duty the Company allowed the box to get out of repair and become unsafe. The Supreme Court held that the Gas Company was the principal delinquent and, therefore, liable to its co-delinquent for the damages paid the pedestrian.

The ease at bar is analogous to that of Ryan Co. v. Pan-Atlantic Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). There a stevedoring contractor had agreed to perform all of a shipowner’s stevedoring operations in coastwise service. During the unloading of the ship a roll of pulpwood weighing over three thousand pounds, which had been insufficiently secured when stored by the stevedoring contractor, broke loose and struck and injured one Palazzolo, an employee of the contractor. Palazzolo sued the shipowner, obtaining a judgment for $75,000, and the shipowner then sued the stevedoring contractor for indemnity. The right of the shipowner to indemnification from the stevedoring contractor was upheld by the Supreme Court on the basis of the contractor’s breach of warranty of workmanlike service in stowing the cargo.

The argument made here by Ford against the indemnification of Steuart is strikingly similar to an argument made in Ryan by the stevedoring contractor against indemnification of the shipowner. Here Ford says that indemnification of Steuart should be barred because of Steuart’s failure to discover and remedy the defect in the automobile during it’s pre-delivery inspection. In Ryan the stevedoring contractor pointed out that the shipowner had an obligation to supervise the stowage and to reject unsafe stowage of the cargo, and did not do so, and therefore, that the shipowner should be barred from recovery from the stevedoring contractor of any damage caused by the contractor’s uncorrected failure to store the pulpwood roll in a reasonably safe manner.

The Supreme Court responded to the above suggestion of the stevedoring contractor as follows:

“Accepting the facts and obligations as above stated, the shipowner’s [indemnity] claim against the contractor should not thereby be defeated. Whatever may have been the respective obligations of the stevedoring contractor and of the shipowner to the injured longshoreman for proper stowage of the cargo, it is clear that, as between themselves, the contractor, as the warrantor of its own services, cannot use the shipowner’s failure to discover and correct the contractor’s own breach of warranty as a defense. [The shipowner’s] failure to discover and correct [the stevedoring contractor’s] own breach of contract cannot here excuse that breach.” 350 U.S. 124 at pp. 134, 135, 76 S.Ct. at p. 238.

As to Ford’s alternative claim of a right to contribution against Steuart, Ford asserts that strong support is found in Duckworth v. Ford Motor Company, 320 F.2d 130 (3rd Cir. 1963). It is true that in Duckworth the automobile manufacturer, after being found liable to a buyer because of personal injuries caused by a defective steering assembly, was allowed to enforce contribution from the selling dealer.

But the circumstances existent in Duckworth are not here present. There the purchaser had specifically directed the attention of the dealer to the failure of the steering wheel to act properly, and the dealer had examined it, and advised the purchaser that, after having checked it, the steering wheel was all right. In that situation the dealer was found negligent in failing to make proper repairs to the defective assembly, and hence, the manufacturer and the dealer were deemed joint tortfeasors, and contribution was permitted. In the case at bar no complaint about operation of plaintiff’s car was ever transmitted to Steuart prior to the crash, and there is no evidence to show that Steuart did anything to the motor or to the parts in question.

While the jury found breach of warranty and negligence as to each defendant, we think the trial court rightly granted full indemnity to Steuart against Ford. Ordinarily a dealer may recover from the manufacturer losses occasioned by the latter’s breach of warranty, and the present case poses no exception. Clearly Steuart’s breach of warranty to plaintiff rested on Ford’s breach of warranty to Steuart. Although Steuart failed to discover and correct Ford’s defect in manufacture before sale of the car, this negligence on Steuart’s part does not excuse Ford’s breach. The principal duty of care and vigilance against defective workmanship was on Ford, and, as the primary wrongdoer, Ford was properly required to indemnify Steuart whose negligence was passive.

V

The final contention of the defendants is that the jury’s verdict is excessive and that the trial court abused its discretion in refusing to set it aside and grant a new trial.

It is the view of this court that

“Two factors unite to favor very restricted reviews of * * * orders [denying a new trial on the ground of an excessive verdict]. The first of these is the deference due the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record. The second factor is the deference properly given to the jury’s determination of such matters of fact as the weight of the evidence and the quantum of damages. This second factor is further weighted by the constitutional allocation to the jury of questions of fact.” Taylor v. Washington Terminal Company, 133 U.S. App.D.C. 110, 113, 409 F.2d 145, 148 (1969).

Concerning the amount of the damages, “a verdict should not be set aside as excessive unless the Court is of the opinion that it is beyond all reason, or, as is sometimes said, is so great as to shock the conscience. * * * The test is whether the verdict is so unreasonably high as to result in a miscarriage of justice * * Frank v. Atlantic Greyhound Corp., 172 F.Supp. 190, 191 (D.D.C.1959). The test has also been stated as whether the verdict “is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Graling v. Reilly, 214 F.Supp. 234, 235 (D.D.C.1963).

Prior to the accident, plaintiff was an active, self-supporting woman in her late thirties with an eighth grade education. She had worked continuously for 27 years in manual jobs and, immediately preceding the accident, was employed full time as a sheet mangier in the laundry of a hospital. This work required her to stand all day but she enjoyed it, did her own housework, and engaged in many recreational activities, including bowling, swimming, riding horses, boating in her own boat, dancing and going on picnics.

Following the crash on December 4, 1965, plaintiff was taken by ambulance to Casualty Hospital where her injuries were diagnosed as “a fractured skull, a lacerated wound of the forehead, [and] a compound comminuted fracture of the left ankle.”

In all plaintiff had three separate hospitalizations because of her injuries, each involving surgery.

The initial hospitalization lasted seven weeks. The cut on plaintiff’s forehead of 3% inches was stitched. The shattered bones of her left ankle were put back into place. All three malleola having been snapped off in the accident, two were sewn into place, and one had to be kept in place with a bone screw. Her leg was put into a cast. She underwent excruciating pain, and a steady stream of medication was given to alleviate her suffering. She was bedridden for a month and unable to move. Physical therapy was commenced on January 3,

1966, to teach plaintiff to walk on crutches.

On January 22, 1966, plaintiff, still on crutches with her leg in a cast and experiencing extreme discomfort, returned to her apartment. Her leg smelled, and required draining, cleansing and medication through a window in the incision site. It was difficult for her to negotiate the stairways in her apartment building but she made visits to her physician. In late July 1966, she returned to work, performing light duty.

However, the pain in her ankle persisted, and x-rays revealed that the ankle bone had not knit after almost 14 months. She was readmitted to the hospital. During this' second hospitalization — January 22 through January 27, 1967, —an operation was performed to remove the bone screw, with the hope that then the bone would knit. Another cast was put on, and again plaintiff went home to recuperate. During the interval between the second and third hospitalizations, plaintiff continued to experience leg pain, coupled with hip discomfort. Nevertheless, still on crutches and with a cast on her leg, she resumed light duty work the last of March, 1967.

The ankle bone failed to knit, however, and the leg pain continued. Plaintiff was hospitalized again from October 8 through October 25, 1967. She underwent surgery for the third time. From her left tibia, bone was removed and fused into the left ankle joint and a bone screw inserted. Following this operation plaintiff spent more than 13 months in a bent leg cast. When this cast was removed, the leg was swollen, scarred and painful, and there was substantial atrophy of the left leg, loss of strength and traumatic arthritis. The bone had knit but her ankle was left stiff and inflexible.

Although plaintiff made an effort to work following each of her first two bouts with surgery, she could not resume her manual labor after the October 1967 fusion and the 13 months in a bent leg cast which ended in November 1968.

In the spring of 1969, plaintiff’s physician placed her in a brace which was difficult to put on and take off, but which enabled her to move about with the use of a cane.

There was medical testimony that plaintiff’s left leg was worse at the time of trial than it had been the preceding year, that her condition was getting progressively worse, and that her injuries were permanent in nature.

Included as permanent injuries are loss of motion in plaintiff’s left ankle, shortening of her left leg, tilting of her pelvis, traumatic arthritis, swelling and pain in the left and right legs, knees and ankles, atrophy of the left leg, discomfort in her back, numbness of the forehead, and headaches caused by the skull fracture.

As previously stated, the jury’s verdict was for $204,243.09. The medical and hospital expense totaled $7,482.02. The loss of earnings from the date of the accident to the time of trial amounted to $21,606. The life expectancy of a woman of plaintiff’s age and race was given as 27.8 years, and loss of earnings from trial to age 65, reduced to present value, was figured by an economist at $76,384.21. These three items total $105,472.23. Presumably, the remainder of the award — $98,770.86—was principally for pain and suffering.

Considering the nature of plaintiff’s injuries, that most if not all of them are permanent, that she suffered throughout a period of years great pain and anguish, that she is likely to suffer pain and discomfort in the future from the same cause, that the crippling effects of her injuries have ended the capacity she had for manual work and have terminated her enjoyment of life in the manner to which she was accustomed, we do not find the verdict of the jury excessive.

Accordingly, we affirm the judgments of the District Court.

Affirmed.

       The parties will be referred to as they were in the trial court.

      . “Warranties developed in the law in the interest of and to protect the ordinary consumer who cannot be expected to have the knowledge or capacity or even the opportunity to make adequate inspection of mechanical instrumentalities, like automobiles, and to decide for himself whether they are reasonably fit for the designed purpose.” Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 375, 161 A.2d 69, 78 (1960).
      See also Picker X-Ray Corp. v. General Motors Corp., D.C.App., 185 A.2d 919 (1962).

      . Questioned as to why in his opinion the spring dislodged when plaintiff shifted from neutral to drive position, Mr. Vanderhoof, pointing to the model, said :
      “This is supposed to be the fire wall of the car right here (indicating). When you put the car in gear, especially if it has a fast idle, it has a tendency, the whole engine, to jerk this way (demonstrating) and this being hooked to the fire wall, the fire wall does not move. This will stay stationary right here (indicating). The front piece shudders and this jolts the whole mechanism.” Joint Appendix, p. 205.

      . The plaintiff also adduced evidence as to her injuries and medical treatment. We later discuss this aspect of the case.

      . He did not explain the action of the car prior to the crash, that is, the racing of the engine through the alley, despite plaintiff's strong application of the brake pedal. Neither did he explain the skidmarks in the alley leading to the rear of plaintiff’s car.

      . Simpson v. Logan Motor Company, D.C. App., 192 A.2d 122 (1963) ; Congressional Insurance Co. v. Ford Motor Co., D.C.App., 198 A.2d 918 (1964).

      . At that time plaintiff’s attorney advised the jury: "... there is ; being offered into evidence this model — which all the parties will be utilizing, hopefully, to explain various facets of this case to you. This is a replica of the applicable areas of the block, the carburetor and so forth on a 1966 Ford, not the 1966 Ford in question but substantially or practically identical to it for your purposes.” Joint Appendix, p. 147.

      . The witness, asked to explain wliat he did, said: “I just hooked the spring up. I did not completely thread it through the hole all the way” at the bellcrank. In the opinion of the witness the spring was installed like that. Joint Appendix, p. 190.

      . Only counsel for defendant Steuart so argued to the jury, suggesting that if the spring broke Steuart would have no responsibility since a careful. pre-delivery inspection could not “determine any inherent weakness” in the spring. Joint Appendix, pp. 271-73. Responding, plaintiff’s counsel told the jury that while defendant Steuart’s theory of the spring snapping did not agree with plaintiff’s version of what happened, nevertheless, should the jury reach the conclusion that the spring did snap, then both defendants would be liable for breach of warranty. Joint Appendix, p. 278.

      . In Lavender v. Kurn, 327 U.S. 645, at page 653, 66 S.Ct. 740, at page 744, 90 L.Ed. 916 (1946), the Supreme Court said: “Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where * * * there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion.”

      . The following classification of joint tort-feasors into categories is stated in Nord-strom v. District of Columbia, 213 F.Supp. 315, at p. 318 (1963), rev’d on other grounds, 117 U.S.App.D.C. 165, 327 F.2d 863 (1963) :
      “First, in some instances joint tort-feasors commit one act of negligence in concert. Naturally, no right of indemnity exists as among them. The second class comprises situations in which the joint tort-feasors are guilty of separate tortious acts, either simultaneously or in chronological sequence, the several acts in combination constituting proximate causes and leading to the plaintiff’s injuries. This class may, in turn, be subdivided into two groups: eases in which the negligence of each tort-feasor equally contributes to the final result, where also there is no basis or reason for indemnity; and, second, cases in which the negligence of one tort-feasor is primary or active, and that of the other is secondary or passive. It has been held that under such circumstances the latter is entitled to indemnity from the former.”

      . This circuit, differentiating between indemnity and contribution in cases between persons liable for a wrong, has said that in indemnity the law implies an agreement or obligation and enforces a duty on the primary or principal wrongdoer to respond for all the damages whereas in contribution there is no agreement, express or implied, but a common burden in which the parties stand in equali juri and which in equity and good conscience should be equally borne. George’s Radio v. Capital Transit Co., 75 U.S.App.D.C.187, 126 F.2d 219 (1942).

      . Joint Appendix, p. 116.

      . The purpose of the bent leg east was explained by a physician as follows:
      “The muscles which go from the foot and ankle up to the knee and hook on to the big bone above the knee * * * are very strong and they try to pull that bone out of place. To try to counteract that, we bent the knee * * * to relax the strong muscles in the back of the leg.” Joint Appendix, p. 120.

      . There was medical evidence that plaintiff’s weight gain in inactivity and her shifting of weight to her right leg to ease the pain in her injured left leg created a problem with her right leg, accelerating arthritis and accounting for swelling of her right ankle and knee.

      . It was explained by plaintiff’s physician that the nerves which supply the forehead go up and over the forehead on each side, that the cut across the plaintiff’s forehead severed both of these nerves, resulting in the numbness of which plaintiff complained.