text:
    ORDNANCE CONTAINER CORPORATION, Plaintiff-Appellant, v. SPERRY RAND CORPORATION, Defendant-Appellee, CF & I Steel Corporation, Intervenor-Appellant.
    No. 72-3515
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1973.
    Rehearing Denied June 6, 1973.
    Robert E. Eatman, Henley A. Hunter, Shreveport, La., for intervenor-appellant.
    Joseph W. Milner, Wilton H. Williams, Jr., Shreveport, La., for defendant-ap-pellee.
    Hugh M. Stephens, Shreveport, La., for Ordnance.
    Jack H. Kaplan, Shreveport, La., for appearer, Haddad.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

This appeal comes to us from the District Court’s denial of appellant’s motion to intervene in this diversity case. Because appellant-intervenor has failed to demonstrate that its interest is not adequately protected by the existing parties in the suit, we affirm the denial of the motion to intervene.

Ordnance Container Corporation filed suit against Sperry Rand Corporation, alleging that Sperry Rand had failed to perform certain contractual conditions. The contracts in question called for Ordnance to manufacture, and Sperry Rand to purchase, 82,500 M-229 ammunition boxes.

On March 7, 1972, almost six months after Ordnance had filed suit, Ordnance assigned the proceeds of the contracts in suit to appellant, CF&I Steel Corporation, as security for a promissory note and, by written instrument, directed Sperry Rand to pay the note from “any sum of money now due or that may become due by judgment or settlement of the aforementioned suit.”

On May 23, 1972, CF&I filed a motion to intervene, seeking recognition of the assignment and payment of the debt due out of the proceeds of any amount for which judgment might be rendered in favor of Ordnance and against Sperry Rand. The District Court denied the motion to intervene.

CF&I seeks to intervene under Rule 24(a)(2), F.R.Civ.P., which provides that intervention of right shall be permitted

(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Intervention under Rule 24(a) (2) requires a showing that the intervenor’s interest is not “adequately represented by existing parties.” Martin v. Travelers Indemnity Co., 450 F.2d 542 (5th Cir. 1971); Gabriel v. Standard Fruit and Steamship Co., 448 F.2d 724 (5th Cir. 1971); Atlantis Development Corp. v. United States, 379 F.2d 818 (5th Cir. 1967).

In the case at bar, CF&I has failed to make such a showing. The District Court conducted a full hearing and ruled that CF&I did not qualify to intervene under Rule 24(a)(2). On appeal, CF&I does not demonstrate why the existing parties cannot adequately represent its interests. In its brief, CF&I states in conclusory language only that “[i]f Ordnance Container Corp. is unsuccessful in the case at bar, or the amount recovered is insufficient to discharge its liability to appellant, or the other parties disregard the assignment and settle between themselves, appellant may be irreparably injured.” CF&I alleges no collusion between the existing parties, no nonfeasance by Ordnance, and no interest on the part of Ordnance substantially adverse to that of CF&I. To the contrary, since the ultimate objectives of both Ordnance and CF&I — recovery against Sperry Rand on the contract claims — are identical, the presumption is that the interests of CF&I will be adequately protected by Ordnance. See Ionian Shipping Co. v. British Law Ins. Co., Ltd., 426 F.2d 186 (2d Cir. 1970).

Despite denial of intervention in the present suit, CF&I has not lost its right to the proceeds of the contracts in suit. After the District Court denied intervention, CF&I sued Ordnance in state court on the promissory note, won a judgment for the full amount, and,- after the judgment became executory, seized all interest of Ordnance in the case at bar against Sperry Rand. Thus, under the state statutes protecting judgment creditors, CF&I is assured that it will participate in all proceeds realized from disposition of the suit.

Additionally, treating the motion as one seeking permissive intervention under Rule 24(b), instead of as one seeking intervention of right, we conclude that its denial was within the discretion of the District Court and not appealable since no abuse of discretion has been shown. See Martin v. Kalvar Corp., 411 F.2d 552 (5th Cir. 1969).

Since CF&I has failed to satisfy the requirements for intervention under Rule 24(a)(2), we need not determine whether intervention is also foreclosed by the contractual provisions prohibiting assignment by Ordnance of the contracts.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Curtis E. McCOY, Appellant.
    No. 72-1254.
    United States Court of Appeals, Fourth Circuit.-
    Argued Oct. 6, 1972.
    Decided May 8, 1973.
    Curtis E. Von Kann, Washington, D. C., Court-appointed (Hogan & Hartson, Washington, D. C., on brief), for appellant.
    David H. Hopkins, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and CRAVEN, Circuit Judge.
   PER CURIAM.

After having been convicted of possession, knowingly, of a check stolen from the mails in violation of 18 U.S.C.A. §§ 1708 and 1702, the defendant sought a retrial under Rule 33 F.R.Cr.P. The evidence claimed to have been newly discovered was that the principal witness for the prosecution had falsely denied ever having been arrested, when, in fact, he had recently been convicted of a somewhat similar offense.

The stolen check 'was one issued by American Express Company to Ray A. Walters, the operator of a restaurant in which the defendant was employed. In the normal course of business, it would have been transmitted by mail to Walters at the restaurant.

On the afternoon of June 17, 1971, Maryland Jones was arrested in a bank in Arlington, Virginia, while attempting to negotiate the stolen check. In addition to the check, he had a Social Security card bearing the name of Ray A. Walters and a picture identification card which had been issued that day, and which carried the name of Walters but the picture of Jones.

Jones testified for the prosecution. He said he was unemployed and needed funds for the support of his family, that the defendant knew of his financial straits and overcame his reluctance to participate in the cashing of a check by the promise of half of the proceeds. According; to Jones, McCoy had in his possession at that time the American Express check and the Social Security card bearing the name of Ray A. Walters. McCoy and Jones, together, went to an automobile rental agency and procured an automobile, and then proceeded to a place in the District of Columbia where the identification card was made, McCoy paying the five-dollar fee for it. They then proceeded together to the bank in Northern Virginia, where Jones entered the bank and was arrested.

The defendant took the stand in his own behalf. He stated that he left the restaurant in the early afternoon of that day in June for the stated purpose of obtaining treatment of a grease burn, that he did go to an automobile rental agency and rented an automobile, but, then, drove in it alone to an on-going party which continued through the afternoon. He denied seeing Jones that afternoon, but he admitted that he knew Jones. Indeed, significantly, he testified that he had overheard Jones resisting the importunities of another to participate in the cashing of stolen checks, at which time Jones made a statement to the effect that he had already been arrested for cashing such checks.

The prosecutor had obtained the F.B.I. record on Jones and had shown this to the defendant’s counsel. It disclosed no offenses, so neither lawyer was surprised when, asked if he had ever been “arrested,” Jones responded that he had not. The fact was, however, that, a few days before, he had entered a guilty plea to a lesser charge involving a forged check and had received a suspended sentence of 120 days and had been placed upon one year’s probation.

It is contended on appeal that if Jones had answered the question truthfully, disclosing the recent conviction involving a forged check, his credibility would have been so adversely affected as to suggest a different result upon a retrial.

Generally, evidence which is only impeaching, though newly discovered, does not suffice to obtain a new trial. Newly discovered evidence, however, may go so directly to the interest of the prosecution witness that, if his testimony was essential to the prosecution, a new trial should be awarded in which the interest of the witness may be shown. This was the situation in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 765, 31 L.Ed.2d 104. In that case it appeared that the primary witness for the prosecution insisted that he had not been promised immunity if he testified. The prosecutor also informed the jury that no such promise of immunity had been made to the witness. Later, however, it developed that another Assistant United States Attorney, who had handled the case at the grand jury stage, had actually promised immunity to the witness in return for his testimony. In Giglio, of course, the nondisclosure was the result of prosecutorial neglect or design, and the Supreme Court held that where the prosecution was responsible for the nondisclosure, a retrial should be ordered if the false representation of no promise might reasonably have been thought to have affected the jury’s verdict.

We do not have the Giglio situation here.

No one faults the prosecutor here. Though the defendant testified that he had heard Jones referring to a previous arrest on a check charge, both his, lawyer and the Government appear to have been wholly unaware of it. Nor can the Government be faulted for procuring an F. B.I. record comfortably in advance of the trial and not taking further investigatory steps when it is clear.

Moreover, Jones filed an explanation of his answer which, given on retrial, would be largely disarming. He testified that he had never been arrested, he said, because no officer had ever taken him into custody, though twice he had voluntarily reported to a police station to answer to charges he had heard had been filed against him. He testified that he had never been in trouble, he said, because he had never been confined, and being in trouble to him was synonymous with being in jail. The 120-day suspended sentence for a minor offense and the one-year probation were simply not trouble to him.

Finally, a jury would not overlook the fact that Walters testified that the American Express Company check never came into his possession. It was intercepted before he could receive and open the envelope at the restaurant. McCoy, one of the employees, had an opportunity to do that. The jury could reasonably suppose that McCoy also had an opportunity to pick up his employer’s Social Security card or to obtain a duplicate. Jones, on the other hand, was not shown to have had any opportunity, without McCoy’s participation, to have come into possession either of the check or the Social Security card. The defendant did testify that he had told Jones that he might apply at the restaurant as a dishwasher, but it does not appear that Jones did or, if he had, he would have had access to the mail box or to the office where mail was placed for Walters’ later review.

In short, we think the circumstances of this case so dissimilar to those in Giglio that we must conclude that here the later discovery by the attorneys of the fact that Jones had recently been convicted on a plea of guilty and received a suspended sentence of 120 days and one year’s probation, in light of all of the circumstances and Jones’ explanation, would not likely produce a different result on retrial.

Affirmed.

       Mills v. United States, 4 Cir., 281 F.2d 736.


author: PER CURIAM:

text:
    STRUCTURAL STEEL AND ORNAMENTAL IRON ASSOCIATION OF NEW JERSEY, INC. v. SHOPMEN’S LOCAL UNION NO. 545 OF the INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS and United States of America. Appeal of SHOPMEN’S LOCAL UNION NO. 545 OF the INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRON WORKERS.
    No. 72-1281.
    United States Court of Appeals, Third Circuit.
    Argued April 2, 1973.
    Decided May 3, 1973.

      Joseph A. darken, Jr., Fox, Schack-ner, Neagle, Mastrangelo & Gassert, Newark, N. J., Harlington Wood, Jr., Acting Asst. Atty. Gen., Herbert J. Stern, U. S. Atty., Morton Hollander, William E. Nelson, Stanley D. Rose, Winston E. Miller, Attys., Dept, of Justice, for appellants.
    Thomas V. Jardine, Jardine & Morrice, Newark, N. J., for appellee.
    Before ROSENN and HUNTER, Circuit Judges, and BECHTLE, District Judge.
   OPINION OF THE COURT

PER CURIAM:

The pivotal issue presented in this appeal is whether the district court exceeded the proper scope of judicial review of a labor arbitration award in vacating that part of an arbitrator’s opinion and award which precluded and prohibited the appellee from applying to the Pay Board and prosecuting a wage challenge under Pay Board Regulation § 201.14, 6 C.F.R. § 201.14. Appellant does not argue for reversal on the ground that the district court misinterpreted § 201:14, but instead it contends that Judge Garth had no authority to interfere with the arbitrator’s decision with respect to how this regulation affected the collective bargaining agreement. We disagree. Since the district court determined that the Pay Board regulations, including without limitation § 201.14 thereof, created a federal right in appellee to secure a review of its existing contract by the Pay Board, and since the district court also found that appellee could exercise this right irrespective of the provisions of the collective bargaining agreement, we believe that the district court could properly conclude that the arbitrator in this case should not have denied appellee access to the Pay Board. See 9 U.S.C. § 10(d) and San Martine Compania De Navegacion v. Saguenay Terminals Ltd., 293 F.2d 796 (9th Cir. 1961). We emphasize that our holding is limited to the finding that, in view of the district court’s interpretation of the Pay Board regulations, it had the power to vacate that part of the arbitrator’s decision which ordered appellee not to prosecute a wage challenge before the Pay Board.

The United States, which was joined as a party in the district court on the motion of plaintiff-appellee, contends that the Temporary Emergency Court of Appeals has exclusive jurisdiction over this appeal under § 211 of the Economic Stabilization Act of 1970, 85 Stat. 743 (1971) However, as we have already noted, appellant does not ask this court to consider the district court adjudication on its merits but only raises “a single issue, namely, the proper scope of judicial review of a labor arbitration award.” *Consequently, since we are not called upon to construe the Economic Stabilization Act of 1970 or any regulation promulgated thereunder, it is clear that we do have jurisdiction to decide this appeal.

The judgment of the district court will be affirmed.

      . 9 U.S.C. § 10(d) provides in pertinent part:
      “In either of the following eases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
      Hs # * * * *
      “(d) Where the arbitrators exceeded their powers. ...”

      . Section 211 provides in pertinent part:
      “(a) The district courts of the United States shall have exclusive original jurisdiction of cases or controversies arising under this title * ♦ * *
      “(b) (1) There is hereby created a court of the United States to be known as the Temporary Emergency Court of Appeals * * *
      “(2) Except as otherwise provided in this section, the Temporary Emergency Court of Appeals shall have exclusive jurisdiction of all appeals from the district court of the United States in cases and controversies arising under this title * * * » '

      . Reply Brief of defendant-appellant at page 8. See Brief of defendant-appellant at pages 1 and 16.


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Tommy Bruce GLASGOW, Appellant.
    No. 72-1644.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 16, 1973.
    Decided April 25, 1973.

      William E. Falvey, St. Paul, Minn., for appellant.
    Earl P. Gray, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge.

       District of North Dakota, sitting by designation.

   HEANEY, Circuit Judge.

The defendant, Tommy Bruce Glasgow, was convicted of violating 18 App. U.S.C. § 1202(a)(1) for receiving a firearm after having been previously convicted of a felony. He contends: (1) that the government failed to demonstrate a sufficient connection between the defendant’s receipt of the firearm and interstate commerce, and (2) that the evidence did not show that he had previously been convicted of a felony.

The evidence shows that on January 29, 1970, Target Stores of Denver, Colorado, shipped the firearm in interstate commerce to Harland Bettner, of Burnsville, Minnesota. Subsequently, on February 9, 1972, Bettner sold the weapon to Golden Valley Sports Center, Golden Valley, Minnesota. This transaction was intrastate in nature. Neither of these transactions involved the defendant. On February 21, 1972, almost two years after the shipment of the firearm in interstate commerce, the defendant purchased the firearm. This transaction was intrastate. The defendant’s position is that a sufficient connection with interstate commerce had not been demonstrated because the firearm had come to rest before the defendant had become involved in any transactions relating to it. This contention must be rejected. United States v. Mancino, 474 F.2d 1240 (8th Cir. 1973). See United States v. Brown, 472 F.2d 1181 (6th Cir. 1973); United States v. Giannoni, 472 F.2d 136 (9th Cir. 1973). A sufficient interstate connection is shown if, as here, the government “demonstrates that the firearm received has previously traveled in interstate commerce.” United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 524, 30 L.Ed.2d 488 (1971).

We also reject the contention that the evidence does not show that the defendant had previously been convicted of a felony. The defendant pled guilty in a Minnesota state court in 1970 to a charge of felonious theft, a crime which, under Minnesota law, carries a maximum penalty of a five-year prison term and a $5,000 fine. The plea was entered pursuant to a plea bargain obligating the trial judge to impose a sentence no greater than one year in the workhouse, of which six months would be suspended. Such a sentence rendered the crime a gross misdemeanor under Minnesota law. Minn.Stat. § 609.13(1). See also, Minn.Stat. § 609.02(2)-(4).

The District Court correctly pointed out that:

“A ‘felony,’ as it has been defined by Congress in relation to Federal firearms statutes, is an ‘offense punishable by imprisonment for a term exceeding one year, but does not include any offense . . . classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less.’ 18 App.U.S.C. § 1202(c)(2).”

United States of America v. Tommy Bruce Glasgow, Memorandum Order No. 4-72-Cr. 196 (D.Minn. July 21, 1972).

It is the defendant’s position that because the plea bargain compelled the state court judge to impose a sentence of not more than one year — a gross misdemeanor under Minnesota law —he had not been convicted of a felony within the meaning of § 1202(a)(1) and § 1202(c)(2).

We disagree. The facts clearly show that the act for which the defendant was tried in state court was punishable by more than two years imprisonment. Thus, the defendant has been convicted of a felony within the meaning of §§ 1202(a)(1) and 1202(c)(2). This is true regardless of the sentence actually received pursuant to the plea bargain or how the defendant’s conviction was classified under state law. If a change in the law is to be made, Congress must make it.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William TOBIN, Defendant-Appellant.
    No. 72-3345
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 8, 1973.
    William Tobin, pro se.
    Robert W. Rust, U. S. Afty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Appellant was convicted of importation of marijuana. His contentions that there was insufficient evidence to1 support his convictions and that statements were taken in violation of Fifth Amendment Rights are without merit.

We agree with appellant’s contention that the imposition of a harsher sentence than he received on an earlier trial for the same cause is illegal because imposed as punishment for exercising the right to appeal. We remand to the District Court for proper resentencing under appropriate standards.

Reversed and remanded with directions.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC ELECTRICAL CONTRACTOR’S ASSOCIATION and its Employer-Members in Hawaii, and International Brotherhood of Electrical Workers, Local 1186, AFL-CIO, Respondents.
    No. 72-1134.
    United States Court of Appeals, Ninth Circuit.
    May 21, 1973.
    Stan R. Zirkin (argued), Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Dennis R. McCarthy, Director, Sub Region 37, NLRB, Honolulu, Hawaii, Elliott Moore, NLRB, Washington, D. C., for petitioner.
    Benjamin C. Sigal (argued), of Shim, Sigal, Ono & Huddy, Vernon F. L. Char, R. Charles Bocken, Wilfred K. Watanabe, of Chuck & Fujiyama, Honolulu, Hawaii, for respondents.
   OPINION

Before KOELSCH, WRIGHT and TRASK, Circuit Judges.

PER CURIAM.

The National Labor Relations Board determined, one member dissenting, that Pacific Electrical Contractor’s Association and Its Employer-Members in Hawaii, and International Brotherhood of Electrical Workers, Local 1186, AFL-CIO (Respondents) are guilty of violating Section 8(e) of the Act (29 U.S.C. § 158(e)) in that respondents entered into a written contract and agreement containing provisions for secondary boycotts. (192 N.L.R.B. No. 43 (1971)).

The matter is here on application of the Board to enforce its ensuing order.

The Court, having duly considered the application in the light of the entire record, the briefs and the oral arguments of counsel on this review, adopts the aforesaid decision of the Board as the opinion of this Court. The Board’s order will be enforced as presented — parenthetically, we point out that Respondents’ objections to the scope of the proposed order are not properly before this Court and will not be considered. They were not urged before the Board nor excused because of extraordinary circumstances (29 U.S.C. § 160(e)); N. L. R. B. v. Ochoa Fertilizer Corp., 368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312 (1961).

So ordered.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Joseph BATTAGLIA, Jr., Defendant-Appellant.
    No. 72-1754
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 16, 1972.
    Paul Henry Kidd, Robert P. McLeod, Monroe, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before WISDOM, GODBOLD and RONEY, Circuit Judges.

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

   PER CURIAM:

The appellant pleaded guilty to passing counterfeit bills and was sentenced to five years. He then petitioned the Court to set aside the conviction or to modify the sentence.

There is no merit to appellant’s Rule 11 attack on his guilty plea so we will not disturb his conviction.

At the time of sentencing, the trial judge stated that he was taking into consideration certain facts which he believed to be true. The defendant says they are untrue. On consideratin of the motion, the judge said that he would have imposed the same sentence even if the facts were untrue. Although this may be so, we think it is better to assure the defendant that the alleged untrue facts will not affect his sentence by permitting him a hearing at which he may seek to remove any lingering doubt the court may have had about the true situation. The court should then reconsider the sentence in the light of the true facts as found after hearing.

Vacated and remanded for resentenc-ing.


text:
    James Henry EISENHARDT, Plaintiff-Appellant, v. S. J. BRITTON et al., Defendants-Appellees.
    No. 73-1279
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 7, 1973.
    James Henry Eisenhardt, pro se.
    John W. Stokes, Jr., U. S. Atty., Beverly B. Bates, Asst. U. S. Atty., Atlanta, Ga., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Proceeding pro se, petitioner James Henry Eisenhardt, a former inmate of the Federal Penitentiary in Atlanta, Georgia, seeks redress in the form of damages from various prison officials for a tort which he dubs “abuse of process.” The genesis of the conflict is a certain misconduct report filed by the defendants and charging the petitioner with the unlawful use of a prison typewriter to type a court petition. After months of patient accommodation to this law suit, the trial court granted defendants’ motion to dismiss. We affirm.

While this court earnestly seeks to remain detached from the every day administrative problems of a prison, Royal v. Clark, 5 Cir., 1971, 447 F.2d 501; Krist v. Smith, 5 Cir., 1971, 439 F.2d 146; Granville v. Hunt, 5 Cir., 1969, 411 F.2d 9, we are never reluctant to strike down impediments to a prisoner’s constitutionally guaranteed right of access to the courts. See Cruz v. Hauck, 5 Cir., 1973, 475 F.2d 475. But the availability of a typewriter is not necessary for judicial review. Durham v. Blackwell, 5 Cir., 1969, 409 F.2d 838; Tarlton v. Henderson, 5 Cir., 1972, 467 F.2d 200; Stubblefield v. Henderson, 5 Cir., 1973, 475 F.2d 26; Sprouse v. Moore & Henderson, 5 Cir., 1973, 476 F.2d 995. Unless judicial intervention is necessary to secure constitutional rights, the courts will not interfere with matters of pure internal prison management. Clearly,' appellant’s conduct here is just such a matter.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sherman Cameron BURNEY, Defendant-Appellant.
    No. 72-3786
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 16, 1973.
    Farish Carter Tate, Atlanta, Ga. (Court-appointed), for defendant-appellant.
    John W. Stokes, U. S. Atty., Gale McKenzie, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Appellant was found guilty by a jury of possession of stolen United States mail matter and uttering a forged United States Treasury check, in violation of 18 U.S.C. §§ 495, 1708. He contends on appeal (1) that an incriminating statement made by him to a special investigator of the United States Post Office while appellant was in custody as a suspect and without benefit of counsel was involuntary and (2) that he did not rationally and freely waive his right to be represented by counsel during this interrogation.

We have carefully examined both of appellant’s contentions in the light of the record and find them to be without merit.

Affirmed.


author: JOHN R. BROWN, Chief Judge:

text:
    Earl SIMMONS, Plaintiff-Appellee-Cross Appellant, v. William R. KING and Ace Freight Lines, Inc., Defendants-Appellants-Cross Appellees, Earl Dubose, d/b/a Dubose Trucking Company, Defendant.
    No. 72-2608
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 12, 1973.

      Bob Ray, Sam Wilkins, W. Edward Ellington, Lawrence J. Franck, Jackson, Miss., for appellants.
    Pat H. Scanlon, Jackson, Miss., for appellee.
    W. Thad Cockran, Velia Ann Mayer, Jackson, Miss., for Dubose.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   JOHN R. BROWN, Chief Judge:

The easiest thing in this case is how it happened. It was, or so it was thought, a simple rear-end collision at night between two heavily loaded tractor-trailer rigs on Interstate 55 near Hammond, Louisiana. But almost immediately, as a sort of land-based Donnybrook, it got more and more complex. The upshot is that we must determine how well the Mississippi forum court did with a Louisiana diversity ease involving along the way overriding -Federal Seventh Amendment problems and the force of Interstate Commerce regulations. Since we find two things which affect the result as to all, we reverse and remand for a trial on liability.

Earl Simmons, the driver of the vehicle which was rear-ended instituted a suit in the Court below against William R. King, the driver of the rear-ending vehicle, Dubose and Ace alleging that King was the mutual and joint agent of Dubose and Ace. King and Ace answered separately but through a single spokesman denying that King was negligent, was the agent of Ace and pleading affirmatively that Simmons was eontributorily negligent *and that at the time of the accident King had been the agent of Dubose. Not suprisingly Dubose answered by denying that King had been his agent and pleading affirmatively that King had been the agent of Ace, that the relationship of King to Dubose had been that of independent contractor and that Simmons had been eontributorily negligent.

The Trial Outcome

At the trial, the District Judge peremptorily instructed the jury that (i) Simmons was not guilty of any contributory negligence but (ii) to find for Simmons against King and at least one of the other two Defendants, Ace and Du-bose. He left to the jury the determination as to whether Ace or Dubose or both were vicariously liable for the acts of King. The jury proceeded to find for Simmons against King and Ace in the amount of $65,000, but found in favor of Dubose.

On King and Ace’s separate motions the District Judge denied the motion for a J.N.O.V. but conditioned his denial of a new trial upon Simmons accepting a remittitur of $10,000. Simmons accepted the remittitur upon the condition that none of the Defendants appeal the reduced judgment. King and Ace promptly appealed and with his condition breached Simmons cross-appealed. •

Of all the parties only Dubose was happy, happy, that is, with how things turned out below, but unhappy now at the prospect that, having been somehow dragged into this appeal of Simmons vis a vis King, Ace or both, he will lose the judgment of exoneration.

What Went Wrong?

Fleeing from the burden of judgment King-Ace assert the Court below erred (1) by peremptorily instructing the jury (a) that Simmons was not guilty of any contributory negligence and (b) to find for Simmons against King and at least one of the other Defendants and (2) by failing either to instruct the jury that Dubose was liable as a matter of law for the negligence of King or at least submit the issue to a jury. Simmons’ cross-appeal urges error (3) in directing the remittitur of $10,000 and (4) in disallowing some items of Simmons’ bill of costs. We sustain (1) (a), (2) and (3) and reverse and remand for a new trial on all issues.

The Law Of Medes And Persians

The substantive law is, of course, that of Louisiana. This means that contributory negligence is a complete bar to recovery. It also means that under its jurisprudence others (Ace, Dubose, or both) may be liable on civil principles akin to common law respondeat superior.

But what is not left to Louisiana or to Mississippi, the forum state, is the quantum of proof either to support or ignore a finding by a Seventh Amendment Federal jury, or the supremacy of valid regulations issued by a regulatory agency (ICC).

Boeing The Test

The propriety of the trial Court’s peremptory instructions turns on the now familiar, oft-cited standard adopted by this Court en banc.

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the nonmover’s ease — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.”

Boeing v. Shipman, 5 Cir., 1969, 411 F.2d 365.

And of course, we are often reminded (or remind ourselves as well as trial Judges) that “Issues of negligence and contributory negligence are particularly susceptible of jury determination.” Taylor v. Bair, 5 Cir., 1969, 414 F.2d 815; Anderson v. Eagle, 5 Cir., 1970, 423 F.2d 81; Morvant v. Lumbermen’s Mutual Casualty Company, 5 Cir., 1970, 429 F.2d 495.

How It All Happened

On the fateful night of the collision both tractor-trailer rigs involved were proceeding in a northerly direction on Interstate Highway 55 near Hammond, Louisiana. The lead vehicle, driven by Simmons, was carrying a load of building materials weighing in excess of 43,-000 pounds. Simmons, admittedly aware of another vehicle behind him, testified that he was driving up the interstate at about 45 or 50 miles per hour when he saw some lights over to the right side of the road appearing as if there had been an accident. He said he immediately pulled out a switch to activate blinking warning lights on the front and rear of his truck and pulled down the hand brake valve to start slowing down. His testimony was that he had slowed to 30 miles per hour when the collision occurred.

King, his vehicle carrying a load of sugar weighing in excess of 45,000 pounds, had been following Simmons for six or seven miles prior to the collision. According to King’s testimony, upon reaching a flat, fairly straight section of the four lane highway, he began trying to pick up speed to pass Simmons’ truck. He testified that he glanced in his rear-view mirror but observed a car approaching to pass him in the left lane such that he was unable to enter the left lane to pass Simmons. At that point in time it was too late to avoid rear-ending Simmons. The collision knocked the building materials forward, crushing forward the cab of Simmons’ truck and thereby smashing him between the steering wheel and the cab.

King’s Wrong Flagrant

Except for the claim of Simmons’ contributory negligence, King neither does nor can offer any explanation for his own conduct. The collision was the result (in part at least) of his flagrant fault.

Of course King began with the heavy burden from Louisiana substan-five law which imposes a presumption of negligence upon the driver of the following vehicle in a rear-end collision who bears the burden of exculpating himself from this inference of negligence. Groom v. T. E. Mercer Trucking Co., La.App., 1971, 253 So.2d 586; Barnes v. Toye Brothers Yellow Cab Company, La.App., 4 Cir., 1967, 204 So.2d 83; Strother v. State Farm Mutual Automobile Insurance Company, La.App., 1970, 238 So.2d 774; Prudhomme v. Dore, La.App., 223 So.2d 474; Porter v. Barron, La.App., 185 So.2d 304; Dominique v. Insurance Company of North America, La.App., 195 So.2d 312.

King, instead of helping himself, only made matters worse. Confronted with his own testimony from a previous trial involving the property damage of the Frierson (Simmons) truck, King did not disavow that he had expressly acknowledged that because of his inattentativeness he was following too closely.

The Judge was clearly right in giving a peremptory instruction as to negligence against King. With respect to it the only question remaining was whether such negligence was to be visited upon Ace, Dubose, or both.

Simmons’ Negligence

But it stands differently as to contributory negligence of Simmons even though the charge is thin and undoubtedly the jury would have held in his favor. All three Defendants asserted that Simmons was contributorily negligent in operating his vehicle without proper warning lights and in stopping his vehicle suddenly without warning (see note 6 and 8, supra). The only evidence adduced at the trial on the question of warning lights was the testimony of King himself that there was an absence of warning that Simmons’ vehicle was slowing down. King admitted that he had been following Simmons for six or seven miles and was therefore aware of his presence ahead, but Simmons also admitted being aware of King’s presence behind. Besides the testimony of King there was likewise little evidence adduced by the Defendants on the question of whether Simmons stopped suddenly. According to Simmons’ version, he had begun slowing down upon seeing what appeared to be another accident ahead. He testified that he decelerated from 50 miles per hour to 30 miles per hour. A witness to the accident, Mr. Leonard Spinks, testified that Simmons’ deceleration was gradual rather than sudden but that Simmons did slow to 20 or 25 miles per hour. Spinks also testified that King did not slow down before hitting Simmons.

But probatively weak as it was in the face of strong testimony concerning lights, and undermined further by inconsistencies in King’s prior statements (see e.g. note 11, supra), the question re--' mained whether in the critical moments Simmons had timely activated warning lights. And wrapped up in this was the suddenness of the deceleration.

Evaluating this was a typical jury function. Consequently the verdict for Simmons based on the erroneous peremptory instruction cannot stand.

Laying Off King’s Fault

The Judge below instructed the jury to find against, in addition to King, at least one of the other Defendants on the issue of negligence. He then submitted to the jury the question of which, if not both, of the other party-Defendants, Ace or Dubose, was vicariously liable for the negligent acts of King. The jury chose Ace, thereby exonerating Dubose. We think it was incorrect for this issue to have been submitted to the jury in the manner done.

Ace-King-Dubose

Briefly stated the relationship between Ace and Dubose arose in the following manner. King, driving for Ace, an ICC certificated carrier, left Memphis, Tennessee on the day prior to the collision with a load bound for Baton Rouge, Louisiana. After delivering his loaded trailer to the Esso Terminal in Baton Rouge he picked up an empty trailer. The general manager in Memphis directed him to report with tractor and trailer to Dubose, an ICC carrier certificated to transport sugar, in Den-ham Springs, Louisiana because Dubose wanted to lease two rigs to haul sugar. Upon King’s arrival at Dubose, a lease was prepared under which the tractor-trailer and driver were leased to Dubose to transport a load of sugar from Reserve, Louisiana, to Memphis Tennessee. King, as instructed, signed this lease on behalf of Ace. Dubose prepared door placard printed “Dubose Trucking Company” with Dubose’s ICC authority number and placed them over the Ace identification on the truck (see note 15, infra). The tractor-trailer rig was also inspected by an agent of Dubose (see note 15, infra). King then proceeded to Reserve, Louisiana, picked up a full load of sugar and left about 8:30 p.m. for Memphis. It was about an hour later that the accident occurred.

ICC, Not Louisiana, Controls

Ace contends that the lease which was effective at the time of the accident, one required by ICC regulations, required Dubose to assume full and complete liability and responsibility for the actions and negligence of King while he was operating the vehicle under Dubose’s certificate of authority. Ace contends that, if King was negligent, then the trial court erred in not appropriately instructing the jury that Dubose was liable as a matter of law for the acts of King.

Dubose, on the other hand, contends that 49 C.F.R. § 1057.4 (see note 15, supra) is inapplicable to a situation, similar to the present one, where both carriers are certificated motor common carriers. He submits that the regulation applicable here is 49 C.F.R. § 1057.-5 (see note 20, infra) which governs the interchange of equipment between motor common carriers.

We flatly reject Dubose’s contention that the lease of equipment in question constituted an “interchange”. In motor carrier parlance an “interchange” of equipment is a term of art. It is a form of “interlining” whereby a carrier whose certificated routes do not extend to the through destination permits the on-carrier to use the initiating carrier’s equipment to avoid costly useless unloading/reloading costs, and the like shipment to another carrier for delivery. Gilbertville Trucking v. United States, 1962, 371 U.S. 115, 83 S.Ct. 217, 9 L.Ed.2d 177. Even more important no “interchange” was or could have been involved here since Ace had no certificate to transport sugar. The transportation of sugar had to be that of Dubose alone. See, Agricultural Transportation Assoc. of Texas v. King, 5 Cir., 1965, 349 F.2d 873 at 880-81 and notes 23, 24; Thompson v. United States, 1944, 321 U.S. 19, 64 S.Ct. 392, 88 L.Ed. 513; United States v. Rosenblum Truck Lines, 1941, 315 U.S. 50, 62 S.Ct. 445, 86 L.Ed. 671.

The legislative-administrative travail behind the ICC regulations on trip leases reflects the importance attached by the Congress and ICC to the economic necessity for such short term leases and why it is critical' that ICC regulations and the leases mandated by them have supreme, controlling significanee. They grew out of the decade long ex parte proceeding No. MC-43 pursuant to the authority contained in Section 204, 49 Stat. 546, as amended, 49 U.S.C.A. 304. The arduous road has been often traced. Agricultural Transportation Assoc, of Texas v. King, 5 Cir., 1965, 349 F.2d 873. See, Agricultural Transportation Assoc. of Texas v. King, supra at 881, 882 and many others. Many factors were behind this legislative-administrative determination. Many were economic to avoid costly dead hauls. But many were to correct abuses that had arisen under often fly-by-night arrangements with consequent damage to the development and maintenance of a sound transportation system and to the public interest from a helter-skelter operation of thousands of unregulated vehicles on the highways as a menace to safety.

One way to assure responsibility was to impose on the certificated carrier the full responsibility for the entire operation of temporarily leased equipment, whether owner-driver, or otherwise. The regulation (note 15, supra) and the mandated lease provision are valid.

We agree with the United States District Court for the District of Delaware where they wrote “ * * * the ICC carrier’s liability for equipment and drivers covered by leasing arrangements is not governed by the traditional common law doctrine of master-servant relationships and respondeat superior.” Cosmopolitan Mutual Ins. Co. v. White, supra at 99. And more recently the Seventh Circuit in Alford v. Major, 7 Cir., 1972, 470 F.2d 132.

Here the lease specifically stated that Dubose as lessee assumed “full responsibility * * * to the public” (see note 13, supra) as required by § 1057.4 (see note 15, supra). Requisite placards and an inspection were also provided by Dubose as required by § 1057.4 (see note 15, supra). The deliberate fulfillment of these statutory prerequisites by the parties must be viewed as giving rise to a statutory relationship, since these regulations have the force and effect of law, Cox v. Bond, supra, 249 A.2d at 586. Since under the lease Dubose assumed exclusive possession, control, and use of the vehicle and responsibility to the public then King became his statutory employee, and as such Dubose was vicariously liable as a matter of law for the negligence of King.

In every conceivable way Ace tried to get the Court to instruct that as a matter of ICC law Dubose was responsible for King’s actions. Not only did the Judge decline to so instruct but he openly disparaged the defense. Ace made its position clearly known. The Court erred in rejecting it and Ace has full right to have this error reviewed. Cf. Williams v. Slade, 5 Cir., 1970, 431 F.2d 605.

Ace Not Home Free

Although Dubose is liable for King’s acts as a matter of law, Ace could still be likewise liable under applicable common (civil) Louisiana standards of control. This is not as incongruous as might be supposed. ICC can mandate a positive legal responsibility which we uphold in the only way it would be meaningful — to give protection to the injured member of the public At the same time Ace has, or may have, a practical control over King of a kind which would not allow it to obtain an automatic insulation from liability from the mere terms of a lease between two parties.

What Comes Next?

Since the damages allowed may well have been affected by the erroneous instruction on contributory negligence, and Ace is entitled to its instruction as to Dubose’s liability the ease calls, we think, for an entire retrial, as unfortunate and as unnecessary as that might have been (see note 12, supra).

Reversed and remanded.

      . See, Grigsby v. Coastal Marine, 5 Cir., 1969, 412 F.2d 1011, 1969 A.M.C. 1513.

      . Earl Dubose doing business as Dubose Trucking Company.

      . Ace Freight Lines, Inc.

      . Although King was regularly employed by Ace as a truck driver and the tractor-trailer rig which he drove was under a long-term lease to Ace, (under such a long-term lease, Ace is the owner for regulatory purposes, 49 C.F.R. § 1057.2) at the time of the accident the truck with driver was leased to Dubose for the purpose of transporting a load of sugar from Reserve, Louisiana, to Memphis, Tennessee.

      . See note 0, infra.

      . In support of this affirmative defense King and Ace alleged that at the time of the accident Simmons’ vehicle was being operated without proper tail lights, warning lights, and brake lights as required under Louisiana law (Louisiana Revised Statutes § 32:105) and that Simmons had stopped his vehicle suddenly without notice in such a manner as to constitute negligence (Louisiana Revised Statutes § 32:104, subd C.)

      . In support of this affirmative defense King and Ace alleged that the lease (see note 4, supra) was one required by the ICC and that at the time of the accident, pursuant to the lease, King and his vehicle were under the exclusive possession, control, and use of the operator-lessee Dubose.

      . Dubose’s contentions were essentially the same as those of King and Ace (see note 6, supra).

      . Louviere v. Southwestern Traction and Power Company, 1917, 142 La. 590, 77 So. 293.

      . Earlier that same day, another truck had overturned on a feeder road at a point to the right of and adjacent to the point at which the collision herein occurred. Workmen had set up lights off the right side of 1-55 and were engaged in reloading the trailer.

      . In the previous trial involving the property damage of tlie Frierson truck, on cross-examination King testified:
      “Q So what you’re saying is that you glanced in the mirror and you looked back around and you were right on top of the Frierson truck?
      A Too close to stop.”
      * * * * *
      Q And you knew the Frierson truck was some 300 feet in front of you at that point, didn’t you?
      A I did.
      Q And you looked away two seconds and when you looked back around you were too close to stop, is that right?
      A That’s right.”
      In the trial below King testified that, upon realizing that he couldn’t pass, he backed off three to four hundred feet and tried to hold his distance. Here, according to his testimony King had momentarily abandoned his intention to pass and was simply following Simmons’ vehicle at between 300 and 400 feet. In doing this, King violated Louisiana Statutes Annotated, R.S. 32:81, which prohibits a motor truck from following within four hundred feet of another motor truck, except when overtaking another vehicle to pass.
      Without putting it on statutory negligence per se since the statute has a built-in escape for trucks engaged in passing another, LSA R.S. 32:81, in prohibiting a truck to follow closer than 400 feet, reflects a state policy bearing on general prudence.

      . Once again we see the utility of special interrogatories with a general charge under F.R.Civ.P. 49(a). See, Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 38 F.R.D. 199; Weymouth v. Colorado Interstate Gas Co., 5 Cir., 1966, 367 F.2d 84, 93 n. 31; Horne v. Georgia Southern and Railway Co., 5 Cir., 1970, 421 F.2d 975, 980 (Brown, C. J., concurring) ; In The Matter of: Double D Dredging Co., 5 Cir., 1972, 467 F.2d 468, 469 n. 3; Wolfe v. Virusky, 5 Cir., 1972, 470 F.2d 831 at 837 (Brown C. J., concurring). Not only would this likely have eliminated a retrial of this issue but those on the status and responsibility of Ace, Dubose, or both.

      . As required by 49 C.F.R. § 1057.4(a) (4) paragraph 5 of the lease provided:
      “It is understood that the leased equipment under this agreement is in the exclusive possession, control and use of the authorized carrier Lessee and that the Lessee assumes full responsibility in respect to the equipment it is operating, to the public, the shippers and the Interstate Commerce Commission.”

      . It was discovered that Dubose or its authorized agent had failed to actually sign the lease. It appears from the testimony at trial that this was due to simple inadvertence. Since the lease terms are mandated by both statute and regulations and governed the relationship of the parties, the failure of the lessee to sign is of no consequence now or on remand.

      . The regulation which Ace contends is applicable to the lease between it and Dubose is contained in 49 C.F.R. § 1057.4 which provides as follows :
      “§ 1057.4 Augmenting equipment.

      “Other than equipment exchanged between motor common carriers in interchange service as defined in § 1057.5, authorized carriers may perform authorized transportation in or with equipment which they do not own only under the following conditions:
      “(a) Contraet requirements. The contract, lease, or other arrangement for the use of such equipment:
      “(1) Parties. Shall be made between the authorized carrier and the owner of the equipment.
      “ (2) Written contract required. Shall be in writing and signed by the parties thereto, or their regular employees or agents duly authorized to act for them in the execution of contracts, leases, or other arrangements.
      “(3) Minimum duration of 30 days when operated by lessor. Shall specify the period for which it applies, which shall be not less then 30 days when the equipment is to be operated for the authorized carrier by the owner or employee of the owner; excepting:
      “ (b) Where the motor vehicle so to be used is one which has completed a movement covered by section 203(b) (6) of the Act and such motor vehicle is next to be used by the motor carrier in a loaded movement in any direction, and/or in one or more of a series of movements, loaded or empty, in the general direction of the general area in which such motor vehicle is based; and
      “(c) Provided, In either instance that prior to the execution of the lease, the authorized carrier receives and retains a statement signed by the owner of the equipment, or someone duly authorized to sign for the owner, authorizing the driver to lease the equipment for the movement or movements contemplated by the lease, certifying that the equipment so leased meets the qualifications enumerated so leased meets the qualifications enumerated in (a) or (b) of this subsection, and specifying the origin, destination, and the time of the beginning and ending of the last movement which brought the equipment within the purview of this subsection.
      * * a* * a=
      “ (4) Exclusive possession and responsibilities. Shall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement except:
      # * sk sk
      “(7) Copies of lease and their distribution copy to be carried on vehicle. Shall be executed in triplicate ; the original shall be retained by the authorized carrier in whose service the equipment is to be operated, one copy shall be retained by the owner of the equipment, one copy shall be carried on the equipment specified therein during the entire period of the contract, lease, or other arrangement, unless a certificate as provided in paragraph (d) (2) of this section is carried in lieu thereof.
      $ $ * $ *
      “(c) Safety inspection of equipment by the atithorized carrier. It shall be the duty of the authorized carrier, before taking possession of equipment, to inspect the same or to have the same inspected by a peson who is competent and qualified to make such inspection and has been duly authorized by such carrier to make such inspection as a representative of the carrier, in order to insure that the said equipment complies with the Motor Carrier Safety Regulations of the Federal Highway Administration of the Department of Transportation. The person making the inspection shall certify the results thereof on a report in the form hereinafter set forth, which report shall be retained and preserved by the authorized carrier ....
      “(d) Identification of equipment as that of the authorized carrier. The authorized carrier acquiring the use of equipment under this rule shall properly and correctly identify such equipment during the period of the lease, contract, or other arrangement in accordance with the Commission’s requirements in Part 1058 of this chapter (Identification of Vehicles). Tf a removable device is used to identify the acquiring authorized carrier as the operating carrier, such device shall be on durable material such as wood, plastic, or metal, and bear a serial number in the acquiring authorized carrier’s own series so as to keep proper record of each of the identification devices in use.
      “(1) Identification to he removed when lease terminated. The authorized carrier operating equipment under this part shall remove any legend, showing it as the operating carrier, displayed on such equipment, and shall remove any removable device showing it as the operating carrier, before relinquishing possession of the equipment.
      $ * $ $ $

      . While Ace and Dubose were both certificated common carriers engaged in interstate commerce and consequently both were under the control and regulation of IOC, Ace was an irregular-route common carrier holding authority from the IOO to transport certain commodities of which sugar was not one. Dubose on the other hand had IOO authority to transport sugar. In effect, the lease entered into between Ace and Dubose allowed the transportation of a load of sugar utilizing Du-bose’s certificate.

      . Dubose argues that the opening sentence of § 1057.4 — “Other than equipment exchanged between motor common carriers in interchange service as defined in § 1057.5” (emphasis ours) — is exclusive of situations where lessor and lessee are both certificated common carriers.

      . The lease actually signed for Ace by King did in fact specify that it was “for interchange of Motor Vehicle Equipment.” But as with the failure of Dubose to sign, see note 14, supra, the evidence requires the conclusion that the parties could only have intended to prescribe a “one-way trip lease”.

      . Interchange of equipment is defined in 49 C.F.R. § 1057.2(c) as follows:
      (c) Interchange of equipment. The physical exchange of equipment between motor common carriers or the receipt by one such carrier of equipment from another such carrier, in furtherance of a through movement of traffic, at a point or points which such carriers are authorized to serve.

      . 49 C.F.R. § 1057.5 provides:
      § 1057.5 Interchange of equipment. Authorized common carriers may by contract, lease, or other arrangement, interchange any equipment defined in § 1057.2 with one or more other such common carriers, or one of such carriers may receive from another such carrier any of such equipment, in connection with any through movement of traffic, under the following conditions:
      (a) Interchange agreement to he specific. The contract, lease, or other arrangement providing for interchange shall specifically describe the equipment to be interchanged; the specific points of interchange; the use to be made of the equipment, and the consideration for such use; and shall be signed by the parties to the contract, lease, or other arrangement, or their regular employees or agents duly authorized to act for them, in the execution of such contracts, leases, or other arrangements.
      (b) Operating authority of earners participating in interchange. The certificates of public convenience and necessity held by the carriers participating in the interchange arrangement must authorize the transportation of the com-modifies proposed to be transported in the through movement and service from and to the point where the physical interchange occurs.
      (c) Through hills of lading required. The traffic transported in interchange service must move on through bills of lading issued by the originating carrier, and the rates charged and revenues collected must be accounted for in the same manner as if there had been no interchange of equipment. Charges for the use of the equipment shall be kept separate ■ and distinct from divisions of the joint rates or the proportions thereof accruing to the carriers by the application of local or proportional rates.
      (d) Safety inspection of equipment. It shall be the duty of the carrier acquiring the use of equipment in interchange to inspect such equipment, or to have it inspected in the manner provided in § 1057.4(c). Equipment which does not meet the requirements of that paragraph shall not be operated in the respective services of the interchange carriers until the defects have been corrected. Where carriers interchanging equipment for a through movement of traffic are commonly controlled and jointly maintain and administer a uniform safety program, no such inspection at the point of interchange is required; Provided,, That the equipment interchanged has been so inspected immediately prior to the start of the movement in which the interchange occurs and found to meet the requirements of § 1057.4(c).
      (e) Identification of equipment as that of the operating carrier. Authorized carriers operating power units in interchange service shall identify such equipment in accordance with the Commission’s requirements in Part 1058 of this chapter (Identification of Motor Carrier Vehicles). Any removable device used to identify the operating carrier shall be on durable materials such as wood, plastic, or metal, and shall bear a serial number in the operating carrier’s own series and such carrier shall keep a proper record of each identification device in use. The authorized carrier operating equipment under this part shall remove any legend, showing it as the operating carrier, displayed on such equipment, and shall remove any removable device showing it hs the operating carrier, before relinquishing possession of the equipment. Authorized carriers operating equipment in interchange service under this section shall carry with each vehicle so operated, except trailers and semitrailers, a copy of the contract, or other arrangement, while the equipment is being operated in the interchange service, unless a statement certifying that the equipment is •being operated by it and identifying the equipment by company or State registration number, showing the specific point of interchange, the date and time of the assumption of responsibility for the equipment, and the use to be made of the equipment, is carried in the vehicle while it is operated in interchange service. Such statement shall be signed by the parties to the contract or other arrangement or their employees or agent.
      (f) Connecting carriers considered as owner. An authorized carrier receiving equipment in connection with a through movement shall be considered the owner of the equipment for the purpose of leasing the equipment to other authorized carriers in furtherance of the movement to destination or the return of the equipment after the movement is completed.

      . Subsection (e) and (f) of 49 U.S.C.A. 304 provides:
      Regulations governing use of vehicles owned by others
      (e) Subject to the provisions of subsection (f) of this section, the Commission is authorized to prescribe, with respect to the use by motor carriers (under leases, contracts, or other arrangements) of motor vehicles not owned by them, in the furnishing of transportation of property—
      (1) regulations requiring that any such lease, contract, or other arrangement shall be in writing and be signed by the parties thereto, shall specify the period during which it is to be in effect, and shall specify the compensation to be paid by the motor carrier, and requiring that during the entire period of any such lease, contract, or other arrangement a copy thereof shall be carried in each motor vehicle covered thereby; and
      (2) such other regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance w'ith applicable law and regulations, as if they -were the owners of such vehicles, including the requirements prescribed by or under the provisions of this chapter with respect to safety of operation and equipment and inspection thereof, which requirements may include but shall not be limited to promulgation of regulations requiring liability and cargo insurance covering all such equipment.
      Exceptions to regulations for use of vehicles owned by others
      (f) Nothing in this chapter shall be construed to authorize the Commission to regulate the duration of any such lease, contract, or other arrangement for the use of any motor vehicle, with driver, or the amount of compensation to be paid for such use—
      (1), where the motor vehicle so to be used is that of a farmer or of a cooperative association or a federation of cooperative associations, as specified in section 303(b) (4a) or (5) of this title, or is that of a private carrier of property by motor vehicle as defined in section 303(a) (17) of this title and is used regularly in the transportation of property of a character embraced within section 303(b) (6) of this title or perishable products manufactured from perishable property of a character embraced within section 303(b) (6), of this title, and such motor vehicle is to be used by the motor carrier in a single movement or in one or more of a series of movements, loaded or empty, in the general direction of the general area in which such motor vehicle is based; or
      (2) where the motor vehicle so to be used is one which has completed a movement covered by section 303 (b) (6) of this title and such motor vehicle is next to be used by the motor carrier in a loaded movement in any direction, and/or in one or more of a series of movements, loaded or empty, in the general direction of the general area in which such motor vehicle is based.
      Feb. 4, 1887, c. 104, Pt. II, § 204, as added Aug. 9, 1935, c. 498, 49 Stat. 546, and amended June 29, 1938, c. 811, § 4, 52 Stat. 1237; Sept. 18, 1940, c. 722, Title I, §§ 19, 20(a, b), 54 Stat. 921, 922; Mar. 27, 1942, 3 p. m„ E.W.T., c. 199, Title I, § 101, 56 Stat. 176; Aug. 3, 1956, c. 905, § 2, 70 Stat. 958; Aug. 3, 1956, c. 928, 70 Stat. 983.

      . See, American Trucking Associations, Inc. v. United States, 1953, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337; Mellon National Bank and Trust Co. v. Sophie Lines, Inc., 3 Cir., 1961, 289 F.2d 473, Cosmopolitan Mutual Insurance Company v. White, D.C.Del., 1972, 336 F.Supp. 92; Christian v. United States, D.C.Md., 1957, 152 F.Supp. 561; Cox v. Bond Transportation, Inc., N.J.Sup., 1969, 53 N.J. 186, 249 A.2d 579; Duke v. Thomas, Mo.App., 1961, 343 S.W.2d 656.

      . Were we not reversing and remanding because of the erroneous instruction below on the issue of contributory negligence, we would have to remand anyway for the Court to determine whether in its discretion it would nevertheless grant a new trial, United States v. 1160.96 Acres of Land in Holmes County, Mississippi, 5 Cir., 1970, 432 F.2d 910. Since under Gorsalitz v. Olin Mathieson Chemical Corporation, 5 Cir., 1970, 429 F.2d 1033 we hold that the remittitur was erroneous.
      Also, we decline at this time to express an opinion as to the District Court’s disallowance of some items of cross-Appellant’s bill of costs.


author: VAN DUSEN, Circuit Judge.

text:
    Bernard LOTMAN and Charles Lotman v. SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant.
    No. 71-2085.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 18, 1973.
    Decided April 26, 1973.

      Edward W. Madeira, Jr., James T. Giles, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellant.
    David F. Binder, Philadelphia, Pa., for appellees.
    Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

After the district court entered its September 23, 1971 order denying defendant’s motion for judgment n. o. v. and for new trial, the defendant, Security Mutual Life Insurance Company of New York (hereafter Security Mutual), filed this appeal from a February, 1971 judgment entered on the verdict of a jury.

The plaintiffs, co-beneficiaries of a life insurance policy issued to the decedent by Security Mutual, brought this action to recover the proceeds under the decedent’s policy. Security Mutual refused payment claiming three separate defenses: (1) the insured obtained her policy by fraud and misrepresentation; (2) her death from barbiturate poisoning was the result of suicide; and (3) the acceptance by the plaintiffs of a tendered check representing a return of the premiums paid under the policy constituted a mutual reeision and waived any claim by the plaintiffs for proceeds under the policy.

A jury found in favor of the plaintiffs on the first two of these defenses. The claim of mutual reeision was reserved by agreement between the parties for separate determination by the court on the basis of the deposition testimony of the plaintiffs. After completion of the trial, the court held that the plaintiffs’ conduct did not constitute mutual reeision and did not amount to a waiver of their claim to the proceeds of the life insurance policy.

The defendant raises three contentions in its appeal. Two contentions deal with the court’s charge to the jury: that it erred in its instructions that the defendant had the burden of proving that the false answers given by the insured in the application for her insurance policy were made in bad faith for the purpose of deceiving it; and that the court erred in its instructions on the presumption of Minnie Glazer’s sanity. Security Mutual also reasserts its claim that the conduct of the plaintiffs constituted an agreement of mutual reeision of the policy.

On March 31,' 1966, the insured applied to Security Mutual for a $25,000 life insurance policy. On April 2, 1966, Dr. Kermit Snyder, who performed medical examinations for Security Mutual, went to Minnie Glazer’s apartment and completed the medical application and examination required for insurance. (N.T. 118) It is clear that false and material misstatements were made by insured and that Security Mutual would not have issued the policy had correct information been provided. The most significant of the misrepresentations in the answers given by the insured during the medical examination were as follows:

“Part II.
“2. To the best of your knowledge and belief have you ever had or been treated for:
A. Epilepsy, convulsions, mental or nervous disorder?
“3. Have you:
A. Had one or more electrocardiograms ?
C. Been in a clinic, hospital or sani-torium for treatment, observation or diagnosis ?
“5. Have you within the past 5 years consulted a physician or surgeon for any examination or treatment not already mentioned?”

The insured answered “No” to each of these questions and then signed the application in the presence of Dr. Snyder, who also signed.

However, her medical history, as revealed at trial, showed that she was admitted as a mental patient in need of immediate temporary care at Wissahickon Hall a private psychiatric hospital, in October of 1962. (N.T. 35). At that time she was diagnosed as psychotic depressive reaction. Six electro-shock treatments were administered. (N.T. 82-83). After six months at Wissahickon Hall the insured was discharged on an out-patient basis. However, a year later her symptoms were recurring and she continued to take medication. Nevertheless, a policy was issued by Security Mutual to Minnie Glazer in the amount of $25,000 on May 10, 1966 and on April 11, 1967 she died from barbiturate poisoning. (N.T. 11-12).

I.

The first issue is the propriety of the trial judge’s instructions to the jury on whether the insured had (a) knowledge of the falsity of the answers in Part II of the application and (b) an intention to deceive the insurer.

The most recent Pennsylvania appellate court decision, quoting from that court’s earlier decision in Baldwin v. Prudential Insurance Company of America, 215 Pa.Super. 434, 258 A.2d 660 (1969), on the defense to an insurance policy based on false and fraudulent misrepresentations, makes clear that “ ‘ [t] here are three elements that an insurer must establish to void a policy in the case of misrepresentation. These are: (1) the declaration must be false; (2) its subject matter must be material to the risk; and (3) the applicant must have known it to be false or must have made the statement in bad faith.’ ” Bremmer v. Protected Home Mutual Life Insurance Co., 218 Pa.Super. 364, 280 A.2d 664, 665 (1971).

In Bremmer, the court continued, using this language:

“Considering the close proximity of the doctors’ visits to the examination, the applicant certainly knew the statements were false, and the jury could infer the requisite bad faith.” Id.

Contrary to the law as stated in the Bremmer case, the trial judge charged the jury as follows:

“The dispute is as to whether or not those inaccuracies were consciously made by the insured in bad faith. ‘In bad faith,’ is just another way of saying, ‘for the purpose of deceiving the insurance company.’ On this issue, the burden is on the defendant to persuade you that that was the state of mind of Mrs. Glazer at the time she answered these questions and made the statements that appears in the policy.” (Charge, Doc. 17 at 6-7).

Plaintiffs rely on Schleifer v. National Life Insurance Co., 421 Pa. 359, 362, 219 A.2d 692, 694 (1965) to support the above language in the charge. In Schleifer there was a serious factual dispute over whether the insured knowingly gave false answers to a question in the application that he was being treated for a heart condition. The Schleifer court felt that because of the serious dispute as to whether the insured knew at the time of his examination that he might be suffering from a heart condition, the question of whether the insured intended to deceive the insurer was for the jury. The particular facts of Schleifer are inapposite to the facts developed on this record. This appeal involves a situation comparable to that in Bremmer. In both of these cases, the insured visited a physician, was aware of his or her condition, and then failed to convey that important information to the insurer. Bremmer only requires that the defendant prove that the applicant knew his or her representation “to be false” and does not require it to prove that inaccurate representations were made “for the purpose of deceiving the insurance company.”

II.

Alleging that the decedent committed suicide, the defendant relied upon the following clause of the decedent’s insurance policy:

“SUICIDE
“If the death of the Insured shall result from suicide within two years from the Issue Date, the liability of the Company under this policy shall be limited to the amount of premiums paid less any dividends paid in cash or used in reduction of premium and less any indebtedness to the Company under the policy.”

Dr. Marvin Aronson, then the Acting Medical Examiner for the City of Philadelphia, testified that in his opinion Minnie Glazer swallowed “between 12 and 20 capsules . . . in a period of one half to two hours prior to death. The high concentration in [her] stomach indicates that these capsules were taken in effect at once during the same three- or four-minute period of time.” (N.T. 180)

The court properly left to the jury the question of whether the ingestion by Minnie Glazer of a large quantity of barbiturates constituted suicide. However, the court improperly relied upon certain language in Tritschler v. Benefit Association, 180 Pa. 205, 36 A.734 (1897). Quoting from Tritschler, the court instructed the jury as follows:

“It is settled in this State that a policy of insurance which provides that it shall be void if the insured shall die by suicide is not forfeited by the insured destroying himself, he being insane at the time but intending to take his life and knowing that death would result from the act. The ground upon which said conclusion rests is that in legal acceptation and in popular use the word suicide is employed to characterize the crime of self-murder; that self-destruction under insane impulses so strong as to be beyond the control and restraint of the will is a result produced by disease, for which the victim of it is no more morally responsible than he would be for any other of the maladies of which men die.” (Charge, Doc. 17 at 7-8; see Tritschler, at 206-207, 36 A. 734).

Defendant was entitled to an instruction pursuant to Point 8 of its Request for Instructions dealing with the definition of insanity which was taken from Ritter v. Mutual Life Insurance Co., 69 F. 505 (3 Cir. 1895), aff’d, 169 U.S. 139, 18 S.Ct. 300, 42 L.Ed. 693 (1897). Point 8 contains a definition of what is meant by the term “insanity” as it applies to a suicide under an insurance contract. In Ritter, the court, apparently relying on language found in American Life Insurance Co. v. Isett’s Administrator, 74 Pa. 176 (1873), stated:

“We are not to enter the domain of metaphysics in determining what constitutes insanity, so far as the subject is involved in this case. If [the insured] understood what he was doing, and the consequences of his act or acts, to himself as well as to others; in other words if he understood as a man of sound mind would, the consequences to follow from his contemplated suicide, to himself, his character, his family and others, and was able to comprehend the wrongfulness of what he was about to do as a sane man would, then he is to be regarded by you as sane.” Ritter, supra 69 F. at 506.

Tritschler and the more recent decision in Johnson v. Metropolitan Life Insurance Co., 404 F.2d 1202 (3rd Cir. 1968), which the court relied upon in its order denying defendant’s motion for judgment n. o. v. and for new trial, are both inapplicable because of a crucial factual difference from this record. In both of those cases the record contained an admission that the decedent was insane at the time of suicide.

In addition, the charge failed to instruct the jury that under Pennsylvania law the defendant was entitled on this record to an instruction that the insured was presumed to be sane if the jury believed that she committed suicide when she could comprehend and understand the probable fatal result of taking the overdose of barbiturates. Neither Trit-schler, nor Johnson addressed themselves to that particular question.

In Pennsylvania, sanity is presumed to be a normal condition of the mind, and there is a legal presumption that every one is sane until the contrary is established by evidence sufficient to satisfy a jury. An allegation of insanity casts the burden of proof upon the party asserting it. In Isett’s Administrator, the trial court charged the jury as follows:

“Insanity is an abnormal condition of the mind, and the legal presumption is that every one is sane until the contrary is established by evidence sufficient to satisfy a jury, and it is incumbent upon the party alleging insanity to prove it by affirmative evidence.”

Isett’s Administrator, supra 74 Pa. at 178. In affirming the judgment entered on the jury’s verdict for the plaintiff, the court used this language:

“If taken as a whole, [the charge] was not calculated to mislead the jury, it is not error.
“We do not think the learned judge erred therein.”

Id. at 181 see Ritter, supra 69 F. at 507-508; cf. Supreme Council of Royal Arcanum v. Wishart, 192 F. 453 (3d Cir. 1912); Youngwood Building & Loan Ass’n v. Henry, 137 Pa.Super. 124, 8 A.2d 427, 428 (1939); McClaney v. Scott, 188 Pa.Super. 328, 146 A.2d 653 (1958).

Instead, the court refused defendant’s request for an instruction that if the jury found that Minnie Glazer took an overdose of barbiturates with the intent to commit suicide, the law presumed that she was sane at the time of committing the act. The 19th Cen tury decisions in Isett’s Administrator and Ritter still appear to be valid on the issue of whether decedent was sane or insane at the time of the taking of his life.

Finally, the charge was misleading where, after explaining that “the mere commission of ‘suicide’ or the fact of self-destruction in and of itself is not evidence of insanity,” it was noted: “. . . you cannot infer suicide merely from the fact of self-destruction.” At the least, the court should have added that you cannot overcome the presumption of sanity by the act of committing suicide. See Ritter, supra at 508 of 69 F.

Under Ritter and Isett’s Administrator, the defendant was entitled to an instruction that the decedent was sane at the time of injesting the overdose of barbiturates, unless the plaintiffs had sustained their burden of rebutting the presumption of sanity.

III.

Security Mutual also submits that the district court erred when it concluded that there had been no mutual recision by the plaintiffs. In support of its contention, it argues that after the plaintiffs made a claim for the proceeds of Minnie Glazer’s insurance policy, it rejected that claim and instead tendered a return of premiums by sending a check on June 8, 1967 in the amount of $1,483.50 payable to the “Estate of Minnie Glazer, Deceased.” Bernard Lot-man, a co-administrator of her estate, eventually received that cheek. He retained the check, but did not deposit it. Almost two years later after the check was stale, it was misplaced. B. Lotman requested the defendant to issue him a new check. The defendant sent him another check in the same amount and also payable to the “Estate of Minnie Glazer, Deceased.” This check B. Lotman endorsed: “Estate of Minnie Glazer, Deceased, Bernard Lotman, Administrator C.T.A.” He deposited it in a joint bank account which he maintained with his brother Charles.

Although it has been held that a beneficiary of a life insurance policy may, after the death of the insured, accept a return of premiums and waive all claims thereafter to the policy’s proceeds, see Peterson v. New York Life Insurance Co., 185 Minn. 208, 240 N.W. 659 (1932), the district court concluded that “the insurance company made an offer of recision to the estate of the insured and not to the beneficiaries.” 332 F.Supp. at 356. The court found that B. Lotman “deposited the refund of premiums for the purpose of safe-keeping in his role as co-administrator of his mother’s estate” and “he did not intend to compromise any claim to the proceeds as co-beneficiary of the policy.” Id. at 355. We are unable to say that these findings of fact are clearly erroneous. F.R.Civ.P. 52(a). Therefore, the conclusion of the district court that there was no binding recision which would bar the assertion of plaintiffs’ claim was not erroneous.

We have concluded that the errors in the charge set forth in Parts I and II require a new trial. For the foregoing reasons the judgment will be reversed and the case will be remanded for a new trial consistent with this opinion.

Judge Adams concurs in the conclusions reached in Parts I and II of the foregoing opinion and concurs in.the result reached remanding this ease for a new trial.

      . The opinion of the district court is reported at 332 F.Supp. 350 (E.D.Pa.1971).

      . The plaintiffs in this action are Bernard Lotman and his brother Charles Lotman.

      . The decedent, Minnie Glazer, was the plaintiffs’ mother.

      . See Exhibit B, attached to defendant’s Answer, entitled: “Application for Life/Siekness & Accident Insurance in Security Mutual Life Insurance Company of New York, Binghamton, N. Y.”

      . See testimony by Dr. Vincent Hammond, Vice-President, medical director, Security Mutual Life Insurance Company at N.T. 167.

      . Exhibit B, supra note 4.

      . Prior to admission to Wissahickon Hall, she had been taken to Women’s Medical College Hospital as’a result of an overdose of medication which rendered her unconscious. At that Hospital she was treated for intoxication of barbiturates.

      . Exhibit A, attached to plaintiffs’ Complaint.

      . Dr. Aronson was not asked to express a medical opinion as to whether or not the decedent committed suicide, although he suggested on cross-examination by the plaintiffs that in his experience an overdose of barbiturates was a frequent manner of suicide. He explained: “ . it is my reasoning . . . that if a person takes 10 times the doses of medication which is the usual one that they should be aware that they are in serious danger of taking their life as well.” (N. T. 191).

      . The court in its charge to the jury included the following instruction for the resolution of the question of suicide:
      “The critical question on this defense is really the state of her mind at the time she took these barbiturates. As I see it — you may differ with me — but as I see it, you could on the evidence before you resolve that question in any one of three ways.
      “If you find that Mrs. Glazer consciously took an overdose of sleeping pills for the purpose of destroying herself while she was of sound mind, then you should find for the defendant because then clearly she would have committed suicide within the legal definition of that term, which, as I said, the cases indicate ‘suicide while of sound mind,’ and the exclusion would apply.
      “The second possibility that you could consider from this evidence is that she took the overdose of Tuinal under the stress of a psychotic episode, ‘while of deranged mind,’ as the cases say. Under those circumstances if you find that to be the case, then you should find for the plaintiff because the cases say that the act of taking your own life while of an unbalanced or deranged mind or while insane is not ‘suicide’ for purposes of avoiding liability on a like insurance policy. That is possibility number two. “Possibility number three is that she had become so accustomed to taking these barbiturates that her state of mind was merely that she wanted to go to sleep but she had become so addicted to the drugs that the dosage level that •would put her to sleep was also of sufficient strength to kill her. I think it was Dr. Aronson who indicated that that happens to people who take a great deal of barbiturates for sleeping purposes, because the more they take of them the less immediate effect they have. Consequently, they can get themselves into a situation where a dosage sufficient to put them to sleep is also a critical dosage which will kill them.
      “They are the three alternatives that occur to me after having listened to the evidence. You may think of some others. You are perfectly at liberty to do so.
      “As to the second two, if you find either that she was of unsound or deranged mind at the time she took the dosage or that she didn’t think she was taking a suicidal dosage but was merely taking enough to put her to sleep, then under those circumstances you should find for the plaintiff, because the first would not be suicide because of the deranged mind, and the second could not be suicide by any definition; it would merely be accidental death.
      “Finally, if you cannot decide after a thorough discussion of the evidence and a thorough discussion of the issues which of those three events occurred and any other alternative that you may come to, then you should bring in a verdict for the plaintiff because your mind will have been in balance with respect to the suicide defense. Since the burden is on the defendant to prove suicide, as the law defines it, to your satisfaction, that burden will not have been met.” (Charge, Doc. 17 at 8-11).

      . Point 8 stated: “If you find that the overdose of barbiturates was taken by Minnie Glazer with the intent of self-destruction while having the capacity of mind to understand what she was doing, and the consequences to herself, her character, her family and others, and to comprehend the wrongfulness of the act, then you must find that Minnie Glazer committed suicide and return the judgment for defendant, Security Mutual Life Insurance Company of New York.

      . We note that in Johnson, New Jersey law was applied, while the present action arises under Pennsylvania Law.

      . See Defendant’s REQUEST FOR INSTRUCTIONS, 1f 9, which states:
      “9. A contract of life insurance contains an implied condition that the insured will not intentionally terminate his own life. The law presumes that one who has taken his life by his own hands was sane at the time of committing the act. The fact of suicide does not establish that Minnie Glazer was less than sane when the act of self-destruction was committed. Ritter v. Mutual Rife Insurance Co. of New York, 69 F. 505 (Circuit Court, E.D.Pa. 1895; aff’d 138 U.S. 139 [18 S.Ct. 300, 42 LK.Ed. 693] (1897).” App. 289a-290a.
      The court instructed:
      “There is something that is known as the legal presumption of sanity. If there isn’t any evidence to the contrary, it is presumed that people are sane when they do whatever they do. Here that presumption is faced with record evidence that the person in question had had at least two, what the psychiatrists call, ‘frank psychotic episodes’ before the occurrence in question.”
      Charge, Doc. 17, at 11.
      The defendant took exception to this language as required by F.R.Civ.P. 51. Counsel stated: “I have met my burden [that Minnie Glazer committed suicide]. If [plaintiffs] want to come forward and show that she is mentally insane or mentally at such a condition that would set aside a normal suicide, they ought to do it with competent medical evidence.” (N.T. 274).

      . See supra note 2.

      . Neither the district court, nor counsel have been able to discover any Pennsylvania cases directly raising this point, although, as noted by the district court, it has been raised in other jurisdictions. See 332 F.Supp. at 356, n. 4.

      . B. Lotmaii in his deposition made the following statements:
      “There was no account for the estate of Mrs. Glazer. As administrator, I deposited this money into an account with my brother and myself for safekeeping.
      “I didn’t cash the check. . . . I deposited the check . . . for safekeeping.
      “ . . .1 made out a deposit slip, put it in the account, never touched it.” (Deposition of Charles and Bernard Lotman, June 26, 1969 at 27, 36).