author: GEE, Circuit Judge:

text:
    Robert PITTS, Plaintiff-Appellee, v. George BUSBEE, Governor of the State of Georgia, et al., Defendants-Appellants.
    No. 74-2630.
    United States Court of Appeals, Fifth Circuit.
    March 24, 1975.

      Arthur K. Bolton, Atty. Gen. of Ga., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Timothy J. Sweeney, Dorothy Y. Kirkley, Asst. Attys. Gen., Atlanta, Ga., for defendants-appellants.
    Stuart E. Eizenstat, Gary N. Ackerman, Gary D. Zweifel, Michael H. Chanin, Atlanta, Ga., amici curiae for Ray Abernathy.
    Hugh W. Gibert, Robert L. Schwind, Richard G. Garrett, Atlanta, Ga., amici curiae for Lee J. Roach.
    Bernard Parks, George L. Howell, Carl T. Horton, Atlanta, Ga., for plaintiff-appellee.
    Before THORNBERRY, RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

The background details of this voting rights case may be traced in and through the opinion of a three-judge court, 380 F.Supp. 4 (N.D.Ga.1974) and the subsequent single-judge opinion on remand, 380 F.Supp. 8 (N.D.Ga.1974), from which this appeal is taken.

Briefly stated, a 1952 Georgia local act provided for a board of three commissioners in Fulton County, each commissioner to serve a four-year term. Candidates ran at large but were required to designate the one post to which they sought election. Until 1970, election was by plurality vote. In that year, the Georgia General Assembly enacted Georgia Code § 34-1513. Its effect in Fulton County was conversion to a majority vote requirement for election. The 1970 Act was submitted to the United States Attorney General pursuant to the Voting Rights Act of 1965. No objection was filed. Then, in 1973 and 1974, the Georgia General Assembly passed two local acts changing the election plan for Fulton County commissioners. The number of commissioners was increased to seven. Three commissioners were to be elected as under previous law, that is, at large and by majority vote. Four new commissioners were to be elected iron single-member districts, also by majority vote. Heeding the dictates of the 1965 Voting Rights Act, 42 U.S.C. § 1973c, the county submitted’ the new plan to the United States Attorney General. The Attorney General objected, issuing an opinion pinpointing those features of the new plan he concluded offensive: numbered posts along with a majority vote requirement in the three at-large districts. He did not object to the remaining provisions of the plan. On May 29, 1974, the Board of Elections of Fulton County tried its hand at formulating an acceptable plan.

Plaintiff Pitts challenged the Board’s authority to promulgate the change. By amended complaint he sought a judgment determining the validity of the ’73 — ’74 Acts, a declaration that the 1952 Act was unconstitutional, and appropriate injunctive relief of a three-judge court. Other parties and contentions, not material here, surfaced.

The three-judge court, noting the Attorney General’s objections to them, enjoined the enforcement of the 1973 — 74 Acts in toto. The remaining issues in the case being the status of the 1952 Act, one of local application only, and the manner of conducting the 1974 Fulton County elections, that court “ . [r]emanded to the originating judge for entry of an order setting forth an interim basis for conduct of the 1974 election of the Fulton County Board of Commissioners.” 380 F.Supp., at 8.

The single-judge court viewed the status of the 1952 Act as turning on the question whether it should be “resurrected” or not, presumably from burial by the repealing clauses of the 1973 — 74 Acts. For reasons stated in its opinion, it declined to resurrect the Act and promulgated its own very reasonable plan, which hewed as closely as the court thought constitutional to the 1973 — 74 Act, and under which the 1974 elections were conducted. The court therefore never addressed the question of the intrinsic validity, under the Constitution and the Supremacy Clause cum § 1983, of the 1952 Act. As it happens, this was unfortunate.

The single-judge court addressed the wrong issue. The effect of the Attorney General’s objections was to prevent the effectiveness of the 1973 — 74 Acts, from the beginning and entirely. As the Supreme Court noted in Georgia v. United States:

This portion [§ 5] of the Voting Rights Act essentially freezes the election laws of the covered States unless a declaratory judgment is obtained in the District Court for the District of Columbia holding that a proposed change is without discriminatory purpose or effect. The alternative procedure of submission to the Attorney General “merely gives the covered State a rapid method of rendering a new state election law enforceable.” Allen v. State Board of Elections, 393 U.S. [544] at 549, 89 S.Ct. [817] at 823, 22 L.Ed.2d 1 (Emphasis added)

411 U.S. 526 at 538, 93 S.Ct. 1702 at 1709, 36 L.Ed.2d 472 at 483. And Mr. Justice Powell, dissenting in the same case, refers to the harsh requirement of § 5 that a State “submit its legislation for advance review” and, in a footnote, quotes Mr. Justice Black’s reference to

“ ■ • • the power vested in federal officials under § 5 of the Act to veto state laws in advance of their effectiveness [which] ‘distorts our constitutional structure of government.’ South Carolina v. Katzenbach, 383 U.S. 301, 358, 86 S.Ct. 803, 834, 15 L.Ed.2d 769 (1966) (concurring and dissenting).” (Emphasis added).

Thus, there is simply no question that the Acts of 1973 — 74 never became effective at all, and the issue here is not the resurrection of the 1952/70 Act — it was never buried. The issue is its validity, one which the court below never addressed. We are unable to avoid the decision that it now must do so. Fiat justicia, ruat coelum

Should the court conclude the 1952 Act, as amended, is constitutional, it should vacate the order requiring interim elections. Should it determine otherwise, it should place a reasonable limit upon the terms of the commissioners elected under its interim order, such as four years or the earlier commencement of terms of office of commissioners elected under a constitutional plan enacted by the Georgia General Assembly.

Remanded.

      . The new legislation replaced some provisions of the 1952 Act, but the general effect was a restatement of those provisions as amended by 1970 statute.

      . But Cf. Georgia v. United States, 411 U.S., at 539, 93 S.Ct., at 1710, 36 L.Ed.2d, at 483: “ ‘The appellant’s final contention is that the Attorney General’s objection to the 1971 plan was untimely, and so the submitted plan should have been held by the District Court to have gone into effect. It is far from clear that this claim is not simply' moot, since the State enactment establishing the 1972 plan explicitly repealed the 1971 plan, and the objection to the 1972 plan was clearly within the statutory time period. In any event, the claim is without merit.’ ”
      Thus the trumpet gives an uncertain sound, but “far from clear” is not a holding.

      . The court indicated the Attorney General’s objections to parts of the 1973-74 Act suspended only those parts, leaving the other portions (such as the repealers) to take effect. We cannot agree. To give the Attorney General what amounts to line-item veto power over state statutes would be to permit him to fashion such state laws as he chose. We decline to impute such an intent to Congress.

      . We recognize and deplore the unsettling effect which our decision must have, inevitable though it be. Nine months ago the district court, in its order of June 17, 1974, commended this controversy to the attention of the Georgia General Assembly “for a final and constitutionally acceptable remedy.” No definitive action has yet been taken, save motions for this court to expedite decision of this cause — argued two and a half weeks ago. Needless to add, we have done so.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    J. E. CHRESTMAN et al., Plaintiffs-Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee.
    No. 74-2371.
    United States Court of Appeals, Fifth Circuit.
    April 9, 1975.

      Grady F. Tollison, Jr., Oxford, Miss., Jack F. Dunbar, Clarksdale, Miss., for plaintiffs-appellants.
    Michael S. Allred, Cary E. Bufkin, Jackson, Miss., for defendant-appellee.
    Before BELL, THORNBERRY and GEE, Circuit Judges.
   PER CURIAM:

The diversity suit underlying this appeal was brought by the assignee of an insured against the assignor’s insurer on the basis of an alleged failure to defend in the form of a failure to take an appeal. The district court rendered judgment for the insurer and we affirm.

Donna Chrestman was a passenger in a car being driven by Butler which collided with a car being operated by Mary May. Chrestman recovered a judgment in state court against May and Butler for her injuries. There was no appeal by May’s insurer, United States Fidelity and Guaranty Company (U.S.F. & G.). May assigned whatever rights she might have had against U.S.F. & G. to Chrestman in return for Chrestman’s covenant not to execute the judgment against May.

The trial was bifurcated: liability and damages. The jury found for Chrestman on liability because of the failure of U.S.F. & G. to appeal for May. However, the court directed a verdict for U.S.F. & G. on the damages issue based on the insufficiency of Chrestman’s evidence. The court then granted defendant’s motion for judgment n. o. v. on the liability issue, and this appeal followed.

U.S.F. & G. was obligated to defend May and did so through the trial. The evidence was that there were grounds to appeal as to damages but not as to liability. Counsel obtained a remittitur from the state trial judge in the amount of $20,000 and concluded that there was no merit in seeking a further reduction by appeal, retrial or otherwise.

The courts of Mississippi have not defined the scope of an insurer’s obligation to appeal. Cf. Travelers Indemnity Insurance Company v. East, 240 So.2d 277 (Miss.1970), on the duty to appeal vel non. The learned district judge, experienced in Mississippi law, charged the jury on the scope of the duty in terms of (1) fraud, (2) bad faith, and (3) failure to exercise reasonable care and foresight. Cf. Hawkeye-Security Insurance Company v. Indemnity Insurance Company of North America, 10 Cir., 1958, 260 F.2d 361, for the rule that an insurer is liable for acting fraudulently or in bad faith, in failing to appeal. The jury found fraud and did not reach the other questions posed. In granting the judgment n. o. v., the court said that the evidence was insufficient to warrant a verdict under “any theory of law that might be advanced.”

At the very least under the authorities, appellant would be required to show reasonable grounds for taking an appeal. Cf. Ursprung v. Safeco Insurance Company of America, 497 S.W.2d 726 at 730 (Ky.1973); Reichart v. Continental Insurance Co., 290 So.2d 730 at 733 (La.App.1974).

It is true that U.S.F. & G. had limited liability and thus little to gain by an appeal as compared to paying the balance of the coverage into court, but this fact was insufficient to make a jury issue in the face of the substantial, uncontradicted evidence of no reasonable ground for appealing. See Boeing v. Shipman, 5 Cir., 1969, 411 F.2d 365 at 373 — 375, on the test for directing a verdict and rendering judgment n. o. v.

Finally, the trial court did not err in directing a verdict for U.S.F. & G. on the damages issue. Appellant failed to adduce sufficient evidence to provide a basis for a jury determination of specific damages to her assignor because of the failure of U.S.F. & G. to appeal for her, assuming arguendo a duty to appeal under the circumstances.

Affirmed.

      . Because we find the evidence of damages insufficient under any theory, we need not pass on whether damages can ever be proved when a judgment creditor takes an assignment of an insured’s cause of action against his insurer for failure to appeal in return for a covenant not to execute on the underlying judgment. Cf. Nichols v. State Farm Mutual Automobile Ins. Co., N.D.Miss.1972, 345 F.Supp. 212, 216-17.


text:
    Marvin JEFFERS and others similarly situated, Plaintiffs-Appellants, v. LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College Board of Supervisors, Defendants-Appellees.
    No. 74-1387.
    United States Court of Appeals, Fifth Circuit.
    April 9, 1975.
    Rehearing Denied May 30, 1975.
    Arthur Cobb, A. J. Spedale, Baton Rouge, La., for plaintiffs-appellants.
    B. B. Taylor, Jr., W. S. McKenzie, Baton Rouge, La., for defendants-appellees.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   PER CURIAM:

This class action was brought challenging the regulations of Louisiana State University and Agricultural and Mechanical College Board of Supervisors governing residence classifications of students at the University. The regulation in question, Louisiana State University Regulation PM — 31, provided in part that:

“[r]esidence status may not be acquired by an applicant or student while residing in Louisiana for the primary purpose of attending school.”

The plaintiffs were determined by Louisiana State University not to be residents of Louisiana and were accordingly assessed tuition higher than that for Louisiana residents. They contend that this regulation constitutes a permanent irrebutable presumption of non-residency, such a presumption having been held by the Supreme Court in Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) to violate the Fourteenth Amendment.

The district court dismissed the plaintiffs’ complaint, both on the grounds that the complaint failed properly to state a class action, and on the grounds that the plaintiff Jeffers failed to exhaust his administrative remedies. The plaintiff appeals.

During the pendency of this appeal the Louisiana State University and Agricultural and Mechanical College Board of Supervisors changed the regulation at issue in this suit in such a way that the plaintiff now concedes that no further constitutional issue is presented.

The plaintiffs’ complaint also requested damages to compensate them for those amounts which they were obliged to pay in tuition over that required of residents of the state. At oral argument the Court raised the question whether state sovereign immunity and the Eleventh Amendment might not bar such relief. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Counsel for plaintiffs was invited to file a supplemental memorandum briefing the Eleventh Amendment question if plaintiffs wished to pursue the damage claim. No supplemental brief has been filed, and accordingly we pass only on the requested injunctive relief, and dismiss the appeal as moot.


text:
    Dr. Herman EGER, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
    No. 74-3899
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 9, 1975.

      Herman Eger, pro se.
    Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.

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

   PER CURIAM:

Appellant Eger was convicted in a Florida court of the unlawful practice of dentistry. After exhausting his state remedies, he petitioned the District Court for the Southern District of Florida for a writ of habeas corpus, alleging procedural deficiencies in his state court conviction, unconstitutional vagueness in Fla.Stat.Ann. §§ 466.02, 466.04, and an unconstitutional denial of full faith and credit to his licenses to practice dentistry in other states. The district court denied habeas relief. After a careful review of the record and briefs, we deny appellant’s motion for appointment of counsel and affirm the judgment entered below.

Affirmed.


author: COLEMAN, Circuit Judge:

text:
    John E. TURNER, Plaintiff-Appellant, v. BIG FOUR AUTOMOTIVE EQUIPMENT CORPORATION, Defendant-Appellee.
    No. 74-1273.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1975.
    Rehearing Denied June 2, 1975.
    William Liston, Winona, Miss., H. D. Brock, Greenwood, Miss., for plaintiff - appellant.
    Charles C. Jacobs, Jr., Cleveland, Miss., for defendant-appellee.
    Before THORNBERRY, COLEMAN and ROSENN, Circuit Judges,

       Of the Third Circuit, sitting by designation.

   COLEMAN, Circuit Judge:

On July 13, 1970, at Greenwood, Mississippi, John E. Turner, the plaintiff-appellant, was employed by the Farmer’s Co-op Tire Service. Another Co-op employee, using an XP 100 tire changer powered by air pressure, was repairing a tire for a customer. Upon completion of the repairs to the tire he could not get it to seat on the rim, so Turner went to his assistance. After completing certain preliminary measures Turner was inflating the tire while it remained on the tire changing machine. He checked the air pressure at thirty-five pounds. He began increasing it to forty pounds, normal pressure, when there was a precipitate and unexpected expulsion of air. Both the tire and its rim flew off the machine, first striking Turner about the face and head and finally hitting a ceiling sixteen feet high.

Big Four Automotive Equipment Corporation, manufactured and sold the automatic tire changer. The suit against it for the personal injuries sustained by Turner was founded on allegedly negligent design of the machine and strict liability in tort.

The case began as a jury trial, but at the conclusion of the evidence the District Court directed a verdict for the defendant.

We affirm the judgment of the District Court.

In awarding the directed verdict in favor of Big Four the District Court made the following points from the Bench:

(1) . The Court is bound by the decision of the Supreme Court of Mississippi in Walton v. Chrysler Motor Corporation, 229 So.2d 568 (Miss., 1970), and subsequent state cases.

(2) . Under Mississippi Supreme Court rulings the product is to be designed and manufactured so as to be reasonably safe for its intended use, but it need not be designed to be accident-proof in the event of misuse, regardless of whether that misuse arises by human element or by external forces.

(3) . The undisputed proof is that an external force occurred that unexpectedly exploded this tire when at least thirty-five pounds of pressure were in the tire. The force of the explosion blew the tire off the table by stripping the lugs in the center lock cone.

(4) . There is no proof before the Court that the purpose of the tire changer was to inflate the tire while on the table or that the tire changer was a reasonably safe device for inflation.

(5) . The manufacturer gave explicit warning to the user to stand back and not bend over the tire while it was being inflated.

(6) . This danger was obvious to anyone using a machine of this type, tires do explode. Explosions have velocities of varying and different strengths.

(7) . The plaintiff has failed to show that the condition of the machine either caused or contributed to this danger, a danger created altogether by the exploding tire.

(8) . The failure of the machine to hold the tire in place, once the explosion occurred, did not constitute a contributing cause of the accident. It was simply a condition that existed once the original accident [the expulsion of air] occurred or, to use the Walton language, was a second accident. The failure of the lugs to hold the tire in place was a second accident. It was, in no sense of the word, a part of the original accident.

(9) . The plaintiff has failed to make a jury issue within the Walton rule.

The Court concluded as follows:

“There has been no proof whatever that any tire changers on the market in 1966 were represented as having, as one of its normal intended purposes, a capacity for holding in place a tire that explodes in the process of inflation, regardless of what make of machine it might be; on the contrary, there were then on the market, and generally used, other devices, such as inflation cages and special valve and gauge arrangements, that were used to inflate a tire to a prescribed pressure with the operator being nowhere near, and thus not being exposed to the danger of an exploding tire.
“In summary, explosions of tires can occur in many ways and under various conditions that would make it altogether unjust to cast upon the manufacturer the duty to anticipate the cause of tires exploding while on the tire-changing machine. The manufacturer’s duty is complete and fully discharged where the machine is safe for the purpose intended, i. e., to mount and demount tires. No more than that was represented here by defendant. Warning was adequate to operators by the manufacturer as to the hazards that were known to exist in the process of inflating a tire.”

In Walton, supra, the Mississippi Supreme Court (per Justice Rodgers) handed down a thoroughly analytical opinion. It rejected the rationale of Larsen v. General Motors Corporation, 8 Cir., 1968, 391 F.2d 495, and the cases which have followed it in other jurisdictions.

It decided, instead, to follow the rationale of Evans v. General Motors Corporation, 7 Cir., 1966, 359 F.2d 822, cert. denied 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70, and numerous other cases which it cited as having agreed with Evans.

Walton was a case in which the defendant’s automobile collided from the rear with one being driven by the plaintiff and stopped at an intersection. When the plaintiff was propelled backward a screw which held a nylon plate on to the seat or backrest of plaintiff’s automobile sheared, so that the seat collapsed, throwing the plaintiff into a prone position, thereafter flinging him forward against the steering wheel, from which he was seriously injured. The plaintiff claimed that his injury was caused by the joint negligence of the manufacturer in “improperly designing and in wrongfully, negligently and improperly manufacturing an automobile seat which was not reasonably safe for its intended use.”

In its decision, the Supreme Court of Mississippi proceeded to say:

“The issue to be determined here is whether or not this Court will extend the strict liability rule to include a case where the defect in the article sold did not cause the initial accident, but did, when combined with the force put in motion by the accident, add to, or become a part of the cause of injury to a human being, so as to subject manufacturer to liability.
“In the instant case, it is clear that the alleged defect in the automobile did not cause the accident. It is equally clear, however, that the weakness of the bumper and screw did, or could have, added to the seriousness of the plaintiff’s injury. The driver of the automobile that crashed into the rear of the automobile operated by the plaintiff caused the accident. Nevertheless, plaintiff believes and charges that he would not have been seriously injured if the back of the automobile seat in which he was riding had not broken so as to let the back flop to a prone position.
“The appellant in the instant case contends that it is the duty of the manufacturer to foresee accidents, and to design its vehicles so as to reduce the possibility of injury to the users of their products. Stating the argument differently: the manufactured product must be reasonably fit for its intended use, free of hidden defects that could render the product unsafe for highway use. It is then argued that it was well known to the manufacturer that automobiles will be ‘bumped’ or ‘rammed from the rear’ and that many persons are being killed, hurt and injured by accidents similar to the accident here involved, and that the manufacturer could reasonably foresee that the plaintiff would be injured as a result of the dangerous and faulty design of its product. It was therefore liable to the plaintiff, although the defect in the design of the automobile did not cause the accident, but added to the seriousness or gravity of the injury.
“The strict liability rule for products liability cases adopted by this Court eliminates the necessity to show negligence in the manufacture of the product where it is shown that the product left the hands of the manufacturer in a defective condition, but this rule does not eliminate the requirement that, even where there is a defect in the product, there must be some duty owed to the plaintiff with regard to the defect, growing out of the intended normal use for which the product was manufactured.”

The Mississippi Supreme Court held:

“That an automobile manufacturer is not liable for injury arising from defects in the automobile which did not cause or contribute to the cause of the accident, such as a rear-end collision. This is true although such accident may have been foreseeable as a misuse of the manufactured product.” Walton v. Chrysler Motor Corporation,

229 So.2d 568 (1970).

It was not long before the Mississippi Supreme Court had an opportunity to take a second look at the Walton rule, Ford Motor Company v. Simpson, 233 So.2d 797 (Miss., 1970). Another automobile collision case, the suit there was based upon negligent design; the injured plaintiff had been thrown against a protruding heater in the car which she occupied. The Court held that under Walton the strict liability rule as to manufacturers would not extend to instances where the alleged defect in the second car, or its design, was not the cause of the initial accident, 233 So.2d at 798. The judgment for the plaintiff was reversed and rendered. See, also, General Motors Corporation v. Howard, 244 So.2d 726 (Miss., 1971).

A few months before the instant case was tried, this Court had an occasion to apply Walton and Simpson, Landrum v. Massey-Ferguson, Inc., 5 Cir., 1973, 473 F.2d 543.

We quote from that case, as follows:

“Appellant was loading logs with one of appellee’s Model 302 tractors, which had been equipped by the distributor with a hydraulic bucket loader. The loading equipment was substantially customized by the substitution for the bucket of a back plate of unknown origin to which were attached forks manufactured by appellee and retainers fabricated by the distributor, Forestry Equipment Company of Alabama, Inc.
“Appellant was loading the logs onto a truck. He had to travel uphill over wet ground to do so. When the wheels of ■ the tractor began to slip, Landrum raised the log on the loader to a nearly overhead position in order to bring its weight to bear on the back wheels. One of the retainers broke and the log fell from the loader injuring him.
“Appellant’s cause of action was based on Massey-Ferguson’s failure to equip' the tractor with an overhead guard which would have prevented or ameliorated his injuries. The law of Mississippi — which we are bound to follow — rejects the extension of strict liability, Walton v. Chrysler Motor Corporation, Miss., 1969, 229 So.2d 568, and the existence of a cause of action for negligence, Ford Motor Company v. Simpson, Miss., 1970, 233 So.2d 797, on these facts. As Mississippi views this the ‘cause’ was the breaking of the retainer, not the absence of the overhead protective guard.

“Affirmed.”

To be specific, our Court, interpreting Walton and Simpson, recognized that although the injury instantaneously ensued the breaking of the retainer was the initial accident, barring recovery.

In Landrum the manufacturer had neither manufactured nor installed the retainer. In our present case, Big Four Automotive Equipment Corporation had neither manufactured nor supplied the tire which Turner was attempting to seat on the rim attached to the tire changing machine.

Obviously, the tire changing machine was not an air container; the tire was. Reasonable men, then, could not differ over where the exploding air came from; it had to come from the tire. Under the second accident doctrine this necessarily exonerated the machine and its manufacturer.

Under Mississippi jurisprudence, and our prior interpretation of it, the judgment of the District Court must be

Affirmed.


text:
    G. M. GRIEKSPOOR, as master of the M/V MAYA, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-3749
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 9, 1975.
    Nathaniel G. W. Pieper, Tampa, Fla., for plaintiffs-appellants.
    Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., Robert L. Keueh, Richard W. Beebe, Dept, of Justice, Crim. Div., Washington, D. C., for defendant-appellee.
    Before WISDOM, BELL and CLARK, Circuit Judges.

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

   PER CURIAM:

Appellants filed suit in the district court to recover a penalty payment of $69,600 assessed by the Bureau of Customs for alleged violation of 19 U.S.C. § 1584. This statute imposes a monetary penalty for, inter alia, imported contraband found on board a vessel. The government contends that the M/V MAYA, a banana boat carrying cargo between Turbo, Colombia and Tampa, Florida, was carrying some 870 pounds of marijuana and notified appellants of demand for a penalty of $348,000. Appellants filed a petition for administrative relief and the District Director remitted the penalty to $69,600. Although appellants requested further disclosure from the Bureau of Customs concerning the underlying facts of the claim, little information was forthcoming and ultimately, the penalty was paid under protest.

The government filed a motion to dismiss, asserting a lack of subject matter jurisdiction. It was contended that the Customs Court had exclusive jurisdiction of the controversy under 28 U.S.C.A. § 1582(a)(3). The district court agreed and dismissed the cause.

On appeal the government seeks to confess error and urges that the district court had jurisdiction under 28 U.S.C.A. § 1355.

We vacate and remand for further consideration of the matter in the district court in light of the government’s change in position.

Vacated and remanded.

      . 28 U.S.C.A. § 1582(a)(3):
      (a) The Customs Court shall have exclusive jurisdiction of civil actions instituted by any person whose protest pursuant to the Tariff Act of 1930, as amended, has been denied, in whole or in part, by the appropriate customs officer, where the administrative decision, including the legality of all orders and findings entering into the same, involves: ... (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; . . .

      . 28 U.S.C.A. § 1355:
      The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress.


author: TUTTLE, Circuit Judge: GEE, Circuit Judge

text:
    Linda LANDRY, Individually and as administratrix of her minor children, Kenneth Paul Landry and Tracy James Landry, Plaintiffs-Appellants, Cross-Appellees, v. TWO R. DRILLING COMPANY et al., Defendants-Appellees, Cross-Appellants.
    No. 73-3900.
    United States Court of Appeals, Fifth Circuit.
    April 9, 1975.
    Rehearing Denied May 12, 1975.
    Rehearing and Rehearing En Banc Denied Aug. 13, 1975.
    517 F.2d 675.

      J. Clem Drewett, Lake Charles, La., Louis R. Koerner, Jr., New Orleans, La., for plaintiffs-appellants.
    Joseph L. Waitz, Houma, La., Gerard T. Gelpi, New Orleans, La., for defendants-appellees.
    Before TUTTLE, RONEY and GEE, Circuit Judge.
   TUTTLE, Circuit Judge:

This is an appeal and cross-appeal from special jury verdicts of over $300,-000 in favor of the plaintiff, Linda Landry, in her capacity as personal representative for herself and her two minor children. The awards were for injuries arising out of two separate mishaps suffered by her seaman husband Lloyd— one resulting in his death. The jury verdicts were for $7,500 for an injury to the seaman’s hand, and $575,000 for his death. Of the $575,000 originally awarded, $175,000 was awarded to the plaintiff in her individual capacity, and $200,000 for each of her children. The jury found the decedent was 20% contributorily negligent and consequently Mrs. Landry’s award was automatically reduced by the trial court to $140,000. Rather than specifically reducing each child’s award by 20%, the trial court considered the 20% contributory negligence of the decedent in remitting each award by 50% — to $100,000 for each child. The remittitur was vigorously protested and is one of the issues on appeal. Thus, the final award for the plaintiff totalled $347,500.

Neither party is satisfied. The plaintiff wants the judgment increased, because she contends that the remittitur was improper and further that the trial court erred in refusing to allow recovery for non-pecuniary loss under the teaching of Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The defendant cites several alleged errors in the trial court’s admission of evidence and instructions to the jury, and adds that the damages awarded the children were “grossly excessive.”

We affirm the judgment of liability against the defendant, but vacate the award of damages and remand to the trial court for further proceedings as herein directed.

I.

Trial of this case required four days of extensive testimony, much of it concerning the technical details of the drilling operation where the decedent worked. We rehearse only a brief summary of the facts, addressed to points on appeal.

Lloyd Landry was a 27-year-old roughneck/seaman employed by the defendant, Two R. Drilling Co., on its vessel, Rig No. 6, a submersible oil-drilling, barge, located in Horseshoe Bayou, near Centerville, St. Mary Parish, Louisiana. He had been so employed for approximately one year, was regarded by his superiors as a “good worker,” and was being paid $11,000 per annum.

On September 19, 1971, two fingers of Landry’s right hand (he was left-handed) were injured when struck by a sledgehammer wielded by a fellow employee of the company. Both fingers were badly lacerated, and the middle finger had a chipped bone. The company does not contest on appeal that its negligence caused these injuries. Landry underwent treatment consisting of suturing and medication. The attending physician prescribed Firoinal No. 3 to alleviate pain. He later testified that the medication is not extremely strong and normally does not impair the patient’s functions.

Landry returned to work on September 26, 1971. He was wearing his right arm in a web-type sling. Early that morning, he washed off the shale shaker on the upper deck of the rig with the pressure hose provided for the task. The deck was not enclosed at this point, but a three-foot high metal guard railing surrounded the area. (The lower deck immediately below the shale shaker was also unenclosed and had no guard railing.) Landry was told -by the rig’s superintendent not to continue the job, but to go into the galley and watch television if he wished. The rig’s tool-pusher, who is second in command to the superintendent gave Landry a similar order. He told Landry not to resume his regular duties, lest he be injured, but permitted him to bring ice and root beer to the workers in the area. However, the driller, Landry’s immediate superior, told Landry a short time later to watch the shale shaker and rinse it off if necessary. Landry was last seen that day in the pump room shortly after 3 p. m., but only a few minutes earlier he had been observed rinsing off the shale shaker with the pressure hose. At 5:30 p. m., Landry did not answer the roughneck’s whistle, and a search of the rig began. The entire rig was shut down at 8 p. m., and Landry’s body was found at 10 p. m. in shallow water ten to twelve feet from the rig and approximately 24 feet from the deck below the shale shaker. The autopsy showed time of death to be 4 p. m.

Landry’s widow brought a wrongful death action, in her capacity as personal representative for herself and her two minor children aged five and two, under the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, and general maritime law. The dual cause of action alleged negligence and/or unseaworthiness of the rig, respectively, as the cause of Landry’s hand injury and of his death. The jury found the defendant negligent with respect to the hand injury and found the defendant negligent, and its vessel unseaworthy, with respect to the death. Damages were awarded as described above.

II.

The defendant assigns two errors, primarily, with respect to the imposition of liability upon it for Landry’s death: it contends that the trial court should have allowed cross-examination of the plaintiff’s expert witness on the applicability to the vessel of Coast Guard safety regulations On handrailings, and it contends that there is no evidence in the record of any causal connection between the vessel’s allegedly inadequate hand-railing and Landry’s drowning. We disagree with the defendant on both points.

The plaintiff’s expert witness, a qualified marine surveyor and safety expert, testified that in his opinion the handrailings on the rig near the shale shaker were inadequate. He did not rest his conclusion on the Coast Guard regulations, however. He made his conclusion on the basis rather of his experience and expertise in the field. He mentioned the regulations in passing only as one factor, but he did not point to them as a decisive factor and explicitly disavowed official knowledge of their applicability to the rig. In short, the applicability of the regulations were not in issue inasmuch as his testimony was concerned, and it was within the trial court’s discretion to deny cross-examination on their applicability.

The second point requires only a brief answer as well. The burden on the plaintiff to prove proximate cause in actions based on the Jones Act and general maritime law is very light. Indeed, the most noted commentators in the field have called it “featherweight.” Gilmore & Black, Admiralty (1957), § 6-36, p. 311. The jury in such cases is entitled to make “permissible inferences from unexplained events,” Johnson v. United States, 333 U.S. 46, 49, 68 S.Ct. 391, 92 L.Ed. 468 (1948), whether the case is brought under the Jones Act, id., or under general maritime law, Alaska Steamship Co., Inc. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 per curiam (1954). The Supreme Court has repeatedly said that it is not the function of the court in Jones Act and analogous cases to “search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that proof gives equal support to inconsistent and uncertain inferences.” Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 35, 69 S.Ct. 409, 412, 88 L.Ed. 520 (1944); Schulz v. Penn. R. Co., 350 U.S. 523, 526 n.8, 76 S.Ct. 608, 100 L.Ed. 668 (1956).

The trial court instructed the jury, over the plaintiff’s objection, that with respect to Landry’s death only pecuniary damages were recoverable and that the plaintiff was not to be compensated for loss of love and companionship. During the pendency of this appeal, the Supreme Court held that loss of “society” was recoverable in wrongful death actions under general maritime law. Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The Court defined “society” as “a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection.” 414 U.S. at 585, 94 S.Ct. at 815. Our Court has recently held that “loss of consortium is a compensable harm” under Gaudet, Skidmore v. Grueninger, 506 F.2d 716, at 728 (5th Cir. 1975), but that “for purposes of precluding double recovery we note that a recovery for loss of consortium includes loss of society.” Id. at 729. Two R. contends that while Gaudet does in fact allow recovery of nonpecuniary losses, it does so only for the death of a longshoreman where unseaworthiness is urged against the vessel owner and that such a recovery is not allowed under the Jones Act, citing Canal Barge Co. v. Griffith, 480 F.2d 11 (5th Cir. 1973). However, Canal Barge is no longer valid precedent on this issue. See Kaiser v. Travelers Insurance Co., 487 F.2d 1300 (5th Cir. 1974) reh. granted, 496 F.2d 531 (5th Cir. 1974). Furthermore, while the question of the proper measure of damages when the recovery is solely under the Jones Act has not been decided by this Circuit, where, as here, there is liability under both a Jones Act claim and a general maritime claim for unseaworthiness, this Court has recognized Gaudet damages as proper. See McDonald v. Federal Barge Lines, Inc., 496 F.2d 1376 (5th Cir. 1974).

The record in this case clearly demonstrates that the handrailings where or near where Landry worked were inadequate at some places, and nonexistent at others. The record further shows that his body, with the sling still fettering his right arm, was found in water adjacent to these areas. There was thus sufficient evidence for the jury to find that the lack of handrailings caused Landry’s drowning, at least in part. Were we to select another possible inference and hold that there was inadequate evidence of causation, as the defendant asks us to do, we would be “taking the case from the jury” in clear contravention of well-established principles that have been frequently reiterated by the Supreme Court. Tennant v. Peoria & P.U.R. Co., supra.

The judgment of liability against the defendant is accordingly affirmed.

III.

Under the Gaudet rule, the plaintiff was entitled to recover not only loss of support and services, but also loss of society. Because the trial court refused to allow evidence on loss of society and instructed the jury not to consider such loss in reaching its verdict, the judgment of damages must be vacated and remanded to the trial court for further proceedings not inconsistent with this opinion. The judgment of liability is affirmed.

GEE, Circuit Judge

(concurring):

Believing our opinion to be as mandated by the Supreme Court’s precedents on sufficiency of evidence in FELA and Jones Act matters and in all other respects correct, I concur. However we may view these holdings, we must apply them.

      . Firoinal No. 3 consists, in essence, of one-half grain of Codeine, one-fourth grain of Barbital (a barbiturate), and aspirin. Landry was instructed to take one pill every four hours “for pain.”

      . The defendant maintains now, as it did unsuccessfully at the close of the plaintiffs case and at the end of trial, that the suit should be dismissed because Mrs. Landry did not prove that she was the personal representative of herself and the children. This argument is without merit. Rule 9(a), Fed.R.Civ.P., provides that a party desiring “to raise an issue as to * * * the authority of a party to sue or be sued in a representative capacity * * * shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” The defendants made only a general denial of Mrs. Landry’s authority and alleged no supporting particulars. This is insufficient to join issue on Mrs. Landry’s authority to sue, Young v. Pattridge, 40 F.R.D. 376 (N.D.Miss.1966); Wright & Miller, 5 Fed.Prac. and Proc.: Civil § 1294, p. 393. As a result, the defendant’s objection to Mrs. Landry’s authority is construed to have been waived. Coleman v. Coleman, 75 F.Supp. 107 (D.S.C.1947). See Wright & Miller, supra, at § 1295.
      The defendant cannot say that its rights are prejudiced by the application of the waiver doctrine in this case. It implies that because Mrs. Landry did not prove that she was her husband’s testamentary executor, her claim is technically defeated. This argument misconstrues the meaning of “personal representative” in such actions, however. These claims are brought for the benefit not of the decedent’s estate, Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686 (1930), but for the benefit under general maritime law of the decedent’s dependents, Sea-Land Services v. Gaudet, supra, or under the Jones Act for the benefit “of the surviving widow and children of the employee, if any, to the exclusion of his parents or other beneficiaries.” Hassan v. A. M. Landry & Son, Inc., 321 F.2d 570, 571 (5th Cir. 1963), cert. den. 375 U.S. 967, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964). See generally Chicago B. & Q. R. Co. v. Wells-Dickey Trust Co., Administrator, 275 U.S. 161, 163, 48 S.Ct. 73, 72 L.Ed. 216 (1927). Mrs. Landry offered undisputed evidence at trial that she was Landry’s widow, that her children were the children of Landry, and that there were no other dependents. Thus her authority as “personal representative” was fully established and was in no way defective. See Waldrip v. Liberty Mut. Ins. Co., 11 F.R.D. 426 (W.D.La.1951).

      . The defendant also alleges error, without citing any authority, in the trial court’s refusal to propound a specific interrogatory to the jury on the question of the specific act of negligence or the specific state of unseaworthiness that led to Landry’s death. We cannot say, and the defendant has made no argument to lead us to believe, that this refusal was an abuse of the sound discretion of the trial court. Loffland Bros. Co. v. Roberts, 386 F.2d 540 (5th Cir. 1967), cert. den., 389 U.S. 1040, 88 S.Ct. 778, 19 L.Ed.2d 830 (1968).
      Nor are we able to agree with the defendant that the trial court erred in instructing the jury that it could use two separate Coast Guard safety regulations as standards for determining the adequacy of the vessel’s hand-railings. The trial court discussed its proposed charge with both counsel and there was no objection to the charge on the regulations. Consequently, the defendant is barred from raising this objection now. Rule 51, Fed.R.Civ.P.; Curd v. Todd-Johnson Dry Docks, Inc., 213 F.2d 864 (5th Cir. 1954).

      . Inasmuch as this litigation has already carried on for over three years, through two trials and one appeal, we remand to the trial court with the direction to grant the plaintiff a new trial on the issue of damages, if she so elects. If the plaintiff does not elect to have a new trial on the issue of damages, then the judgment of $147,500 to Mrs. Landry and the remittitur of $100,000 to each child must stand. The trial court properly allowed the plaintiff to accept the remittitur or have a new trial, and we cannot say that the remission of the children’s award brought the awards below the maximum supportable by the evidence nor that the decision itself to order remission was a “grave abuse of discretion.” Bonura v. Sea-Land Service, Inc., 505 F.2d 665, at 669, 669-670 (5th Cir. 1974).
      If the plaintiff does, elect a new trial on the issue of damages, the trial court is directed to reduce the resulting award to Mrs. Landry and her children by 20% due to Landry’s contributory negligence. (We note that the trial court applied the 20% factor in remitting the children’s awards). The jury found that Landry contributed to his own drowning, apparently by continuing to wash the shale shaker after he had been told to render only light duties, and reduced the damage award by 20%. Although contributory negligence is often referred to in these cases as a factor “in mitigation of damages,” e. g., Pope & Talbot v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 98 L.Ed. 143 (1953), it is conceptually a factor in assessing the relative liabilities of the parties. It is a “contributing cause of the [seaman’s] injury, without which the [defendant] would be liable to the full extent of the damage.” Socony-Vacuum Co. v. Smith, 305 U.S. 424, 432, 59 S.Ct. 262, 267, 83 L.Ed. 265 (1939). Because contributory negligence is a factor for determining the comparative liability between the parties, whether under the Jones Act or general maritime law, Pope & Talbot v. Hawn, supra, and because we see no reason to disturb the jury’s finding on liability, II supra, any award in a new trial solely on the issue of damages must be reduced by 20% by the Court.

      . See Gibson v. Elgin, J & E Ry., 246 F.2d 834, 837 (7th Cir.), cert. denied, 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193 (1957) (“Under the recent decisions of the United States Supreme Court in F.E.L.A. cases, speculation, conjecture and possibilities suffice to support a jury verdict.”)

      . 9 Wright & Miller, Federal Practice and Procedure: Civil 554-5, note 80.


author: ROSS, Circuit Judge.

text:
    Daniel F. OTTEN, Appellee, v. The STONEWALL INSURANCE COMPANY, Appellant.
    No. 74-1497.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1974.
    Decided Feb. 18, 1975.

      R. D. Blanchard, Minneapolis, Minn., for appellant.
    Vincent E. Johnson, Minneapolis, Minn., for appellee.
    Before MATTHES, Senior Circuit Judge, ROSS and STEPHENSON, Circuit Judges.
   ROSS, Circuit Judge.

Daniel F. Otten, a resident of Minnesota, brought this diversity action seeking to recover $25,000 from The Stonewall Insurance Company (Stonewall) allegedly due him under a pilots disability insurance policy issued on December 1, 1969. After a trial to a jury a verdict for Otten was returned, upon which judgment was entered. Stonewall’s post-trial motions for judgment n. o. v. or a new trial were denied by the district court, and this appeal followed. We reverse and remand for a new trial because we are convinced that the trial judge committed prejudicial error in his instructions to the jury.

In 1961 Otten, who was a pilot for North Central Airlines, purchased a pilots disability insurance policy from Orion Insurance Company, Ltd., of London, England. This policy provided that if at any time while the policy was in effect Otten sustained accidental bodily injuries or contracted any sickness or disease which permanently prevented him from carrying on his occupation as a pilot, he was to be paid $25,000.

In 1962 Otten was involved in an airplane crash in which he sustained several injuries, the most severe of which were fractures of both his ankles. However, Otten was not permanently disabled and returned to his occupation as a pilot for North Central in 1964. In 1968 Otten was involved in another airplane accident. He was not injured, but he was grounded by North Central pending investigation of the incident. He has not flown as a commercial pilot since that time, although until 1970 he maintained his qualifications to do so. He took check flights and continued to take and pass the required semiannual physical examination until February 27, 1970, when the flight surgeon found him physically unfit to continue as a commercial pilot because of osteoarthritis which had developed in his ankles at the site of his old injuries.

In the meantime, in 1967 Stonewall had taken over the disability coverage previously provided by Orion Insurance Company, Ltd., and had issued a new policy to Otten which contained a continuity of coverage clause which was designed to provide coverage for disability due to injury, sickness or disease which had commenced at any time after the original Orion policy was issued in 1961.

In 1969 Stonewall offered those pilots who already owned a disability policy the opportunity to apply for $25,000 in supplemental coverage. Otten applied for this additional coverage on October 30, 1969, and the supplemental policy was issued to him with an effective date of December 1, 1969.

When Otten was found disabled by the flight surgeon three months later, February 27, 1970, Stonewall paid the $25,-000 due under the original policy since the osteoarthritis had commenced after 1961, the effective date of that policy under its continuity of coverage clause. However, Stonewall refused to pay the $25,000 claimed under the supplemental policy because it contended that the disease which resulted in Otten’s disability had been contracted prior to the effective date of the supplemental policy, December 1, 1969.

At the trial Otten did not initially appear to disagree with Stonewall’s contention that December 1, 1969, was the date after which the osteoarthritis had to occur; and the evidence adduced by both parties went principally to the question of when and how the disabling disease first started. However, the possibility of an ambiguity in the supplemental insurance contract arose when jury instructions were prepared.

Without resolving whether the policy was, in fact, ambiguous or how it should be interpreted if it were so, the trial judge gave the following instruction to the jury:

You are instructed that the language of a policy must be clear and unambiguous, and any reasonable doubt as to its meaning must be resolved in favor of the insured.

The trial court also instructed the jury that the policy provided that:

In consideration of the payment of the premium as provided for in this policy, and in accordance with the authority granted in writing by the insured, it is hereby understood and agreed that the insurance afforded by this policy replaces all such insurance previously provided under Certificate of Insurance affected with Orion Insurance Company, Limited, of London, England. In the event the insured is permanently prevented from carrying on his occupation after the effective date of this policy, and claim is made thereunder hereunder — no denial of coverage shall be made by the company for loss arising from a condition or disability having its origin at any time while the Certificate of Insurance of the Orion Insurance Company, Limited, was in full force and effect. (Emphasis supplied.)

Nowhere in the instructions did the court point out what was ambiguous about the supplemental policy or any of the other familiar rules of construction. Otten’s counsel argued the substance of these instructions to the jury at some length.

On appeal a party may not assign as error the giving of an instruction unless he objected thereto before the trial court. Alabama Great Southern R. R. v. Chicago & Northwestern Ry., 493 F.2d 979, 984 (8th Cir. 1974); Fed.R.Civ.P. 51. A search of the record in the instant case does not reveal a specific objection to the instruction first stated above. However, Stonewall did specifically object to the giving of the instruction which included language from the continuity of coverage provision of the 1967 policy hereinbefore quoted because it “just has no application to the supplemental policy” which was the subject of this litigation. Stonewall further told the trial court that this continuity clause of the 1967 policy “should not be used as a basis for creating an ambiguity in the [1969] policy where none exists.”

Of Rule 51 Professor Moore has said: The Rule does not require formality, and it is not important in what form an objection is made or even that a formal objection is made at all, as long as it is clear that the trial judge understood the party’s position; the purpose of the Rule is to inform the trial judge of possible errors so that he may have an opportunity to correct them. (Footnote omitted.)

5A J. Moore, Moore’s Federal Practice H¶ 51.04, at 2521 (2d ed.).

We are satisfied that the purpose of the Rule was fulfilled in this case. The trial judge was given sufficient notice of Stonewall’s position to the effect that there was no ambiguity in the supplemental policy which would necessitate reference to the provisions of the 1967 policy or permit any instruction on ambiguity whatsoever.

It is our view that the giving of these instructions in the context of this case was erroneous for three reasons. First, it is well established in Minnesota, the law of which state is applicable in this action, that the initial determination of whether or not a contract contains an ambiguity is for the court to make as a matter of law. Transport Indemnity Co. v. Dahlen Transport, Inc., 281 Minn. 253, 161 N.W.2d 546, 550 (1968); Telex Corp. v. Data Products Corp., 271 Minn. 288, 135 N.W.2d 681, 684 (1965); 1 Couch on Insurance 2d § 15:3, at 639 (1959). Yet the trial judge here did not actually make this determination. Rather, he simply gave the instructions which, in effect, gave the jury an open invitation to read an ambiguity into the policy, whether or not one was there.

Secondly, even if there were an ambiguity in the contract of insurance, it is for the court to construe the contract unless its interpretation is dependent upon the resolution of controverted extrinsic evidence. Transport Indemnity Co. v. Dahlen Transport, Inc., supra, 161 N.W.2d at 550; Honeymead Products Co. v. Aetna Casualty & Surety Co., 275 Minn. 182, 146 N.W.2d 522, 529 (1966); 4 S. Williston, Law of Contracts § 616, at 663 (3d ed. 1961); 1 Couch on Insurance 2d § 15:3, at 638 — 639 (1959). There was no such extrinsic evidence in the instant case, so that the instructions were erroneous in allowing the jury rather than the judge to construe the alleged ambiguity.

Finally, the entire question of ambiguity should not have been injected into these proceedings because a fair reading of the 1969 policy demonstrates that it is unambiguous as to the date after which any disabling injury, sickness or disease had to commence. The application for the additional insurance, which was made a part of the policy, contains the following statement directly above Otten’s signature:

I understand and agree that the policy, when and if issued to me, will not cover any disability which may result from any sickness, disease or injury which I may have contracted or suffered before the effective date of the policy.

Additionally, the supplemental policy, which was made a part of the basic 1967 policy and which was effective December 1, 1969, contained its own incontestability clause. This clause provided that no claim for loss or disability commencing after two years from the effective date of the policy would be reduced or denied because of a disease or physical condition which existed prior to the effective date and which had not been specifically excluded from coverage. The incontestability clause then went on to state:

The incontestable provision contained herein shall apply only with respect to the application made to secure the additional insurance granted hereunder and the benefits of the Premium Schedule specified above.

The fact that the supplemental policy was called an “endorsement” and was “made a part of” the basic 1967 policy with its continuity of coverage clause does not detract from these unambiguous expressions of intent that the supplemental coverage would apply only to disability caused by injury, sickness or disease contracted or suffered after December 1, 1969. The statement on the application makes this explicitly clear, while the incontestability provision demonstrates that the continuity clause of the 1967 policy was not to be controlling. If it were, then there would be no need for an incontestability clause in the supplemental policy.

To conclude that there is an ambiguity in this supplemental coverage policy would conflict with the well settled rule that a court has no right to read an ambiguity into the plain language of a policy in order to provide coverage. Farkas v. Hartford Accident & Indemnity Co., 285 Minn. 324, 173 N.W.2d 21, 24 (1969); Bobich v. Oja, 258 Minn. 287, 104 N.W.2d 19, 24 (1960). And, in the absence of any ambiguity, the language used must be given its usual and accepted meaning, so as to give effect to the intention of the parties as it appears from the entire contract. Bobich v. Oja, supra, 104 N.W.2d at 24. That intention, as expressed in the language quoted above from the supplemental coverage contract, was clearly that the additional $25,000 would be paid only if the disability was caused by injury, sickness or disease contracted or suffered after the effective date of December 1, 1969.

For the foregoing reasons we conclude that the instructions given regarding ambiguity and the continuity provision of the 1967 policy were erroneous. Because the jury may have relied upon these erroneous instructions in reaching its verdict, we reverse the judgment of the district court and remand the cause for a new trial.

      . The Honorable James H. Meredith, Chief Judge, United States District Court for the Eastern District of Missouri, sitting by designation in the District of Minnesota.

      . Apparently Judge Meredith felt that there was a possible conflict in the provisions of the supplemental policy based on the fact that the first clause of that policy said: “This endorsement is hereby attached to and made a part of [the basic 1967 policy issued to Otten].” This could be read as incorporating the continuity clause of the 1967 policy into the supplemental policy and providing supplemental coverage for disability caused by injury, sickness or disease commencing anytime after 1961. However, as discussed infra, to read the policy in this manner would be to create an ambiguity where the clear intent of the parties derived from other language in the policy shows that one did not exist.

      . Appellant Stonewall asks that, instead of remanding for a new trial, this Court grant judgment n. o. v., as it is empowered to do under Fed.R.Civ.P. 50(d). Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 324, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967). However, we decline this invitation in the instant case. While the evidence adduced at the trial indicates very strongly that the disabling osteoarthritis had its onset prior to December 1, 1969, we are not prepared to rule as a matter of law that a jury could not reasonably conclude otherwise. In this situation it is proper to remand for a new trial. See Ziman v. Employers Fire Insurance Co., 493 F.2d 196, 200 (2d Cir. 1974); Carpenters Local 978 v. Markwell, 305 F.2d 38, 48 (8th Cir. 1962).


author: SCHATZ, District Judge.

text:
    UNITED STATES of America, Appellee, v. James Craig MARTIN, Appellant.
    Nos. 74-1674, 74-1675.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1974.
    Decided Feb. 18, 1975.

      John P. Mazzitelli, Minneapolis, Minn., for appellant.
    Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before ROSS and STEPHENSON, Circuit Judges, and SCHATZ, District Judge.

       The Honorable Albert G. Schatz, United States District Judge for the District of Nebraska, sitting by designation.

   SCHATZ, District Judge.

James Craig Martin was found guilty by a jury in the United States District Court for the District of Minnesota on three counts from two separate indictments consolidated for trial. Count I alleged a conspiracy between Martin, Garth McRae, Peter Winther, and other named persons not made defendants to distribute controlled substances (tetrahydro-cannabinols and phencyclidine), in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count II alleged that on or about January 18, 1973, the defendant Martin intentionally distributed approximately thirty thousand tablets of phencyclidine, in violation of 21 U.S.C.- § 841(a)(1). Count III alleged that on or about January 21, 1973, the defendant Martin intentionally distributed approximately twenty thousand tablets of phencyclidine, in violation of 21 U.S.C. § 841(a)(1). -

On appeal, the defendant Martin alleges the following errors:

1) That certain incriminating extra-judicial statements were admitted at the trial even though these statements were given by the defendant without the benefit of warnings concerning his right to counsel and privilege against self-incrimination as required by Miranda v. Arizona, 384 U.S. 436, 84 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2) That the same statements were admitted at the defendant’s trial even though they were the product of a search of the defendant’s house conducted pursuant to an invalid search warrant.

3) That a prejudicial comment was made by the trial judge in his instructions to the jury concerning the defendant’s failure to testify or produce evidence in his behalf.

The evidence introduced at the defendant’s trial indicated that Garth McRae was the source and central figure in a large-scale phencyclidine distribution operation in Minneapolis, Minnesota, from early 1972 through mid-1973. McRae arranged for phencyclidine tablets to be brought into Minneapolis from Detroit, Michigan, which tablets he then sold to certain first-level dealers, among whom was the defendant Martin. These dealers in turn sold the tablets in smaller quantities to other persons, who either consumed them or sold them once again.

Listed in Count I as unindicted co-conspirators were Peter Hudson, Thomas Sinnott, Jerry Flategraff, and Mark Savage. On January 18, 1973, McRae sent Sinnott to Detroit to pick up phencyclidine. Sinnott returned with forty-five to sixty thousand phencyclidine tablets, of which McRae delivered approximately thirty thousand to the defendant Martin. On the same day, January 18, 1973, defendant delivered these tablets to Savage on credit. On January 19, 1973, Savage sold different quantities of pills to various persons, including a federal agent, and remitted a portion of the proceeds to the defendant in payment for the pills advanced to him. On January 21, 1973, Hudson bought approximately fifteen thousand phencyclidine tablets from the defendant at the defendant’s house, for which he paid defendant in cash. Hudson, Savage, and Flategraff then arranged a sale of these and other pills to an undercover federal agent. This attempted sale resulted in the arrest of Hudson, Savage, and Flategraff on January 21, 1973. On the following day, January 22, 1973, federal agents obtained a search warrant for the home of the defendant, but upon execution of the warrant they found no drugs.

I.

The first error asserted by the defendant concerns statements made by him to the federal agents who searched his house on January 22, 1973. Pursuant to the search warrant, several of these agents, some with guns drawn, entered the defendant’s house. The agents found the defendant and two ladies present and ordered them to remain in the living room. The agents then searched the house and found nothing. No arrests were made or attempted. After the agents completed the search and were about to leave, the agent in charge told the defendant that apparently they were a day or so late in making their search. The defendant replied in agreement. This agent then said that the next time the defendant received any drugs, the agents would arrive a little quicker. The defendant then stated that there would not be a second time. Prior to trial the defendant moved to suppress these statements on the ground that they were given without the benefit of the Miranda warnings. The trial judge overruled the motion and the statements were introduced at trial, which introduction the defendant now asserts was error. We conclude that the statements were clearly admissible.

The warnings specified in Miranda v. Arizona, supra, are required prior to custodial interrogation, a phrase defined by the Supreme Court in that case to be:

[Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in' any significant way.

384 U.S. at 444, 86 S.Ct. at 1612.

Although the United States argues that the defendant was not in custody at the time the statements were given, it is unnecessary for us to decide this point. Assuming there was custody, it is clear that there was no interrogation. The initial statement in this short conversation was, of course, made by the federal agent in charge, but it was not in any sense a question and it called for no response. The same is true of the second remark by the agent which followed the volunteered statement by the defendant. As stated by the Court of Appeals for the Fifth Circuit:

Voluntary statements of any kind, not in response to custodial interrogation, are not barred by the Fifth Amendment, nor has their admissibility been affected, by the Miranda decision or its progeny.
In several cases voluntary self-incriminating statements made by persons under arrest have been ruled admissible, notwithstanding the fact that Miranda warnings had not been given at the time the statements were made. See United States v. Welsh, 5 Cir., 1969, 417 F.2d 361; United States v. Bourassa, 10 Cir., 1969, 411 F.2d 69, cert. denied 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); United States v. Godfrey, 10 Cir., 1969, 409 F.2d 1338; Anderson v. United States, 10 Cir., 1968, 399 F.2d 753.

United States v. Sanchez, 449 F.2d 204, 209 (5th Cir. 1971). See also United States v. Hopkins, 486 F.2d 360 (9th Cir. 1973).

II.

The defendant also argues that these statements were the fruit of an illegal search in that the search warrant authorizing the agents to be in the defendant’s house, and thus in a position to hear the statements, was based upon an insufficient showing of probable cause. The search warrant was issued on the basis of an affidavit signed by a government agent in which the agent related information given to him by a named informant, Jerry Flategraff. Specifically, the defendant argues that the information related by Flategraff to the affiant was too old to constitute probable cause to believe that drugs were in the defendant’s house on the date the warrant was issued.

The affidavit stated that the agent had made the following purchases of phencyclidine from Flategraff: 100 tablets on December 5, 1972; 2,000 tablets also on December 5, 1972; and 10,-000 tablets on January 19, 1973. The agent also stated that Flategraff was arrested on January 21, 1973, with a large quantity of phencyclidine ready for sale to the agent; that on January 22, 1973, Flategraff stated to the agent that the tablets the agent had bought came from a person whose physical description and address matched those of the defendant; that papers seized from other persons arrested in the same investigation indicated that the defendant was also their source of drugs; that during one of the agent’s conversations with Flategraff (for which no date was given), Flategraff stated that he had seen approximately sixty thousand phencyclidine tablets at the defendant’s house. In his motion to suppress, and here on appeal, the defendant argues that since the affidavit contained no recent date for the observation of the drugs by Flategraff at the defendant’s house, the information furnished the magistrate was too stale to constitute probable cause. We do not agree.

Concerning the time element involved in the affidavit supporting a search warrant, the Court of Appeals for the Tenth Circuit has stated most appropriately:

Initially, it should be noted that the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuance of the affidavit. Together with the element of time we must consider the nature of the unlawful activity. Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.

United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). The information related by Flategraff showed a course of conduct covering six to seven weeks. Although Flategraff did not give the date for his observation of the sixty thousand tablets, the increasing size of the sales by Flategraff to the agent and the fact that the largest two sales had been made three days and one day prior to the affidavit did indeed give the magistrate probable cause to believe there were drugs at the house of Flategraff’s source.

III.

The defendant also argues that the underscored portion of the following instruction given by the trial judge constituted an improper comment on the defendant’s failure to take the stand or offer evidence in his behalf:

The defendant did not take the witness stand and testify in his own behalf in this case. In doing so, he was acting perfectly within his Constitutional rights. The Constitution of the United States gives him the right to remain silent in the trial of a case and to say to the Government, in effect, “Prove me guilty if you can.” The Government has to prove him guilty beyond a reasonable doubt before he can be convicted, and in reaching the decision as to whether the Government has so proved him guilty, you cannot consider the fact that he has failed to take the witness stand and testify. That is a matter that cannot be used against him in any way in this case.

(Emphasis supplied.)

Following the charge, and out of the presence of the jury, counsel for the defendant made the following objection:

The defendant moves and the record should reflect that he objects to the form of the instructions in that the defendant had requested the instructions in the “Jury Instructions Guide,” Devitt and Blackmar, 11.01, 11.02, 11.03, 11.10, 12.02, 12.04, 12.05, 12.06, 12.10, 12.16, 12.17.Q

Clearly, this broad objection did not preserve for appeal any issue concerning the instructions since it failed to comport with the language of Rule 30, Fed.R.Crim.P., which states in part:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

(Emphasis supplied.) See United States v. Sargis, 460 F.2d 1329 (8th Cir. 1972). As stated in Sargis, under Rule 30 error may not be assigned to any portion of the trial court’s instructions unless the complaining party states distinctly the matter to which he objects and the grounds of the objection. The purpose and reason for this rule is to give the trial court fair opportunity to correct any mistakes in its proposed jury instructions. Objections which do not effectuate this end are precluded from appellate review. Further, while it is our opinion that the offending phrase of the instruction, supra, is not necessary and serves no purpose either by way of explanation or as an example, the instruction taken as a whole does not constitute plain error under Rule 52(b) and was not prejudicial. '

Accordingly, we affirm.

      . The testimony given by an agent who overheard the conversation is as follows:
      Group Superviser Walsh said to Mr. Martin, ‘It looks like we were a day late’ and Mr. Martin stated that we definitely were. Mr. Walsh stated that if Mr. Martin receives any other drugs in the future, that we will be talking to him and Mr. Martin stated, ‘There won’t be a second time.’


author: BELL, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOHNSON MANUFACTURING COMPANY OF LUBBOCK, Respondent.
    No. 24511.
    United States Court of Appeals, Fifth Circuit.
    April 14, 1975.
    Rehearing and Rehearing En Banc Denied June 3, 1975.
    Elliott Moore, Deputy Assoc. Gen. Counsel, N. L. R. B., Elinor H. Stillman, ■ Paul Elkind, Chief, Contempt Litigation, Office of the Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.
    Wesley K. Martin, El Paso, Tex., for respondent.
    James R. Edwards, Lubbock, Tex., amicus curiae.
    Before BELL, AINSWORTH and RONEY, Circuit Judges.
   BELL, Circuit Judge:

On April 5, 1967 this court enforced an order of the National Labor Relations Board directing respondent to cease and desist from refusing to bargain in good faith with Local 826, International Union of Operating Engineers, AFL-CIO, from threatening its employees with loss of jobs, and from otherwise interfering with the attempts of the union at collective bargaining. NLRB v. Johnson Manufacturing Company of Lubbock, No. 24,511, April 5, 1967 (unpublished).

On April 6, 1972, this court entered its order adjudging respondent in civil contempt for failing to comply with the April 5, 1967 order. NLRB v. Johnson Manufacturing Company of Lubbock, 5 Cir., 1972, 458 F.2d 453. The thrust of the civil contempt adjudication was failure of respondent to bargain in good faith. We found that (1) respondent failed to negotiate with the union concerning employer evaluation standards for determining merit pay increases; (2) respondent insisted on unilateral control of all aspects of wage and working conditions; and (3) engaged in a process of surface bargaining condemned in the April 5, 1967 order.

Respondent was required to purge itself of civil contempt in the following terms:

“Further ordered that respondent, Johnson Manufacturing Company of Lubbock, as the Company and acting through its officers, agents, successors and assigns, shall forthwith purge itself of such contempt by:
1. Ceasing and desisting from:
(a) refusing to bargain in good faith with Local 826, International Union of Operating Engineers, AFL-CIO, hereinafter the Union, as the exclusive representative of all respondent’s employees as set forth in the appropriate bargaining unit.
(b) violating in any other manner this Court’s Order of April 5, 1967.
2. Taking the following affirmative action in purgation:
(1) Upon request, bargain collectively with the Union named herein, as the exclusive representative of the bargaining unit.
(b) Specifically, in the course of such bargaining negotiations, if requested,
(1) eliminate its continued and rigid insistence upon unilateral, complete, and final control over all aspects of wage and working conditions, found by the Board to be unreasonable, and
(2) eliminate its continued and rigid insistence upon Union relinquishment of statutory rights of effective participation in grievance negotiation and the settlement of labor disputes, and of effective representation in consideration of changes in working conditions by the Company during the course of Agreement.
tf; sfc * * * *
Further ordered that the Company begin immediately, in connection with its merit wage adjustment plan, the specific evaluation of all employees making available to the Union these evaluations in substance and result, and promptly enter into good faith negotiations with the Union for a restructuring of the standards of employee evaluation used under the merit wage adjustment plan to the end that the union may be effective as the bargaining agent in the area of merit increases.”

On October 5, 1972, the board was again before this court alleging that respondent had failed to comply with the April 6, 1972 order. The company’s president, Robert C. Johnson, Jr., and its personnel manager, R. G. Box, were named individually in the complaint. The board prayed for a writ of body attachment as to them until respondent complied with the order, together with the imposition of fines.

After requiring responses the matter was referred to a special master for the purpose of receiving evidence on issues presented and to report to the court. The matter is now before the court on the report of the master.

We have carefully considered the comprehensive report including the findings of fact and conclusions of law contained therein as well as the record made before the master. We find ample support in the record for the findings of fact and no error in the conclusions of law. In sum, we conclude that respondent and its president are in flagrant contempt of the April 6, 1972 order of this court.

Respondent was directed by our orders in 1967 and 1972 to cease and desist from refusing to bargain in good faith. The master found that respondent and its president had nevertheless engaged in mere surface bargaining. The record makes this clear beyond peradventure

They were required to eliminate management’s insistence upon unilateral control of all aspects of wage and working conditions which in turn meant union relinquishment of the statutory right to participate in grievance negotiations and the settlement of labor disputes with respect to changes in working conditions. The master’s report makes plain this direction has been ignored in material part.

In addition, respondent failed to comply with the April 6, 1972 order as that order was concerned with the administration of the company’s merit wage adjustment plan. Respondent was required by the order to (1) make a specific evaluation of its employees; (2) make available to the union the evaluations in substance and result; and (3) promptly enter into good faith negotiations with the union for a restructuring of the standards of employee evaluations used under the merit wage adjustment plan. Instead, respondent through its counsel and Box, the personnel officer, backed and filled in a farcical manner with the end result of substantial evasion of the order.

Some of respondent’s employees engaged in a strike beginning August 10, 1972 because of the failure of respondent to bargain in good faith. This strike was clearly an unfair labor practice strike. However, on September 18, 1972, respondent granted wage increases restricted to nonstriking employees, under the guise of not being able to evaluate those employees on strike.

One employee, Viyer Salinas, was relegated to assembly line work from his easier test stand job after being elected a union committeeman and attending bargaining sessions. The master found Salinas’ treatment to be punitive and retaliatory for Salinas’ union activities. This finding is supported by substantial evidence.

The employees in question have been without the union representation which the law accords them since April 5, 1967. This has been made possible by a recalcitrant employer taking advantage of the delays which inhere in the processes of law and particularly in labor law. It may be said however, that although the law does move slowly, a day of judgment will eventually come. We affirm the master’s recommendation that respondent and its president be adjudicated in civil contempt of this court. We thus turn to the remedy to be invoked in concluding this matter.

The master recommended a contempt adjudication and purgatory order in precise terms. At oral argument we directed the board to submit a proposed order. It varies in some degree from the recommendation of the master. We permitted and have received the response of new counsel, employed subsequent to oral argument by respondent. We have also considered the remedies applied by this court in other civil contempt adjudications in labor cases. See NLRB v. Schill Steel Products, Inc., 5 Cir., 1973, 480 F.2d 586; NLRB v. Crown Laundry & Dry Cleaners, Inc., 5 Cir., 1971, 437 F.2d 290. Skyline Homes, Inc. v. NLRB, 5 Cir., 1967, 381 F.2d 706. The make whole remedy for the union, employed in paragraph 15 of the Order, infra, is an extension of the remedy required in Schill, supra, within the context of the second civil contempt adjudication of the respondent. On the make whole remedy in a mere failure to bargain setting, cf. United Steelworkers of America, AFL-CIO v. NLRB, 5 Cir., 1974, 496 F.2d 1342, 1349-1353; Food Store Emp. U., No. 347 Amal. Meat Cut. v. NLRB, 1973, 155 U.S.App.D.C. 101, 476 F.2d 546, 550-554.

We have formulated an order based on the proposals of the master and board and in light of the objections of respondent. It is couched in terms to bring the contumacious conduct of respondent and its president to an end but with harsh penalties being delayed for a period deemed reasonable for the purposes of reflection and the time which will be involved in recantation.

ORDER

The Court having on April 14, 1975 filed its opinion finding that Johnson Manufacturing Company of Lubbock and its president Robert C. Johnson, Jr., violated the judgment against the Company of April 5, 1967 and the civil contempt adjudication against the Company of April 6, 1972, it is

Ordered and adjudged that Johnson Manufacturing Company of Lubbock and its president Robert C. Johnson, Jr., are in civil contempt of said judgment and adjudication and, it is further ordered that the Company and Robert C. Johnson, Jr., shall purge themselves of such contempt by:

1. Complying in full with the said judgment of April 5, 1967 and adjudication of April 6, 1972 and not in any way by action or inaction commit, engage in, induce, encourage, permit or condone any violation of said judgment or adjudication. This includes:

(a) the obligation to make a specific evaluation of all employees in connection with the Company’s merit wage adjustment plan;

(b) the obligation to make available to Local 826, International Union of Operating Engineers, AFL-CIO (hereafter “the Union”), in substance and result, the evaluations of all employees made in

connection with its merit wage adjustment plan;

(c) the obligation to enter into good faith negotiations with the Union for a restructuring of the standards of employee evaluation used under the merit wage adjustment plan, to the end that the Union may be effective as the bargaining agent in the area of merit increases;

(d) ceasing and desisting from insisting on unilateral and final control over employee wage and working conditions, and other matters which are bargainable subjects;

(e) ceasing and desisting from making unilateral changes in employee wages, hours, and working conditions, and failing to bargain in good faith with the Union with respect thereto;

(f) ceasing and desisting from discriminating in regard to hire or tenure of employment, or any term of employment, of any employee because of his or her presence on the Union’s bargaining committee or because of any other Union activity;

(g) ceasing and desisting from retaliation or reprisals of any kind or nature against any employee because of activity in connection with the Union.

2. Notifying the Union in writing within 20 days after the entry of this order that it recognizes the Union as the exclusive representative of its employees in the designated unit and thereupon proceeding with the officials of the Union to set an initial date within 30 days from the entry of this order upon which bargaining sessions will recommence and thereafter proceeding to bargain in reasonably consecutive sessions until full agreement or bona fide impasse is reached and if any understanding is reached, incorporating such understanding in a written agreement. The existence of a bona fide impasse must be decided by this Court and the failure to find such an impasse will be considered failure to bargain in good faith, resulting in the sanction of paragraph 16 below. In no event shall the Company refuse to meet with the Union at any reasonable time or withdraw recognition from the Union as such collective bargaining representative until further order of this Court.

Said bargaining sessions shall be attended by George A. Patterson, Jr., Vice President, Eagle-Picher Industries, Inc., or his successor in office, and any other representative Or representatives which the Company may designate.

It having been represented to the court that John Edward Price, Esq., former counsel for respondent has retired from the active practice of law, he shall not be designated or appointed by the Company to act for it in any bargaining-representative capacity in its negotiations with the Union unless permitted by order of this court.

If the Union requests the attendance of a representative of the Federal Mediation and Conciliation Service at any one of the bargaining sessions, the Company shall acquiesce therein and shall not fail or refuse to attend any meeting because of the presence of such representative thereat.

3. Directing any individual or agent authorized by the Company to negotiate on its behalf to read this order and to signify in writing that he has read and understands it.

4. Forthwith making Viyer Salinas whole for loss of wages, if any, benefits or privileges as a result of the Company’s reprisal against him, such amount, unless agreed upon by the parties, to be computed by the Board in a backpay proceeding, subject to further review by the Court.

5. Granting retroactively to all employees who went on strike August 10, 1972, or thereafter, other than those employees at the top of their grades, or probationary employees, such per-hourly wage increase as will be in conformity with the hourly wage increases previously granted to non-striking employees, and make each of such employees whole for any loss of wages suffered as a result of not being granted the per-hourly wage increases which were granted to non-striking employees. Such amounts, unless agreed upon by the parties, shall be computed by the Board in a back-pay proceeding, subject to further review by the Court.

6. Preserving and upon request making available to the Board or its agents at such reasonable place or places as the Board’s Regional Director may specify for examination, copying and reproducing all the payroll, personnel, production and other records necessary or useful to determine the backpay due to Salinas and the strikers or to verify compliance with any provision of this order.

7. Furnishing the Union with the data and information required by this Court’s order of April 6, 1972, and with all other data and information necessary for the Union to be effective as the bargaining agent for the employees of respondent Johnson Manufacturing Company of Lubbock with respect to all aspects of wage and working conditions which are properly bargainable subjects, including the information as to employees described in paragraph 10 below. When request by the Union for such data is in writing, it shall be answered by the Company in like form; and the Company shall forthwith advise the Union whether it will furnish the data and when, or shall specify the reason or reasons it relies on for refusing or delaying the information beyond two weeks from the date of the request.

8. Upon request of the Union made within six months from the date hereof, immediately granting to the Union and its representatives reasonable access to its bulletin boards and all places where notices to employees are customarily posted for a period of one year from the date of said request.

9. Upon request of the Union, affording it reasonable access to all non-work areas to communicate with employees in such area during non-work time. This is not intended to affect access to the plant to which the Union may be entitled by law during working time.

10. Upon request of the Union, immediately furnishing it with a list by name, address, job description, wage rate and date of hire of all the Company’s employees since April 6, 1972 and maintaining the list in current status so long as the Union remains the exclusive bargaining representative for the employees in the designated unit.

11. Posting in conspicuous places in its plant, including all places where notices to employees are customarily posted, for a period of 60 consecutive days, a copy of this adjudication, and, alongside, a Notice in the form provided by the Board, which shall state that the respondents have been adjudicated in contempt of the Court’s orders and that they will undertake to comply with all of the purgation ordered by the Court. Said Notice shall be signed by president Johnson or his successor in office and on behalf of the Company by another officer thereof, and said copies of the adjudication and Notice shall be maintained in clearly legible condition throughout such posting period and respondents shall assure that they are not altered, defaced, or covered by any other material.

12. Filing sworn reports signed by both the Company and Union representatives with the Clerk of this Court with copies thereof to the Regional Director of the Board’s 16th Region every 15 days after the initial bargaining session showing in detail the nature and course of the bargaining in summary form and appending thereto any written communications between the Union and the Company with respect to such bargaining. If either party has exceptions to the joint summary, separate additional reports setting forth differences may be filed. If upon investigation and analysis of such transcriptions the Board shall be of the opinion that the Company is not bargaining in good faith, it shall submit a report and supporting brief to the Court and propose appropriate sanctions.

13. Mailing to the home of each employee in the bargaining unit a copy of this order and of the aforesaid Notice and providing the Board’s Regional Director of the 16th Region with proof of such mailing.

14. Reimbursing the Board for its costs and expenses, including counsel fees and salaries incurred in the preparation and presentation of these proceedings before the Special Master and this Court. Said amounts, unless agreed to by the parties, shall be fixed by further order of the Court upon submission by the Board of a verified statement of such costs and expenses. The Company is also directed to pay all Court costs, including all costs relative to the Special Master.

15. Reimbursing the Union for its expenses incurred by reason of the failure of the Company to comply with the adjudication of April 6, 1972, to wit: for salaries and expenses incurred by the union and bargaining committee members in attending bargaining sessions with the Company in connection with a collective bargaining agreement or merit wage increases since April 6, 1972, payments by the union to employees of Johnson Manufacturing Company who walked the picket line, and attorneys’ fees and expenses. Said amounts, unless agreed upon by the parties, shall be computed by the Board as in a back-pay proceeding, subject to further review by the Court.

16. In order to assure compliance with the provisions of this order it is further ordered as follows:

(a) A fine of $50,000 is hereby imposed on the Company, provided, however, that if the Company presents to the Court within 60 days from the date hereof, satisfactory evidence of compliance with the terms of this order and thus purges itself of its contempt within said time, said fine shall be remitted.

(b) The Court reserves jurisdiction to take other appropriate action against respondent employer, president Johnson and any officer or agent of the Company responsible for non-compliance with any of the provisions of this order.

It is so ordered.

      . We are advised by the board that personnel director Box is no longer employed by respondent. We find it unnecessary for adjudication or remedial purposes to discuss his role in the contempt activity. The extent of his activity as an agent and employee of respondent in the contumacious conduct is discussed in detail in the master’s report.

      . Reference is made to the report of the master for the specifics of this proscribed conduct. No useful purpose would be served by repeating it here where our focus must be on remedy.

      . Oral argument was complicated to some extent by the fact that respondent’s counsel was its chief negotiator and principal contact with the union, thus making it difficult for him to appear as an advocate when in reality he was a witness and appeared as a witness before the master.

      . The type of expenses to be reimbursed are set out in the master’s report as follows:
      “ . . . monetary expenses for mileage driven to and from Big Spring, Texas, and Lubbock, Texas, by its Business Manager and Business Agents; the actual time spent by the Union’s Business Manager and Business Agents on negotiations and circumstances surrounding the Respondents’ con-
      duct regarding this litigation; telephone expenses; meals and lodging for the Union’s Business Manager and Business Agents; payment of money by the Union to the pickets that were walking the picket line during the year strike and attorneys fees.”
      We do not, of course, validate the amounts involved.