author: LEVENTHAL, Circuit Judge:

text:
    EASTERN FOUNDATION COMPANY, INC. v. Jack Norman CRESWELL et al., Appellants.
    No. 71-1941.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 15, 1972.
    Decided Jan. 29, 1973.

      Richard W. Galiher, Jr., Washington, D. C., with whom William H. Clarke, Frank J. Martell, William J. Donnelly, Jr., and Richard W. Galiher, Washington, D. C., were on the brief, for appellant.
    Branko Stupar, Washington, D. C., for appellee.
    Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and HARRISON L. WINTER, Circuit Judge for the Fourth Circuit.

       Sitting by designation pursuant to Title 28, U.S.C. § 291(a).

   LEVENTHAL, Circuit Judge:

In this case, in which Eastern Foundation Co. (Appellee) brought an action under the terms of an excess liability policy that it purchased from Appellants, underwriting members of Lloyd’s of London, the issue is the binding effect, by way of collateral estoppel, of a prior litigation in which Eastern was a party but Appellants were not.

The coverage terms of the primary insurer, Hartford Accident and Indemnity, written in the amount of $25,000, were incorporated by reference into Appellants’ excess liability policy, which extended basic coverage to $1,000,000.

The insurance was obtained by Eastern in connection with its work as a subcontractor to provide the sheeting and shoring for a building being constructed by George A. Fuller Company as general contractor. Eastern completed installation of the sheeting and shoring on May 14, 1964, and left the job site. On May 21, 1964, the eastern wall of the excavation caved in. Eastern repaired the damaged portion at a cost of $26,407.75 and sued Fuller, in Civil Action 295-65, to recover that amount as damages (quantum meruit), alleging that Fuller’s negligence caused the collapse. Fuller claimed against Eastern —by setoff (from money withheld, though due under the sheeting and shoring contract) and by counterclaim — for expenses to Fuller, occasioned by the collapse, in re-excavating and repairing damage to work done by others. Fuller claimed that Eastern was negligent and, in the alternative, that Eastern was contractually liable to replace the shoring regardless of negligence. There were other parties to the action, each alleging various causes for the collapse. Although it resisted being impleaded as third party defendant, Hartford actively defended Eastern during the litigation.

In Civil Action 295-65 District Judge Hart made findings of fact that included the following: The collapse of the sheeting and shoring was proximately caused by a leak or rupture of sewer or water mains, causing hydrostatic pressure to build up that exceeded the design load of the sheeting and shoring. It has not been proved by a preponderance of evidence (a) that Eastern was negligent or deviated from specifications, (b) that Fuller was responsible, either by its pumping or its removal of the berm on the side of the excavation, for the breaking of the pipes or the collapse of the shoring; or (c) that any of the other parties (doing blasting; or digging; or running heavy machinery, etc.) was responsible, as had been claimed. Although Eastern had left the site, its work had not been accepted by the Contractor. Under Eastern’s contract with Fuller, Eastern was “obligated to repair and replace all loss and damage of any kind which might happen to the Work at any time prior to final completion and acceptance thereof from any cause whatsoever.” “Eastern also assumed the risk to indemnify Fuller for all damages and expense, which Fuller was obligated to pay, arising out of or in consequence of the collapse of the sheeting and shoring from whatever cause.” Prior to commencement of work, Eastern furnished certificates from Hartford and Lloyd’s of London “that it had obtained insurance against contractual liability as required by its subcontract with Fuller.” The District Court dismissed Eastern’s complaint, and entered judgment on Fuller’s counterclaim.

Hartford, the primary insurer, paid Eastern its policy limit of $25,000, Appellants refused to pay, and Eastern brought this action for $26,407.75, due it for expenses incurred by it under its contract with Fuller in resheeting and reshoring the area that collapsed. The District Court granted Eastern a summary judgment in that amount, agreeing with Eastern that the responsibility for the occurrence was litigated in the earlier action. Appellants say that the earlier litigation, between Eastern and Fuller, did not determine Appellants’ liability under the policy, which, it is contended, is not the same for Eastern’s expense in doing its own work again as for its liability to provide reimbursement for the cost of work done by others (Fuller et al.). We find Appellants’ approach sound in part, and requires a trial.

1. Under “Coverage Z” of the Hartford policy, the insurers agreed to indemnify Eastern for:

all sums which [Eastern], by reason of the liability assumed [by Eastern in its contract with Fuller] shall become legally obligated to pay as damages because of injury to or destruction of property . . . caused by accident.

Obviously, Appellants must respect the force of the first judgment insofar as it determined that Eastern was contractually obligated to pay Fuller for the replacement shoring. Appellants say that their undertaking to indemnify Eastern on an obligation to pay “damages” does not apply because Eastern itself did the replacement. We do not agree. The essential risk was that which Eastern had assumed, by contract, embracing “injury to or destruction of property caused by accident.” It should make no difference whether Eastern fulfilled its obligation by replacing the shoring itself or whether Eastern, defaulting on the contract, was adjudged liable in damages to compensate Fuller for having the shoring replaced by another.

2. We are concerned with the summary determination of amount, that Appellants were obligated to pay Eastern the sum of $26,497.75. This issue was stipulated, not litigated at the first trial, and Eastern had the incentive to maximize its claim of cost. The amount was not necessary to decision, since the ruling was that Eastern could not recover, from Fuller, whatever the cost of its re-shoring. There would have been a basis for partial summary judgment against Appellants for costs incurred by Eastern in reimbursing Fuller, but that is not enough to sustain the judgment rendered.

3. More important is the bearing of the prior litigation on Appellants’ defense based on Exclusion (i) in the policy, which excludes from the contractual liability coverage of the policy all damages resulting from:

. injury to or destruction of any . . . work completed by [Eastern] out of which the accident arises.

In our view, the policy, with this clause, operates as follows: (a) The point of departure, subject to the definition of the exclusion clause, is the general obligation of the insurer to indemnify the insured for all damage to property that it was required by its contract to bear, and this applies whether the cause of the damage is an accident, unknown, or the insured’s negligence. When the insured subcontractor transmitted that insurance policy to the general contractor, lie knew he was fully protected. (b) When the damage is to property other than the work product of the insured, that liability remains unqualified. (c) When the damage is to the work product of the insured — and the insured bears either the cost of repair and replacement or the obligation to pay damages in that amount — then there is insurance coverage except as to any expense or obligation to repair or replace work product of the insured that has been defectively constructed. Our reading of the policy is supported by the decisions in the margin and their underlying analysis.

It is in the light of these principles that we must consider the claim of collateral estoppel. Judge Hart did make a finding that there was no preponderance of evidence that Eastern was guilty of negligence in the doing of its work. But he did not rely on this finding in his conclusion or judgment, which was based exclusively on contract liability of Eastern, which he found to exist regardless of negligence or lack of negligence. The issue of Eastern’s negligence therefore was not necessary to judgment. There is a question whether a so-called “evidentiary fact” can be the basis of a claim of collateral estoppel, but we need not pursue that legal issue, because here we do not discern that any necessary finding of fact was dependent upon or even aided by the finding that it had not been shown that Eastern was negligent.

To this must be added the consideration that neither Eastern nor Hartford was interested in proving Eastern’s negligence. Hartford was not interested in the applicability of “Exclusion clause (i),” which is the only provision as to which Eastern’s negligence is pertinent, for its $25,000 liability was exhausted by Eastern’s liability for expenses incurred by Fuller and others, a matter on which Eastern’s negligence was not pertinent. All of this is apart from the problem that would have been presented if Hartford had been interested in showing Eastern’s negligence in order to exculpate itself as insurer under “(i),” at the same time that it was representing Eastern in the litigation.

This case has become confused by the fact that Appellants have interlaced suggestions of Eastern’s fault, which we think would provide a defense under “(i),” with other contentions, that the policy does not apply to Eastern’s work as a matter of coverage (apparently argued as excluding coverage even assuming Eastern was not negligent), which we do not accept. Insofar as a defense under (i) may turn on the possibility that Appellants will be able to prove Eastern was negligent, we do not think they were conclusively estopped or bound on this point by the prior litigation. And to the extent that Appellants may be held liable, they have the right to contest the amount of Eastern’s expenses in re-shoring, without being bound by a stipulation by Fuller that was immaterial to the first judgment.

Reversed and remanded.

      . In the amount of $20,209, obtained by taking the expense incurred by Fuller, of $34,009, and deducting the $13,800 Fuller had previously withheld from Eastern.

      . There would have been a basis for summary judgment against Appellants for $9,000 — to indemnify Eastern for the $34,000 it had to pay Fuller (see note 1), less the $25,000 obtained from Hartford. Possibly Appellants recognized a. liability for this amount. In any event, it does not seem to have become focused as an issue in this litigation.

      . E. g., Aetna Cas. & Sur. Co. v. Harvey W. Hottel, Inc., 110 U.S.App.D.C. 80, 289 F.2d 457 (1961); Home Indem. Co. v. Miller, 399 F.2d 78 (8th Cir. 1968); Geddes & Smith, Inc. v. Saint Paul-Mercury Indem. Co., 51 Cal.2d 558, 334 P.2d 881 (en banc, per Traynor, J., 1959); Volf v. Ocean Accident & Guar. Corp., 50 Cal.2d 373, 325 P.2d 987 (en banc, per Traynor, J., 1958); Liberty Bldg. Co. v. Royal Indem. Co., 177 Cal.App.2d 583, 2 Cal.Rptr. 329 (1960); Hauenstein v. Saint Paul-Mercury Indem. Co., 242 Minn. 354, 65 N.W.2d 122 (1954); McGann v. Hobbs Lumber Co., 150 W.Va. 364, 145 S.E.2d 476 (1965).

      . See, e. g., Fibreboard Paper Prods. Co. v. Machinists Union, Local 1304, 344 F.2d 300, 306 (9th Cir.), cert. denied, 382 U.S. 826, 86 S.Ct. 61, 15 L.Ed.2d 71 (1965); Kestatement of the Law of Judgments § 68, comment (o) (1942); 1B J. Moore, Federal Practice ¶ 0.443 [5].

      . See the leading case of The Evergreens v. Nunan, 141 F.2d 927 (2d Cir., per L. Hand, J.), cert. denied, 323 U.S. 720, 65 S.Ct. 49, 89 L.Ed. 579 (1944). But cf. 1B J. Moore, Federal Practice ¶ 0.442 [2],

      . See Comment, The Effect of Collateral Estoppel on the Assertion of Coverage Defenses, 69 Colum.L.Kev. 1459 (1969).


source: Caselaw Access Project

author: J. SKELLY WRIGHT, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America v. Edward B. WILLIAMS, Jr., Appellant.
    No. 71-1447.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 19, 1972.
    Decided Jan. 31, 1973.

      James S. Hostetler, Washington, D. C. (appointed by this court), for appellant.
    James F. Flanagan, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Richard L. Cys, Asst. U. S. Atty., also entered an appearance for appellee.
    Before WRIGHT, TAMM and McCREE, Circuit Judges.

       Of the 6th Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a) (1970).

   J. SKELLY WRIGHT, Circuit Judge:

Effective February 1, 1971, Section 207(6) of the District of Columbia Court Reform and Criminal Procedure Act added the following sentence to subsection (j) of 24 D.C.Code § 301: “No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his insanity, regardless of who raises the issue, is affirmatively established by a preponderance of the evidence.” Prior to February 1, 1971 the prosecution had the burden in criminal cases of proving criminal responsibility beyond a reasonable doubt once the defendant had raised the insanity defense. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). Appellant here was charged with offenses committed on November 11, 1968. On trial appellant raised the insanity defense and, over objection, the trial court charged the jury, pursuant to Section 207(6), that appellant had the burden of establishing his insanity defense by a preponderance of the evidence. The only question we consider on appeal is whether this instruction violated the ex post facto clause of the Constitution. We find that it did.

A long time ago the United States Supreme Court defined ex post facto laws to include “[e]very law which alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). (Emphasis in original.) That definition represents the law today just as it did in 1798. The retroactive application given Section 207(6) by the trial court “alter[ed] the legal rules of evidence” so that appellant was convicted on “less, or different, testimony, than the law required at the time of the commission of the offence.” Certainly the court’s charge, “ ‘in its relation to the offence, or its consequences, alter[ed] the situation of the accused to his disadvantage.’” Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 623, 42 L.Ed. 1061 (1898), quoting United States v. Hall, 2 Wash.C.C. 366. Moreover, Congress, in enacting Section 207(6), specifically intended to alter the situation of the accused to his disadvantage. Congress was concerned that existing law “ * * * permití [ed] dangerous criminals, particularly psychopaths, to win acquittals of serious criminal charges on grounds of insanity by raising a mere reasonable doubt as to their sanity * * H.R.Rep.No.91-907, 91st Cong., 1st Sess., 74 (1970).

Under the circumstances, appellant’s conviction must be reversed on ex post facto grounds.

So ordered.

      . Art. 1, § 9, cl. 3 of the United States Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.”

      . See Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915); Duncan v. Missouri, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Kring v. Missouri, 107 U.S. (7 Otto) 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867); Frisby v. United States, 38 App.D.C. 22 (1912). See also, generally, Croseky, The True Meaning of the Constitutional Provision of Ex Post Facto Laws, 14 U.Chi.L.Rev. 539 (1947).

      . We find no language in the statute or in its legislative history, and we have been cited to none, which indicates that Congress intended it to be applied retroactively.

      . In view of the express intent of Congress and the obvious effect of the statute, the Government’s argument that § 207(6) provides for a mere procedural change which, applied retroactively, does not significantly alter the situation to appellant’s disadvantage may be dismissed as pure advocacy. Compare Kring v. Missouri, supra note 2, and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), with Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925).


author: BAZELON, Chief Judge:

text:
    UNITED STATES of America v. Esau WASHINGTON, Appellant.
    No. 72-1203.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 31, 1973.
    Lois R. Goodman, Washington, D.C. (appointed by this Court), was on the brief for appellant.
    Harold H. Titus Jr., U. S. Atty., John A. Terry, Lester B. Seidel, and Joseph F. McSorley, Asst. U. S. Attys., were on the brief for appellee.

      Before BAZELON, Chief Judge, ELBERT P. TUTTLE, United States Senior Circuit Judge for the Fifth Circuit, and WRIGHT, Circuit Judge.

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

   BAZELON, Chief Judge:

Esau Washington was convicted of armed robbery, assault with a dangerous weapon, and carrying a pistol without a license, and sentenced to prison terms on these charges. Eleven months later, he filed a pro se notice of appeal and a motion to proceed in forma pauperis. The motion was denied because the appeal had been untimely filed.

Subsequently, Washington filed a motion to vacate sentence under 28 U.S.C. § 2255 on grounds that his appointed trial counsel had not informed him of the ten-day time limit for filing criminal appeals. At the hearing on the motion, Washington was the only witness and his credibility was the only issue. The District Judge decided that Washington’s testimony was not credible and denied the motion.

Washington now appeals that denial, arguing (a) that the decision was tainted by the admission of prejudicial, harassing, and diversionary evidence, and (b) that it was contrary to the weight of the evidence. We find these points to be without merit. The evidence complained of — dealing with Washington’s relations with his lawyers and his vacillation over pleading guilty —was put directly in issue by the nature of his claim and his statements at the hearing. The credibility of the witness and the weight of the evidence are issues to be determined by the trial court, and the record does not indicate that the judge’s findings in this case are clearly erroneous. Accordingly, we affirm the denial of Washington’s motion.

There is, however, a further matter which makes us uncomfortable about this case. The record before us, although incomplete, gives rise to a lingering doubt as to whether Washington received the meaningful advice and assistance of counsel to which he is entitled under the 6th Amendment. A brief review of the facts presently available will demonstrate the basis for our concern.

A lawyer in private practice was appointed to represent Washington at the time of the arraignment. This attorney apparently urged Washington to plead guilty, and Washington entered a plea of guilty to robbery and carrying a deadly weapon. Within a few weeks, however, Washington withdrew his plea and elected to go to trial. At that point his attorney moved to withdraw from the case, citing “disputes” between himself and Washington concerning the withdrawal of the plea. A new lawyer was appointed.

There is little evidence as to the extent of the second lawyer’s work on the case. He did not testify at the § 2255 hearing, because neither the government nor Washington could find him (according to the government's brief, the lawyer has left the District to avoid a jail sentence for contempt of court in an unrelated matter). From the few records available, it appears that he interviewed no witnesses in the case. After Washington wrote a letter from jail asking the District Court to “send him over here so I can meet him”, the attorney interviewed Washington. Based on the interview, the lawyer opined that “there is only one approach to this case and that is that we try to arrange for a plead (sic) of guilty to one or more of the charges. . . . My feeling with regard to the foregoing is final and I do not feel I can be persuaded to feel otherwise.” Washington still insisted on going to trial.

Possibly because of this disagreement, or perhaps because of his inexperience in criminal law, the attorney decided to withdraw from the case; not until the day of the trial, however, did he move for leave to withdraw. The motion was denied. The judge did direct a lawyer from the Legal Aid Agency to “act as advisor” to the defense. It is not clear how much this advisor contributed; it is obvious, however, that he had no chance whatsoever for preparation of the case.

While these facts sow the seed of doubt, we cannot say at this point whether or not Washington received effective assistance of counsel. The lawyers’ insistence on a guilty plea may have been the result of careful and informed analysis of the situation. The presence of the Legal Aid advisor may have made up for trial counsel’s inexperience and apparent lack of preparation. If so, Washington could not say that his rights under the 6th Amendment were denied. However, if a review by competent counsel of all pertinent information, including the trial transcript (not before us on this appeal) and matters outside the trial record, indicates that Washington has a meritorious Constitutional claim — that the legal assistance rendered him prior to or during the trial was inadequate — our action today would not preclude a new motion under 28 U.S.C. § 2255. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); 2 Wright, Federal Practice and Procedure, § 602.

      . D.C.Code § 22-2901.

      . D.C.Code § 22-502.

      . D.C.Code § 22-3204.

      . His trial counsel was not available, for reasons explained below.

      . The attorney’s voucher for compensation under the Criminal Justice Act indicates that no time was spent interviewing witnesses. Although this is not irrefutable evidence, this particular attorney was apparently not inclined to understate the hours he spent on the case; see note 6, infra.

      . Although the point is not clear, the record seems to indicate that the attorney interviewed Washington only once. Yet he billed the government for compensation for eight hours of time spent in “interviews with client”. The available evidence does not explain this apparent inconsistency,


author: PER CURIAM:

text:
    UNITED STATES of America v. Lewis HARRIS, Appellant.
    No. 71-1481.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 24, 1972.
    Decided Feb. 5, 1973.
    Robert G. Hardy, Washington, D. C., with whom Christopher T. Boland, Washington, D. C. (both appointed by this court), was on the brief, for appellant.
    Percy H. Russell, Jr., Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Asst. U. S. Atty., and David C. Woll, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee.
    Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and WYZANSKI, Senior United States District Judge for the District of Massachusetts.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   PER CURIAM:

Appellant Harris was convicted of robbery and assault with a dangerous weapon on the basis of wholly uncorroborated in and out of court identification evidence provided by two of his alleged victims, Miller and Carter. Appellant raises several issues, including identification.

There are numerous facts in the record which cast substantial doubt on the validity of the identification evidence and raise the possibility of mistake. These include:

1. The poor lighting conditions and extremely short period of observation during the crime.

2. The inability of the victims to provide an accurate description of appellant to the police.

3. The failure of Carter to identify appellant from 10 black and white photographs.

4. The fact that Carter initially made an erroneous lineup identification.

5. The fact that Carter failed to identify appellant at the suppression hearing.

6. The fact that appellant’s photograph happened, by pure coincidence, to appear among 10 randomly selected pictures picked from the thousands on file for showing to Miller and Carter.

7. The fact that appellant was arrested when he appeared, of his own volition, at the police station in order to secure a “job clearance.”

In the recent case of United States v. Caldwell, 151 U.S.App.D.C. 84, 87, 465 F.2d 669, 672 (1972) (per curiam), a panel of this court refused to affirm a conviction based upon similarly dubious identification testimony. Instead, the court remanded the record with the following observation: “The District Court has authority to grant a new trial, even when there is enough evidence to go to the jury. Since the ease is close on the issue identified, and the overall context has elements of doubt, we think it warrants a hard look by the District Court, and a fresh determination as to what action should be taken in the interest of justice.” (Footnotes omitted.)

In accordance with Caldwell, and acknowledging the broad discretion of the District Court, we remand the record in this case so that the District Court can make a fresh determination as to what action should be taken in the interest of justice.

Remanded.


text:
    Asa H. ASHER, Jr., et al., Appellants, v. Melvin LAIRD, Secretary of Defense.
    No. 71-1617.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 26, 1972.
    Decided Feb. 5, 1973.

      Mattaniah Eytan, Washington, D. C., for appellants. Julius Kaplan, Washington, D. C., also entered an appearance for appellants.
    Anthony J. Steinmeyer, Atty., Department of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen., at the time the brief was filed, Harold H. Titus, Jr., U. S. Atty., and Alan S. Rosenthal, Atty., Department of Justice, were on the brief, for appellee.
    Before DANAHER, Senior Circuit Judge, and MacKINNON and ROBB, Circuit Judges.
   PER CURIAM:

The appellants in this action are thirteen United States civilians formerly employed in South Vietnam by a U.S. Army contractor. The United States Military Assistance Command, Vietnam (MACV) determined that each employee, while in Vietnam, had violated certain regulations restricting the use of personal checks payable in U.S. dollars. Following an administrative hearing, MACV declared the employees unacceptable for employment in South Vietnam by the United States Government or under Government-financed contracts. In addition, MACV withdrew the employees’ military-related privileges.

Appellants in this action are seeking to set aside the MACV order after exhausting MACV appeal procedures. The Secretary of Defense, the Secretaries of the Army, Navy and Air Force, and three U.S. military officers are named as parties defendant. The District Court denied the employees’ motion for a preliminary injunction which would have restored them to an acceptable employment status while this litigation is pending. The District Court seemed to rest its decision principally on the failure of the appellants to demonstrate a substantial likelihood of succeeding on the merits. It is from this denial of a preliminary injunction that this appeal is taken.

The granting of such extraordinary relief is a matter of the trial court’s discretion as guided by a standard consisting of the following familiar factors: (1) Has the plaintiff made a strong showing that it is likely to prevail on the merits of its appeal?; (2) Has the plaintiff shown that without such relief it will be irreparably injured?; (3) Would the issuance of the injunction substantially harm other parties interested in the proceedings?; (4) Where lies the public interest? Virginia Petroleum Jobbers Ass’n v. F.P.C., 104 U.S.App.D.C. 106, 110, 259 F.2d 921 (1958).

We find no error in Judge Hart’s denial of the appellants’ motion for preliminary injunction. His July 28, 1971 order recites his determination that the appellants had “failed to demonstrate the likelihood of success on the merits of this litigation.” His order was supported by explicit findings of fact which we have appended to this opinion for a more complete understanding of the nature of the appellants’ claims. Specifically let it be noted that each employee had agreed in his employment contract to abide by the MACV directive and the Government’s agreement with the contractor-employer required dismissal of any employee found to be engaging in currency violations. While appellants raise many objections to this analysis and other aspects of the MACV’s actions, we express no opinion on the merits of this dispute other than to conclude that the trial court did not abuse its discretion in determining that appellants did not adequately demonstrate a substantial likelihood of success for purposes of an inquiry into the propriety of a preliminary injunction.

Even had appellants demonstrated such a likelihood, there has been no showing on the other three elements of the above test. There is no irreparable harm threatened here since appellants can receive full redress in the action for back pay and reinstatement of- their prior employment status. There also seems to be little point in granting a preliminary injunction which could possibly be interpreted as casting doubts upon the integrity of the MACV’s regulations. Finally, the valid public interest in a policy of strict governmental regulation of currency and international black marketeering appears to be overwhelming.

For the foregoing reasons, the decision of the District Court denying the preliminary injunction is

Affirmed.

APPENDIX

Asa H. Asher, et al., Plaintiffs, v. Melvin Laird, et al., Defendants.

Civil Action No. 538-71

FINDINGS OF FACT

1. Plaintiffs are thirteen civilians who at all revelant times were employed by a government contractor, Pacific Architects and Engineers (PA&E), to work on a government contract in South Vietnam.

2. Each of the plaintiffs signed an employment contract with PA&E in which he agreed, inter alia, that his employment could be terminated for cause if he violated certain applicable regulations issued by the United States Military Assistance Command, Vietnam, (MACV), specifically including MACV Directive 37-6, regarding Financial Administration — Regulation of Currency.

3. An investigation conducted by military authorities revealed that during the period from June 15, 1970, through August 19, 1970, the plaintiffs drew and delivered in Vietnam to one James Edwards, then an employee of PA&E in Vietnam, their personal checks totaling nineteen in number and in the approximate amount of $4,341.00.

4. These checks drawn by plaintiffs were made payable either to the Crocker Citizens National Bank or to Mr. Edwards and thereafter were deposited in Mr. Edwards’ bank account maintained in the Crocker Citizens National Bank, Carmichael, California.

5. MACV Directive 37-6 provides in Paragraph 7a:

Except as provided in this section or otherwise authorized in writing by COMUSMACV, the possession, delivery and/or use of US currency and/or dollar instruments in the RVN is expressly prohibited.

6. Paragraph 9c of MACV Directive 37-6 provides in pertinent part that:

Personnel authorized MPC, official agencies and instrumentalities and US Government contractors are prohibited from delivering US currency or dollar instruments to any individual in the RVN, regardless of the individual's status, except as specifically authorized by this or other MACV directives.

7. A dollar instrument is defined in Paragraph 4f of MACV Directive 37-6 so as to include “signed personal checks and other signed checks or drafts which are negotiable in US dollars.”

8. In accoz-dance with applicable procedures set forth in MACV Directive 190-13, also applicable to plaintiffs, the plaintiffs were notified on January 30, 1971, that the issuance of their personal checks to Mr. Edwards constituted apparent violations of the provisions of MACV Directive 37-6 and could result in the withdrawal of military sponsored privileges including a declaration that plaintiffs would be unacceptable for employment on government contracts in Vietnam. Each plaintiff was afforded the opportunity to present information to military officials for their consideration.

9. All of the plaintiffs submitted affidavits in which they admitted drawing checks while in Vietnam in favor of Mr. Edwards.

10. On May 16, 1971, it was determined by appropriate officials of MACV that on the basis of the violation of MACV Directive 37-6 the military sponsored privileges would be withdrawn from plaintiffs and that they would be determined to be ineligible for employment in the Republic of Vietnam under U.S. Government financed contracts. Plaintiffs were notified to this effect and were also notified they could appeal the determination under the provisions of MACV Directive 190-13.

11. At the request of plaintiffs’ attorney, a consolidated appeal hearing for all the plaintiffs was held on June 21, 1971, before the MACV Appeals Board in Saigon. Plaintiffs were represented by their attorney and documentary evidence was submitted by plaintiffs’ attorney and by the Recorder of the Board. None of plaintiffs appeared at the hearing although opportunity was given to them to do so.

12. No live testimony was presented to the Board which was composed of military officers and officials of the American Embassy and the Agency for International Development.

13. After considering all of the evidence and the arguments presented, the Board made a unanimous recommendation that the appeals be denied. That recommendation was approved on June 27, 1971, by General Cowles, Chief of Staff, United States Military Assistance Command, Vietnam.

14. The evidence before the Appeals Board establishes that plaintiffs wrote checks and delivered them in violation of specific provisions of MACV regulations, which regulations were applicable to the plaintiffs.

CONCLUSIONS OF LAW

1. MACV has authority to promulgate and administer MACV Directive 37-6. This directive is a reasonable regulation of currency matters under the circumstances existing in Vietnam and can properly be applied to United States civilians who are in Vietnam and are working on U.S. Government financed contracts.

2. Military officials have accorded the plaintiffs the full procedural rights provided for in MACV Directive 190-13.

3. Plaintiffs have failed to demonstrate the likelihood of success on the merits of this litigation.

July 28, 1971

s/ George L. Hart, Jr.

United States District Judge

      . Specifically, appellants were found to have violated MACV Directive 37-6 which provides in pertinent part:
      Except as provided in this section or otherwise authorized in writing by COMUSMACV, the possession, delivery and/or use of TJS Currency and/or dollar instruments in the RVN is expressly prohibited.
      Personnel authorized MPC, official agencies and instrumentalities and US Government contractors are prohibited from delivering US currency or dollar instruments to any individual in the RVN, regardless of the individual’s status, except as specifically authorized by this or other MACV directives.
      Defendant’s Exhibit G; App. 7. Appellants were found to have issued dollar instruments to one Edwards inside the Republic of Vietnam.

      . Plaintiffs’ Exhibit G; App. 40-42.

      . Appellants sought a temporary restraining order and preliminary injunction which Judge Hart, after a hearing in the District Court, denied on March 12, 1971.

      . The reason for the denial of the relief first sought in the District Court (see note 3, supra) was that MACV administrative remedies had not been exhausted.

      . Asher v. Laird, Civil No. 538-71 (D.D.C. filed July 28, 1971). {See the District Court’s Findings of Fact and Conclusions of Law appended to this opinion.)


text:
    Mary BURKE et al., Appellants, v. WASHINGTON HOSPITAL CENTER et al.
    No. 71-1452.
    United States Court of Appeals, District of Columbia Circuit.
    Feb. 9, 1973.

      A. Lillian C. Kennedy and Mabel D. Haden, Washington, D. C., were on the brief for appellants.
    John L. Ridge, Jr., Washington, D. C., was on the brief for appellee.
    Before ELBERT P. TUTTLE, United States Senior Circuit Judge for the Fifth Circuit, and TAMM and WILKEY, Circuit Judges.

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

   PER CURIAM:

Plaintiffs-appellants, husband and wife, brought this action seeking damages for failure to remove a surgical sponge from Mary Burke’s abdomen during an operation performed by Dr. Ernest W. Lowe. Washington Hospital Center, as codefendant and employer of the nurses who attended at the operation, reached a settlement with plaintiffs shortly before trial. After trial below on the remaining claim against Dr. Lowe (who was not an employee of the Hospital), the jury returned verdicts in favor of appellants. However, the trial court subsequently granted a judgment notwithstanding the verdict on the ground that plaintiffs had not introduced “any evidence from which the jury could properly find the defendant Lowe liable.” We conclude that the grant of judgment n. o. v. was in error.

Plaintiffs’ evidence that a surgical sponge was left inside Mrs. Burke during the operation performed by Dr. Lowe establishes a prima facie case of negligence. The jury could infer negligence without any further showing, under the doctrine of res ipsa loquitur, because the event complained of is clearly one which “ordinarily would not happen in the absence of negligence.” Raza v. Sullivan, 139 U.S.App.D.C. 184, 432 F.2d 617, 620 (1970); Quick v. Thurston, 110 U.S.App.D.C. 169, 290 F.2d 360 (1961).

Appellee’s brief virtually admits the application of the doctrine of res ipsa loquitur, but contends that there was defense evidence adequate to overcome any inference from that doctrine alone. We disagree. The defense consisted primarily of Dr. Lowe’s testimony that he carefully searched the abdominal cavity. However, since the jury was free to disbelieve his testimony, it does not necessarily refute the inference from res ipsa. “Defense testimony that due care was used will not in itself eliminate the inference rooted in the probabilities of human experience.” Raza v. Sullivan, supra, 432 F.2d at p. 621, n. 7.

Appellee attempted to shift responsibility for the injury by asserting-that the nurse’s sponge count was reported (obviously erroneously) as in order. While this may be enough to support shared liability on the part of the nurse’s employer, Washington Hospital Center, it does not relieve the operating and supervising surgeon of his responsibility.

The proper procedure to be followed by the doctor after receiving notice of á “correct” sponge count ultimately relates to the required professional standard of care. Appellee contends that the evidence before the jury did not adequately establish what that standard requires. However, this appears to be that rare sort of case in which the type of harm itself raises so strong an inference of negligence, and the physician’s duty to prevent the harm is so clear, that expert testimony is not required to establish the prevailing standard of care. Raza v. Sullivan, supra, 432 F.2d at p. 619, n. 3; Young v. Fishback, 104 U.S.App.D.C. 372, 262 F.2d 469 (1959).

Even if expert testimony were required to establish that standard, it was provided by Dr. Lowe himself when he testified that “the ultimate responsibility is the doctor’s, he is always responsible for the patient.” (Tr. 60). See 12 A.L.R.3d 1017, 1021. A “correct” sponge count may reduce the scope of further inspection required of the doctor; but, as previously noted, the jury was free to disbelieve Dr. Lowe’s version of events and to infer that not even a cursory cheek was conducted.

There was a jury issue presented in this case. The jury found against the defendant. Since the trial judge cannot be permitted to substitute his own view of the evidence, the grant of judgment n. o. v. must be reversed.

On 10 March 1971 the District Court entered an order providing that any jury verdict returned against Dr. Lowe would be reduced to 50%. In light of the settlement with Washington Hospital Center, counsel for both sides had agreed to such a reduction. There has been no appeal from that order. Accordingly, this case is remanded to the District Court for entry of a judgment reinstating the jury’s verdict and reducing it in conformity with the order of 10 March 1971.

So ordered.


author: WYZANSKI, District Judge:

text:
    In re D. C. HUMAN RELATIONS COMMISSION v. NATIONAL GEOGRAPHIC SOCIETY, Appellant.
    No. 71-1248.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 30, 1972.
    Decided Feb. 13, 1973.

      Arthur B. Hanson, Washington, D. C., with whom W. Frank Stickle, Jr., and Ralph N. Albright, Jr., Washington, D. C., were on the brief, for appellant.
    Ted D. Kuemmerling, Asst. Corp. Counsel for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee.
    Before McGOWAN and MacKINNON, Circuit Judges, and WYZANSKI, Senior United States District Judge for the District of Massachusetts.

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

   WYZANSKI, District Judge:

December 27, 1968 the District of Columbia Human Relations Commission served upon the National Geographic Society a complaint alleging that the Commission had reasonable cause to believe that the Society was “discriminating against minority groups in its recruiting and hiring methods in ways which tend to deprive them of equal employment opportunities and such methods are in violation of Article 47 of the Police Regulations of the District of Columbia.” September 4, 1970 the Commission, by amendment to the complaint, particularized the alleged violation.

November 24, 1970 the Commission served upon the Society a subpena duces tecum to produce twelve categories of information as follows:

1. All employment applications received in the last six months, including, but not limited to, those for applicants hired, rejected or pending.

2. A payroll list or printout of all employees on staff as of the first pay period in October, including, but not limited to, record of gross salary earned by each employee.

3. Job descriptions for all jobs, including, but not limited to, salary levels for each job.

4. Description of qualifications required for all jobs, including, but not limited to, educational requirements.

5. Copies of all employment tests administered, test manuals and copies of any validation studies made in connection therewith.

6. Copies of all correspondence with any recruitment sources utilized during the past year.

7. A copy of each employment application form used.

8. A copy of all personnel policies promulgated or circulated to employees.

9. An organization chart indicating number of employees in each organizational unit.

10. A copy of any affirmative action plan, filed with any governmental agency.

11. All records relative to the establishment, scheduling and routing of the employees’ bus service to the Gaithersburg facility.

12. Copies of any and all union contracts affecting employees.

The Society moved the District Court to quash the subpena. February 22, 1971 the District Court, without opinion, entered an order denying the motion to quash. The Society appealed.

Appellant’s argument has five points.

1. The Society contends that Article 47 of the Police Regulations of the District of Columbia, pursuant to which the Commission acted, was not published in the compilation allegedly required by the District of Columbia Administrative Procedure Act, and for that reason was not in effect at the time the subpena was issued. There is no merit to the point. In the July 27, 1970 Special Edition of the District of Columbia Register the District Government incorporated in the District of Columbia Register the District of Columbia Police Regulations. Such regulations were and are available for purchase at the District of Columbia Publications Office. The Register thus adequately informed its readers of the full text. Congress never contemplated more, for D.C.Code, § 1-1504(a) (Supp. IV, 1971) provides that although in general the Register shall set forth the full text, “the Commissioner may in his discretion omit from the District of Columbia Register rules the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient, if, in lieu of such publication, there is included in the Register a notice stating the general subject matter of any rule so omitted and stating the manner in which a copy of such rule may be obtained.” Full compliance with the conditions of this exception is not doubtful. But it is implausibly argued that the exception does not apply to regulations, such as these, which antedated the October 21, 1969 effective date of D.C.Code § 1-1507 (Supp. IV, 1971). There is nothing in the language or policy of the act to support such an argument, which seems to us frivolous, especially since the Society admits that without difficulty or delay it immediately procured the relevant regulations when it wanted them.

2. Next, the Society argues that the complaint, the amendment, and the subpena are invalid because the Commission failed to promulgate rules of procedure as required by the District of Columbia Administrative Procedure Act. However, April 15, 1971 the Commission promulgated and published rules of procedure. See 8 D.C.R.R. 1.1 et seq. The Society has not been prejudiced by the delay. It now knows all that it needs to learn of the procedure in order to answer the subpena. Even if we assume that such knowledge was a prerequisite to the enforcement, by a contempt proceeding, of the District Court’s order, it certainly was not a prerequisite to the issuance of the subpena or to the entry of the District Court’s order.

3. Then, the Society claims that neither the complaint nor the amendment validly alleges a violation of Article 47 of the Police Regulations because the pleadings are not sufficiently specific. As Justice Frankfurter would have said, we have outgrown the formalism of Baron Parke. Modern cases fully support the sketchy nature of the instant complaint and amendment. Graniteville Co. (Sibley Div.) v. Equal Employ. Op. Com’n, 438 F.2d 32 (4th Cir., 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir., 1970); Bowaters Southern Paper Corp. v. Equal Employ. Op. Com’n, 428 F.2d 799 (6th Cir., 1970); United States v. Gustin-Bacon Div. Certain-Teed Prod., 426 F.2d 539 (10th Cir., 1970).

4. Penultimately, the Society contends that the subpena is invalid because it was issued by the Executive Director of the Commission to whom the issuing power was not validly delegated. Here again the appellant has presented a sleeveless argument. The subpena states that it was issued under the authority granted by D.C.Code, § 1-237 (1967). That statute authorized the former District of Columbia Board of Commissioners to issue subpenas. As of June 10, 1965, when the Board of Commissioners enacted Article 47 of the D.C. Police Regulations, heretofore mentioned, they specifically provided that defendant (then operating under the name of “Commissioners Council on Human Relations”) “and its Executive Director shall possess the powers vested in the Commissioners by that Act.” Authorization for the aforesaid delegation is conferred by Reorganization Plan 5 of 1952. (66 Stat. 824, D.C.Code, Title I, Appendix, 1967 ed.).

5. The Society’s final point is that the District Court should have quashed the subpena because it is overly broad and oppressive, requires the Society to prepare and compile information, and demands items irrelevant to the complaint. We agree that on the record as it stands there is some merit to this point. We have no indication that either of the parties offered detailed argument to the District Court on any of the twelve categories of items to be produced, nor attempted to assess the relevance or the burden of the items. So far as appears, the parties treated the Court like the daysman on the shield of Achilles in the Iliad, that is, as an arbitrator limited to choosing between either one of two extreme positions but not free to form a wholly informed and truly independent judgment of the relevance of the items to the controversy and of the burdensomeness of compliance with the subpena. We do not suggest, that the District Court should be placed in the laborious position of ruling, unasked, upon each detail of the subpena as it would rule upon a question to which objection was taken at a trial. Yet the procedure here followed in the District Court seems to us inconsistent with the brooding omnipresence of the Fourth Amendment and with the growing recognition of the wisdom of Justice Brandeis’ remark that the Constitution “conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928).

Without suggesting that the Commission here was engaged in a fishing expedition or in a search pursuant to an ulterior, unacknowledged purpose, and while recognizing how much need there is in a matter of this kind for background and statistical data and how thorough must be the scrutiny of many items which in their individual aspect seem insignificant but which in their totality reveal a pattern, we are concerned lest the judiciary lend itself to rubber-stamping the demands of administrative agencies which naturally enough have a zeal and sense of righteousness commensurate with the importance of their mission and the difficulties of its accomplishment.

What we deem appropriate is for the Commission, when challenged, to prove to the trial court by argument, not necessarily nor usually by evidence, that its demands are proper and necessary. The burden of persuasion rests upon it. And the trial court has the duty, in a contested case, of making explicit its rulings, though, of course they may have an orotund generality, as is usual in discovery proceedings.

We conclude that in this case a remand to permit this procedure is required because at our bar the Corporation Counsel representing the Commission admitted that paragraph 11 of the subpena should be struck, and that the subpena does not make it clear that it is limited, as apparently intended, to positions within the District of Columbia. Furthermore, we are not clear, and our confusion seemed to be shared by counsel, as to what is the starting date of the information sought. In the event the parties are unable to agree on a reasonable starting date for the information sought, the court shall fix the date. Whatever shape the subpena may have after it has been suitably tailored, it ought to bear the date of the final version.

Reversed and remanded.


author: LEYENTHAL, Circuit Judge: TAMM, Circuit Judge

text:
    In re ESTATE of Dorothy H. BURROUGHS, Deceased. Ann Burrough (Donovan) CENNAMO, Appellant, v. AMERICAN SECURITY & TRUST COMPANY et al., Appellees.
    No. 71-1538.
    United States Court of Appeals, District of Columbia Circuit.
    Feb. 23, 1973.
    Anthony D. Cennamo, Columbus, Ohio, George R. Douglas, Jr., Washington, D. C. , were on the brief for appellant.
    John L. Laskey, Washington, D. C., was on the brief for appellee Cynthia D. Reiche and Dean S. Reiche, Guardian ad Litem. Arthur C. Elgin, Washington, D. C., was on the brief for Janet T. Reiche.
    Benton C. Tolley, Washington, D. C., was on the brief for American Security & Trust Co.
    Before SOBELOFF, United States Senior Circuit Judge for the Fourth Circuit, and TAMM and LEVENTHAL, Circuit Judges.

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

   LEYENTHAL, Circuit Judge:

On November 14, 1969, appellant filed a caveat contesting the validity of the will executed by her mother on March 5, 1969, some two months prior to death and a codicil thereto, executed on April 24, 1969. The caveat alleged fraud, undue influence and lack of testamentary capacity, and, after amendment, further alleged that a testamentary trust violated the rule against perpetuities.

Appellant is the sole heir at law of the testatrix. She is also the beneficiary under a 1966 will under which she would obtain substantially all of her mother’s property, though full enjoyment would be postponed until she became 35. The 1969 will and codicil would, if effective, operate to reduce appellant’s interest substantially.

Appellant consented to admission to probate of the 1969 testamentary documents but specifically reserved her right to file a caveat thereto. The appellant accepted distributions made to her pursuant to the will, both prior to and subsequent to her filing of the caveat, amounting to $17,000 as of September 3, 1970.

The trustee bank, and the guardians ad litem of those who are residuary beneficiaries under the trust established by the 1969 will, sought summary judgment.

The District Court, 318 F.Supp. 366, granted summary judgment on the ground that the acceptance of benefits under a will estops the recipient from contesting the validity of a will. The court relied on Utermehle v. Norment, 22 App.D.C. 31 (1903), aff’d 197 U.S. 40, 25 S.Ct. 291, 49 L.Ed. 655 (1905), and found that there was no supported contention of any fraud or misrepresentation which might operate to avoid the rule of estoppel.

Appellant relied in the District Court on the undisputed fact that the amounts she received under the 1969 will were less than the amounts she would have received under either intestacy or the# prior will and emphasized (1) that there are no other beneficiaries who have received distributions under the will who would be affected by the challenge, (2) that under the traditional estoppel analysis, in order for a party to be estopped (here from objecting to the will’s validity), there must be not only acquiescence in validity on his part, but also a change in position on the part of others, a condition which both existed in Utermehle and was relied on in the Utermehle opinion.

The District Court quoted language from Utermehle which it considered to shed light on its rationale, and concluded that “the above quotation indicates that the Court found that these additional elements support estoppel, but that they are not necessary elements.” However, the District Court did not take note of subsequent passages in Utermehle, both one which emphasized — with italics— that in a Massachusetts precedent relied on by the caveator, the legatee had returned the legacy before the executor had settled the account “or the position of any other person had been changed,” and the concluding paragraph of TJtermehle, set forth in our footnote, that emphatically stressed the change-of-position factor.

We turn to Bowen v. Howenstein, 39 App.D.C. 585 (1913). The court there considered whether there was an estoppel on the sister of the testatrix by virtue of her having consented to probate, and thereafter accepted, and receipted, certain items of jewelry. Justice Robb’s analysis ran as follows:

a. “The doctrine of estoppel in pais is founded upon principles of morality, and is intended to subserve the ends of justice.”

b. It is the general rule that a party is not estopped by an act unless it operates to the prejudice of him who relies on it as estoppel.

c. The statute provides for caveat by an interested person, within specified time periods, after admission to probate.

d. “[It] must be presumed that Congress, in the enactment of this provision, was cognizant of the general rule deductible from the foregoing cases, that a party will not be estopped unless the act relied upon has resulted in the prejudice of him who relies upon it as an estoppel.”

This reasoning is clear and authoritative. Congress has provided in D.C. Code § 18-509 (1967):

After a will has been admitted to probate, a person in interest may, within six months from the date of the order of probate, file a verified caveat to the will, praying that the probate thereof be revoked.

The only doctrine that Congress may fairly be said to. have contemplated as a limitation by way of estoppel on the statutory right of caveat, which is set forth without qualification for all parties in interest, is that provided by the general law of estoppel; and that requires that the party relying on an act as an estoppel shoe prejudice therefrom.

There is requisite prejudice and estoppel when a party makes a claim outside the will after taking property under a will to which he would not otherwise have been entitled. And so in Gibson v. Gibson, 53 App.D.C. 380, 292 F. 657 (1923), the court held, in another opinion by Justice Robb, that the principle of UtermeMe prevented a husband from both claiming curtesy and at the same time taking an interest under the will that was given to him in lieu of curtesy. This was held to be inequitable, and the husband was required to elect one or the other. But there is no comparable problem of equity and election when the claimant, as here, is entitled to the property taken under the will even if he succeeds in the claim outside and against the will.

It cannot be said that there is any inherent inequity in a relative’s seeking to break a will when she has taken under the will. Her claim is that the deceased intended to provide amply for her and that this was thwarted by the intervention of say, undue influence or failure of capacity.

This brings us, finally, to appellee’s claim that estoppel may be avoided only if there has been a prior proffer of the item received. The requirement of proffer is not unqualified but calls for application in the interest of justice. In Maryland, whose rulings are paid particular heed in trust and estate questions, the court put it that it is “only in the event that his contemplated attack upon the will would be successful that there would be any occasion for him to refund the legacy paid to him by the executor.” There may be other considerations of justice bearing on the tender problem. We do not pursue the problem. It suffices that the lack of proffer prior to suit is not an absolute bar, and that whether and on what terms a proffer should be required was not in this case considered by the District Court.

The voice of our dissenting colleague prompts us to ponder further on this case. We are not troubled by the accusation that stare decisis has been scuttled. Our opinion reflects an attentive regard to precedent — appreciative of statements in estoppel opinions that focus on inconsistency, but appreciative, too, that these cannot be taken broadside without regard to accompanying facts and statements, reflecting the settled principle that estoppel requires prejudice wrought by detrimental reliance.

What we are concerned with in this epilogue is whether some sensitive nerve of justice would be rightly pained by reversal in this case. Is the “inconsistency” of a beneficiary in and of itself an affront to Justice? Should this court go beyond the actual decisis of precedent, and fashion estoppel in law out of inconsistency even in the absence of detrimental reliance or like prejudice? On occasion we have scrapped an historic rule that appears inadequate to modern conditions. E.g., Hatch v. Riggs National Bank, 124 U.S.App.D.C. 105, 361 F.2d 559 (1966). Here, however, it would run contrary to the needs of today to scrap the historic requirement of prejudice so as to make inconsistency alone a legal barrier. The rule that once prohibited a litigating party from asserting inconsistent claims in the same pleading has been relegated to the dustbin of legal history, along with the nice distinctions of the common law forms of action. The Supreme Court has brushed aside those doctrines in which inconsistency of position had come to be viewed as a bar. See Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969). In the case before us, there is no shred of waiver, all rights having been painstakingly preserved, nor is there pursuit of relief and remedies that are inconsistent.

In this case the interest of justice is furthered by our attentive regard to precedent, and to principle both settled and sound; and these may not rightly be subordinated to symmetry simpliciter. Our ruling retains estoppel in case of detrimental reliance or like injustice. We are confident that the District Court on remand will be fully alert to the principle of justice reflected in the settled doctrine applied in our ruling.

Reversed and remanded for further proceedings not inconsistent with this opinion.

TAMM, Circuit Judge

(dissenting):

I cannot concur in an opinion that elevates to the dignity of legal dogma the facetious vaunt, “Heads I win — Tails you lose.” Again the majority flouts what was known among the ancients as “stare decisis” (the nature of that doctrine is now imperfectly understood and possibly incapable of definition with the vocabulary that remains to us).

Craftily recognizing which side her bread is caviared on, our appellant skillfully acclaims by seizure those provisions of the now challenged will which provided largess to her and having exhausted available advantages and benefits she now brazenly challenges the validity of the very document whose terms she utilized to her own benefit. This subordination of veracity is, or course, carried out without any distasteful return to the estate of the assets she has received and utilized. My brethren, whose sincerity I do not question (to the pure all things are pure), with more feeling for a piquant image than for objective facts see in this situation the conduct of a dove rather than an albatross. To make a paradigm of appellant’s greed, at the possible expense of other named beneficiaries of testator’s declared intentions, is for me the jettisoning of virtually all the historically proven cases teaching that the seeker of justice must be a doer of justice. Our opinions through this century, presumably at least, recount a record of in justices put right by our - legal objectivity but my brethren’s majority opinion causes my admiration of our accomplishments to melt into suspicion. Current popular recognition of a code of mini-morals is strengthened by today’s ruling, since the court vaults the bounds of fairness principles and will undoubtedly shock the conscience of legal scholars. To validate appellant’s unconscionable chicanery upon the basis assigned by the majority certainly requires the most novel reasoning since Lewis Carroll.

More distressing than the immediate impact of this majority opinion on the fortunes of those immediately involved herein, however, is the ease with which the court again narcotizes the earlier opinions which I naively thought had established and defined the law governing factual situations akin to our present record. Perhaps by today’s and tomorrow’s standards these are normal times and the majesty of the law is to be built upon an ever-changing proliferation of untested and unproved panaceas. The stream of time has washed away the dissoluble fabric of many other disciplines, but if it is to flood away from the courts the integrity of the law as a science producing certain rules of decision, then appellate courts will be reviewing by ambush. No doubt respect for the established tenets of the law is regarded as an idolizing of meaningless ancient landmarks by those who in their search for utopia cultivate the preposterous. It is a tired truth that courts’ opinions seriatim and subjectively working towards the “GREAT WHEN” end not on a note of exhaustion but of exasperation. Such brave but legally limpid judicial excursions are alternately blessed, then tarnished, then cursed. Although change is today’s great constant, legal wanderings far from the solid foundations of objective interpretations of governing case law edge precariously close to an outright abandonment of the basic principle that ours is a government of laws and not of men. Although the belief that the basic provisions of our law established a predictable cornerstone upon which is built the judicial machinery apparently went out with McGuffey’s readers, the hard fact remains that this so-called creative law has not established a track record for lasting solutions of mankind’s day-to-day legal problems. Undiscouraged, however, my brethren bravely pursue their uncharted voyage into THE LAND OF TRY AGAIN.

I write these words, not as a jeremiad, but in the belief that unless the courts adhere to the guidance of fixed principles, we will soon bring objective law to its sepulcher.

      . Both in the Supreme Court, as appears below, and in this court, see 22 App.D.C. at 48-49, 53-54.

      . After some bequests not here relevant, the residuum of the mother’s estate was to be placed in trust. Appellant was the sole income beneficiary of this trust, and the trustee was empowered to invade the principal in his discretion for her use and benefit. Upon reaching the age of 35, the trust was to terminate; and appellant was to succeed to the entire corpus.

      . Appellant was to receive a cash bequest of $5,000 and title in fee to certain realty. The residue of the estate was again placed in trust, with appellant the only income beneficiary. The trustee was directed to apply the sum of $10,000 from the principal for appellant’s benefit (should she remarry and desire to purchase a home) and was vested with discretion to invade the corpus in her favor. The 1969 testamentary trust was to terminate upon the appellant’s death; she was given no interest in the remainder.
      Under the codicil, appellant’s cash bequest was reduced to $3,000, and the trustee was directed to set aside only $5,000 from the principal in the event appellant wished to purchase a residence. The codicil also gave the trustee a discretionary power to invade principal for appellant’s benefit.

      . The District Court quoted the following paragraphs:
      As to what is the law relating to a party taking the benefit of a provision in his favor under a will, there is really no foundation to dispute the proposition that he thereby is precluded from at the same time attacking the validity of the very instrument under which he received the benefit. 197 U.S. at 57, 25 S.Ct. at 296.
      When in addition to the fact that he took a benefit under the will, a party has acquiesced in its validity for many years, and the opposing party in interest has acted upon such consent and acquiescence, and has so changed his position on that account that he cannot be restored to it, and where witnesses have in the meantime died, the reason for the rule upon which an estoppel is founded is thereby greatly strengthened. 197 U.S. at 58, 25 S.Ct. at 297 (emphasis added).

      . See 197 U.S. at 60, 25 S.Ct. at 297: “In this case the position of other parties to this litigation has most materially changed, as has already been shown . . . while the plaintiff in error has been also guilty of extreme negligence even in attempting to discover what he alleges are facts. We are satisfied that the plaintiff in error is estopped from now contesting the will, and that great injustice would result from the overturning of the principle adjudged in so many cases.”

      . Thus the court quoted from Reynolds v. Adden, 136 U.S. 348, 352, 10 S.Ct. 843, 845, 34 L.Ed. 360 (1890): “[The acts] induced no conduct on the part of the appellant, or of any of the creditors of John II. Adden, which operated to their prejudice. They contained no element of estoppel.”
      And from Smith’s Ex’r v. Powell, 98 Va. 431, 36 S.E. 522, 524 (1900): “It is of the essence of estoppel that the act relied upon as such should have been injurious, and to the prejudice of him who relies upon it as estoppel.”
      And to like effect the court quoted from Brady v. Elliott, 181 Pa. 259, 37 A. 343 (1897), and cited Lincoln v. Gay, 164 Mass. 537, 42 N.E. 95 (1895); Drouin v. Boston & M. R. Co., 74 Vt. 343, 355, 52 A. 957, 960 (1902).

      . We expressly do not consider the situation of a will that provides a legacy given on condition that no attempt be made to declare the will invalid. Cf. Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L.Ed. 793 (1898).

      . Schmidt v. Johnston, 154 Md. 125, 133, 140 A. 87, 90 (1928). See Kelley v. Hazzard, 96 Oh.St. 19, 117 N.E. 182, 184 (1917): “There is, however, another well-settled exception to the tender back, and that is where the party chargeable with the tender would, in the event of his prevailing in the suit, receive at least as much as he now has in his possession; for, in such an event, no tender is necessary, as no harm can come either to the estate or to any interested party.”

      . E. g., whether the legacy is needed by the beneficiary for a reasonable standard of living; whether the legacy is being used to finance litigation of minimum substance that will put heavy costs on the estate and other beneficiaries or that will irreparably prejudice them; whether the legacy was of property of a unique and irreplaceable nature, to which the caveator would not be entitled if the will were set aside.

      . See Bowen v. Howenstein, 39 App.D.C. 585, 590 (1913):
      While it is undoubtedly the rule that a person who takes property under a will must be presumed to have elected to abide by the will in preference to his rights as an heir at law, in the absence, of course, of fraud, imposition, or misrepresentation, we have found no case holding that the temporary acceptance of such a benefit, resulting in no disadvantage to other parties, amounts to an estoppel. On the contrary, it has been held that the return of a legacy, the condition of the parties not having been changed, — that is, no prejudice having resulted from the temporary accept anee of the legacy, — leaves no room for an estoppel. (Emphasis supplied and citations omitted.)

        Sec also Utermehle v. Norment, 197 U.S. 40, 57, 25 S.Ct. 291, 296, 49 L.Ed. 655 (1905) and cases cited therein:
      As to what is the law relating to a party taking the benefit of a provision in his favor under a will, there is really no foundation to dispute the proposition that he thereby is precluded from, at the same time, attacking the validity of the very instrument under which he received the benefit.

        See also Cennamo v. American Security & Trust Co., 318 F.Supp. 366 (D.D.C.1970). The wealth of state cases holding as we have held in the past is so great as to negate citation.

      . See, e. g., L. Carroll, Alice’s Adventures in Wonderland (Orig. pub. 1865), and L. Carroll, Through the Looking Glass (Orig. pub. 1872).

      . An account of our confused and confusing roaming through the labyrinth of the insanity defense in criminal cases is a record of eighteen years from Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954), to United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972), in which we unwaiveringly in each successive case abandoned an earlier profound declaration of what we had (temporarily as it turned out) declared would be the governing law. For trial courts and the bar, the law was recognized as being whatever we would declare it to be in our next opinion.