author: KILKENNY, Circuit Judge:

text:
    Darrell R. PAGE, Appellant, v. Charles R. SHARPE et al., Appellees.
    No. 73-1234.
    United States Court of Appeals, First Circuit.
    Argued Sept. 6, 1973.
    Decided Oct. 29, 1973.

      Darrell R. Page, pro se.
    John J. Flaherty, Portland, Me., with whom Gerald F. Petruccelli and Preti & Flaherty, Portland, Me., were on brief, for Guy Gannett Pub. Co., appellee.
    Gerald F. Petruccelli, Portland, Me., with whom John J. Flaherty, and Preti & Flaherty, Portland, Me., were on brief, for Charles Sharpe and Edward Miller, appellees and with whom Joseph E. Brennan and Brennan & Brennan, Portland, Me., were on brief, for Joseph E. Brennan, appellee.
    Before MeENTEE, KILKENNY and CAMPBELL, Circuit Judges.

       Of the Ninth Circuit Court of Appeals, sitting by designation.

   KILKENNY, Circuit Judge:

This is a pro se appeal from the dismissal of what appears to be a civil rights action under 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. § 1343. The lower court dismissed the action for failure of the complaint to state a claim upon which relief could be granted, We affirm.

Appellant’s claims grow out of his indictment, trial and conviction by a jury of the crime of depositing in a United States Post Office an envelope containing a communication that thréatened to injure the persons of those in charge of the Adjudication Division of the Veterans Administration Center, Togus, Maine. [18 U.S.C. § 876]. Appellee Sharpe was the sheriff of Cumberland County, Maine where appellant was incarcerated while awaiting sentencing in the United States District Court. Ap-pellee Miller was Sharpe’s deputy. Ap-pellee Brennan represented appellant in the early stages of the prosecution. Ap-pellee Connellan was appellant’s attorney during the trial. Appellee Guy Gan-nett Publishing Company is the publisher of the Portland Press Herald, a newspaper.

We consider appellant’s arguments se-riatim.

CLAIMS AGAINST SHARPE & MILLER

In substance, appellant attempts to charge Sharpe and Miller with: (1) failure to provide proper medical care; (2) failure to provide law books; and (3) with censorship of mail.

(1) We are impressed with the rule stated in Church v. Hegstrom, 416 F.2d 449 (C.A.2 1969), i. e. that a denial of medical care to a prisoner is actionable under § 1983 only if the complaint alleges: (1) either an intent to harm the inmate, or (2) an injury or illness so severe or obvious as to require medical attention. Mere negligence, in the absence of conduct which shocks the conscience, in giving- or failing to supply medical treatment to prisoners will not suffice. Church v. Hegstrom, swpra. We search in vain for anything in the complaint which would bring appellant within the rule stated in Hegstrom. Martinez v. Mancusi, 443 F.2d 921 (C.A.2 1970), reaffirms the doctrine enunciated in Hegs-trom.

(2) The claim of unavailability of law books has even less merit. Under no stretch of the imagination is a county sheriff, or his subordinates, required to supply law books. Hatfield v. Bailleux, 290 F.2d 632 (C.A.9 1961). Needless to say, an entirely different issue would be presented if we were faced with an allegation that law books were available and that appellant was refused access. We are not here concerned with issues like those presented in Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970), aff’d sub nom., 404 U.S. 15, 92 S.Ct. 250, 30 L. Ed.2d 142 (1971), featuring jailhouse lawyers and in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), presenting similar issues.

(3) On the charge of mail eonsorship, the appellant seems to be playing with words. The closest' he comes to a factual statement is that he wrote two letters to a Boston attorney, that the letters were censored and that the attorney never received them. He does not charge that appellees censored the letters or that they were in any way responsible for the failure of delivery. Moreover, the complaint makes it clear that appellee Brennan was then representing the appellant as his attorney. The letters were not addressed to Brennan. Obviously, appellant suffered no harm by reason of the failure of the letters to reach an attorney who was in no way associated in the defense. Our holding on this issue in no way limits or detracts from the expressions of this court on the same general subject in Smith v. Robbins, 454 F.2d 696 (C.A.1 1972); Nolan v. Scafati, 430 F.2d 548 (C.A.1 1970); Tyree v. Fitzpatrick, 325 F.Supp. 554 (D.Mass.1971), aff’d. 445 F.2d 627 (C.A.l 1971), and Nolan v. Fitzpatrick, 451 F.2d 545 (C.A.l 1971).

CLAIMS AGAINST BRENNAN

Appellee Brennan was appellant’s court appointed attorney on October 5, 1970, when appellant withdrew his previously entered plea of not guilty and agreed in open court that the arraignment and further prosecution on the indictment would be postponed and appellant placed on informal probation for a period of two years under the usual conditions. At the time, the United States Attorney indicated that upon successful completion of the informal probation period, the indictment would be dismissed. Appellant was unable to live up to the conditions of the probation and on February 26, 1971, was again before the court for arraignment. He requested new counsel. However, on investigation, the court found that he was financially able to employ his own attorney. On March 18th, the informal probation was terminated. Appellant was then arraigned and entered a plea of not guilty. He charges Brennan with “tortious malpractice” in recommending acceptance of the informal probation. He says that on the revocation of the “unofficial probation”: “ . . . [H]e was quite disturbed to learn for the first time that the procedure was not authorized by federal statute.” Evidently, in proceeding under 42 U.S.C. §§ 1983 and 1985, appellant is of the impression that an appointed attorney representing a client in the defense of a criminal charge in federal court is acting under color of state law, within the meaning of the statute. He cites no authority and we find none which supports this view. To the contrary, even under state court appointments, the courts have uniformly held that ah attorney, whether appointed or retained, is not acting under color of law. Szijarto v. Legeman, 466 F.2d 864 (C.A.9 1972); French v. Corrigan, 432 F.2d 1211, 1214 (C.A.7 1970), cert, denied 401 U.S. 915, 91 S.Ct. 890, 27 L. Ed.2d 814 (1971); Mulligan v. Schlachter, 389 F.2d 231, 233 (C.A.6 1968); Kregger v. Posner, 248 F.Supp. 804, 806 (E.D.Mich.1966). Appellant’s contention that Brennan .conspired with the United States Attorney is conclusory only and completely devoid of an allegation of fact.

Additionally, even assuming that Brennan was an officer acting under color of state authority, the vague charges in the complaint defy intelligent analysis and do not state a claim on which relief can be granted.

CLAIMS AGAINST CONNELLAN

After the probation was revoked in February, 1971, appellee Connellan, an attorney,\was engaged to defend appellant. Connellan is likewise charged with “tortious malpractice.” What we have said about the Brennan claim with reference to it not being subject to the provisions of either 42 U.S.C. § 1983 or 1985, is equally applicable to the claim against appellee Connellan. Simply stated, the complaint does not state a claim against appellee under either section. A detailed statement of the charges would serve no useful purpose.

CLAIM AGAINST GUY GANNETT PUBLISHING COMPANY

In substance, appellant claims that: (1) Gannett suppressed judicial scandals in Maine and New Hampshire, although he does not allege the facts disclosing the alleged scandals; (2) appel-lee assured appellant that it would have a reporter available for his trial on July 12, 1971, and that such a reporter was not present; (3) although there was no reporter present, the appellee printed a story in its newspaper which was “colored” in that it did not, in fact, cover the trial and suppressed the facts with reference to law book deficiencies and appellant’s other claims; (4) appellee did not get its story from covering the trial with a reporter, but from an interview with the United States Attorney which did not report all of the facts with reference to the theory of his defense; and (5) that Gannett was guilty of “tortious misuse, abuse, non-use, and with improperly safeguarding the appellant’s rights in connection with the publication of the material on his trial.”

The most that can be said of the charges against Gannett is that it may have been careless in not having a reporter present and may have been negligent in failing to report appellant’s contentions. We find nothing in the charges which would even remotely suggest a claim of actual malice. Gannett’s First Amendment rights preclude a recovery unless actual malice is alleged. New York Times Co. v. Sullivan, 376 U. S. 254, 279, 283-284, 84 S.Ct. 710, 11 L. Ed.2d 686 (1964), and its progeny. The complaint does not state a claim, civil rights or otherwise, against Gannett.

CONCLUSIONS

Utilizing, as we must, the well established rule that appellant’s pro se complaint must be liberally construed, we find nothing in it which even remotely states a claim against any one or more of the appellees. Accordingly, the judgment of the lower court must be affirmed.

It is so ordered.


source: Caselaw Access Project

author: WISDOM, Circuit Judge:

license: Public Domain

text:
    Hoyte GENTRY and N. R. Johnston, Plaintiffs-Appellees, v. William R. SMITH, Defendant-Appellant.
    No. 72-2903.
    United States Court of Appeals, Fifth Circuit.
    Nov. 20, 1973.

      F. Lawrence Matthews, Miami, Fla., for defendant-appellant.
    Aaron Podhurst, Robert Orseck, Miami, Fla., for plaintiffs-appellees.
    Before WISDOM, GEWIN and CLARK, Circuit Judges.
   WISDOM, Circuit Judge:

This diversity contract action involves questions of rescission and assessment of damages under Florida law, and proper joinder of parties under the Federal Rules of Civil Procedure. William Smith, defendant-appellant, agreed to purchase from plaintiffs-appellees, Hoyte Gentry and N. R. Johnston, their stock in American Motor Inns of Florida, Inc., a Florida corporation which had as its sole asset a motel in Fort Lauder-dale. As putative purchaser, Smith was in possession of the motel for seven months. He appeals from the district court’s judgment that the contract of sale for the corporate stock was rescinded or abandoned by mutual consent. Smith also appeals from the court’s judgment awarding Hoyte Gentry and N. R. Johnston $65,000 in damages for taxes, supplies, and other obligations incurred by Smith during his possession. In addition, Smith contests the' failure of the trial court to join the corporation as a party to this action, and the refusal to award him damages for expenses he incurred while he was in possession of the motel. We affirm the district court’s decision as to mutual rescission, but reverse on the issue of damages, and remand the cause to the district court for a full accounting. The district' court may join the corporation as a party or may consolidate this proceeding with another now pending between Smith and the corporation.

I.

William R. Smith, a resident of Columbus, Ohio, has had extensive experience in the management of motels and restaurants. Perhaps with this in mind, C. K. Moffitt, as agent for Hoyte Gentry and N. R. Johnston, defendants, first approached Smith in 1968 with a proposal that he purchase the All-American Motor Inn of Fort Lauderdale, Florida. Gentry and Johnston owned all of the stock in American Motor Inns of Florida, Inc. After protracted negotiations, a contract of sale was entered into on September 12, 1969 (dated September 17, 1969), whereby Gentry and Johnston, as sellers, each agreed to convey to Smith, as purchaser, 1750 shares of the capital stock of the corporation, a total of 3500 shares. Under the agreement, the sellers’ remaining 6500 shares were to be transferred as treasury stock to the corporation, which was also a party to the contract. In consideration of his accession to ownership of the corporation and control of the motel, Smith agreed to assume certain corporate obligations,- and to deliver to the sellers a promissory note in the amount of $1,000,000, less the sum of the mortgage obligations that he assumed. The note was to be payable in installments over a five year period.

No closing was ever held, and neither stock nor negotiable instruments changed hands. Smith, however, took possession of the motel on September 15, 1969, and operated it thereafter until April 3, 1970. During this period, the sellers continually attempted to induce Smith to close the transaction, but he refused to do so. He did assume full control of motel operations, opened a bank account in the name of the corporation, and listed himself as president. Even before taking possession, Smith had obtained two franchising agreements pertaining to the All-American Motor Inn, but executed by William R. Smith personally. Although the sellers had not given Smith permission to represent and negotiate for the corporation in this manner, they did not demonstrably oppose his doing so. Rather, their efforts, through correspondence, telephone conversations, and repeated meetings in Columbus and Fort Lauderdale, were directed to setting a date for closing. Smith refused to close, however, until the sellers repaired the motel central air conditioning unit; placing the air conditioning in proper working order was, Smith insisted, the sellers’ obligation under the contract, and a condition precedent to closing.

Throughout the negotiations, the motel air conditioning system and its various malfunctions served as the prime source of contention, Smith steadfastly refusing to close until the sellers repaired it fully. At each meeting of the parties, the sellers attempted to settle the dispute by offering to allow Smith to deduct a fixed amount from his first installment to cover the cost of repair of the air conditioning unit, a course of action clearly contemplated by the contract. Gentry and Johnston allege, though Smith denies it, that at a meeting in Columbus on March 3, 1970, they even offered to waive entirely the $25,000 first installment that was due March 31st. Whatever the amount of this proposed settlement, Smith rejected it, and the sellers’ attorney shortly thereafter demanded an immediate closing. The parties met again in Fort Lauderdale on April 3, 1970, and were again unable to close, although Smith maintains, and it is not controverted, that they agreed to meet on April 7 to conclude negotiations, and tentatively scheduled the closing for April 9.

The April 7 meeting was never convened. On April 4, after Smith had returned to Ohio, the sellers repossessed the motel. It is undisputed that the repossession was peaceful, and that it was accomplished without benefit of legal process.

On April 6, 1970, Gentry and Johnston filed a complaint in the United States District Court for the Southern District of Florida, alleging breach by Smith of the contract for the sale of the stock of American Motor Inns of Florida, Inc. Smith counterclaimed for breach of contract, and sought specific performance as well, a claim he later dropped. A non-jury trial was held in December 1971, and the court’s findings of fact and conclusions of law were submitted on March 13, 1972. On April 26, 1972, the defendant Smith was permitted to substitute counsel, and on May 15, through his new attorneys, he moved to join American Motor Inns of Florida, Inc., not previously a party to the action, as a plaintiff-counterdefendant. Smith had made no earlier motion to join the corporation, and had previously opposed its joinder. He now also sought to amend his counter claim to state a cause of action in quasi-contract against the corporation. Both of these motions were denied by the district court, and final judgment was entered dismissing the counterclaim, declaring the nullity of the contract and awarding $65,043.98 in damages to the plaintiffs for expenses incurred as a result of Smith’s period of control. It is from this judgment that Smith appeals.

II-

The ironic aspect of this controversy is the manner in which each of the parties accuses the other of neglecting to utilize proper legal remedies and the mechanisms of the courts, yet fails to examine his own position for the same infirmity. Both Smith on the one hand, and Gentry and Johnston on the other, relied on self-help rather than legal process as a means of contract enforcement. In neither case, the district court concluded, can self-help be justified; it found the contract to have been breached by both parties and, therefore, abandoned and rescinded by mutual consent. Our review of that determination is governed by the strict standard set out in United States v. United States Gypsum Co., 1948, 333 U.S. 364, 394-395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 765-766: Reversal of a district court’s factual decision is proper only where its findings of fact are “clearly erroneous”.

As to the findings of breach by each party, the United States Gypsum standard was clearly met. Although both the appellees and the appellant contest the district court’s finding on this issue, they do agree that if both breached the contract, the lower court’s finding of rescission by mutual consent is correct, and the contract ought not be enforced. Such appears to be the law of Florida. See McMullen v. McMullen, Fla.Ct.App.1966, 185 So.2d 191, 193; Cox v. Grose, 1929, 97 Fla. 848, 122 So. 513, 515. Thus the only controversy as to this phase of the ease is whether the district court erred in the finding of breach by each party. We hold that the court was correct.

The contract of sale specified no time for performance, and set no date for a closing. In such contracts, the law will imply a reasonable time for performance, in an attempt to give effect to the intention of the parties. Cory v. Logan Coal & Supply Co., 5 Cir. 1931, 48 F.2d 28, 30 (dicta); Florida Power & Light Co. v. Atlanta G. & P. Co., 5 Cir. 1930, 38 F.2d 948, 949. What constitutes a reasonable time for performance will depend on the factual context of the contract and the circumstances of the parties to it, as viewed by the trial court. National Exhibition Co. v. Ball, Fla.Ct.App.1962, 139 So.2d 489, 493; see Rosenthal, Remedies in Disputes Arising Out of Agreements* to Buy and Sell Businesses, 12 B.C.Ind. & Comm.L.Rev. 825, 833-34 (1971). One key factor in determining the reasonableness of any delay in performance is whether time is of the essence to the contract, dearly, time was not initially essential here, but Florida courts have held that even where the contract is silent on the subject, once a reasonable time for performance has passed, time can be made of the essence by the party not in default demanding that the defaulting party discharge his obligations. National Exhibition Co. v. Ball, 139 So.2d at 493; Chabot v. Winter Park Co., 1894, 34 Fla. 258, 15 So. 756, 758.

Here, the contract was executed on September 12, 1969, and Smith, the purchaser, assumed possession of the motel three days later. Smith began immediately to act as if the transaction had been completed, designating himself as president of the corporation and taking over complete management of the motel. This alone would tend to indicate that an early closing was anticipated. Yet more than six and one-half months after the contract date, no closing had taken place. The last meeting of the parties occurred several days after March 31, 1970, the day the first $25,000 installment was due under the terms of the contract. It is apparent that a closing was reasonably contemplated long before this. Yet Smith refused to close, despite repeated requests by the sellers. If time was not initially of the essence in this agreement, Smith’s protracted delay in the face of the sellers’ insistence that he perform, made time of the essence, and his refusal to close, a breach.

Smith makes three replies to this analysis. He contends, first, that the district judge did not find that he refused to close, but merely that he failed to do so; second, that the trier of fact made no finding that his delay was unreasonable; and third, that his unwillingness to close was justified under the contract by the failure of the sellers to repair the motel’s air conditioning system. His first two contentions are disposed of by the very district court findings he seeks to rely upon: “In fact a breach of the contract did exist for a considerable period of time because the buyer did not close or tender a closing.” Under the applicable Florida law, this is tantamount to a finding that the appellant did refuse to close and that his delay in doing so was unreasonable. Savage v. Horne, 1947, 159 Fla. 301, 31 So.2d 477, cited by the appellant in support of his position, is not to the contrary. Although it is true, as the court there asserted, that “[a] mere suggestion that performance of the contract be delayed to a future time is not a repudiation of its obligations nor ground for rescission”, the clear import of the district judge’s findings is that Smith’s noncompliance was more than “a mere suggestion” of delay, and in fact constituted a breach. Since that finding is not “clearly erroneous”, the Savage v. Horne “suggestion” standard is inapplicable.

Smith presses the contention that he was not obligated to close until the sellers put the Inn’s air conditioning in proper working order, as required by Paragraph Nine of Part I of the contract. That provision does not support his assertion:

9. Sellers agree that the air conditioning will be in good working order when possession is delivered to Buyer. Should there be any substantial trouble or problem with the air conditioning arising after Buyer goes into possession, then such air conditioning problem can be corrected by Buyer, the cost of the same to be charged against Sellers’ first $25,000 obligation described ' hereinbelow. Provided, however, that Sellers shall be given immediate notice of such defect and shall be obligated only for such defects arising within a reasonable time after closing, which reasonable time shall not exceed thirty days.

As the district court observed, Smith, as purchaser, is expressly provided with a legal remedy under the contract, should the air conditioning fail. Nowhere does the contract require the sellers to repair the air conditioning. Smith’s remedy was to have the unit repaired and to deduct from the first installment the co.st of those repairs. Thus, his refusal to close, far from being justified by the contract, constituted a breach of its terms, as the district court correctly concluded.

We also affirm the district court’s determination that, by their self-help repossession, the sellers breached the contract and that it was thereby rescinded. Gentry and Johnston argue that since the contract specifically authorized them to repossess the motel in event of a breach by Smith, and in that the repossession was peaceful, they know of no rule of law under which they might be held to have breached the contract. Yet Florida’s policy on such self-help repossession is clear:

It is elementary that no person has the right to forcibly enter premises in the possession of and occupied by another, whether the person occupying the premises happens to be in the premises or absent therefrom at the time. The law provides an adequate and speedy remedy for the acquisition of possession of premises which are wrongly held by another. .
Should Buyer be in default of the obligations under the terms of this agreement, Sellers can declare the same void at Seller’s option and retake possession of such property with or without a necessity of legal action. If Buyer is in default and Sellers have elected to declare the same void, Buyer agrees to vacate said premises and return possession to Sellers in good condition without necessity of court action. Should Buyer fail to vacate and court action is necessary to regain possession of the property and the stock of the Corporation, and Sellers are successful in regaining possession of such property and/or stock of the Corporation, then Buyer Corporation and William It. Smith personally shall be liable for all damages and expenses incurred by Sellers in regaining possession of the same including interest, court costs, attorney’s fees and any loss of business, if any; by reason of any delay in regaining possession of the same.

Adelhelm v. Dougherty, 1937, 129 Fla. 680, 176 So. 775, 777.

Adelhelm, is all the more persuasive because the repossession attempted there was also peaceably accomplished while the tenant was not at home. This policy against self-help repossession is also embodied in statute. Florida provides a remedy for a party ousted from possession without legal process:

No person who enters without consent in a peaceable, easy and open manner into any lands or tenements shall hold them afterwards against the consent of the party entitled to possession thereof.

Fla.Stat.Ann. § 82.02 (Supp.1973). “Entitled to possession” has been construed to include any right of possession, and it is immaterial whether the plaintiff in such an action had the legal right of possession or not. Floro v. Parker, Fla.Ct.App.1967, 205 So.2d 363, 366.

Chapter 82 also provides the remedy that Gentry and Johnston should have pursued to regain possession: an action for unlawful detainer. It was to avoid precisely the type of repossession undertaken by the sellers here that Chapter 82 was enacted.

The entry and detainer action is designed to compel the party out of actual possession, whether the real owner and as such entitled to the ultimate right of possession, or not, to respect the actual present possession of another, wrongful though it might be, by requiring him, in order to obtain the possession he claims to be his, to resort to legal channels, such as a suit for ejectment, or trespass to try title, or removal of tenant proceedings under Sec. 83.20 et seq.

Floro v. Parker, 205 So.2d at 367. Gentry and Johnston chose to ignore these legal alternatives, and to take possession of the motel summarily. This they could not legally do, regardless of the contract provision authorizing self-help' tactics. See Adelhelm v. Dougherty, 176 So. at 777; Ardell v. Milner, Fla.Ct. App.1964, 166 So.2d 714, 716. Coupled with Smith’s failure to perform, the repossession provided sufficient grounds for the district court to find that the contract was mutually rescinded and abandoned.

III.

Having reached the conclusion that the contract of sale had been rescinded by mutual consent, the district court went on to award Gentry and Johnston $65,000 in damages to compensate for expenses incurred as a result of Smith’s operation of the motel. The court made no provision, however, to restore to Smith the sums of money he expended while he was in control of the corporation, although the corporation unquestionably benefitted from these expenditures. In failing to return the individual contracting parties to their pre-contract position, the district court improperly applied Florida law.

As the Supreme Court of Florida held in Lang v. Horne, 1945, 156 Fla. 605, 23 So.2d 848,. 853:

It is the well settled law of this State that a party who rescinds an agreement must place the opposite party in status quo, McDonald v. Sanders, 103 Fla. 93, 137 So. 122, 126; and where restoration is impossible [the] contract cannot be rescinded. Pryor v. Oak Ridge Dev. Corp., 97 Fla. 1085, 119 So. 326; Williams v. Penn Mutual Life Ins. Co., D.C., 6 F.2d 322; Cox v. Grose, 97 Fla. 848, 122 So. 513.

This rule has long been the law of Florida, and has been applied in Florida contract actions by this Court. See Alegre v. Marine Motor Sales Corp., 5 Cir. 1956, 228 F.2d 713. Since it is inequitable to allow one party to a sales contract to retain both the subject matter of the transaction and the benefit conferred upon him by the other party, Florida insists that the interests of both parties be recognized and enforced. Savage v. Horne, 1947, 159 Fla. 301, 31 So.2d 477, 482; Zapetis v. Wills, Fla.Ct.App.1963, 156 So.2d 33, 36. Here, the district court order permits Gentry and Johnston to retain both the stock they had contracted to sell and the benefits of Smith’s management and expenditures on corporate obligations. Smith, on the other hand, is to receive no reimbursement for such expenditures and must pay $65,000 in damages besides.

We reverse the judgment as to damages, and remand the cause to the district .court for an accounting as outlined below.

IV.

Concluding as we have that the district court erred in its assessment of the damages, we are left with the task of determining how this action might best be brought to a just and expeditious resolution. It is clear from statements made by both counsel at oral argument that without a precise accounting among the parties to the contract, an accurate calculation of damages is impossible. Smith, for his part, maintains that his contributions to the corporation far exceed any amount the sellers and the corporation were required to expend as a result of his period of control. Gentry and Johnston assert, however, that any benefit derived from Smith’s tenure was conferred upon the corporation, and it is to it that Smith must look for restitution. This matter, they contend, has no relation to Smith’s liability to them for their expenditures on obligations that he incurred.

To complicate matters further, the corporation is not presently a party to this action, and unless it is joined, any accounting will be incomplete and another suit will be necessary. The appellant has instituted such a separate action in the Southern District of Florida, and seeks to recover the sums he advanced to the corporation. Many of the issues that will arise in this new action will already have been litigated in the instant case. If that action is consolidated with the present suit or the corporation joined as a plaintiff-counterdefendant the likelihood of a consistent and proper three-way accounting will be increased.

Gentry and Johnston resist any suggestion of joinder or consolidation on the ground that it was only after a trial had been conducted and findings issued that Smith sought to join the corporation. Previously, they point out, he had actively opposed its addition. Whatever the force of such arguments, the context of Smith’s delay in filing his motion is also crucial. Here, his trial counsel, who had resisted joining American Motor Inns of Florida, Inc., abruptly withdrew from the practice of law after trial, and Smith .was required to retain new attorneys. Shortly after they had been retained, and before judgment was entered, his new attorneys moved to join the corporation as a plaintiff-counterdefendant. It is difficult to see how they could have moved to add the corporation at an earlier time. In these circumstances, the interests of justice and judicial economy would be served by joinder or consolidation, notwithstanding the tardiness of the motion to add a party.

The flexible approach adopted by the Federal Rules of Civil Procedure, Fed. R.Civ.P. 13(h), as amended in 1966, explicitly permits persons not originally parties to an action to be made parties to a counter-claim or crossclaim according to the general joinder provisions of Fed.R.Civ.P. 19 and 20. See Advisory Committee’s Note to Proposed Rule 13, 1966, 39 F.R.D. 79. Thus consideration of Smith’s post-trial motion to join American Motor Inns of Florida, Inc. is governed by Rule 19 and the cases decided thereunder.

In deciding joinder motions under Rule 19, courts emphasize pragmatic considerations rather than rigid formalism: the maximum effective relief with the minimum expenditure of judicial energy. Schutten v. Shell Oil Co., 5 Cir. 1970, 421 F.2d 869, 873; Broussard v. Columbia Gulf Trans. Co., 5 Cir. 1968, 398 F.2d 885, 888; Advisory Committee’s Notes to Proposed Rule 19, 1966, 39 F.R.D. 89, 90. This concern with the practical gives the district judge wide latitude in deciding when the promise of a speedy resolution to a controversy in a single action outweighs any inconvenience to the parties caused by a failure to conform strictly to the requirements of pleading. Brous-sard v. Columbia Gulf Trans. Co., 398 F.2d at 889. Nor does the mere fact of delay in seeking to join a" party limit the exercise of this discretion. As Judge Tuttle, sitting by désignation in the Sixth Circuit observed, “[i]t is permissible to join ... a defendant at any stage of the litigation in the trial court so long as it is given sufficient notice and opportunity adequately to defend its interests.” Boles v. Greeneville Housing Authority, 6 Cir. 1972, 468 F. 2d 476, 480 n. 6 (emphasis added). In the present case, the joinder of the Florida corporation is feasible, desirable and would not destroy the district court’s diversity jurisdiction. Furthermore, since its two officers and sole shareholders are already parties to the action, no conceivable prejudice to the corporation’s interests could arise from the lateness of the order of joinder. In such circumstances, the late date of the submission of the motion cannot be conclusive.

(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete r& lief cannot be accorded among those already parties, or (2) he claims an' interest relating' to the subject of the action and is so situated that the disposition of the action in his absence may' (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.

Nevertheless, we do not direct the district court to grant the appellant’s motion to join the corporation. The dispo-. sition of such motions is within the district court’s discretion. Our concern is that there be a just computation of damages. Thus we hold only that even should the district court deny the appellant’s motion, the fact that the trial has already been completed need not deter a proper accounting. On its own motion, the court may order that the corporation be added as a party under the provisions of Fed.R.Civ.P. 21. In terms, Rule 21 provides that the parties may be added by the court “at any stage of the action and upon such terms as are just”. This language has been held to permit joinder of a party more than two years after commencement of the action, after trial, and even on appeal. Rule 21 could, therefore, be applied productively here.

Perhaps the best course, however, is offered by Fed.R.Civ.P. 42(a), authorizing a district court to consolidate actions pending before it involving a common question of law or fact. The stated purpose of Rule 42(a) is to “avoid unnecessary costs or delay”, and hence the decision to. invoke the rule is entirely within the discretion of the district court as it seeks to promote the administration of justice. Fed.R.Civ.P. 42(a); Stemler v. Burke, 6 Cir. 1965, 344 F.2d 393, 396; Ellerman Lines, Ltd. v. Atlantic Gulf Stevedores, Inc., 3 Cir. 1964, 339 F.2d 673, 675, cert, denied, 1965, 382 U.S. 812, 86 S.Ct. 23, 15 L. Ed.2d 60; Whiteman v. Pitrie, 5 Cir. 1955, 220 F.2d 914, 917-918; Davis v. Yellow Cab Co., 5 Cir. 1955, 220 F.2d 790, 791. In this Circuit, district judges have been “urged to make good use of Rule 42(a) ... in order to expedite the trial and eliminate unnecessary repetition and confusion”. Dupont v. Southern Pacific Co., 5 Cir. 1966, 366 F.2d 193, 195, cert, denied, 1967, 386 U. S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 106. Should the district court here choose to consolidate this action with that instituted by Smith against the corporation, considerable confusion and repetition could be avoided. Therefore, although Smith’s action against the corporation was not begun until this case was on appeal, the district judge would not abuse his discretion by ordering consolidation.

In summary, the findings of the district court as to mutual breach and rescission of the contract are affirmed. The finding of the trial court as to damages is reversed, and the cause remanded so that a full accounting may be had among the parties to this action and American Motor Inns of Florida, Inc., the corporation to be made a party to the accounting as the district court shall direct. Our disposition of the case makes it unnecessary to consider the other points raised by the parties in their briefs.

      . There was also a dispute as to the provision in the contract obligating the sellers to reimburse the purchaser for television sets and other furniture lost or damaged prior to the purchaser’s assumption of possession on September 15, 1969. This disagreement seems to have been secondary however.

      . The thrust of the McMullen and Com opinions is that while one party’s unjustified refusal to comply or proceed with a contract cannot itself constitute a rescission, it may be viewed as an offer to rescind. The other party can complete the rescission by either acquiescing in the first party’s refusal to close or by declaring that the contract is at an end. Here, if, as the trial court held, Smith’s refusal to close was unjustified, the seller’s repossession of the motel was an unequivocal acceptance of what under Florida Law amounts to an offer to rescind.

      . 31 So.2d at 482, quoting Black on Rescission and Cancellation, Vol. I, 2d Ed., f 202.

      . Appellees Gentry and Johnston expend much energy in mustering authority to demonstrate that Paragraph Nine should be viewed as an independent rather than a dependent covenant and that, therefore, their failure to comply with its tenets would constitute no ground for the purchaser’s refusal to perform. See, e. g., Steak House Inc. v. Barnett, Fla. 1953, 65 So.2d 736, 737-738; Walker v. Close, 1929, 98 Fla. 1103, 125 So. 521. Yet there is no reason to reach this issue. By its terms, Paragraph Nine requires no more than that the sellers be prepared to accept a first installment diminished by any amount reasonably expended by the purchaser to repair the air conditioning unit. Since the sellers were always willing to do this, the question whether Paragraph Nine is dependent or independent is irrelevant.

      . Part XI of the contract provides:

      . Fla.Stat.Ann. § 82.04 (Supp.1973), as amended, provides :
      “If any person enters or has entered in a peaceable manner into any lands or tenements when the entry is lawful and after the expiration of his right continues to hold them against the consent of the party entitled to possession, the party so entitled to possession is entitled to the summary procedure under section 51.011, Florida Statute, at any time within three (3) years after the possession has been withheld from him against his consent.”

      . The Ardell court explicitly rejected the notion that Florida’s policy against self-help repossession could be thwarted by contract:
      It appears that Ch. 83, Fla.Stat., F.S.A., provides for summary remedies by which a landlord may speedily regain possession and said remedy is exclusive of the right of the landlord to make a forcible entry, even though the lease contains a provision permitting the landlord to re-enter.
      166 So.2d at 716.

      . Discussion of permissive ' joinder under Rule 20 is unnecessary since we hold that the stricter standards of Rule 19 are met.

      . Rule 19 reads, in pertinent part:
      Joinder of Persons Needed for Just Adjudication

      . Rule 21 provides :
      Misjoinder and Non-Joinder of Parties
      Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately-

      . Halladay v. Verschoor, 8 Cir. 1967, 381 F.2d 100.

      . Relchenberg v. Nelson, D.Neb., 1970, 310 F.Supp. 248.

      . Mullaney v. Anderson, 1952, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (party added by Supreme Court) ; Anglo Canadian Shipping Co., Ltd. v. United States, 9 Cir. 1956, 238 F.2d 18 (party added by Court of Appeals).

      . Rule 42(a) provides:
      Consolidation; Separate Trials
      a. Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

      . One issue does deserve a brief comment. The appellant contends that remarks by the district court judge during the course of the trial indicate that he had decided the case in favor of the plaintiff-appellees before the defendant-appellant had presented his evidence. The comments he cites from the transcript are merely tentative, precatory remarks by the trial judge and furnish no evidence of prejudgment.


author: GIBSON, Circuit Judge.

text:
    Robert Dale MULLINS, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1203.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Nov. 16, 1973.

      Donald E. O’Brien, Sioux City, Iowa, for appellant.
    Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee.
    Before GIBSON and BRIGHT, Circuit Judges, and SMITH, Senior District Judge.

       Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Circuit Judge.

A grand jury indicted defendant Robert Dale Mullins on 20 counts of mail fraud in violation of 18 U.S.C. § 1341. The District Court dismissed two of the counts before submitting the case to the jury, who found defendant guilty of the remaining 18 counts. The Honorable Edward J. McManus, Chief Judge, United States District Court for the Northern District of Iowa, sentenced defendant to four years imprisonment on each count, the sentences to run concurrently, and suspended three and' one-half years of the imprisonment term.

On appeal, defendant urges the following contentions: (1) the assistant District Attorney improperly cross-examined Leo Light, a defense “character” witness, in violation of Gross v. United States, 394 F.2d 216 (8th Cir. 1965); (2) the District Court should have suppressed defendant’s business records seized from an office rented by defendant previous to the search; (3) the assistant District Attorney denied defendant a fair trial by allegedly abusing the Omnibus Directives of the United States District Court for the Northern District of Iowa in regard to discovery; (4) the District Court erred in admitting a Government exhibit of a letter by a former employee of defendant relating her reasons for leaving her job with defendant; (5) the District Court should have allowed defense cross-examination of a Government witness, a postal inspector, concerning an alleged felony conviction of a co-defendant, who was not then on trial with defendant; and (6) “character” witness testimony in defendant’s favor should not have been limited to the community and time period of the mail fraud scheme. Rejecting each argument, we affirm the judgment of conviction.

Since defendant does not contest the sufficiency of evidence to support the jury’s verdict, only a brief factual summary follows. During April and May, 1971, defendant with other business associates rented an office in Marquette, Iowa, from Mrs. McCracken and applied for a post office box in McGregor, Iowa, in order to commence selling magazine subscriptions under the name of States Circulation Service, Inc. (hereinafter States). States sold approximately 2,-000 magazine subscriptions between May and September, 1971, and received receipts of over $12,000. No subscriber received his magazines through States, and may subscribers testified that defendant notified them by letters that the subscriptions had been mailed to the publishers but that additional time was necessary before their subscriptions would commence.

Leaving no forwarding address, defendant and his business-associate wife left Iowa during August, 1971, for the Western United States. The rent on the Marquette, Iowa, office was prepaid through October 31, 1971, and States’ business records were left behind in the office. During February, 1972, United States postal inspectors, because of numerous complaints, began investigating States and were informed in late February by Mrs. McCracken, States’ landlady, that States’ business records were still in the Marquette office and that no rent had been paid for the office beginning November 1, 1971. On June 12, 1972, Mrs. McCracken unlocked the door to States’ previous office in Marquette for a postal inspector, who seized two boxes of States’ business records, some of which were subsequently admitted into evidence over defendant’s objection. The District Court denied defendant’s motion to suppress States’ business records seized by the postal inspector.

Defendant first argues that the Government improperly cross-examined Leo Light, who testified on direct examination concerning the character and reputation of defendant in the magazine subscription business and the fact that he (Light) would have cleared defendant’s subscriptions through Light’s “clearing house” business, National Literary Association, whether or not defendant had paid for them. To impeach Light’s testimony concerning defendant’s reputation, the following question was asked:

Would you say that someone who has been terminated for cause, expelled from the Central Registry of Magazine Subscription Solicitors [hereinafter Central Registry] on two occasions, three different occasions, is a man who would have a good reputation in the magazine industry?

Defendant immediately objected to the question, and contends on appeal that it violated Gross v. United States, supra, since the question, prior to its asking, “had not been shown to the defense counsel, nor had there been an in camera hearing where the same was presented to the Court.”

The defendant claims that Gross establishes, in all eases in which defendant has not been informed of a proposed impeaching question of a “character” witness, the procedure of an in camera hearing to evaluate whether the prosecution is acting in good faith when asking questions to impeach a defense “character” witness and whether there is a legitimate basis for the inquiry. Before Light answered the contested question in this case, the District Court held a hearing out of the jury’s presence, during which Mr. Gene Ludtke, a postal inspector, testified that he was familiar with Central Registry and that he had personally inspected its records, which showed defendant to have been terminated three times for cause. During the hearing, the Government withdrew the contested question and, after the hearing, the District Court instructed the jury, immediately and in the charge, to ignore the question and also cautioned the jury that the entire line of questioning was only for the purpose of testing Light’s credibility as a “character” witness.

Nevertheless, defendant argues that the asking of the question itself, absent a prior' hearing out of the presence of the jury, violated Gross and that the Government’s withdrawal of the question and the District Court’s instructions did not correct the error.

The leading Supreme Court case on impeachment of “character” witnesses, Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), noted that the law does not invest a defendant with a presumption of good character, but excludes that matter from the prosecution’s case in chief. The law then “gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.” Michelson v. United States, supra at 479, 69 S.Ct. at 220. A character witness may be cross-examined as to an arrest of defendant whether or not it culminated in a conviction and may even be asked about rumors concerning an event not too remote in time. As stated in Michelson: “[Defendants in general * * * have no valid complaint at the latitude which existing law allows the prosecution to meet by cross-examination an issue voluntarily tendered by the defense.” United States v. Michelson, supra at 485, 69 S.Ct. at 223 (citation omitted).

However, in balancing the interest of the public in protecting the prosecution against a parade of partisan witnesses against the precepts of a fair trial in not introducing collateral and irrelevant matters to the central issues involved, the trial court must take care to ascertain that there is a basis for the impeaching inquiry. In other words, the question should be related to an actual occurrence or a bona fide rumor affecting reputation. Also-, of equal importance is the trial judge’s function of carefully instructing the jury as to the limited purpose of this type of evidence, which bears only on the impeachment of the character witness’ testimony and is not to be taken and considered for any other purpose.

We think the defendant reads Gross too widely. It is true that Judge Vogel summarized the holding in Gross as follows:

It is our conclusion that when the prosecution attempts to attack the credibility of the defendant’s character witnesses by questions beginning “Have you heard this” or “Have you heard that”, that there should be a prior showing, out of the hearing of the jury, establishing to the trial judge’s satisfaction the truth of the basis for such inquiry and, further, cautionary and guiding instructions should be given, preferably both at the time of the inquiry and in the closing charge-to the jury.

Gross v. United States, supra 394 F.2d at 223 (citations omitted) (emphasis added).

However, Gross acknowledged the general rule set forth in Michelson, that “rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of trial courts on this subject” and then went on to determine that Gross offered one of those rare circumstances where prejudicial abuse of discretion had been clearly established, pointing out that the trial judge took no precautions to ascertain the truth of the basis for the question prior to or after the cross-examination. To compound matters in Gross, no cautioning instruction was given to the jury concerning the cross-examination either at the time of the inquiry or in the court’s final charge. Gross went on to point out the difference in Goodman v. United States, 273 F.2d 853 (8th Cir. 1960), which was also authored by Judge Vogel, finding no abuse of discretion by the District Court where the impeaching question had been first propounded to the character witness before the Government produced evidence of its veracity.

Gross emphasized:

The cross-examination in this case plus the failure to ascertain, out of the presence of the jury, a legitimate basis for the inquiry, and the failure to warn or instruct the jury was, we believe, clearly prejudicial.

Gross v. United States, supra, 394 F.2d at 222.

Gross further indicated that “the government had a duty to provide a proper instruction concerning the cross-examination,” and upon its failure to do so, it was the duty of the court to supply a cautionary instruction to the jury. Gross v. United States, supra, at 222.

The crux of the matter is two-fold: first, the failure to supply verification for the accuracy and integrity of the impeaching question and second, the failure to give a cautionary instruction on the very limited purpose this type of evidence is admitted to serve. In the instant case both of these objectives were fully served.

Our review of the appendix and the record, convinces us that the failure to conduct a “prior showing” in this case did not prejudice defendant's substantial rights. During the hearing, Ludtke testified that he had obtained copies of five registration cards from Central Registry on Robert Dale Mullins, that he had seen “thousands” of similar registration cards of Central Registry during his investigative work, and that the cards appeared to be authentic copies of the actual registration cards of Central Registry. He explained that magazine solicitors during this time were required to be registered with Central Registry before a “clearing house” company could forward the solicitors’ orders to the actual publishers. For example, defendant in this case sold subscriptions directly to the public and forwarded some of his orders to National Literary Association, Light’s business, who in turn sent defendant’s subscription orders to the publishers. Light’s business and independent salesmen, such as defendant, had to have registered with the Central Registry, whose purpose was to attempt to assure honesty in the often underhanded door-to-door magazine sales business. National Literary Association, as all “clearing houses”, had to make sure that the salesmen forwarding subscription orders were registered. Central Registry and trade publications provided information regarding the registration of salesmen and their affiliations with known “clearing houses.” Before a salesman could solicit orders and send them to a “clearing house,” he had to have registered with Central Registry, the only such registering organization then existing. Central Registry apparently would check the salesman’s credentials, issue registration cards, and also terminate for cause such registrations. Although the record and parties do not inform us of the exact procedure used by Central Registry to terminate a salesman for cause, the record does indicate that a termination for cause would suspend the right of a “clearing house” to process a salesman’s subscription orders and was considered very unfavorable within the industry.

Ludtke testified during the hearing that the five registration cards of Central Registry showed defendant to have been terminated for cause on June 17, 1954, September 14, 1959, and May 9, 1969. The contested question propounded to Light referred impliedly to three different occasions that defendant had been terminated for cause and was, therefore, accurate. We think that the Government’s impeaching question to Light was established to have a truthful basis by Ludtke’s testimony and the records of Central Registry, which were also admitted into evidence. The accuracy and propriety of the question were established by the hearing’s evidence and demonstrated that the Government was obviously acting in good faith in attempting to impeach Light’s testimony on direct examination. The question, after verification for a basis in fact, was permissible.'

After the hearing, the Government, in front of the jury, stated that it was withdrawing its question to Light, and the District Court cautioned the jury to ignore the question by saying:

Very well. Members of the jury, the question is withdrawn, and you are cautioned to ignore the question and I would also at this time caution you and point out to you that the attorney for the Government has asked certain questions [defendant on appeal contested only the one discussed question] of Mr. Light on cross examination as to the events in defendant Dale Mullins’ past business experience. I want to caution you that these questions were permitted for the sole and limited purpose of testing the witness, Mr. Light’s, knowledge of the defendant Dale Mullins’ reputation in the magazine world and it is to be considered by you for the sole and only purpose of testing the credibility of Mr. Light, the witness on the stand, who has given character or reputation testimony about the defendant Dale Mullins. You will consider it for no other purpose.

In addition, the District Court instructed the jury in the charge that the cross-examination of character witnesses was “only and solely to test the foundation and reliability and credibility of the character witness’ testimony * * * You must not consider such questions and answers as any evidence tending to prove that the defendant committed the crime charged, or that he is a person of bad character.”

In light of the facts that the hearing demonstrated the truth of the contested impeaching inquiry, that the prosecutor was acting in good faith, and that the District Court properly instructed the jury immediately after the Government withdrew the question and in the charge, we think that the alleged violation of Gross by failing to have a prior showing to establish the- truth of the contested impeaching inquiry-of defendant’s character witness and to establish the good faith of the prosecutor was at most harmless error. Fed.R.Crim.P. 52(a); United States v. Thompkins, 487 F.2d 146 (8th Cir., filed October 12, 1973) (and therein cited cases).-

We think it advisable to elaborate on Gross’ holding that a “prior showing, out of the hearing of the jury” is required to establish the truth of the impeaching question. First, the determination of the propriety of impeaching questions to character witnesses is generally left to the District Court’s broad discretion, and the District Court will not be reversed unless there is a “clear showing of prejudicial abuse.” Michelson v. United States, 335 U.S. at 480, 69 S.Ct. 213.

Specifically, we are concerned that requiring another hearing out of the presence of the jury unnecessarily fragments the trial process, causes frustrating delays, impedes the efficient conduct of the trial, and generally advances neither the prosecution nor accused’s position. Impeaching questions to character witnesses can be troublesome, as the avenue is open for taking an unsupported “random shot” at defendant’s repütation. Michelson v. United States, supra at 481, 69 S.Ct. 213. Gross reasons that a “prior showing” is advisable and points out that cautionary instructions on the limited purpose of impeaching questions is necessary on the grounds of fairness. Whether a prior showing is necessary appears debatable, as the crux of the issue is the verification of the integrity of the impeaching question. The propriety of proposed impeaching inquiries could be decided during a pretrial conference and would serve the laudable goals of shortening the actual trial time and fulfilling the dictates of Gross, but we do not think it need be either before trial or before questioning if the matter is satisfactorily resolved during the trial.

Second, defendant argues that the District Court should have suppressed records seized from the office rented 'by defendant from May 1, 1971, through October 31, 1971, and introduced into evidence. Both parties agree that if the defendant has abandoned property, government officials may seize that properly without a warrant and introduce it into evidence. Friedman v. United States, 347 F.2d 697, 704-706 (8th Cir.), cert, denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965). In Friedman, this circuit held:

Abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent. How did the person who was supposed to have abandoned the property act, that is, what did he do, and, second what was his intention ? These call for factual determinations.

Friedman v. United States, supra at 704. Friedman further states that the evidence to establish abandonment must be “clear, unequivocal and decisive.” Friedman v. United States, supra at 704, 706, 86 S.Ct. 407.

Defendant agrees with the above-stated law, but essentially argues that the Government did not sustain its burden of proof on abandonment by failing to demonstrate that all of the introduced and contested evidence was seized on June 12, 1972, the day the postal inspector, Ludtke, testified that he got permission from Mrs. McCracken to enter the office and remove defendant’s records. Defendant also states “that there was no indication during the suppression hearing as to where these exhibits had come from or by what nature or method the prosecution had gotten hold of them.”

First, defendant misconceives the type of evidence that the Government was required to introduce to establish abandonment. The Government was under no specific duty to establish that the records were seized on any particular day, but only had to establish that the seized and introduced records were abandoned when the Government did seize them.

Second, in reviewing the appendix and record setting forth the testimony during the suppression hearing, we are convinced that the evidence clearly, unequivocally, and decisively established that no records were seized until after defendant had abandoned the property, including his records, in the office previously rented from Mrs. McCracken. Defendant does not contest the fact that no rent was paid for the office beginning November 1, 1971, and that he and his wife did not visit the office after November 1, 1971. Further, no business associate or employee was in the office after the last week of October, 1971. Mrs. McCracken testified that the United States District Attorney padlocked the office during February, 1972, and both Mrs. McCracken and Ludtke testified that the business records of defendant were seized on June 12, 1972. The Government did not say that any records were physically seized before June 12, 1972, and specifically Ludtke testified that no records were obtained from defendant’s secretary before she left defendant’s employment and office during the last week of October, 1971. Defendant only asserts without any other evi-dentiary support that he did not intend to abandon the office and the records kept there. His subjective statement of intent is entitled to little weight and is patently at odds with the physical facts.

The District Court denied the defendant’s motion to suppress the business records, and as a reviewing court we do not reverse that finding “so long as there is substantial evidence to support the conclusions reached and no clear error appears on the record.” McNally v. United States, 485 F.2d 398 (8th Cir., filed September 14, 1973); Gullett v. United States, 387 F.2d 307, 309 (8th Cir.), cert, denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1967). Also, factual determinations, conclusions of law from those determinations, and the credibility of witness during a hearing on a motion to suppress are generally for the district court’s determination. McNally v. United States, supra at 406 of 485 F.2d; Miller v. United States, 354 F.2d 801, 805-808 (8th Cir. 1966). We think that the District Court’s decision is supported by substantial evidence on the record considered on the whole, that the correct legal principles were applied, and that no clear error appears.

Examining the four remaining questions of defendant, we conclude that they are without merit and only deserve brief comment. First, defendant argues that the assistant District Attorney abused the Omnibus Directives of the District Court for the Northern District of Iowa by failing to supply defendant with all the documents admitted into evidence at trial. The Government admits that some documents were not provided until trial, but states that most of the documents were Jeneks Act statements anyway and that defendant did eventually get all the documents that were admitted into evidence. United States v. Cole, 453 F.2d 902 (8th Cir. 1972), discusses the legal issues in relation to discovery and generally holds that discovery is within the sound discretion of the District Court. Cole stated that “an error in administering the discovery rules is not reversible, absent a showing that the error was prejudicial to the substantial rights of the defendant.” United States v. Cole, supra at 904 (citations omitted). Defendant does not point out exactly what was prejudicial about the failure to have the documents that were not allegedly produced. Since defendant has failed to demonstrate prejudice and since discovery is generally within the sound discretion of the District Court, we think that defendant’s argument on the alleged abuse of the discovery directives is meritless.

Defendant also argues that the District Court erred in admitting a letter written by Wanda Rosson to her employer, the defendant. The Government originally attempted to introduce this letter on direct examination of Rosson, but defendant objected to the introduction of the letter, which was sustained by the District Court. The letter related the reasons why Wanda Rosson was leaving her job with defendant. On cross-examination, counsel for defendant attacked Rosson’s memory relating to the time she left employment with defendant and the reasons for her leaving. On redirect examination, the Government introduced the letter which was admitted into evidence for rehabilitation of the testimony of Rosson.

Defendant cites no authority for the argument that the District Court erred in admitting the letter on redirect examination. The Government correctly argues that the admission of the letter was proper to rehabilitate the testimony of Rosson. United States v. DiLorenzo, 429 F.2d 216, 220 (2d Cir. 1970). Clearly, rehabilitation of Rosson on redirect examination by admission of the letter was permissible.

Further, defendant argues that Ludtke during cross-examination by defendant should have been allowed to answer if he knew whether Frank Gleo (a co-defendant and business associate of defendant) had been convicted of a felony. The Government’s objection to this question was sustained. Defendant claims on appeal that he was attempting to show that many of the alleged fraudulent schemes charged to defendant were actually committed by Gleo. However, defendant admits that “I have not been able to find any cases which would seem to support my position.” The Government argues that defendant did not establish proper foundation to demonstrate that Ludtke was a competent person to know this information, and defendant does not contest this response by the Government in his reply brief. Not only is the Government’s position correct that no proper foundation for Ludtke was demonstrated, but also the matter of relevancy and materiality is for the District Court’s determination, absent a clear abuse of discretion.

Last, defendant argues that the District Court should not have restricted defendant’s “character” witnesses to testimony relating to the time and geographic area concerned with the mail fraud scheme charged. Defendant acknowledged that “character and * * * reputation should be for the specific trait involved in the community at the time of the offense,” but argues that this rule is “unduly restrictive” in this case. We think the District Court properly excluded the proffered defense character testimony since it offered reputation information about defendant occurring at a different place and time than the mail fraud scheme. . Michelson v. United States, supra 335 U.S. at 478, 484, 69 S.Ct. 213.

Judgment of conviction affirmed.

      . In United States v. Beno, 324 F.2d 582, 588 (2d Cir. 1963) (citations omitted), the court said:
      “[I]t is permissible to ask these witnesses whether they have ‘heard’ of rumors which could injuriously affect their evaluation, provided that the prosecution acts in the good faith belief that the incidents to which the questions alluded actually occurred, and the jury is instructed as to the limited weight which such ‘evidence’ may be given.”

      . Michelson v. United States, supra 335 U.S. at 480, 69 S.Ct. at 221 (citations omitted).

      . It is not entirely clear from Ludtke’s testimony whether defendant was terminated for cause on June 17, 1954. Although Ludtke did at one point state that defendant was terminated for cause on June 17, 1954, later ambiguous testimony by Ludtke could be interpreted as meaning that defendant was not terminated for cause on that date. Nevertheless, Ludtke definitely did state that defendant was terminated for cause on September 14, 1959, and May 9, 1969. Whether defendant was terminated two or three times for cause is immaterial for the purpose of our holding. Although the truth of an impeaching inquiry must be determined by the District Court, the difference between termination for cause on two or three occasions does not constitute the type of “random shot” that must be guarded against. Further, the more important terminations for cause would be the ones later in time, which definitely were said to have occurred according to Ludtke and the records of Central Registry.


author: PER CURIAM:

text:
    Frank GERACI, Jr., Individually and on behalf of all other persons similarly situated, Plaintiff-Appellant, v. James TREUCHTLINGER, Commissioner of Corrections for the County of Nassau, and Walter Flood, Warden of the Nassau County Jail, Individually and in their official capacities, Defendants-Respondents.
    No. 54, Docket 73-1496.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 9, 1973.
    Decided Nov. 19, 1973.

      Matthew Muraskin, Mineola, N. Y. (James J. McDonough, Attorney in Charge, Legal Aid Society of Nassau County, Mineola, N. Y., Marcia H. Sukenik, New York City, of counsel), for plaintiff-appellant.
    Benedict F. Romano, Deputy County Atty. (Joseph Jaspan, County Atty., of Nassau County, Mineola, N. Y., Blagio Giaquinto, Senior Deputy County Atty., of counsel), for defendants-respondents.
    Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
   PER CURIAM:

The plaintiff-appellant, Frank Geraci, Jr., began to serve a‘ six-month sentence in the Nassau County Jail, a New York State institution, on November 11, 1972 for violation of probation and attempted possession of a dangerous drug in the fourth degree. On that date he was instructed by a jail officer to cut his hair one inch. A month later he was again instructed to cut his hair, but this time he refused. He was thereupon remanded to an “administrative tier” on December 13, 1972. One week later, Geraci and about a dozen other inmates who were in the administrative tier were orally advised of Nassau County Sheriff’s Order Number 25, dated October 9, 1972, which in essence requires prisoners to keep their hair neat, clean and trimmed, not touching the ears or collar except for the closely cut hair on the back of the neck. A prison official further read New York Correction Law § 804 (McKinney’s Consol.Laws, c. 43, 1968) and informed the inmates that, pursuant to that statute, “good time” allowances would be removed from those who violated the Sheriff’s Order. Gera-ci and nine other inmates refused to have their hair cut and Geraci was denied his good time allowance.

Geraci thereupon commenced this civil rights action in the United States District Court for the Eastern District of New York, individually and on behalf of all males incarcerated in the Nassau County Jail who were threatened with or who had received punishment for refusal to cut their hair. The complaint purports to state a claim under 42 U.S. C. § 1983, alleging that the Order is unconstitutional because it deprives the class members of the Fifth and Fourteenth Amendment rights of equal protection and due process. Plaintiff claims that the Order is not enforced against females, male Black Muslims or Hasidic Jews, and that he and other class members have been deprived of good time without the benefit of a hearing.

By order to show cause dated February 23, 1973, Geraci sought: (A) an order pursuant to Rule 23(e)(1) of the Federal Rules of Civil Procedure that the action proceed as a class action in accordance with Rule 23(a) & (b)(2) on the ground that class membership was so numerous that joinder of all was impractical and that the claims were common and typical, making appropriate final injunctive and declaratory relief with respect to the class as a whole; (B) a preliminary injunction pursuant to 28 U.S.C. § 2281 enjoining the defendants from punishing the plaintiff and all similarly situated pending the hearing and determination of the action by the court. The affidavits in opposition to the motion urged in part that the case did not warrant class action treatment since there was no showing that all or even a majority of the inmates agreed with the plaintiff's position, and that in fact the number of inmates disturbed by the regulation was minimal.

By memorandum decision and order, Hon. John R. Bartels, United States District Judge, Eastern District of New York, denied the motion and dismissed the complaint as a class action, on March 20, 1973, finding no constitutional infirmity in the regulation. The district judge determined that the Sheriff’s Order had a hygienic objective, that the exception for females and religious objectors was justified on traditional distinctions between hair modes of males and females and on religious grounds, and finally that there was no violation of procedural due process. This appeal followed.

[l, 2] On April 29, 1973, Geraci was released from the Nassau County Jail. Under familiar principles holding that we have no jurisdiction where there is no actual controversy, the appeal must be dismissed as moot. Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Geraci sought no damages and even if a nominal monetary recovery were sought, the action here would fail for mootness. Kerrigan v. Boucher, 450 F.2d 487 (2d Cir. 1971).

We cannot denominate this a class action since the court below, having decided the case on the merits, made no finding under Rule 23 that a class action existed. There was no determination that the class was so numerous that joinder was impracticable (a disputed issue), and in fact no determination was made that any of the prerequisites of Rule 23(a) & (b)(2) were met. No order issued pursuant to Rule 23(c) and no notice to the purported members of the class was ever issued. Even if a class action had, been declared, the loss of standing of the champion, the sole named member of the class sought to be represented, would moot the appeal. See Norman v. Connecticut State Board of Parole, 458 F.2d 497, 499 (2d Cir. 1972) (per curiam).

Moreover, there is no indication of interest by way of intervention by any member of the class in this federal action. On the contrary, one Walter Han-dlin, a prisonmate of Geraci at the Nassau County Jail and presumably a member of the putative class, turned to the New York State Supreme Court, Nassau County, in March, 1973, for relief in an Article 78 proceeding. Handlin had the same aversion to tonsorial attention as Geraci, suffered the same penalty, and secured the same counsel who has raised the same issues in that proceeding. A decision adverse to Handlin was rendered by Supreme Court Justice Mc-Caffrey on April 6, 1973, and an appeal from his order is presently pending in the Appellate Division, Second Department (Handlin v. Flood, Appeal No. 1541E). Since a choice to pursue the state remedy was freely made by counsel, whatever reluctance we might otherwise have to dismiss here without reaching the merits, has evanesced. There is a direct route to the Supreme Court from any decision adverse to Handlin. See 28 U.S.C. § 1257.(2) & (3).

Appeal dismissed.


text:
    Frank W. COKER and Regina Coker, Petitioners-Appellants and Cross-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee and Cross-Appellant.
    Nos. 634, 825, Dockets 72-2309, 73-1011.
    United States Court of Appeals, Second Circuit.
    Oct. 17, 1973.
    Certiorari Denied Jan. 7, 1974.
    See 94 S.Ct. 868.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and David English Carmack, Attys., Tax Div., Dept, of Justice, for respondent-appellee and cross-appellant.
    Thomas J. Carley, Rockville Centre, N. Y., for petitioners-appellants and cross-appellees.
    Before CLARK, Associate Justice, and WATERMAN and FEINBERG, Circuit Judges.

       Associate Justice of the United States Supreme Court (Retired) sitting by designation.

   PER CURIAM:

On May 14 of this year, 480 F.2d 146, we affirmed a decision of the United States Tax Court, CCH Tax Ct. Mem. 1972-80, permitting appellant taxpayers to deduct one-third of the expense incurred by Mr. Coker in commuting by car to and from his job as a carpenter and shop steward at a construction site. This deduction was held to be proper because Mr. Coker was required to carry his carpentry tools with him each day when driving between his home and the job site, and under this court’s decision in Sullivan v. Commissioner, 368 F.2d 1007 (1966), a taxpayer may deduct from his commuting expenses an appropriate percentage allocable to the transportation of his tools.

On June 25, however, the Supreme Court affirmed a contrary decision of the Fifth Circuit and thereby resolved a conflict among the circuits on this issue by holding that commuting expenses are not deductible merely “because by happenstance the taxpayer must carry incidentals of his occupation with him.” Fausner v. Commissioner, 413 U.S. 838, 93 S.Ct. 2820, 37 L.Ed.2d 996 (1973) (per curiam). The Court did leave open the possibility that an appropriate amount may be deducted if “additional expenses” are “incurred for transporting job-required tools and material to and from work.” (Footnote omitted.)

In view of the intervening decision in Fausner, we grant the Government’s petition for a rehearing and reverse the decision of the Tax Court insofar as it permits the Cokers to deduct part of Mr. Coker’s commuting expenses. Fausner clearly overrules Sullivan, and holds that none of the commuting costs are deductible when, as in this case, the taxpayer would have used his automobile in any event. In addition, the Cokers presented no evidence to the Tax Court remotely suggesting that any additional expense was incurred because of the necessity of transporting Mr.^Coker’s tools.

The judgment is modified in accordance with this opinion.

      . We also rejected the Cokers’ appeals from the Tax Court, in which they contended that they should be permitted to deduct all commuting expenses, rather than just one-third. The Cokers have petitioned for rehearing of that portion of the opinion denying their claim. We adhere to our prior holding on this point.

      . Compare Fausner v. Commissioner, 472 F.2d 561 (5th Cir. 1973), with Sullivan v. Commissioner, 368 F.2d 1007 (2d Cir. 1966), and Tyne v. Commissioner, 385 F.2d 40 (7th Cir. 1967), after remand, 409 F.2d 485 (7th Cir.), cert denied, 396 U.S. 833, 90 S.Ct. 88, 24 L.E'd.2d 83 (1969).


text:
    Josephine Morgan SUTTON, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary, United States Department of Health, Education and Welfare, Defendant-Ap-pellee.
    No. 73-2581
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 14, 1973.
    E. Kontz Bennett, Jr., Waycross, Ga., for plaintiff-appellant.
    R. Jackson B. Smith, Jr., U. S. Atty., Henry L. Whisenhunt, Jr., Asst. U. S. Atty., Augusta, Ga., Paul Merlin, Chief of Litigation, Steven M. Selzer, Atty., Soc. Sec. Div., Dept. of H. E. W., Washington, D. C., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

This is an action brought pursuant to 42 U.S.C.A. § 405(g) to review the Secretary of Health, Education and Welfare’s denial of disability insurance benefits to appellant. After careful review of the record we conclude that the District Court properly determined that there was substantial evidence on the record in support of the Secretary’s decision. It was within the province of the Secretary to resolve the conflict in the medical evidence concerning whether appellant was disabled from engaging in substantial gainful activity. See Payne v. Weinberger, 5 Cir., 480 F.2d 1006 [1973],

Affirmed.


text:
    James Edward CLAYTON, Plaintiff-Appellant, v. Robert T. WADE, Chief of Police, et al., etc., Defendants-Appellees.
    No. 73-2111
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 14, 1973.
    James Edward Clayton, pro se.
    Robert E. Young, Garland, Tex., John B. Tolle, Asst. Dist. Atty., Dallas, Tex., for defendants-appellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y„ 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

James Edward Clayton, a state prisoner appeals from the district court’s dismissal of his 42 U.S.C. § 1983 suit alleging that certain officials of Garland, Texas have wrongfully failed to return to him certain law books and legal materials seized during a search of his apartment, thereby denying him access to the courts and depriving him of property without just compensation. The defendants’ answer denying any knowledge as to the materials or their whereabouts was not a sufficient basis upon which to dismiss his claim. Some fact finding procedures were necessitated. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1969). We therefore vacate the judgment below and remand this case for further proceedings consistent with Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972).

Vacated and remanded.


author: SWYGERT, Chief Judge.

text:
    Hazel WALKER, Plaintiff-Appellant, v. TRICO MANUFACTURING COMPANY, INC., a foreign corporation, Defendant-Appellee.
    No. 72-1721
    United States Court of Appeals, Seventh. Circuit.
    Argued June 6, 1973.
    Decided Sept. 14, 1973.
    Rehearing Denied Oct. 30, 1973.
    Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1564.

      Joseph. A. Rosin, Chicago, Ill., for plaintiff-appellant.
    Howard T. Brinton, Harold W. Huff, Chicago, Ill., for defendant-appellee.
    Before SWYGERT, Chief Judge, FAIRCHILD and STEVENS, Circuit Judges.
   SWYGERT, Chief Judge.

Plaintiff-appellant, Hazel Walker, appeals from a jury verdict for the defendant in her action to recover damages for an injury she sustained when her left hand was crushed in a blow-mold machine that was manufactured by the defendant. Plaintiff’s action was brought in federal court under diversity jurisdiction, making the law of Illinois applicable.

Plaintiff’s complaint was based upon a products strict liability theory, specifically, that the defendant’s machine was not reasonably safe for operators because the safety device was improperly designed and that the improper design was the sole proximate cause of plaintiff’s injury'. To understand this theory, it is necessary to attempt an explanation of the operation of this rather complicated machine.

Defendant’s blow-mold machine is designed to produce plastic products by extruding a hot cylinder of plastic between two die ’faces, each of which is shaped like a half of the product to be produced. The dies are set in a mold which closes upon the cylinder of plastic. Air is then forced into the cavity between the die faces and the plastic is literally blown into the shape of the die. When the cycle is completed, the mold automatically opens and the machine operator reaches between the then separated die faces and removes the finished product.

The cycle begins by the activation of a switch referred to as the “limit” switch. The limit switch is not usually touched by the operator. Rather, the machine is designed with a large sliding glass safety shield which slides horizontally in front of the open die press area. When the glass shield is slid into the closed position, the area in which the die faces come together is completely shielded so that the operator cannot have his hands in the machine when the die faces close. Sliding the glass shield into the closed position also automatically activates the machine by causing the limit switch to be tripped by a metal finger which projects from the upper right hand side of the sliding glass panel. The machine is “dead” when the glass safety shield is in the open position and will close only when the limit switch is tripped. Theoretically, the switch can only be tripped by sliding the safety shield in front of the die face area to its closed position. In actual fact, however, the limit switch was placed in such a position on the machine that it could be depressed by the operator. The evidence demonstrated that it was within easy reach of the operator and could be activated either intentionally or unintentionally.

It was plaintiff’s theory that she accidentally depressed the limit switch while she was attempting to dislodge a piece of plastic which had become stuck on one of the die faces. Specifically, plaintiff asked the jury to infer, though she did not actually know how the machine was activated when the safety shield was open, that her right hand accidentally depressed the limit switch while her left hand was between the die faces trying to free the stuck plastic. "No one actually saw the accident. The foreman testified that when he found the plaintiff she was unconscious but that her right hand was on the frame of the safety shield in close proximity to the limit switch.

Defendant’s liability was predicated upon two interlocking factors: (1) that the machine was unreasonably dangerous because the limit switch was placed within reach of the operator where it could be accidentally activated, and, (2) that the machine was unreasonably dangerous because the designer failed to-cover the switch in a manner which would prevent accidental activation.

Evidence adduced at trial consisted, in part, of testimony by defendant’s president and an engineering expert for each party. Plaintiff extracted from the president an admission that he had actually foreseen the possibility that an operator might accidentally activate the limit switch and that he had even considered placing a cover over the switch to obviate this danger, but decided not to do so. Plaintiff’s' expert testified that in his opinion the placement of the limit switch within reach of the operator without some form of safety shield rendered the machine unreasonably dangerous. He further stated that other blow-mold' machines produced by different companies placed a shield over the switch. Defendant’s expert and its president, the machine’s designer, both testified that in their opinion the machine was not unreasonably dangerous. They further stated, over plaintiff’s objection, that it was the practice in the trade not to shield limit switches.

In addition to asserting that the machine was not unreasonably dangerous, defendant sought to prove that plaintiff was misusing the machine at the time of the accident and, in the alternative or in addition, that she had assumed the risk of her actions. The trial court gave instructions on both defenses.

I

The plaintiff contends that the trial court erred in submitting to the jury an instruction on the affirmative defenses of misuse of the product and assumption of the risk. Her point is well taken, for neither defense has any support in the record.

Misuse of a commercial article occurs when it is used “for a purpose neither intended nor ‘foreseeable’ (objectively reasonable)” by its manufacturer or distributor. Williams v. Brown Mfg. Co., 45 Ill.2d 418, 425, 261 N.E.2d 305, 309 (1970). That description does not fit this case. The machine was being used at the time of the accident for no purpose other than the one for which it was specifically designed, namely, the manufacture of plastic articles. And Trico had foreseen the possibility that an operator of the machine might gain access to the limit switch, either by accident or by design. If, then, “purpose” as used in Williams is taken broadly to include even the contingencies pertaining to the operation of the machine — an interpretation which hardly flows from Williams with ease — Trico could not maintain its misuse defense.

The risk of conduct pertaining to a machine is assumed when its operator knows that the conduct is dangerous yet carries on with it. Williams v. Brown Mfg. Co., 45 Ill.2d 418, 426, 261 N.E.2d 305, 309 (1970); Restatement (Second) of Torts, § 402A, comment (n), and § 496D (1965). The record is barren of evidence to suggest that the plaintiff knew of the danger associated with manipulation of the limit switch; indeed, she was steadfast in her assertion that she knew of the location but not the purpose of the switch. Contrary to the oral argument of counsel for Trico, the record fails to indicate that the plaintiff or her fellow employees engaged in a practice of manipulating the limit switch to free articles stuck in blow-mold machines.

We conclude that the trial judge committed reversible error in instructing the jury on assumption of risk and misuse.

II

Since this case must be retried, we add our comments on other aspects of the trial attacked as erroneous. The interjection by Trico of an unsupported inference that the plaintiff had been drinking prior to the accident was unnecessarily prejudicial to her case. During cross-examination of the plaintiff, defense counsel asked several questions designed to have the jury believe that she had displayed symptoms of alcohol or drug consumption at the time she was admitted to the hospital for emergency treatment. Despite vigorous objection by her counsel, the court permitted the questions to stand on the promise of defense counsel that the matter would be linked up later by Trico when it presented its ease in chief. This promise went unfulfilled. The trial court attempted to cure the error by an instruction which read:

Arguments and statements and remarks of counsel are intended to help you in understanding the evidence and applying the law, but they are not evidence and if any statement, argument or remark had no basis in the evidence, as you recall the evidence, then you should disregard that argument, statement or remark, and you will disregard any reference made by counsel as to the physical or mental condition of the plaintiff at the time that she received her injury.

We do not believe that the general language of that instruction could adequately cure the prejudice which likely flowed from questions asked by defense counsel.

Secondly, the trial judge erred in allowing Trico to introduce evidence of an absence of prior accidents on blow-mold machines without first laying a proper foundation therefor. Generally speaking, evidence of this sort is properly admitted only if the party-defendant shows, as foundation, that the absence of prior accidents took place with respect to machines substantially identical to the one at issue and used in settings and circumstances sufficiently similar to those surrounding the machine at the time of the accident to allow the jury to connect past experience with the accident sued upon. See McCormick, Evidence, § 200 (2d ed., 1972). In this case, the testimony indicated that Trico had sold about 45 machines, but the record does not disclose how many of those machines had the limit switch located in the same position as the switch on the machine in question or whether there were any other material differences in such machines. Nor did the testimony identify any of the other users of the machines or give any foundation evidence whatsoever with regard to the frequency or conditions of use of such other machines. The sufficiency of foundation evidence varies from case to case and must be determined by an exercise of the trial court’s discretion. Without even a minimal foundation, however, Trico should not have been permitted to introduce its evidence of an absence of prior accidents.

Lastly, the trial judge did not err in allowing Trico to introduce evidence of the “state of the art” relating to blow-mold machines and their safety devices. The plaintiff opened this matter during the presentation of her case in chief. Having done so, she cannot complain of Trico’s attempt at rebuttal. It may be true that the “state of the art” has no relevance to the defense of an action sounding in strict products liability, see Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 266 N.E.2d 897 (1970), but, just as proof of the issue by a defendant is assumed to prejudice the case of a plaintiff despite its irrelevance, it cannot be assumed that the jury would not be prejudiced against Trico by the plaintiff’s introduction of the issue.

The judgment of the district court is reversed and we remand the case for a new trial.