author: RON.EY, Circuit Judge:

text:
    NATIONAL CAR RENTAL SYSTEM, INC., Plaintiff-Appellee-Cross-Appellant, v. BETTER MONKEY GRIP COMPANY and Wilco Truck Rental, Inc., Defendants-Appellants-Cross-Appellees.
    No. 74-1473.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.
    Rehearing Denied June 25, 1975.

      Herbert S. Bonney, Jr., Robert A. Stripling, Jr., Dallas, Tex., for Better Monkey Grip.
    Stephen E. Blythe, Dallas, Tex., Frank Ingraham, Nashville, Tenn., for Wilco Truck.
    Ralph W. Currie, Dallas, Tex., for plaintiff-appellee.
    Before BELL, AINSWORTH and RONEY, Circuit Judges.
   RON.EY, Circuit Judge:

This is a Texas diversity suit on a written contract. Trial was to a jury on special interrogatories covering various theories advanced by the parties. After the jury answered the special interrogatories, defendants filed a motion for judgment based on these verdicts, while plaintiff filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The district court reviewed the evidence presented at trial, re-examined the pleadings, briefs and related documents which had been submitted and declared the answers of the jury “to be against the weight and preponderance of the evidence and, therefore, null and void, except where specifically adopted.” The court granted a judgment n. o. v. in favor of plaintiff without applying the correct legal standard set forth in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). By this action the defendants were deprived of their right to a jury trial, although the standard utilized by the court would have been appropriate for the granting of a new trial. United States v. 1160.90 Acres of Land, 432 F.2d 910, 915 (5th Cir. 1970); United States ex rel. Weyerhaeuser Co. v. Bucon Construction Co., 430 F.2d 420, 423 (5th Cir. 1970); Wright & Miller, Federal Practice and Procedure: Civil § 2806 (1973). Consequently, we reverse and remand for a new trial.

The case involved the termination of a contract for the lease of trucks and trailers and the consequent obligation to purchase the equipment by the lessee. The controversy centered around the obligation of each party upon termination of the contract. The plaintiff lessor sued for the contract price of the vehicles. The defendants defended on the ground that the contract seller had failed to provide purchase price information and titles within the proper time, voiding the obligation of the lessee to purchase. A somewhat detailed history of the facts and proceedings is necessary to an understanding of the issues in the case.

In 1962, Baker-Thompson Company purchased Better Monkey Grip Company’s fleet of trucks and trailers and leased the equipment back to Monkey Grip. Sometime prior to 1971, plaintiff, National Car Rental System, Inc., acquired the Baker-Thompson Company, thereby succeeding to its rights and obligations under the contract.

The vehicles under lease were described in schedules attached to the written contract. When one vehicle was replaced by another, a new schedule describing the replacement was executed and substituted for the schedule describing the vehicle being withdrawn, without reexecution of the entire contract. In addition to describing the vehicle, each schedule showed the delivery date of the vehicle, the expiration date for the vehicle’s use under the contract, the agreed value of the vehicle, and the agreed rate of depreciation.

Paragraph 11 of the contract gave the lessee, Monkey Grip, the right to terminate the lease as to any particular vehicle, after the vehicle had been in Monkey Grip’s service for one year, by giving sixty days written notice. It also provided, however, that if the termination was to become effective prior to the expiration date applicable to- a particular vehicle, Monkey Grip was obligated to purchase the equipment by paying, in cash, a sum equal to the difference between the agreed value and the agreed accrued depreciation. Monkey Grip also agreed to pay, upon cancellation of the lease, all unamortized license tag costs, Federal Highway Use Taxes, and the painting and lettering costs attributable to the vehicles. Title to the vehicles was to remain in the owner-lessor until the entire purchase price was paid by the lessee, Monkey Grip. .

In the spring of 1971, Monkey Grip and Wilco Truck Rental, Inc. entered into negotiations which eventually culminated in a truck lease and service agreement which would eliminate the need for the contract with National. The agreement was signed on May 17, 1971.

By an oral agreement with Monkey Grip, Wilco obligated itself to purchase the equipment which Monkey Grip had been leasing, from National and which Monkey Grip was obliged to purchase under its contract with National. Wilco intended, to the extent that the new vehicles described in its lease with Monkey Grip had not arrived at the time the National lease terminated, to -permit Monkey Grip continued use of the old National fleet of vehicles. By this same agreement, Wilco agreed to indemnify Monkey Grip for any expenses incurred in canceling the National contract.

Shortly thereafter, National’s Dallas office received from Monkey Grip a letter dated May 19, 1971, which gave notice “to cancel all vehicles covered by the Vehicle Lease Agreement” between National and Monkey Grip. The notice also stated:

Said Vehicle Lease Agreement has a 60 day cancellation notice, however, we will be willing to táke over this equipment immediately or no later than July 17, 1971.
We would like the purchase price on our equipment and copies of all executed Schedule A’s immediately. Wilco Truck Rental, Inc. will give you a Certified Check for the equipment upon receipt of said equipment and titles.
We will require separate invoices for each piece of equipment showing the depreciated value of the equipment plus the depreciated amount of taxes and licenses with a total for each.

During the next few weeks, various officials of both Monkey Grip and Wilco contacted National officials in its Dallas office by telephone in an effort to expedite the buy-out so that there could be uninterrupted use of the vehicles. They also sought, as originally requested in the May 19 letter to National, purchase price information and copies of all vehicle schedules currently in effect. Although these documents were an integral part of the contract between National and Monkey Grip and had to be signed by Monkey Grip to be effective, Monkey Grip apparently did not have in its possession accurate, completed copies of all outstanding schedules which it needed to verify and compute the purchase price of the equipment. In response to these telephone calls, National stated that it elected to run the equipment out the sixty day period, that company policy required it to supply buy-out information only to its lessee, and that the purchase price information was not ready for Monkey Grip.

The sixty day notice period expired on July 18, 1971. On July 18, neither Monkey Grip nor Wilco had received any of the material which had been requested from National. Nor had National made any effort to make the titles to the vehicles available to either party. As a matter of fact, the Dallas branch of National did not even request that the titles to the equipment be transmitted to it from the home office in Minneapolis until July 21, three days after the end of the cancellation period. With the exception of one unit which was subject to a mortgage which had to be paid off, the titles to all vehicles were transmitted by certified mail and were received in Dallas on August 4, 1971. The title subject to the mortgage was finally received in October 1971.

During the workweek which began on Monday, July 12, 1971, Monkey Grip returned all of the leased vehicles to the National maintenance lot, except one which was dispatched on a trip to California and which was returned on July 22. Thereafter, Monkey Grip never again used the National vehicles.

By correspondence dated August 2, 1971, and hand delivered on August 5, 1971, National delivered to Monkey Grip an itemized statement of the purchase price for each vehicle, a schedule of unamortized ancillary costs as provided for by the contract, and a final bill for equipment covered by the lease agreement. Monkey Grip claims that some of the purchase price information was incorrectly calculated and that some of the unamortized costs were improperly included in the accounting. It further argues that it was unable to check the figures since National had never furnished the completed vehicle schedules requested.

By letter dated August 9, 1971, Monkey Grip advised National that it would not purchase the fleet of vehicles pursuant to paragraph 11 of the contract because the purchase price information was not timely furnished as requested and because neither titles to the equipment nor the equipment itself had been delivered. The letter provided:

Due to the fact that we were not provided with the necessary information at the prescribed time, we were forced to rent outside equipment in order to perform our necessary transportation needs and were required to pay a premium price (along with other problems incurred). This was due to your company’s failure to furnish our company with the required information (and the equipment) to enable us to deliver the equipment to our present contractor and use the equipment under lease agreement with said contractor after the expiration date of July 17, 1971. It was not until August 5, 1971 that the required information was presented. A period of nineteen (19) days elapsed between July 17, 1971 and August 5, 1971, at which time we were presented a portion of the required information and paper work needed in accordance with the letter of cancellation. Therefore, we are returning the equipment billing and miscellaneous billing to your company as, in accordance with our interpretation of our contract, we feel no obligation to purchase the equipment, due to the delay and failure of National Car Rental in complying with the lease agreement as required. (Emphasis added).

Once Monkey Grip finally returned the leased vehicles to National, Wilco had the obligation of furnishing transportation equipment to Monkey Grip. It procured other vehicles for temporary use by Monkey Grip until the new fleet of trucks and trailers contemplated under the Wilco-Monkey Grip contract were delivered and put in service.

National by letter dated September 28, 1971, made demand on Monkey Grip to honor its contractual obligations. Monkey Grip again refused, asserting that National’s failure to deliver titles to the equipment by July 17, 1971, relieved Monkey Grip of its obligation to purchase the equipment. Finally, on October 12, 1971, National notified Monkey Grip that an “event of default,” as defined in the contract, had occurred and that National was asserting its right to terminate the contract. This suit was brought shortly thereafter.

The defendants have proceeded throughout the course of this litigation on the theory that since National did not furnish the information requested in the May 19 letter in the prescribed time, Monkey Grip had no obligation to purchase the equipment leased from National. The jury was asked to answer a series of special interrogatories addressed to this theory. It found that (1) sixty days was a reasonable time for National to furnish Monkey Grip the buyout information, (2) National’s furnishing information on August 5 was unreasonable, and (3) it was the intention of the parties that this information would be furnished within sixty days of the cancellation notice. The trial judge found these jury findings to be against the weight and preponderance of the evidence but went on to hold that August 5 was, under the circumstances', a reasonable date to furnish the itemized buy-out information.

Do you find from a preponderance of the evidence that August 5, 1971, was a reasonable time for National Car Rental to furnish Monkey Grip the buy out information as outlined in paragraph 11(a) of the contract?
Answer “yes” or “no”. ANSWER No_
If you have answered Special Issue No. 5 “no”, then answer Special Issue No. 6.
SPECIAL ISSUE NO. 6
On what date do you find from a preponderance of the evidence it would have been reasonable for National Car to have furnished the information requested in Plaintiff’s Exhibit 1, paragraph 11(a)?
Answer by giving the day, if any. ANSWER 60 days (7-17-71)
SPECIAL ISSUE NO. 6A
Do you find from a preponderance of the evidence that it was the intention of the parties that under the provisions of paragraph 11(a) of the contract in question information relative to repurchase of the trucks would be furnished within 60 days after written notice of cancellation?
Answer “It was not” or “It was”. ANSWER It was

There is no provision in the contract between Monkey Grip and National, specifically none in paragraph 11, supra note 1, which imposes upon National any obligation to furnish the information requested by Monkey Grip. The contract provides only that Monkey Grip must, under the circumstances of this case, purchase and pay for the equipment until which time the title to the equipment is to remain in National. The express terms of the contract only require National to supply Monkey Grip the equipment and titles after the purchase price had been paid.

The defendants argue that National, nevertheless, had an implied obligation to furnish the requested information within the sixty day period. Due to the delivery procedures employed, Monkey Grip often did not receive completed copies of the vehicle schedules after new vehicles were put in service. The completed schedules contained certain information which was not on the copies signed and retained by Monkey Grip in ordering the equipment. The defendants emphasize that the completed schedules were needed in order to compute the buy-out figures. They also claim they had no way of computing the unamortized expenses to be repaid under paragraph 11 of the contract without certain additional information from National. Under these circumstances, the defendants argue, National breached its implied duty of cooperation, which requires that a party to a contract do that which is necessary for the other party’s performance. By its action it prevented Monkey Grip from performing its obligation to purchase the equipment. See L. H. Land Painting Co. v. S & P Construction, Inc., 516 S.W.2d 14, 16 (Tex.Civ. App.1974); Atomic Fuel Extraction Corp. v. Slick’s Estate, 386 S.W.2d 180, 186 (Tex.Civ.App.1964), writ ref. n. r. e., 403 S.W.2d 784 (Tex.Sup.Ct.1965); 5 Williston on Contracts (3rd ed. 1961) SS 670, 677, 677A. National counters that although Monkey Grip requested the schedules, it never notified National that it did not possess completed copies of the documents which were needed in order to calculate the contract purchase price.

At the trial there was substantial evidence by several witnesses as to “usage and custom” and testimony by the official of Baker-Thompson Company who negotiated the lease with Monkey Grip as to the discussion of the parties at that time. Texas law governs the admissibility of such evidence because the issue is one of state substantive law governing construction of contracts. Harville Rose Service v. Kellogg Co., 448 F.2d 1346, 1349 (5th Cir. 1971), cert. denied, 405 U.S. 987, 92 S.Ct. 1248, 31 L.Ed.2d 453 (1972); Moore, 1A Federal Practice ¶ 0.313 (2d ed. 1974). Contrary to National’s argument, this extrinsic evidence was properly admissible as an aid in interpreting the intention of the parties, the contract itself being ambiguous and uncertain on the termination and purchase procedures. See Home Indemnity Co. v. Draper, 504 S.W.2d 570, 578 (Tex.Civ.App.1974); Best Building Co. v. Sikes, 394 S.W.2d 57, 63 (Tex.Civ.App. 1965). The evidence was aimed at proving, and may well have been sufficient to support a jury verdict, that the parties to the contract intended for the buyout to be completed within the sixty day cancellation period. But what happens if these intentions are thwarted by particular facts and circumstances?

There was little, if any, evidence presented as to the intention of the parties with respect to just how the buy-out was to be effectuated, where the depreciation schedules were not properly attached to the contract so that Monkey Grip could compute the amount that was intended to be paid within the sixty day period. There was little evidence, and no instruction, as to National’s duty, if any, to compute the purchase price information and supply the figures to Monkey Grip. In spite of this lack of evidence, the jury found in Special Issue No. 6A, for example, that the parties did intend for information relative to repurchase of the trucks to be furnished within sixty days after written notice of cancellation. In setting aside the jury’s finding on this and peripheral facts as against the weight of the evidence, the court engaged in a discretionary exercise of the judicial function reviewable on the abuse of discretion standard. United States v. 1160.96 Acres of Land, 432 F.2d 910, 915 (5th Cir. 1970). The appeal does not reveal reversible error under such standard.

Once the jury’s findings were set aside, the court faced the problem of what to do with the case. It was at this point that the court substituted its own determination that the evidence proved that National had acted reasonably and entered the province of the jury. The evidence being in conflict on the issue, this was error.

The extent of National’s obligation to supply Monkey Grip with requested information as a result of Monkey Grip’s lack of means of computing the buy-out figures and its repeated requests for the information, was never addressed directly by the court, either before submitting the case to the jury or after the jury’s return of the special interrogatories. The court below erred in not addressing the issue as to the nature of National’s legal responsibility to supply purchase price information and the vehicle schedules, if any, and the elements that would control the issue of timeliness from a factual or legal standpoint, if it had such a responsibility. Only after the court determines as a matter of law that National had obligation to furnish the requested information, or the jury makes the decision as an issue of fact on proper instructions, is it necessary to consider whether the information was timely furnished. If the information was not timely provided, then the court would need to determine the legal effect of such action.

Our decision to remand is premised on the basis of the district court’s finding that the jury’s answers to the special interrogatories were against the weight and preponderance of the evidence. Such a determination, although not adequate for granting a judgment n. o. v. as was done, Boeing Co. v. Shipman, 411 F.2d 365' (5th Cir. 1969) (en banc), can be proper for granting a new trial. Under the Boeing standard, a trial judge may grant an instructed verdict or a judgment n. o. v. only where as a matter of law the evidence is insufficient to sustain the claim, issue or defense. But even if the judge finds that the evidence passes muster under that standard, the judge still has wide discretion in granting a new trial. Simmons v. King, 478 F.2d 857, 867 (5th Cir. 1973); United States v. 1160.96 Acres of Land, 432 F.2d 910, 914 (5th Cir. 1970). As Judge Orie L. Phillips, writing for this Court, said in United States ex rel. Weyerhaeuser Co. v. Bucon Construction Co., 430 F.2d 420, 423 (5th Cir. 1970):

There is an important distinction between a motion for a directed verdict or a motion for a judgment n. o. v. on the one hand and a motion for a new trial on the other. In passing on a motion for a directed verdict, or for a judgment n. o. v., the court does not exercise discretion, but decides a pure question of law, that is, whether the evidence, considered in the light most favorable to the party against whom the motion is directed, affords substantial support for a verdict in his favor.
If a motion for a directed verdict or for a judgment n. o. v. is sustained, judgment is entered for the movant and the case is ended in the trial court, but the sustaining of a motion for a new trial does not result in a final judgment; it only grants another trial by a different jury.
In passing on a motion for a new trial, the court may and should exercise a sound discretion, and its ruling thereon will not be reviewed in an appellate court in the absence of a clear abuse of discretion.
A trial judge, on a motion for a new trial, may set aside a verdict and grant a new trial, if in his opinion “the verdict is against the clear weight of the evidence ... or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.”
The exercise of that power is not in derogation of the right of trial by jury, but it is one of the historic safeguards of that right.
The distinction above stated between a motion for a directed verdict or for judgment n. o. v. on the one hand and a motion for a new trial on the other was firmly embedded in the common law and has long been recognized by the decisions of this court and other national courts. (Footnotes omitted).

The above quoted law readily answers the defendants’ argument that we should reinstate the jury verdict and direct judgment in defendants’ favor because the findings are supported under the Boeing Co. v. Shipman standard. We can reverse the court on the judgment n. o. v. which requires a decision of law that the findings are not supported, but a study of the jury’s answers, a thorough review of the record, a careful analysis of the written and oral argument reveals that the district court did not abuse its discretion in deciding that the jury’s responses are against the weight of the evidence.

At least partially accounting for the jury’s answers may have been the manner in which the questions were drafted, and the failure of counsel to define sharply the factual issues. For instance, in Special Issue No. 1 the jury was asked:

What do you find from a preponderance of the evidence to be the total depreciated price of the trucks involved herein as of October 21, 1971?
Answer in dollars, if any, and cents, if any, or none.
ANSWER None

Since the jury was asked to supply a figure, the amount of which was fixed by the. contract and which was capable of being determined by simple mathematical computation, giving it the option of answering “none” was confusing. The answer given illustrates the jury’s lack of comprehension as to some of the issues it was to decide.

We remand the case for a new trial. In view of this disposition of the case, it is unnecessary to reach the other issues raised by the parties.

Reversed and remanded.

      . 11. (a) After one year from the delivery date, LESSEE may elect to cancel this agreement as to any particular scheduled vehicle by giving to OWNER 60 days written notice of such election; provided, however, that if prior to expiration date, LESSEE must purchase and pay for such vehicle in cash the scheduled agreed value therefor, less a sum for depreciation calculated at the rate shown (depreciated price). The depreciated price shall not be less than 15% of said agreed value. Vehicle title shall remain in OWNER until the entire purchase price is paid. LESSEE also agrees to pay, upon such cancellation, all unamortized license tag costs, Federal Highway Use Tax, and OWNER’S painting and lettering costs.

      . In its cancellation letter, Monkey Grip had computed this period as ending on July 17. This error resulted because the letter to National was sent a day later than originally anticipated.

      . SPECIAL ISSUE NO. 5


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    FIRST NATIONAL BANK OF MIDLAND, Trustee, et al., Plaintiffs-Appellants, v. PROTECTIVE LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 74-1944.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.

      Stanley P. Wilson, Michael S. Baskerville, Abilene, Tex., Guilford L. Jones, Big Spring, Tex., for plaintiffs-appellants.
    Harrell Feldt, W. B. Browder, Jr., Midland, Tex., for defendant-appellee.
    Before DYER, MORGAN and GEE, Circuit Judges.
   DYER, Circuit Judge:

This appeal involves the construction of a life insurance policy to determine whether the policy’s conversion option may be elected, subsequent to the lapse of the policy, while coverage continues as extended term insurance under the automatic non-forfeiture provision of the policy. The district court ruled that it could not. We agree and affirm.

Robinson, the deceased, purchased a $100,000 life insurance policy in May, 1965, and subsequently transferred title in trust to plaintiff First National Bank of Midland, Texas, retaining the obligation to pay premiums. He failed to pay the 1971 premium when due or within the 31-day grace period and the policy lapsed. Robinson had become afflicted with Parkinson’s disease, was uninsurable, and his application for reinstatement was denied. Upon lapse, the coverage continued under the automatic operation of the extended term insurance non-forfeiture provision of the policy. The Bank attempted to exercise the policy’s conversion option, asserting the election to be appropriate during the extended coverage. Upon refusal by defendant Protective Life to permit the conversion, the Bank elected to receive paid-up insurance in the reduced amount of $10,-100 under the non-forfeiture provision of Option 2. Robinson subsequently died, and the trustee brought this suit to collect the $100,000 face amount of the policy rather than the $10,100 paid-up insurance on the theory that the insurance company breached its contract by refusing to allow the Bank to exercise a conversion option.

We recognize the general rule that policies of insurance are to be interpreted liberally in favor of the insured and strictly against the insurer, Providence Washington Ins. Co. v. Proffitt, 1951, 150 Tex. 207, 239 S.W.2d 379, and that the construction urged by the insured “has to be no more than one which is not itself unreasonable.” Continental Casualty Co. v. Warren, 1953, 152 Tex. 164, 254 S.W.2d 762, 763; nevertheless, “there should be a fair and reasonable construction of the language of a policy, rather than a strained, unnatural or technical interpretation . . ..” State Farm Mutual Automobile Ins. Co. v. Walker, Tex.Civ.App.1960, 334 S.W.2d 458, 462. We find that construction urged by the Bank, that under the extended term insurance the exercise of the conversion option remained viable, to be strained and unreasonable.

The conversion option provides that it may be elected “while it [the policy] is in force.” The grace period provision of the policy continues the policy “in force” for a 31-day period past the due date of an unpaid premium and states that “[i]f any premiums shall not be paid when due or within the grace period this policy shall terminate except as provided in the Non-Forfeiture Provisions.” Consequently, the policy lapses upon expiration of the grace period without payment of the premium due, and new life can be breathed into the policy only to the extent provided in the non-forfeiture provisions. See e. g., Great Southern Life Ins. Co. v. Peddy, 1942, 139 Tex. 245, 162 S.W.2d 652 (double indemnity provision terminates when coverage continues under extended insurance non-forfeiture provision), and Armstrong v. Kansas City Life Ins. Co., N.D.Tex.1935, 12 F.Supp. 817 (waiver of premium provision not included under extended insurance). Cf. Bergholm v. Peoria Life Ins. Co., 1932, 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416.

The reason for the non-forfeiture provision is quite apparent. It gives the insured those values which should not and cannot be forfeited with justice. In this case the policy had accumulated a cash value of $1,700 which rightfully belonged to the Bank. This cash value inures to the benefit of the owner of the policy and not to the company and permits the owner to either 1) receive the net cash value; 2) receive paid up insurance in the amount that the net cash value will purchase or 3) obtain extended term insurance for such period as the net cash value will purchase. Importantly, each option in the non-forfeiture provision is premised upon the use by the owner of the then net cash value of the policy.

On the other hand the conversion options may be exercised only while the policy is in force. The literal terms of the policy thus leave no life in the conversion options after lapse. The non-forfeiture provision cannot be said to resurrect the entire policy. On the contrary, it continues only the face value of the life insurance as extended term insurance. Were we to uphold the construction of the policy urged by the Bank, it would be tantamount to saying that the parties intended that upon termination of the policy for failure to timely pay a premium, the defaulting party loses no rights. It would follow that an insured, denied reinstatement because of uninsurability, would nevertheless be entitled to reinstatement through the exercise of the conversion option. The reinstatement provision would be rendered virtually meaningless. We must avoid a construction that does not give all portions of the policy meaning and effect. Jame-son v. Mutual Life Ins. Co., 5 Cir. 1969, 415 F.2d 1017, 1020.

The Bank refers to two provisions in the policy, which by their terms are excluded under the extended term insurance, to argue that the absence of an express exception in the “Conversion Options” provision keeps it operative under the non-forfeiture provision. It first points to the “Loans” provision, under which the company will loan up to the cash value “[w]hile this policy is in force, except as extended term insurance.” The Bank argues that had the Company desired to limit the conversion options it should have incorporated the “except as extended term insurance” language there as it did under the “Loans” provision. But this is a semantical extrapolation that can be made only by overlooking the reason that the exceptive language was included in the Loans provision. A policy of “paid-up insurance” acquired under paragraph 2 of the non-forfeiture provisions may have a loan value, but “extended term insurance” acquired under' paragraph 3 “will continue for such period as the net cash value will purchase at the net single premium rate at the then attained age of the insured” and as term insurance has no loan value. It was to avoid confusion with respect to the types of coverage upon which loans were available that the exceptive language was used in the Loans provision and obviously there was no reason to utilize the exceptive language in the conversion options. The Bank next points to the language excluding additional benefits provided by any riders in the extended term insurance provision. It argues that a similar exclusion does not appear in the conversion options. Rather than reflecting an intention to keep the entire policy in force under the non-forfeiture provision, the rider exclusion was clearly inserted to prevent an insured from arguing that a particular rider (e. g. double indemnity coverage) is so tied in with the extended term insurance as to constitute a part thereof. It would be a strained and unreasonable construction indeed, particularly in light of the exceptionally clear language of the non-forfeiture provision, to read these two policy provisions to mandate the availability of the conversion option under the extended term insurance.

The policy lapsed for failure of the insured to pay the premiums on or before the due date or within the grace period. Reinstatement was properly refused because the insured did not and could not furnish evidence of insurability satisfactory to the company. The non-forfeiture provisions in unambiguous terms spelled out what and only what disposition was to be made of any cash values which remained to the credit of the insured after the policy lapsed. Obviously the entire policy was not to continue in effect under these provisions. It would be a perversion of the clear meaning and intent of the non-forfeiture clause to suggest that it may be read to permit the insured to elect a conversion option. Since the company had $1,700 (cash value) which it was not entitled to retain, the company agreed, under the non-forfeiture provisions, to give three options to the Bank, i. e. 1) to return the $1,700; 2) to use the $1,700 to continue the policy in the reduced amount of $10,-100 as paid-up insurance; or 3) to use the $1,700 for extended term insurance for one year and 167 days. The Bank elected to receive paid-up insurance under option 2 and a rider to the policy carrying this into effect was issued to the Bank. This then constituted the contract between the parties and gave the Bank all that it was entitled to get.

Affirmed.

      . Grace Period — A grace period of thirty-one days will be allowed for the payment of each premium after the first, during which period this, policy will continue in force. If the death of the Insured occurs within the grace period, any premium then due and unpaid shall be deducted from the amount otherwise payable hereunder. If any premium shall not be paid when due or within the grace period this policy shall terminate except as provided in the Non-Forfeiture Provisions.

      . Reinstatement — If this policy has terminated for non-payment of premiums, and has not been surrendered for cash, it may be reinstated at any time upon furnishing evidence of insurability satisfactory to the Company, payment of all past due premiums with interest at 6% compounded annually from the due date of each such premium to the date of reinstatement, and the payment or reinstatement of any indebtedness on this policy with compound interest thereon at the rate set forth in the Loan Interest Provision.

      . Automatic Option — If on the expiration of the grace period allowable for any premium in default the Automatic Premium Loan Provision is not then effective and no Non-Forfeiture Option has been elected, Option 3 shall apply automatically unless the Policy Specifications on Page Three show that this policy is in a Special Premium Class, in which case Option 2 shall apply automatically, subject in either case to the Owner’s right to elect another available Non-Forfeiture Option within 60 days after the due date of such premium.

      . CONVERSION OPTIONS
      Upon surrender of this policy, while it is in force, at any time within the Conversion Period set forth in the Policy Specifications on Page Three, which Conversion Period begins on the Date of Issue, this policy may be exchanged for a new non-participating policy issued on the same risk classification as this policy for a Face Amount not greater than the Face Amount of this policy. The exchange may be made under either one of the two following options:
      First Option — Conversion as of Original Date — The new policy will be dated as of the Date of Issue of this policy, with the premium based on the age of the Insured at the Date of Issue of this policy and the Company’s premium rates then in use. The new policy may be issued on any form of non-participating life or endowment policy issued by the Company on the Date of Issue of this policy providing a level Face Amount of insurance with level premiums. The difference between the premiums paid under this policy and the premiums which would have been paid under the new policy, with compound interest at the rate of 6 per cent per annum, shall be paid to the Company at the time of exchange.
      Second Option — Conversion as of Attained Age — The new policy will be dated as of the date of the exchange, with the premium based on the age of the Insured at the date of exchange and the Company’s premium rates then in use. The new policy may be issued on any form of non-participating life or endowment policy then issued by the Company providing a level Face Amount of insurance with level premiums. The first premium under the new policy shall be paid to the Company at the time of exchange. The net cash value, if any, of this policy on the date of conversion will be applied toward payment of the first premium under the new policy, and any excess of such net cash value over such premiums will be paid to the Owner in cash.
      The new policy will be issued without further evidence of insurability.

      . See note 6 infra.

      . NON-FORFEITURE PROVISIONS
      After premiums have been paid under this policy to the date when a cash value first becomes available, if any subsequent premium is not paid when due, the Owner may elect one of the following options upon a written notice to the Company at its Home Office within 60 days after the due date of such premium:
      1. Cash Value — To surrender this policy and receive its net cash value. The net cash value on any premium due date is the cash value on such date, computed as described under “Basis of Values”, less any indebtedness on this policy. The cash values at the ends of certain policy years are shown in the Table of Non-Forfeiture Values.
      2. Paid-up Insurance — To have the policy continued as non-participating paid up insurance for a reduced amount payable at the same time and under the same conditions as the Face Amount of this policy. The amount of paid up insurance is the amount which the net cash value will purchase at the net single premium rate at the, then attained age of the Insured.
      3. Extended Term Insurance — (Available unless the Policy Specifications on Page Three show that this policy is in a Special Premium Class.) To continue insurance hereunder as non-participating extended term insurance for the Face Amount of this policy less any indebtedness on this policy. The extended term insurance will continue for such period as the net cash value will purchase at the net single premium rate at the then attained age of the Insured.

      . Since there existed no right to elect the conversion option it is unnecessary to reach the question whether the bank waived any breach of the contract by accepting the $10,-100 of paid-up insurance.


author: GEWIN, Circuit Judge: GEE, Circuit Judge

text:
    James R. COULTER, Plaintiff-Appellant, v. INGRAM PIPELINE, INC., et al., Defendants-Appellees.
    No. 73-2721.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.

      Charles R. Maloney, Donald B. Ruiz, New Orleans, La., for plaintiff-appellant.
    Walter W. Christy, John F. Blackwell, New Orleans, La., for defendants-appellees.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   GEWIN, Circuit Judge:

Plaintiff-appellant, James R. Coulter, brought this admiralty suit against Ingram Pipeline, Inc. and its insuror, Insurance Company of North America, for injuries sustained while employed as a stabber (pipe layer) aboard defendant’s barges. The issues of negligence, unseaworthiness, and damages were tried by a jury resulting in a net award to appellant of $20,000. Appellant’s maintenance and cure claim, reserved to the court, was dismissed, the court holding that he had forfeited his right to maintenance and cure by abandoning the rehabilitative program prescribed by his physician. This appeal is solely from that portion of the judgment dismissing the demand for maintenance and cure. The appellant contends that he was never cured or pronounced incurable, and argues that he never willfully abandoned medical treatment proffered by appellees. We reverse and remand.

The appellant was injured on May 21, 1970, when a twelve-ton pipe on an Ingram Lay Barge inadvertently swung toward him and struck him in the chest. He received “a crushing type of injury to his chest” including several fractured ribs, some of which did not heal “by bony union.” The pipeline company provided medical treatment but due to the extreme obesity of appellant (350-375 pounds) recovery was slow and he was ultimately referred to Dr. Robert J. Schramel a thoracic and cardiovascular surgeon retained by the appellee-insurance company for additional consultation. The surgeon recommended a strict diet and a regimen of physiotherapy and oh January 4, 1971, admitted appellant to the New Orleans Medicenter. The appellant was placed on a daily diet of 1500 calories and an exercise program, the combined result of which was a weight loss of approximately 33 pounds. On January 22, 1971, at his own request, and after assuring his physician that he would maintain the diet and exercise at home, appellant was discharged from the Medicenter. Sometime thereafter the appellant admittedly discontinued his rehabilitative program. In early February, 1971, the apparently prescient appellees terminated maintenance and cure payments. Subsequent to the termination, Dr. Schramel on March 3, 1971, wrote a letter to appellees in which he indicated, in a very optimistic manner, that appellant’s rehabilitation was progressing well and that it should ultimately result in appellant’s return to his former employment. It was not until July 28, 1971, when Dr. Schramel examined appellant again that he knew his patient had failed to follow the prescribed diet and exercises and weighed more than ever. Dr. Schramel reported to appellees on October 13, 1971 that appellant’s condition was essentially unchanged, opining that proper conditioning might still result in appellant’s eventual return to his former employment.

In April 1972, the appellant was examined by an orthopedist who was unable to suggest any means of alleviating appellant’s continuing discomfort. The orthopedic surgeon thought at that time there was no physical impediment to appellant’s returning to work. Finally, on March 14, 1973, shortly before the trial the thoracic surgeon re-examined appellant and stated that his original findings were essentially unchanged and that with conditioning the appellant could gradually return to work.

The evidence shows and the appellant admits that he failed to follow his physician’s instructions. The appellees justified the cessation of maintenance and cure payments by characterizing appellant’s failure to follow the physician’s advice as a knowing and willful abandonment of his prescribed cure and the district court agreed.

The general rule is well settled that a seaman’s right to maintenance and cure is forfeited by a willful rejection of the recommended medical aid. Leocadio v. Lykes Bros. Steamship Co., 282 F.Supp. 573 (E.D.La.1968); Murphy v. American Barge Line Co., 169 F.2d 61 (3d Cir. 1948), cert. denied, 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406. However, this rule is not inexorably applied and exceptions exist when reasonable grounds for refusing care or failing to follow instructions are shown. Murphy v. American Barge Line Co., supra; Luth v. Palmer Shipping Corp., 210 F.2d 224 (3d Cir. 1954); Oswalt v. Williamson Towing Co., 488 F.2d 51 (5th Cir. 1974); Macris v. Sociedad Maritima San Nicholas S. A., 245 F.2d 708 (2d Cir. 1957). The question then is whether there existed any extenuating circumstances which made the appellant’s failure to follow the prescribed regimen either reasonable or something less than a willful rejection. We think that such circumstances did exist.

In the first place the evidence indicates that the appellant has always been an extremely obese 'man, weighing approximately 350 pounds prior to his injury. Common sense and personal experience tell us how emotionally and physically difficult it would be for a person of this size to maintain an exercise program and a daily diet of 1500 calories without supervision and medical advice. It is a matter of record that it was never the intention of Dr. Schramel or the barge owners to keep the appellant in the Medicenter for the duration of his rehabilitation program, but some provision for regular re-examination at intervals of less than six months was called for to provide the kind of support, guidance, and instruction one might reasonably expect the appellant to need in order to successfully ' attain his maximum cure. The appellant’s difficulty in maintaining his rehabilitative program was further exacerbated by the fact that subsequent to his injury financial responsibilities demanded that both appellant and his wife become employed at appellant’s father’s store, leaving little time for adequate care of their three children, to say nothing of time necessary to prepare special meals for appellant.

In addition, we note that in the instant case it was never shown that the appellant realized the maximum possible cure and that at the time maintenance and cure payments were terminated no physician had ever certified him as fit to return to work. Yet, the appellees terminated maintenance and cure payments in February of 1971, shortly after appellant left the New Orleans Medicenter where he had been admitted in order to become familiar with dietary and exercise programs he was to continue at home. Perhaps the appellees originally improperly construed appellant’s discharge as signifying maximum cure. The inaccuracy of such an assessment of the situation should have been readily evident to appellees on reading Dr. Schramel’s March 3 letter evincing a promising outlook for appellant’s further rehabilitation. Curiously, no additional investigation of the situation occurred and no further maintenance and cure payments were forthcoming. We feel that the appellees’ failure to question the termination of maintenance and cure, an action obviously incompatible with Dr. Schramel’s March 3, 1971 letter, amounted to a breach of the longstanding affirmative duty of the shipowner to provide proper medical treatment for seamen injured in the service of their ship, and to an unjustifiable erosion of the special status afforded seamen as “wards of the admiralty.” M. Norris, The Law of Seamen § 574 (2d ed. 1962); Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670 (2d Cir. 1971). Under the facts and circumstances disclosed by the record we cannot condone the suspension of maintenance and cure payments on the basis of information gleaned some time well after the fact. By prematurely terminating maintenance and cure payments the appellees may have significantly contributed to the financial and other difficulties which caused appellant’s failure to strictly adhere to the prescribed but unsupervised rehabilitative program. This being the case the appellant’s original failure to follow his physician’s instructions is not the kind of rejection of proffered medical treatment which can be seized upon in order to justify the termination of maintenance and cure. We seriously doubt that it was reasonable to expect a satisfactory cure or recovery by the prescription of diet and exercise without medical supervision and guidance.

On the other hand there is evidence in the record that at some time appellant may have wilfully rejected proffered medical care. For example, the appellees did arrange a July 1971 appointment for appellant with Dr. Schramel, and the doctor’s testimony with respect to that meeting intimates that appellant demonstrated a lack of resolve to continue the prescribed exercise and diet. The acute physical discomfort and inconvenience inherent in a regimen such as the one prescribed for appellant standing alone may not be legally sufficient excuses for failing to follow the recommended rehabilitation program. Murphy v. American Barge Line Co., 169 F.2d 61 (3d Cir. 1948), cert. denied, 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406.

A proper application of the legal principles herein discussed should be made by the district court after a factual determination has been made by that court with regard to the conduct of the appellees in terminating maintenance and cure and the conduct of the appellant in failing to adhere strictly to the prescribed treatment without medical aid and supervision. After making such appropriate findings of fact that court should carefully consider whether under the peculiar situation in this case, the interests and principles protected by the rule of forfeiture would be served properly by its application to the appellant resulting in a denial of maintenance and cure in view of the liberal and well established concepts applicable to an injured seaman.

Accordingly, the judgment of the district court is reversed and the case is remanded for findings not inconsistent with this opinion with respect to whether appellant knowingly and without justification rejected the prescribed regimen of exercise and diet at some time later than February 1971.

Reversed and remanded with directions.

GEE, Circuit Judge

(dissenting):

The foundations of the law maritime will not likely be shaken by the amiable result which the majority reaches. Under it the district court is to reconsider whether a fat seaman, unwilling to stay on his diet but able to con the treating physician provided by the shipowner into releasing him from supervision, should or should not be rewarded for his eloquence, and if so, by how much. No one seriously disputes that had Coulter kept on his diet he would have attained maximum recovery. No one argues that he did not abandon it about the time maintenance was stopped, like one who drops a glass bottle of nasty but curative medicine. Yet somehow it has been determined that his abandonment of it may not have been an unreasonable refusal of treatment. This conclusion seems to rest on the shipowner’s failure to pursue Coulter with sufficient ardor, nagging and beseeching him (presumably, since it could not force him) to stick to tea and celery and leave the beer and beans alone.

Language in Oswalt v. Williamson Towing Co., Inc., 488 F.2d 51 (5th Cir. 1974) is exactly in point here:

A forfeiture for unreasonable refusal is called into play in one of two ways. First, the seaman may simply reject all timely medical attention or quit participation in a course of therapy already begun. In such a case, the right to maintenance and cure is forfeited because the purpose of the award can no longer be achieved. These conjunctive remedies do not operate as substitutes for damages; they are not general compensation, but rather are directed toward the specific objective of providing for the subsistence and medical expenses of a seaman until he has reached the point of maximum possible cure. Farrell v. United States, 1949, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Price v. Mosler, 5 Cir. 1973, 483 F.2d 275. When, therefore, that point is either reached or the erstwhile patient voluntarily stops short of its attainment by refusing medical attention, the justification for the payments likewise ceases. Brown v. Aggie & Millie, Inc., [5 Cir. 1973, 485 F.2d 1293] supra.

Oswalt at 53-54.

The fact that Coulter would have received maintenance for at least six months had he not discontinued his treatment seems to me immaterial. Maintenance is an award designed to provide succor for the seaman, not until he becomes well, but while he is undergoing treatment designed to bring him to maximum cure. Indeed, it may be seen as an inducement to do so. Maximum cure is one terminal point of the shipowner’s obligation to pay maintenance. Abandonment of treatment is another.

It well may be that Coulter would be entitled to maintenance at our hands if he could show that his condition had originally been pronounced hopeless and that a new type of treatment had later been discovered. But here there is nothing which leads anywhere but to the conclusion that had Coulter followed the doctor’s orders he would have lost weight and that had he lost weight his ribs would have knit. It seems unreasonable to expect a shipowner to maintain a seaman on an on-again-off-again basis whenever the seaman decides to give a known treatment another chance.

Further, as noted above, however benevolent to Coulter the majority’s result may be, casting the shipowner for failing to make a seaman do a thing it had no power to require seems to me unjust— let alone rewarding the seaman for his own delinquence. Even afloat, responsibility for a result should not be pressed much beyond power to effect it. Charitably doing so here, we inch toward new heights of anachronism the image of that noble but feckless Ward of the Admiralty, the sea-chest-bearing sailor with heart of oak, good company on a voyage to Treasure Island but scarce among the ranks of today’s seagoing technicians.

I would affirm.

      . “No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure.” McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20, 24 (1954). That is to say the Court of Appeals may not set aside the judgment of the district court unless it is clearly erroneous. A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948).
      The findings of the district court are general and conclusory. We quote the pertinent portions of the district court’s judgment or order:
      1) Plaintiff was injured on May 21, 1970.

        2) Thereafter plaintiff was examined by various doctors and received medical and hospital treatment at the expense of defendant and was paid maintenance and cure by defendant at the rate of $10.00 per day until early in February, 1971.
      3) At approximately the time payments for maintenance and cure were discontinued plaintiff voluntarily left the Medicenter in New Orleans, where he had been treated for 20 or 21 days in order to reduce his weight and had been instructed in the performance of certain exercises designed to strengthen his muscles.
      4) After leaving the Medicenter, plaintiff failed to follow the recommendations of Dr. Schramel that he continue on a diet in order to lose substantially more weight and to continue his regimen of exercises.
      5) Plaintiff is not entitled to further payments of maintenance and cure by defendant.

      . In Murphy v. American Barge Line Company, supra, for example, the court stressed the affirmative nature of the master’s duty to care for the seaman, in holding that a mere offer to provide hospitalization for the injured seaman was insufficient under the circumstances to relieve the shipowner from liability for maintenance and cure. “A hospital ticket without more under these circumstances does not discharge the obligation since we think the instant case represents a situation where the offer to provide hospitalization must include the means by which the injured seaman can get to the hospitalization suggested.” Id., 169 F.2d at 64. The court also noted that the libellant was in his fifties, that he had a family of five children, and that he was in considerable physical distress. The appellant in the instant case is similarly situated.

      . We do not presume to say that Dr. Schramel’s medical procedures were unsound. The record indicates that the infrequency with which the appellant was examined was a result of the failure of the appellees to schedule regular check-ups for the appellant. In any case, the appellees who were ultimately responsible for providing medical treatment for the appellant, may also be responsible for the negligent selection of a physician and/or the negligence of the physician. Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670 (2d Cir. 1971); Central Gulf Steamship Corp. v. Sambuta, 405 F.2d 291 (5th Cir. 1968).

      . A seaman’s right to maintenance and cure continues until the maximum possible cure has been effected. M. Norris, The Law of Seaman § 560 (2d ed. 1962); G. Gilmore and C. Black, The Law of Admiralty 262-268 (1957); Leocadio v. Lykes Bros. Steamship Co., 282 F.Supp. 573 (E.D.La.1968).
      Where no further improvement can be expected from further treatment and care of a continuing disability resulting from injuries sustained by a seaman, the seaman has reached maximum cure and no further obligation exists for the shipowner to pay maintenance and cure. Leocadio v. Lykes Bros. Steamship Co., 282 F.Supp. 573, 575 (E.D.La.1968).

      . A seaman’s right to further maintenance and cure is not automatically barred by his request for and subsequent voluntary discharge from a hospital. See, e. g., Moyle v. National Petroleum Transport Corp., 150 F.2d 840 (2d Cir. 1945); Rey v. Colonial Nav. Co., 116 F.2d 580 (2d Cir. 1941).

      . See Sobosle v. United States Steel Corp., 359 F.2d 7. 12 (3d Cir. 1966):
      We therefore must be mindful in the present case of the extent to which the seaman’s conduct was influenced by her mental or physical incapacity in determining whether her failure to accept medical aid should result in the absolute termination of this shipowner’s duty to continue providing maintenance and cure.


author: BELL, Circuit Judge:

text:
    The ARMSTRONG RUBBER COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    No. 74-1646.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.
    As Modified June 2, 1975.

      Robert H. Weaver, William A. Pyle, Jackson, Miss., for petitioner.
    Charles M. Paschal, Jr., Regional Director, New Orleans, La., Elliott Moore, Deputy Associate Gen. Counsel, William H. DuRoss, III, N.L.R.B., Washington, D. C., for respondent.
    Before GEWIN, BELL and CLARK, Circuit Judges.
   BELL, Circuit Judge:

This case is before the court upon the petition of Armstrong Rubber Company to review and set aside an order of the National Labor Relations Board. The Board has filed a cross-application for enforcement of its order. The Board found that appellant had committed an unfair labor practice when it terminated a temporary employee for his interest in union activities. We grant the petition to review in part; enforce in part, and deny enforcement in part on condition.

Armstrong operates a plant in Natchez, Mississippi where it manufactures automobile and truck tires. It employs approximately 1275 employees of whom 950 are represented by United Rubber Workers, Local 303, which has represented Armstrong’s production workers since 1945. The employee in question, Thomas R. Huseman, was hired on a temporary basis in October 1972 as a tire adjuster. At that time the tire adjustment department consisted of three adjusters who were not represented by the union and three laborers who were. Soon after his arrival Huseman became interested in the Rubber Workers. On February 5, 1973 he and a fellow adjuster executed an authorization for the union to act as their bargaining representative. On February 7 Huseman was told that he would no longer be needed and he was terminated nine days later.

The administrative law judge found that Huseman was terminated because of his interest in the union in violation of § 8(a)(3) and (1) of the .Act. Armstrong was ordered to reinstate Huseman “to his former job or, if that job no longer exists, to a substantially equivalent position” with back pay. The Board affirmed, adopting the recommended order of the administrative law judge.

Armstrong contends that there was not substantial evidence to support the Board’s findings because the administrative law judge relied almost entirely on the testimony of Huseman while rejecting the sharply conflicting evidence which it produced. It is also urged that the order grants Huseman a permanent position whereas his previous status was as a temporary employee.

The findings of fact by the Board are conclusive if supported by substantial evidence on the record considered as a whole and will not be disturbed on appeal, 29 U.S.C.A. § 160(e); Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Although there was evidence to support appellant’s claim that Huseman was terminated because the backlog he was hired to relieve was under control, there was also evidence that his interest in the union caused his termination and we cannot say, under our scope of review, that the administrative law judge could not so find. NLRB v. Southeastern Stages, Inc., 5 Cir., 1970, 423 F.2d- 878, 879. It'was within the judge’s province to believe Huseman and disbelieve Armstrong’s witnesses, and such credibility resolutions are entitled to affirmance unless inherently unreasonable or self-contradictory. NLRB v. Standard Forge and Axle Co., 5 Cir., 1969, 420 F.2d 508, 510; NLRB v. Finesilver Mfg. Co., 5 Cir., 1968, 400 F.2d 644, 645. We are presented with nothing more than the resolution of conflicting testimony and thus will not reweigh the evidence. NLRB v. Transport Clearings, Inc., 5 Cir., 1962, 311 F.2d 519, 523. The order will be enforced as to the Section 8(a)(3) and (1) violation.

The challenged remedy rests on the testimony of Huseman that he was promised more than a temporary position. His story was that Armstrong’s personnel administrator told him that although the tire adjuster’s position was temporary, one of the three permanent adjusters might be leaving and suggested that he might take his place. He was further told, he said, that in any event, should his temporary assignment be completed, he would be placed on another job in the plant.

It developed that the permanent adjuster, a black employee, did leave, but the position was given to a black under an affirmative action program being carried on under the auspices of the Equal Employment Opportunity office. There were some other vacancies in the plant during the interval between discharge and the hearing but there is no finding as to which job should have gone to Huseman, if any. It is undisputed that the need for a temporary tire adjuster was at or near an end.

This state of affairs must be measured against the remedy requiring reinstatement and back pay:

Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating and making whole Thomas R. Huseman, in order to effectuate the policies and purposes of the Act. All backpay computations shall be in accordance with F. W. Wool worth Company, 90 NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB 716. . .
Offer to Thomas R. Huseman immediate and full reinstatement to his former job or, it [s/c] that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Thomas R. Huseman whole as set forth in “The Remedy” section above, for any loss of earnings suffered as a result of the discrimination against him.

Counsel for the Board conceded on oral argument before us that by “full reinstatement to his former job” the Board meant to confer upon Huseman, a temporary employee at the time of his discharge, only such status as he would have enjoyed absent the discrimination against him. We agree with appellant that it would be unreasonable for it to be forced to grant a discharged employee a permanent job when all that he lost was a temporary job. The remedy here, however, is “designed to restore, so far as possible, the status quo that would have obtained but for the wrongful act.” NLRB v. Rutter-Rex Mfg. Co., 1969, 396 U.S. 258, 265, 90 S.Ct. 417, 24 L.Ed.2d 405, 411-412, reh. den. 397 U.S. 929, 90 S.Ct. 895, 25 L.Ed.2d 109. Moreover, there is the credited testimony of Huseman that he was at least promised a job of some kind in the plant once the temporary job ended, and in the event he was not given the permanent job as an adjuster.

Though it is settled that reinstatement is the conventional correction for discriminatory discharges, the record is incomplete for the purpose of an order requiring Huseman to be restored to his former place within the company and that he be made whole. This issue together with necessary findings attendant to the reinstatement and back pay remedy was simply finessed.

We therefore decline to enforce as to the remedy required and remand for further proceedings within the discretion of the board to the end of defining on the present record, or as supplemented in the discretion of the board, the position or employment status due Huseman and the extent thereof. Cf. Regal Knitwear Co. v. NLRB, 1945, 324 U.S. 9, 13, 65 S.Ct. 478, 480, 89 L.Ed. 661, 666. NLRB v. Anvil Products Inc., 5 Cir., 1974, 496 F.2d 94, 98.

Review granted in part, enforced in part, enforcement denied in part on condition.

      . Dated February 13, 1974, and reported in 209 NLRB No. 3.

      . Phelps Dodge Corp. v. NLRB, 1941, 313 U.S. 177, 187, 194, 61 S.Ct. 845, 849, 852, 85 L.Ed. 1271, 1279, 1283. See also, NLRB v. International Van Lines, 1972, 409 U.S. 48, 53, 93 S.Ct. 74, 77, 34 L.Ed.2d 201, 205.