author: CASTLE, Senior Circuit Judge.

text:
    Robert MUSGRAVE, Plaintiff-Appellee, v. UNION CARBIDE CORPORATION, Defendant-Appellant. Robert MUSGRAVE, Plaintiff-Appellant, v. PROCESS ENGINEERING, INC., et al., Defendants-Appellees.
    Nos. 73-1283, 73-1284.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 8, 1974.
    Decided March 6, 1974.

      Richard P. Komyatte, Hammond, Ind., William N. Anthony, Chicago, 111., for Musgrave.
    Elmer F. Slovacek, Francis D. Morris-sey, Caryl P. Bonotto, Chicago, 111., for Union Carbide & Process Eng.
    Before CASTLE, Senior Circuit Judge, PELL, Circuit Judge, and GRANT, District Judge.

       Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, sitting by designation.

   CASTLE, Senior Circuit Judge.

Defendant Union Carbide Corporation appeals from a jury verdict for plaintiff Robert Musgrave in a negligence action involving personal injuries sustained when the hitch connecting a mobile nitrogen converter trailer to the tractor which Musgrave was driving sheared off, causing the trailer to strike the tractor. On appeal, Union Carbide asserts that Musgrave failed to introduce sufficient evidence to prove that Union Carbide committed the acts alleged in the amended complaint: furnishing Musgrave a trailer to which it had affixed a defective and unsafe hitch assembly, and using the trailer hitch assembly in an unsafe manner. Union Carbide further argues that Musgrave failed to sustain the burden of proof required to show that such acts were the result of negligence or were the proximate cause of Musgrave’s injury, and that the court incorrectly instructed the jury on negligence. Union Carbide also contends that the trial court erroneously sustained an objection barring Union Carbide from commenting on matters mentioned by a codefendant during closing argument and failed to direct the jury to render a complete verdict respecting a eodefendant. We have considered these issues and we affirm the judgment on the jury verdict.

Musgrave was a truck driver employed by the McKeown Transportation Co., a contract carrier for Union Carbide. On July 3, 1969, Musgrave’s dispatcher ordered him to take a mobile nitrogen converter trailer from Union Carbide’s East Chicago, Indiana plant to Kankakee, Illinois. Musgrave took the one McKeown tractor equipped with a pintle hook compatible with the hitch assembly on the trailer and drove to the Union Carbide plant, where he positioned the trailer and the tractor and then lowered the lunette eye of the trailer on the tractor’s hook. When he observed a proper fit, Musgrave triggered the safety catch locking the mechanism, connected the safety chains between the trailer and the tractor, inspected the rig, and began his journey. While driving on Interstate 57 near Kankakee, he noticed that the trailer was weaving in a pattern about two feet to the left and to the right of the tractor. He attempted to bring the rig to a gradual halt in order to tighten the safety chains. At that point, the trailer broke loose from the tractor, spinning the tractor completely around. The trailer then fell and struck the front end of the tractor. Following the impact, Musgrave noted that while the lunette eye was still locked in the catch of the tractor hook, the stem connecting the eye to the trailer had separated.

At trial, expert testimony established that two sources of metal fatigue resulted in the stem separation. First, the mounting plate on the trailer through which the threaded lunette stem passed was excessively thick, preventing the castle nut on the other side of the plate from being fully tightened on the lu-nette stem when the stem was inserted through any one of four lunette holes in the mounting plate. (The holes were arranged vertically to permit adjustment of the lunette to fit tractors of varying heights.) Second, since none of the four holes in the mounting plate had been chamfered, when a lunette stem was inserted through a hole in the mounting plate the jagged edge of the hole created a stress concentration point where the eye of the lunette joined the stem (the situs of the stem separation in the accident) .

The trailer in question was designed and manufactured for Union Carbide by Process Engineering, Inc., a codefendant in this action. Process Engineering stipulated that it had exercised exclusive control over the design and manufacture of the trailer prior to its sale to Union Carbide. However, it denied that it had manufactured the hitching assembly found on the trailer. Union Carbide offered testimony that it had made no modifications in the hitching assembly, that it had performed no maintenance on the hitch, and that the mechanism was essentially in the same condition when the accident occurred as when the trailer arrived from Process.

Confronted with denials of responsibility from the only two logical sources who could possible explain the attachment of the defective mounting plate to the trailer, Musgrave sued both Process Engineering and Union Carbide and properly presented his alternative theories of liability to the jury, Schmidt v. Archer Iron Works, Inc., 44 Ill.2d 401, 402-403, 256 N.E.2d 6 (1970): Either Process Engineering affixed the mounting plate to the trailer during its manufacture or Union Carbide removed the manufacturer’s mounting plate and attached a defective plate. Musgrave necessarily relied substantially on proof by circumstantial evidence, for in cases such as this, the plaintiff rarely has direct proof of what occurred in the manufacturer’s or consumer’s plants. Cf., Grey v. Hayes-Sammons Chemical Co., 310 F.2d 291, 302 (5th Cir. 1962). Such circumstantial evidence is clearly sufficient, however, to provide the basis for a finding of negligence. As this court stated in Gearhardt v. American Reinforced Paper Co., 244 F.2d 920, 924 (7th Cir. 1957):

Generally speaking, direct and positive testimony to specific acts of negligence is not required to establish it. Circumstantial evidence is sufficient, either alone or in combination with direct evidence. Circumstantial evidence may contradict and overcome direct and positive testimony. The limitation on its use is that the inference drawn must be reasonable. But there is no requirement that the circumstances, to justify the inferences sought, negative every other positive or possible conclusion. The law is not so exacting that it requires proof of negligence or causation by testimony so clear that it excludes every other speculative theory.

Process Engineering’s design engineer testified that the drawing plans for this trailer and other identical trailers specified the utilization of a Holland Hitch Manufacturing Co. lunette as well as a three inch thick mounting plate with chamfered holes in the hitch assembly. He further stated that a Holland Hitch lunette, model number 1263, was used on this particular trailer and that the engineering procedure which called for chamfering the mounting plate holes had been followed in the production of this trailer. Holland Hitch’s assistant general manager examined the fractured lu-nette, and based on the shape of the eye, the absence of a die forging number, and the indications of the manner in which the lunette was cut to size, he stated that the lunette attached to this trailer which sheared off and caused the accident was not manufactured by his company. The clear inference from this testimony was that while the trailer was manufactured by Process Engineering, Process Engineering neither manufactured nor affixed the hitch found on the trailer; therefore, Union Carbide must have attached the hitch assembly to the trailer.

Moreover, evidence of Union Carbide’s post-accident behavior tended to corroborate Process Engineering’s denial of the manufacture of the defective mounting plate and to suggest that Union Carbide was responsible for the attachment of the faulty plate. At the time of the accident, the trailer had only been pulled a total of 175 miles during eight and one-half months of use. Yet Union Carbide, which had expended $11,240 for the purchase of the trailer only months before the accident, did not notify Process Engineering that the hitch assembly on its relatively' new trailer had failed or that such failure had caused damage to Union Carbide’s trailer, damage to McKeown’s tractor, and personal injuries to Musgrave. Rather, Union Carbide simply welded the same lunette to the mounting plate and continued to use the trailer. It would strain credulity to believe that a knowledgeable and sophisticated corporation such as Union Carbide would magnanimously relieve Process Engineering of the cost of repair resulting from the extremely premature failure of new but obviously defective equipment, if in fact the hitch assembly had been manufactured and installed by Process Engineering. In contrast, Process Engineering (which had previously tested the safety factors incorporated into its design of the mounting plate to eliminate stress and had never received any report from owners of its trailers complaining of faulty hitches) made no modification of the design of the mounting plate or the method of installation of lunettes subsequent to the accident.

Further, circumstantial evidence suggested not only that Union Carbide affixed the hitch assembly to the trailer but also that the hitch assembly which it installed had been previously used. It was undisputed that the trailer was first put in operation at the East Chicago plant and that Union Carbide’s contract carrier, McKeown, had only one tractor specially equipped to pull this trailer. It was also undisputed that given the particular height of the tractor, the tractor was properly aligned with the trailer only when the lunette was inserted through the fourth (e. g., the bottom) hole of the mounting plate; any other position would have imposed undue stress on the hitch assembly. Yet, substantial evidence indicated that the lu-nette had also been inserted in both the top (i. e., first) hole, as well as the third hole. Thus the jury could reasonably infer under the circumstances- that the hitch had been previously used on another tractor-trailer combination, and therefore that the user, Union Carbide, not the manufacturer, affixed the defective hitch assembly to the trailer.

There was also sufficient evidence to warrant a finding that Union Carbide improperly used the trailer hitch assembly. Process Engineering designed the hitch assembly so that the lunette could be bolted on the back of the mounting plate by means of a castle nut through which a cotter key could then be inserted. Process Engineering additionally provided an uninstalled lock washer as a backup safety device to be used only in the event the cotter pin broke. However, both a washer and a cotter key were found installed on Union Carbide’s trailer’s hitch assembly. Expert testimony established that the combination of both the key and the washer prevented the proper tightening of the castle nut on the lunette stem, producing a looseness in the assembly which contributed to the stress causing the metal fatigue. This evidence also supports the inference that Union Carbide changed the trailer hitch after its manufacture, replacing it with another which did not conform to the one supplied by the manufacturer.

While the jury might possibly have inferred from the record that Process Engineering, rather than Union Carbide, attached the defective hitch assembly, it is uniquely the jury’s function to choose from conflicting inferences those which it deems most reasonable, and where, as here, there is an evidentiary basis for the verdict of the jury, an appellate court will not reweigh the evidence or reject properly deducible inference. E. g., Greyhound Corp. v. Dewey, 240 F.2d 899, 902 (5th Cir. 1957); Knapp v. Styer, 280 F.2d 384, 386 (8th Cir. 1960). The jury’s apparent disregard of Union Carbide’s direct denial of responsibility for the hitch assembly is an appropriate exercise of its discretion in reaching a verdict, for it is well-established that “even purely circumstantial evidence may properly be found to outweigh conflicting direct testimony.” United States v. Ebinger, 386 F.2d 557, 560 (2d Cir. 1967); Gearhardt v. American Reinforced Paper Co., supra. We therefore conclude the jury properly determined on the basis of the record that Union Carbide affixed the defective hitch assembly to the trailer in question and used the assembly in an improper manner.

Union Carbide submits that even if there were sufficient evidence from which the jury could determine that it had affixed the defective hitch assembly to the trailer, Musgrave failed to prove negligence, because there was no showing that Union Carbide either knew or should have known of the defective hitch on the trailer which it supplied to Musgrave. E. g., Witt v. John Hennes Trucking Co., 49 Ill.App.2d 391, 199 N.E.2d 231 (1964); Restatement (second) of Torts § 392. However, the law in Illinois respecting the standard of liability for a supplier of chattels is clear:

A supplier of chattels is not ordinarily liable to third parties unless the article is inherently dangerous. . However, such supplier may be liable to a person injured by an article which, while not dangerous when properly made, became dangerous when defectively made [citations omitted]. To establish liability on this ground, however, there must be some evidence that the defendant either should have known of or negligently caused the defect in question. Watts v. Bacon & Van Buskirk Glass Co., 18 Ill.2d 226, 231-232, 163 N.E.2d 425, 428 (1959).

As the requirement is phrased in the disjunctive, it was unnecessary that Musgrave prove Union Carbide either knew or should have known of the defective hitch (a standard appropriate for a mere passive supplier), since Musgrave alleged and proved that Union Carbide actively and negligently caused the de-feet resulting in the accident by affixing to the trailer supplied him an obviously faulty mounting plate, with jagged edges around its unchamfered lunette holes and with an excessive width which prevented the proper tightening of the castle nut on the lunette stem. That such proof is sufficient to establish negligence is well-settled in case law, both because of a presumption of notice arising from the affixation of the obviously defective part, White v. St. Louis Transfer Co., 161 Ill.App. 133 (1911) (employer negligently furnished a wagon, which he had made with a defective hitch, to an employee), Kozowski v. Ostrowski, 163 Ill.App. 199 (1911); and because of a reasonable inference that the hitch assembler and affixer negligently failed to use reasonable care in “manufacture” when a hitch with structural defects sheared off a relatively new trailer. See, Anderson v. Linton, 178 F.2d 304, 309 (7th Cir. 1949) (in a personal injury suit involving the shearing off of a trailer hitch, an allegation that the hitch was structurally weak was held sufficient to state a claim of negligence against the hitch assembler and affixer for failure to use reasonable care in its “manufacture”). Restatement (Second) of Torts § 395.

Union Carbide further submits that even if it were negligent, Mus-grave failed to demonstrate that his injury was proximately caused by Union Carbide’s acts. Illinois law has determined that proximate cause exists when the injury alleged is the natural and probable result of the negligent act or omission and is of such a character that an ordinarily prudent person ought to have foreseen it as a likely result of the negligence. E. g., Neering v. Illinois Central R. Co., 383 Ill. 366, 380, 50 N.E. 2d 497 (1943). On the facts of this case, it is clear that the injury satisfies the proximate cause requirement; indeed, it would be hard to imagine a better example. Union Carbide negligently furnished a trailer with a defective hitch to the driver of a tractor. As a result of the shearing off of the trailer hitch, the driver was injured. The injury is plainly neither so freakish nor fantastic as to preclude the finding of liability for negligence.

Union Carbide contends that the trial court erred in refusing its amendment to the jury instruction on the standard for liability and argues that, as a result it was subjected to the same type of liability asserted against Process Engineering ; namely, strict liability. In the following instructions tendered by Mus-grave and subsequently given by the court to the jury, Union Carbide proposed the following bracketed, italicized words:

The plaintiff claims, with respect to the occurrence, that while he was in the exercise of ordinary care, the defendants were negligent in one or more of the following respects:
As to the defendant Process Engineering, Inc.; In the design, manufacture, mounting and inspection of the hitch assembly to the mobile convertible trailer.
As to the defendant Union Carbide Corporation; In the furnishing of a mobile convertible trailer to the plaintiff which [Union Carbide Corporation knew or reasonably should have known] had affixed to it a defective and unsafe hitch assembly. (Instruction at Tr. 776, objection at 733.)

As Union Carbide was a supplier furnishing a hitch which was dangerous when defectively made, since the jury’s instructions permitted it to reasonably conclude that Union Carbide negligently caused the defect resulting in Musgrave’s injury, it was unnecessary for the instructions also to permit the jury to find that Union Carbide knew or should have known of the defect in order to establish liability for negligence, under the rule of Watts v. Bacon & Van Buskirk Glass Co., supra.

Furthermore, the instructions given the jury neither subjected Union Carbide to the same theory of liability asserted against Process Engineering nor applied a strict liability standard to Union Carbide. Process Engineering was sued on theories of strict liability, breach of warranty and negligence. The trial court expressly instructed the jurors that only the negligence theory was asserted against both Union Carbide and Process Engineering. The court delineated Musgrave’s separate allegations of negligence: as to Process Engineering, in the design, manufacture, mounting and inspection of the hitch assembly to the mobile converter trailer; as to Union Carbide, in the furnishing of a mobile converter trailer which had affixed to it a defective and unsafe hitch assembly. The court then instructed the jury that in order to establish negligence, Musgrave must prove that he was using ordinary care for his own safety, that the defendants acted negligently in the above-described manner, and that such negligence was the proximate cause of the accident. The court proceeded to define negligence as “the failure to do something which a reasonably careful person would do or the doing of something that a reasonably careful person would not do, under circumstances similar to those shown in the evidence.” Indeed, not only was the difference between theories of strict liability and negligence driven home in the instructions, but in closing argument counsel for Union Carbide also apprised the jury of “the important distinction being made against Process Engineering and the claim being made against us. As against us, . . . the plaintiff must prove that we were careless; that we did something negligent, which caused this accident. . . .” This language is remarkably similar to that used by the Illinois Supreme Court in the Watts ease to describe the burden of proof necessary to establish liability in such negligence cases. Taking the instructions as a whole and viewing them in light of the evidence presented and the closing argument, we are satisfied that the instructions relating to Union Carbide showed no tendency to confuse or mislead the jury regarding the applicable law of negligence. Cf., Oliveras v. United States Lines, 318 F.2d 890, 892 (2d Cir. 1963).

Union Carbide claims that the trial court erred in sustaining Process Engineering’s objection to Union Carbide’s remark in its closing argument in response to an inference raised by Process Engineering during its final argument that other defendants present at a May 1972 inspection of the defective lunette had conspired against it and that it had been deprived of an equal opportunity to conduct discovery proceedings. The objection, which followed Union Carbide’s statement that the inspection was pursuant to a court order in which Process Engineering had the same opportunity to participate, was sustained on the ground that there was no such evidence in the record. We find that the court’s ruling was correct, for it is well-settled that it “is improper in closing argument to make reference, over objection, to matters not in evidence,” O’Boyle v. Greco Excavating Co., 9 Ill.App.3d 234, 240-241, 292 N.E.2d 90 (1972), and the discovery proceedings were not introduced into the trial record. If error was committed, it was not in the court’s ruling on the objection but rather in Union Carbide’s failure to object to Process Engineering’s mentioning, in its prior final argument, matters pertaining to pretrial discovery which were not disclosed in the evidence. Cf., Flewellen v. Atkins, 99 Ill.App.2d 409, 241 N.E.2d 667 (1968). Having waived its right to object to the jury’s hearing of matters not in evidence, Union Carbide was properly refused permission by the court to seek correction of such error by raising extra-evidentiary issues itself.

Finally, Union Carbide claims that the trial court erred in failing to direct the jury to return a complete verdict specifically deciding the question of the liability of its codefend-ant, Process Engineering. Union Carbide argues that this failure was highly prejudicial to it, because the jury could not rationally find Union Carbide negligent without also finding Process Engineering liable. It is firmly established in Illinois law that when a court receives a verdict in irregular form, it is proper for the court to construe the intent of the jury, considering the record before it, and to enter judgment without resubmission to the jury. E. g., Bencie v. Williams, 337 Ill.App. 414, 86 N.E.2d 258, 260 (1949). In a personal injury suit alleging negligence against multiple defendants, Illinois courts determined that a jury verdict which simply found one codefendant negligent necessarily exculpated the remaining defendant, for the finding that the second defendant was not liable was “reasonably implicit” in the jury verdict. Sesterhenn v. Saxe, 88 Ill.App.2d 2, 232 N.E.2d 277 (1967). Similarly, given Musgrave’s theories of liability, the jury verdict in this personal injury action finding Union Carbide negligent, coupled with special interrogatories to which the jury replied that Union Carbide was negligent while Mus-grave was not contributorily negligent, implicitly exonerated Process Engineering, and the trial court properly so found. Union Carbide suggests that the express and implied findings are inconsistent. However, the findings could only have been inconsistent if Musgrave had represented Union Carbide as a mere conduit in which case its liability could have been predicated only on knowledge of the defect, which would have implied that the defect had been caused by Process Engineering. But Musgrave never portrayed Union Carbide as a passive conduit. Rather, Mus-grave consistently argued that either Union Carbide or Process Engineering negligently caused the accident by affixing a defective hitch assembly to the trailer. Therefore, the jury verdict finding Union Carbide negligent necessarily implied that Process Engineering was not liable for Musgrave’s injury. Thus, in exculpating Process Engineering, the court, without prejudice to' Union Carbide, correctly announced the logical implication of the jury verdict.

We affirm the judgment on the jury verdict.

Affirmed.

      . While the court found Iowa law applicable in that case, it actually applied principles embodied in the Restatement of Torts, on which Illinois courts also rely. See, e. g., Biller v. Allis Chalmers Mfg. Co., 34 Ill. App.2d 47, 180 N.E.2d 46 (1962).

      . In the cross-appeal, No. 73-1284, Musgrave requested that if the judgment against Union Carbide were to be reversed, the judgment in favor of Process Engineering also be reversed in the interests of justice, to permit the remanding of the case for a new trial as to all parties. Because of our holding in No. 73-1283, we need not reach the questions presented in the cross-appeal.


source: Caselaw Access Project

author: BRIGHT, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Delmar Earl CHRISCO, Appellant. UNITED STATES of America, Appellee, v. Lewis HOWELL, Appellant.
    Nos. 73-1101, 73-1145.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided March 14, 1974.

      Robert Garfield, and Thomas C. Palmer, St. Louis, Mo., for appellants.
    Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   BRIGHT, Circuit Judge.

Appellants Delmar Earl Chrisco and Lewis Howell were tried before a jury in the United States District Court for the Eastern District of Missouri in January 1973 and convicted of robbing the Bank of St. Mary’s in St. Mary’s, Missouri, on August 3, 1972, in violation of 18 U.S.C. § 2113. On appeal, they raise a total of 12 separate allegations of error. We have examined each ground of error but find no grounds for reversal. Two grounds merit detailed discussion —those relating to the impaneling of the jury and to the prosecutor’s closing argument.

I.

In their briefs and at oral argument, appellants Chrisco and Howell strongly urged that it was plain error for them to be removed from the courtrooom involuntarily during the peremptory challenges of the jury. This contention, if proved true, presents a serious constitutional challenge to the conduct of their trial.

The right of a defendant to be present during the process of impaneling the jury was enunciated long ago by the Supreme Court. See Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 38 L.Ed. 208 (1894); Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Hopt v. People of the Territory of Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 28 L.Ed. 262 (1884). More recently, the Supreme Court has held this principle to be guaranteed through the confrontation clause of the sixth amendment, see Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L. Ed.2d 353 (1970), and lower courts have regularly found a due process dimension to it. See Bustamante v. Eyman, 456 F.2d 269, 273 (9th Cir. 1972) ; United States v. Crutcher, 405 F.2d 239, 242-243 (2d Cir. 1968), cert. denied, 394 U. S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); Parker v. United States, 184 F.2d 488, 490 (4th Cir. 1950); Fina v. United States, 46 F.2d 643, 644 (10th Cir. 1931). Fed.R.Crim.P. 43 explicitly embodies this principle, stating that: “[T]he defendant shall be present * * * at every stage of the trial including the impaneling of the jury * * *»

Because the transcript in this case was devoid of details concerning the selection of the jury, we issued an order, reported at 487 F.2d 505 (8th Cir. 1973), which reads in pertinent part as follows:

[W]e remand this ease to the trial court for preparation of an appropriate record of the proceedings in the impaneling of the jury, including a showing of whether appellants were present in court during the exercise of their peremptory challenge by counsel. Additionally, * * * the record should include any circumstances, not presently disclosed in the transcript, bearing on the issue of whether there was a knowing and voluntary waiver of their right to be present at the peremptory challenge stage. [487 F.2d at 506.]

That supplementary record is now before us, and the following facts appear uneontested:

1) Appellants Chrisco and Howell were present in the courtroom during the entire voir dire of the jury and during the strikes for cause on January 10, 1973;

2) Appellants were removed from the courtroom immediately prior to the noon recess so that the veniremen would not see the defendants manacled outside the courtroom when the panel was excused for lunch;

3) Appellants were taken for lunch to the United States Marshal’s office, which is on the same floor as the courtroom;

4) The judge declared the noon recess and the entire venire was taken out of the courtroom for lunch;

5) The judge then left the courtroom;

6) Defense counsel were aware that defendants would be kept in the United States Marshal’s office during the noon recess;

7) Counsel for appellants and counsel for the Government briefly remained behind, made their peremptory strikes, and gave this list to the clerk of the court;

8) At approximately two o’clock, court was reconvened, and, in the presence of counsel for appellants, the entire venire was brought back into court and the list of strikes was read off by the clerk of the court, thus impaneling a jury of twelve;

9) At some point following the noon recess, the appellants were brought back into the courtroom and immediately registered with their counsel dissatisfaction regarding certain members of the venire who eventually served on the jury; and

10) This problem was discussed among the three defense attorneys, but neither the defendants nor their attorneys made any statements to the trial judge objecting to or questioning the impaneling of the jury.

The only disputed fact relating to the impaneling proceedings was whether the appellants were present in the courtroom when the list of strikes was read off and the jury sworn. At the supplementary hearing on this matter, the appellants and two of their three defense counsel testified that, to the best of their recollection, the defendahts were not brought back into the courtroom until after the jury had been sworn. The bailiff and the clerk of the court, on the other hand, testified that the rigidly-adhered-to practice of the court was to have the defendants present when the strikes were called off and the jury sworn. When pressed on the matter, however, none of these witnesses could assert a clear memory of the specific events in question.

At the conclusion of the supplementary hearing, the trial judge stated:

But I think the record should show that all the proceedings after the recess went on were in open Court and before all of counsel and both defendants. In other words, at the time the results of the strikes were called out, that that was done in open Court.

We accept this statement as the court’s finding of fact as well as a summary of his personal recollection on the question of the defendants’ presence when the list of strikes was read off and the jury sworn. The legal question remains for us to decide whether, on the facts above, appellants have shown a violation of their constitutional rights or a violation of their procedural- rights under Fed.R. Crim.P. 43 amounting to plain error under Fed.R.Crim.P. 52(b). On the record before us, we think not.

To be sure, the process of “impaneling” a jury — at which Fed.R.Crim. P. 43 insures the defendants’ presence —encompasses all the steps of selecting a jury, including the peremptory striking of members of the venire.

Although the appellants were absent from the courtroom when their counsel informally conferred and made their strikes, the trial court in the supplementary record has found that both appellants were present in the courtroom when those strikes were given actual effect by the clerk’s reading off the list. Further, it seems clear from the record that appellants discussed their misgivings with counsel during or immediately following the formal impaneling process and that the decision was made by counsel not to raise any objection at that time. Whether this decision was made as a result of tactical considerations or as a result of inexperience and ignorance of the law is not material to our disposition of this case, for we hold that under the facts shown the appellants were sufficiently “present” at the impaneling of the jury to satisfy Fed.R.Crim.P. 43 and the Constitution, since they both observed the strikes being read off and registered their opinions of the venire with their counsel.

While no error is thus shown on this record, we wish to make it clear that the trial court has a responsibility to make sure that defendants are given an ample opportunity to confer with their counsel during all phases of the jury selection process including the exercise of peremptory strikes. As the Second Circuit has stated in United States v. Crutcher:

[T]here is no way to assess the extent of the prejudice, if any, a defendant might suffer by not being able to advise his attorney during the impaneling of the jury. * * * [W]e can only speculate as to what suggestions [the defendant] might or might not have made, since it would be his prerogative to challenge a juror simply on the basis of the “ ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.’ ” [Blackstone’s Commentaries, quoted in] Lewis v. United States, 146 U.S. at 376, 13 S.Ct. 136. [405 F.2d at 244.]

The slight additional burden on the criminal justice process which is wrought by such a requirement is more than offset by the avoidance of lengthy appeals and remands — like the case at bar — to determine if the mandate of Rule 43 and the Constitution have been met.

II.

Appellants have also claimed error in the prosecutor’s remarks during closing argument. After several heated exchanges between defense counsel and the prosecution, the Government began its rebuttal argument by criticizing defense counsel’s theory that the F.B.I.’s pretrial photographic identification procedures related to defendant-Chrisco had been suggestive. The prosecutor then concluded:

Well, we don’t operate that way, my friends. That’s not the point of it at all. The point of it all is we don’t prosecute people for crimes they don’t commit.

Such a statement is, of course, error, for it amounts to an appeal to the jury to substitute the power, prestige, and integrity of the Government for a neutral determination of the facts. See United States v. Lamerson, 457 F.2d 371, 372 (5th Cir. 1972); Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969).

At oral argument in this appeal, the Government confessed error on this point, but urged that it was not prejudicial error because the improper remarks were “invited or provoked by opposing counsel.” Myres v. United States, 174 F.2d 329, 339 (8th Cir. 1949); accord, United States v. Phillips, 482 F.2d 191, 196 (8th Cir. 1973); Homan v. United States, 279 F.2d 767, 775 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). In support of this theory, the Government points to the comments of the trial judge in overruling defense counsel’s objection to the prosecutor’s remarks:

Well, gentlemen, there has been in this case in argument, not on your part, Mr. Cox [attorney to defendant-Howell], but there has been argument here, some of it objected to and some not, inferring that the FBI and the Government apparently prompted some of this evidence and plotted it. There is not one scintilla of evidence to that effect, and in that context, I regard Counsel’s argument as proper.

We do not agree that the prosecutor’s argument was proper, and a curative instruction should have been immediately given by the trial judge.

Without exception, the cases that have found no reversible error in a prosecutor’s improper remarks have drawn attention to the prompt action of the trial judge in admonishing the jury to disregard such statements. Though no such instruction was given here, we nevertheless find no prejudice for “the effect of the error must be gauged in the context of the entire trial, and not in isolation.” United States v. Phillips, supra, 482 F. 2d at 196.

The evidence of appellants’ guilt is overwhelming. A procession of eye witnesses identified appellant-Chrisco and Harold Jeffries — who pleaded guilty prior to trial — as the two men who entered and robbed the Bank of St. Mary’s on August 3, 1972. ' Although no eye witness identification linking appellant-Howell to the robbery was introduced, witnesses testified to seeing the two men enter a yellow Ford Torino in which a third man was waiting. The license on that car was registered in Howell’s name. Later that afternoon the yellow car was found abandoned and without plates; one of Howell’s fingerprints was on this car which had been stolen the previous day.

Later that night, Jeffries, Howell, and three women were stopped by police in a red Ford convertible and the two men arrested. The car was searched and the license plates belonging to Howell found in the trunk. Some $1,750 in cash was found on Howell’s person. A subsequent consensual search of Jeffries’ home turned up some $21,000 in cash, two .38 caliber pistols, and two shirts identified by witnesses as those worn by the robbers. Appellant-Chrisco was apprehended on September 1, 1972, after eye witnesses identified his photograph from police mug shots.

Where the evidence is so substantial, we do not think that the Government prosecutor’s remarks were prejudicial. A different result, however, might well follow if the case were more marginal.

III.

We have examined the ten remaining allegations of error jointly or individually raised by appellants, and find them to be without merit.

Appellants challenge the trial court’s instruction on reasonable doubt which stated that the standard is proof of such “convincing character that you would be willing to rely and act upon it unhesitatingly.” We find no error here. See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1955); cf. United States v. Atkins, 487 F.2d 257, 260 (8th Cir. 1973).

Appellants attack as plain error the trial court’s curative instruction to the jury during the redirect examination of one of the witnesses that “the Court presumes that all witnesses are telling the truth.” Our court dealt with a similar claim in United States v. Gray, 464 F.2d 632 (8th Cir. 1972), and held that, while this statement served no useful purpose and should have been omitted where the trial court fully explained the jury’s obligations in determining the facts in the final instructions, there is no error. See United States v. Gray, 464 F.2d at 638; cf. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).

Appellant-Chrisco argues that the photographic identification procedures used by the police and F.B.I. in the pretrial, post-arrest period were constitutionally defective since defense counsel was not present at the photo array. This claim has been effectively dispensed with by the Supreme Court’s rejection of the sixth amendment argument in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

Appellant-Chrisco argues that his attorney was improperly cut off by the trial court from pursuing a claim that the Government had “suggested” the identification testimony given by witnesses for the prosecution. The rule is well established that the extent and scope of cross-examination are within the discretion of the trial court. See, e. g., United States v. Hiken, 458 F.2d 24, 26 (8th Cir. 1972). Defense counsel’s questions here had become repetitive without producing any positive results. There was therefore no abuse of discretion by the court in ordering them curtailed.

Appellant-Howell challenges the trial court’s decision to permit Harold Jeffries, a co-indictee who already had pleaded guilty, to be seated in the courtroom with the defendants. The presence of such a person, like that of any other witness, is in the sound discretion of the trial judge. See Laird v. United States, 252 F.2d 121, 122 (5th Cir. 1958). It appears that the tiny courtroom in which this ease was tried was too crowded and necessitated placing Jeffries near the defendants. This serves as adequate justification for the challenged procedure.

Appellant-Howell next claims that the seizure of his car license plates from the trunk of the red Ford convertible without a warrant is a fourth amendment violation. The circumstances of this case show the search to be proper. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969).

Appellant-Howell next claims that the introduction into evidence of the revolvers, money, and clothes seized at the home of Jeffries, the co-indictee who pleaded guilty prior to trial, was prejudicial error because they were irrelevant. We disagree. Proof of the guilt of a principal is admissible at the trial of an accomplice. See United States v. Deutsch, 451 F.2d 98 (2d Cir. 1971). Since a defendant can be convicted as a principal for aiding and abetting under 18 U.S.C. § 2 without being specifically charged as such in the indictment, see United States v. Lugo-Baez, 412 F.2d 435 (8th Cir. 1969), proof of the entire criminal transaction is relevant to the proof of Howell’s guilt.

Appellant-Howell further complains of the failure of the trial court to sever his trial from that of appellantChrisco. Under Fed.R.Crim.P. 14 and case law, this matter is within the sound discretion of the trial court and his ruling will rarely be disturbed on review. United States v. Bazinet, 462 F.2d 982, 992 (8th Cir. 1972). There has been no showing of an abuse of discretion.

Appellant-Howell next argues that the authenticity of an Illinois motor vehicle document found on his person which identified the license plates found in the red Ford convertible as his was not properly established. By its terms, Fed.R.Crim.P. 27 permits proof of official records in the same manner as in civil actions. Since Fed.R.Civ.P. 44 would permit proof of registration in the manner here employed, there is no error.

Finally, appellant-Howell argues that the evidence was insufficient to convict him. We disagree. He was seen with Chrisco and Jeffries— both of whom were identified by eye witnesses as the robbers — both prior to and after the robbery; his license plates were on the getaway car; his fingerprints were found on the outside of the getaway car which had been stolen the day before the robbery and abandoned immediately thereafter; and an unusually large sum of cash was found on his person the evening following the robbery. This web of circumstantial evidence is clearly sufficient for conviction.

There being no error shown to justify reversal, we affirm the convictions.

Affirmed.

      . The following testimony appears in the supplementary transcript:
      We made our strikes, went to lunch, came back, the panel was' — the jury was sworn, put in the box and Mr. Chrisco and Mr. Jeffries and Mr. Howell came back in the courtroom and immediately upon coming into the courtroom Mr. Chrisco signaled to me and called me over. I went over and talked to Mr. Chrisco and lie pointed to two of the jurors. He did not know their names. He said: “I don’t like that lady and that lady.” And he was referring to Mrs. Marguerite Larkin and Mrs. Phyllis Pennock.
      At this time I thought that was a valid thing to say to me and I went over and it was obvious to me — although he did not state specifically, it was obvious to me he wanted me to object to these two jurors and I wasn’t sure whether he had a right to be there or not during the pre-emptory strikes. So I went over to talk to Mr. Cox [codefendant-Howell’s attorney] and I asked Mr. Cox, and I said to Mr. Cox: “Does Mr. Chrisco have a right — or Mr. Chrisco doesn’t like "these jurors, should I object to the trial judge?” And Mr. Cox told me: “No, don’t object to the trial judge.”
      THE COURT: Did these two parties serve on the panel?
      THE WITNESS: Yes, they did, Your Honor, that’s why he pointed to them, they were—
      THE COURT: All right, go ahead.
      THE WITNESS: And actually, Mr. Cox —I don’t remember the specific conversation, but his general attitude was this [sic] is nothing amiss here, this is standard operating procedure, and I thought, well, if that’s the case there’s no point in me making a frivolous objection. So I felt' at that time I was going to probably make enough frivolous objections during the trial, I better not make another one. So I went back to Mr. Chrisco and said to Mr. Chrisco: “Mr. Cox said he doesn’t think you have a right to be present during pre-emptory challenges.” And he just frowned as if to say I don’t like those two jurors. And I didn’t think a thing about it the rest of the trial until it was obvious that Mrs. Larkin was the forewoman and then I became somewhat concerned. I thought well, one specific individual that he was most discontented with ended up as the, forewoman. I thought this was either good or bad. I didn’t think a thing of it until about three weeks later and then my question was: Is voir dire part of the impaneling? I wasn’t even sure that it was part of a so-called impaneling of the jury, and in case research I found out that it was.

      . At the supplementary hearing, for example, defense counsel recalled that they originally had a positive reaction to one of the two jurors that appellant-Chrisco informed his attorneys that he disliked.

      . At the supplementary hearing, all three appointed defense counsel testified that they had never tried a criminal case in federal court. Two had never tried any criminal case before a jury; the third had not tried any criminal cases at all for 11 years.

      . Whether counsel must heed such recommendations is a question we are not called upon to answer in this appeal.

      . The exact mechanics of this requirement are properly the subject of the trial court’s discretion.


author: PER CURIAM: FIELD, Circuit Judge.

text:
    Veronica LOUTHIAN, Appellee, v. STATE FARM MUTUAL INSURANCE COMPANY, Appellant.
    No. 73-1791.
    United States Court of Appeals, Fourth Circuit.
    Submitted Sept. 14, 1973.
    Decided Dec. 18, 1973.
    Rehearing Denied March 25,1974.
    Samuel C. Craven, Charleston, S. C., on brief for appellee.
    Joseph W. Cabaniss, Grimball & Caba-niss, Charleston, S. C., on brief for appellant.
    Before HAYNSWORTH, Chief Judge, and FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

This case is before this court on .a motion for summary affirmance of a decision of the district court awarding plaintiff judgment in the amount of Ten Thousand Four Hundred and Five Dollars ($10,405). We affirm.

Veronica Louthian was injured in an automobile accident while a passenger in a vehicle owned and operated by one Inez Weeks Spaulding. Spaulding was insured under a liability policy issued by State Farm Mutual Insurance Company. The accident occurred when an unidentified hit-and-run driver struck an automobile. driven by one Pearl C. Goude, causing her vehicle to strike the auto occupied by Louthian. There was no direct physical contact between the unidentified vehicle, which fled the scene of the accident, and the vehicle in which Lou-thian was a passenger.

Louthian instituted suit in the state courts of South Carolina against Goude and the unknown driver of the hit-and-run auto, identified for the purposes of the suit as John Doe. A verdict was rendered against John Doe for $10,000 actual damages and $405 costs. Demand was thereupon made on State Farm for the amount of the judgment on the ground that as the insurer of the vehicle in which Louthian was riding, it was responsible to her for injury caused by unidentified hit-and-run motorists. State Farm refused payment. An action to enforce the judgment was then brought in the district court, and summary judgment was rendered for Louthian. State Farm appeals.

The crux of this action is the construction of the South Carolina Uninsured Motorists Statute and a provision of the insurance policy issued by State Farm. Both provide that before an insurance company is liable for injury caused by a hit-and-run driver, there be “physical contact” between the unknown vehicle and the insured vehicle. Here, the unknown vehicle did not hit the Spaulding auto, but struck only the Goude auto, propelling the latter vehicle into the car driven by Spaulding. The question to be decided is whether the “physical contact” requirements of the statutory or policy provisions are met by such indirect contact between a hit-and-run vehicle and a claimant’s vehicle.

The South Carolina Supreme Court has not yet decided this precise issue. The only state court decision directly on point is a decision by the Charleston County Court. That action arose out of the same facts which occasioned this litigation. It concerned the attempt of Inez Weeks Spaulding to force payment by State Farm of a damage award she had secured against John Doe. There, the court strictly construed the requirement of “physical contact.” It held that since Spaulding’s vehicle had come into contact only with the Goude auto, and not with the hit-and-run vehicle itself, State Farm was not liable for her damages.

The district court below, though obligated to follow the substantive law of South Carolina under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), did not consider itself bound by the decision of the Charleston County Court in the SpaidcLing case. We agree that the decision of that lower state court is not persuasive under the applicable facts and law, and hence decline to follow it. See 1 Barron & Holtzoff, Federal Practice and Procedure, (Wright Revision, 1960) § 8 at 37-40.

The state court in Spaulding read the decision of the state Supreme Court in Coker v. Nationwide Insurance Company, 251 S.C. 175, 161 S.E.2d 175 (1968) to allow recovery against one’s insurance company only when there was “actual physical contact with the unknown vehicle.” Spaulding v. State Farm Mutual, Charleston County Court, March 27, 1973. In Coker, the plaintiff’s auto collided with a second vehicle, whose driver and identity were known. The second vehicle, at the time of the accident, had been racing with a third vehicle, the identity and driver of which could not be ascertained. There was no physical contact between the unknown vehicle and either the second vehicle or with plaintiff’s. The court held that the absence of such physical contact was fatal to the plaintiff’s claim. However, the court specifically left open the factual situation involved in the present dispute. “Cases have been cited where the vehicle driven by the unknown motorist struck another vehicle and knocked it into the vehicle of the insured. (Citations omitted.) Whether or not such would satisfy the physical contact provisions of our statute is not involved in this case. Here there was no contact between the unknown vehicle and any other vehicle involved in the collision.” Coker v. Nationwide Insurance Co., 161 S.E.2d at 178-179.

Since the state law is not settled, it is the function of the federal courts in this diversity suit to determine what the South Carolina Supreme Court would likely decide if presented with the identical issue. We conclude that Louthian’s damage award against John Doe would be enforced against State Farm. A close examination of Coker supports this view. The court noted that “The parties agree that there was no contact between the unknown vehicle and any other vehicle involved in the collision,” 161 S.E.2d at 178 (emphasis added), and later repeated “there was no physical contact between the unknown vehicle and any other vehicle involved in the accident,” id. (emphasis added). The implication is that if there had been any physical contact between the unknown vehicle and the intermediate vehicle, such contact would have been sufficient under the terms *of the statute to bring the uninsured motorist provision into play.

The result we reach is supported by the decisions of the highest court of every jurisdiction which has considered the question raised by this case. Where there has been actual physical contact between the hit-and-run car and an intervening vehicle, each court holds that the “physical contact” requirement of a statute or of an insurance policy has been met. E. g., Inter-Insurance Exchange of Auto. Club of So. Cal. v. Lopez, 238 Cal. App.2d 441, 47 Cal.Rptr. 834 (1965) ; Motor Vehicle Accident Indemnification Corp. v. Eisenberg, 18 N.Y.2d 1, 271 N.Y.S.2d 641, 218 N.E.2d 524 (1966); State Farm Mutual Auto Insurance Co. v. Spinola, 374 F.2d 873 (5 Cir. 1967). See 25 A.L.R.3d 1299 (1969).

We believe that holding the insurer liable under facts such as these accords with the purposes behind the requirement that physical contact be proved. Such a restriction in both a policy and in a statute is designed to reduce abuses arising from fraudulent claims that phantom vehicles had caused accidents which, in fact, had resulted solely from the carelessness of the insured For example, a driver who fell asleep and hit a telephone pole might claim he had swerved off the road to avoid being hit by an unidentified vehicle. This problem virtually disappears with the requirement of “physical contact.” Here, however, there is no doubt that a genuine hit-and-run driver caused Goude’s automobile to be propelled into the vehicle occupied by Louthian. Thus, the rationale for requiring proof of physical contact is satisfied. It is “apparent that the actual contact situation is juridically indistinguishable from the situation in the present case. The vehicle which made actual contact with [Louthian’s] automobile in this case was a mere involuntary intermediary * * Motor Vehicle Accident Indemnification Corp. v. Eisenberg, 271 N.Y.S.2d at 643, 218 N.E.2d at 525 (emphasis present in the original).

Accordingly, we dispense with oral argument and grant Louthian’s motion for summary affirmance. The judgment of the district court is affirmed.

Affirmed.

ORDER

FIELD, Circuit Judge.

Shortly after our opinion was filed in this case counsel for appellant filed a petition for rehearing calling to our attention the fact that the companion case of Spaulding v. State Farm Mutual Insurance Company was then pending before the Supreme Court of South Carolina. Realizing that the disposition of that case might well be determinative of the issues on this appeal under South Carolina law which, of course, would be binding upon us under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), an order was entered on January 8, 1974, staying the mandate in this case and holding action on the petition for rehearing in abeyance.

In an opinion filed on February 11, 1974, the Supreme Court of South Carolina reached the same conclusion as this court with respect to the construction of the South Carolina Uninsured Motorists Statute. Accordingly, for the reasons stated in our opinion and upon the authority of the decision in Spaulding v. State Farm Mutual Insurance Co., Supreme Court of South Carolina, 202 S.E. 2d 653 (1974), with the concurrence of Chief Judge HAYNSWORTH and Circuit Judge WIDENER, it is ordered that the petition for rehearing be denied, and the Clerk is instructed to issue the mandate.


author: MeWILLIAMS, Circuit Judge.

text:
    BILL’S COAL COMPANY, INC., Petitioner-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Appellee.
    No. 73-1528.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 8, 1974.
    Decided March 14, 1974.

      Jeff Nix, Tulsa, Okl. (Ungerman, Gra-bel & Ungerman, Tulsa, Okl., on the brief), for petitioner-appellant.
    Vivian A. Miller, Washington, D. C. (Michael S. Winer, Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, on the brief), for respondent-appellee.
    Before LEWIS, Chief Judge, and SETH and MeWILLIAMS, Circuit Judges.
   MeWILLIAMS, Circuit Judge.

Bill’s Coal Company, Inc., an Oklahoma corporation engaged in the mining of coal near Welch, Oklahoma, filed a petition in this court seeking to set aside and vacate a decision and order of the National Labor Relations Board. In its decision, the Board found that Bill’s Coal had violated the provisions of 29 U.S.C. § 158(a)(1) and (3) and by way of remedy issued a cease and desist order as well as ordering certain affirmative relief. By cross-petition, the Board seeks enforcement of its order. This controversy arises out of the efforts of the International Union, United Mine Workers of America, to unionize Bill’s Coal. The facts will have to be developed in some detail in order to demonstrate why the order of the N.L.R.B. should be enforced in part, but not in its entirety.

Bill’s Coal operates several strip mines near Welch, Oklahoma, from which it mines, sells, and distributes coal. The mine was nonunion and the efforts to unionize it began in the early fall of 1971. Sometime in September 1971, three employees, namely, Tom Rogers, Orville Langley and Clifford Collins, travelled to Vinita, Oklahoma, and met there with a union organizer. As a result of. this initial contact these three employees began to circulate union cards among the employees of Bill’s Coal by contacting them at their homes after hours.

As will be developed later on, this attempt to persuade employees of Bill’s Coal to sign union cards was a covert operation. However, Bill Patch, owner of a 50% interest in Bill’s Coal and the individual owner in active charge of the mining operation, learned from sources outside his Welch mining operation of the efforts to unionize his company. In an attempt to head off unionization Patch called three meetings of his employees, which meetings were held on October 28, 30 and December 1, 1971. All of these meetings were held at the mine site and all were quite similar in character. At each meeting, Patch inquired of his employees as to just who had signed union cards, and no one admitted signing. We need not here go into any lengthy recital of Patch’s various statements made to his employees at these several meetings in his continuing effort to thwart unionization of his company. It is sufficient to note that, inter alia, Patch generally berated the United Mine Workers, declaring that he would never negotiate with it and that he “would go out the back door” if the “union should get in the front door.” On one occasion he stated that if “I find that any of you old men signed a card, I’ll whip your ■-- not once, but every time I see you on Main Street.”

Without going into a further summary of the evidence before the Board on this phase of the controversy, the Administrative Law Judge, and the Board, found, not surprisingly, that Bill’s Coal had violated the provisions of 29 U.S.C. § 158(a) (1), which make it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed under 29 U.S.C. § 157. The record amply supports the finding of the Board that there was a violation of 29 U.S.C. § 158(a)(1), and the Board’s order that Bill’s Coal cease and desist such unfair labor practices and post certain notices in connection therewith should be enforced. Indeed, this aspect of the employer’s conduct is no longer seriously disputed.

The real controversy in this court concerns the layoff of nine employees on December 9, 1971. The Board found that this was a discriminatory layoff designed to discourage membership in the United Mine Workers in violation of 29 U.S.C. § 158(a)(3). As a remedy for this particular violation, the Board ordered that all nine employees be reinstated and made whole. In our view, the record, considered in its entirety, does not support the finding of discriminatory layoff, and accordingly the Board’s order on this phase of the case should not be enforced. The facts relative to the layoffs will be developed as a part of our general discussion of the layoff issue.

So that the respective positions of the parties may be understood at the outset, it was the position of Bill’s Coal that the layoff of nine of its employees was an economic necessity and that in determining which nine employees would be laid off, Bill’s Coal was guided by seniority within job classification. As indicated, the Board, with one member dissenting, found that the layoffs were discriminatory and motivated, at least in part, by a desire on the part of Bill’s Coal to discourage membership in the United Mine Workers in violation of 29 U.S.C. § 158(a)(3). Let us proceed then to a consideration of the layoff issue.

As a starting point in our discussion of the layoff issue, the Administrative Law Judge found that during the latter part of 1971, the business of Bill’s Coal was in such an “economic slump” as would justify a layoff and the Board generally approved this finding. Certainly the record offers abundant proof of the declining economic condition of Bill’s Coal at the time of the December 9 layoffs. It had then recently lost all its contracts with customers but one and, although it still retained its one prime customer, that customer was only ordering the minimum amount called for by his contract and was at the time some $200,000 in arrears in payments. So, in this court, at least, there is no serious dispute but that a layoff on December 9 was economically justified. However, it is the Board’s position that Bill’s Coal discriminated in its selection of the nine to be laid off in an effort to discourage membership in the union in violation of 29 U.S.C. § 158(a)(3).

In support of its finding of discriminatory layoff, the Board points first to the fact that all nine employees who were laid off on December 9, 1971, had signed union cards. We have held that discrimination may not be inferred from the mere fact that a discharged employee was a union member. N. L. R. B. v. Western Bank & Office Supply, 283 F.2d 603 (10th Cir. 1960). In that case, however, only one employee was involved, whereas in the instant case we are concerned with nine employees. So, does the fact that all nine employees who were laid off had signed union cards permit, in and of itself, the inference of discrimination and does such fact, in itself, constitute substantial evidence of discriminatory layoff? Under the circumstances of this case as disclosed by the record before us, we conclude that it does not.

The record before us is silent as to just how many of the employees of Bill’s Coal had signed union cards. There were apparently some forty-odd employees of Bill’s Coal, some employed at the mine proper and others employed to haul the coal to the customer. If the nine employees who were laid off were the only employees who had signed union cards, such fact in and of itself might well be sufficient to support an inference of discrimination. However, if, for example, all, or virtually all, of the employees had previously signed union cards, then the fact that the nine employees who were laid off had all signed union cards would be of little significance. Rocky Mountain Natural Gas, Inc. v. N. L. R. B., 326 F.2d 949 (10th Cir. 1964).

As above indicated, in the instant case we do not know how many of Bill’s Coal employees signed union cards, so the fact that the nine laid off were signees of union cards would not in itself support a finding of discrimination, though such may, of course, be considered by the Board, along with all the other evidence, in making its finding as to whether Bill’s Coal in its selection of the employees to be laid off acted diseriminatorily. N. L. R. B. v. Sequoyah Mills, Inc., 409 F.2d 606 (10th Cir. 1969). Let us consider some of the other evidence.

Bill Patch testified that when he laid off the nine employees on December 9, 1971, he did not know whether any of them had signed union cards, though he conceded that shortly after the layoffs he had made the remark that he had probably “thinned out” their ranks. This latter remark is of course subject to varying interpretation. The nine employees laid off all testified before the Board, and they all agreed that they had attempted to keep secret the fact that they had signed union cards, and that such secrecy was a matter of union policy at the moment.

Patch testified that on or about October 1, 1971, three employees had stated that they had just signed union cards, and that he had argued with them about their signing. These three, however, were not among the nine laid off on December 9. Additionally, at the December 1 meeting, two employees refused to sign a petition disavowing the union, which petition Patch sought, unsuccessfully, to have circulated among his employees. In a moment of anger, Patch fired these two on the spot. However, each was rehired moments later after tempers had subsided, and neither of these two was among the nine laid off on December 9. This was about the extent of Patch’s knowledge as to which of his employees might have signed union cards.

Additionally, Patch testified as to the economic slump his company was experiencing during the second half of 1971. He said that the reason for the layoff was economic necessity, and that in determining which employees should be kept, and which nine should be laid off, he applied the rule of seniority within job classification, and that the nine laid off had the least seniority. He denied that in selecting the nine he was attempting to punish those who had signed union cards and thereby chill the efforts of all to unionize his company.

The crux of this layoff issue is whether the finding of the Board that Bill’s Coal acted discriminatorily in its determination, of which nine employees would be laid off finds substantial support in the record. Our study of the record convinces us that there is not such support. In the first place,, proof of an employer’s knowledge of his employee’s union activity is a prerequisite to the establishment of a discriminatory-layoff or discharge. Dubin-Haskell Lining Corp. v. N. L. R. B., 375 F.2d 568 (4th Cir. 1967), reheard en banc, 386 F.2d 306 (4th Cir. 1967), cert. denied, 393 U.S. 824, 89 S.Ct. 83, 21 L.Ed.2d 95 (1968). Such proof is singularly lacking in the instant case. In this connection we recognize that proof of such knowledge of an employee’s union activity, as well as proof of a discriminatory layoff, is seldom established by direct evidence, and may be, and generally is, shown by circumstantial evidence. See Betts Baking Co. v. N. L. R. B., 380 F. 2d 199 (10th Cir. 1967), and N. L. R. B. v. Tepper, 297 F.2d 280 (10th Cir. 1961). However, the circumstances of a given case must do more than create just a suspicion or surmise, and must amount to substantial evidence from which a reasonable inference of discriminatory discharge may be drawn. N. L. R. B. v. Western Bank & Office Supply, supra. In this general regard, we echo our then Chief Judge Murrah’s observation that no good purpose is served by attempting to reconcile the numerous decisions dealing with employer motivation in the discharge or layoff of an employee, since each necessarily requires analysis in the light of its own particular facts. Betts Baking Co. v. N. L. R. B., supra. Applying these principles to the instant case, we conclude that the record, considered in its entirety, simply does not support a finding of a discriminatory layoff.

One other matter merits comment. The Administrative Law Judge and, to a lesser extent, the majority of the Board, indicated that in finding a discriminatory layoff reliance was placed on the so-called “small plant” doctrine. The small plant doctrine as first announced was that in a small plant it is a reasonable inference that evidence of union activity brought to the attention of a subordinate management official will in turn be brought to the attention of higher management officials. Such inference bears on the question as to whether, in a given case, the employer knows of an employee’s union activities and then proceeds to discharge the employee because of such activity. This doctrine was reputedly fathered by the First Circuit in National Labor Relations Board v. Abbott Worsted Mills, 127 F.2d 438 (1st Cir. 1942).

The doctrine has been later redefined by the First Circuit in N. L. R. B. v. Joseph Antell, Inc., 358 F.2d 880 (1st Cir. 1966). In Antell, the court stated that the smallness of a plant, or a staff, may be material as bearing on the knowledge on the part of the employer of an employee’s union activities, but only to the extent that it may be shown to have made it likely that the employer observed, or otherwise learned about the activity in question. The court went on to state that the doctrine had no application to an off-hour, off-the-premises, meeting. See also Amyx Industries, Inc. v. N. L. R. B., 457 F.2d 904 (8th Cir. 1972), and Board decisions cited therein.

Apparently the small plant doctrine has not heretofore been considered in any great detail by this court, at least not to the extent that it has been presented in the instant case. We did make passing reference to the small plant doctrine in American Sanitary Products v. N. L. R. B., 382 F.2d 53 (10th Cir. 1967), where the small plant of the employer was but one of the many facts and circumstances which in that case supported a finding of discriminatory layoff. See also N. L. R. B. v. Meinholdt Manufacturing, Inc., 451 F.2d 737 (10th Cir. 1971).

In our view, the small plant doctrine plays, at most, a very minor role in the instant case. Evidence of union activity at the mine site was minimal, if not virtually nonexistent. As indicated, about the only union activity involved was the signing of union cards and such occurred clandestinely and off the mine site. Most certainly, then, the small plant doctrine would not in itself permit the inference in the instant case that Patch knew that the nine employees who were laid off had all signed union cards and that these nine were laid off because they had signed union cards. See in this regard N. L. R. B. v. Meinholdt Manufacturing, Inc., supra, and the decisions cited therein, and Phillips Industrial Components, Inc., 190 N.L.R.B. 184 (1971).

In sum, then, though there admittedly is some evidence looking towards discriminatory layoff, certainly, for example, Patch had antiunion animus, nevertheless, in our best judgment, the finding of discriminatory layoff does not find substantial support in the record. N. L. R. B. v. Beech Aircraft Corp., 483 F.2d 51 (10th Cir. 1973). Accordingly, the Board’s request that Bill’s Coal be directed to reinstate the nine employees laid off on December 9, 1971, is denied and the Board’s order in this regard is vacated. However, the Board’s request that its order directing Bill’s Coal to cease and desist interfering with, restraining and coercing its employees in violation of 29 U.S.C. § 158(a)(1) is granted and that portion of the Board’s order shall be enforced.

      . Reported at 203 N.L.R.B. (No. 35) (1973), 1973 CCH N.L.R.B. ¶ 25,308.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Vanessa WEATHERFORD, Appellant.
    No. 73-1751.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 14, 1974.
    Decided Feb. 20, 1974.
    Kent W. Faerber, St. Louis, Mo., for appellant.
    Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., was present but Court did not require argument for ap-pellee.
    Before HEANEY and BRIGHT, Circuit Judges, and DENNEY, District Judge.

       DENNEY, District Judge, District of Nebraska, sitting by designation.

   PER CURIAM.

The defendant was convicted of unlawfully having two checks in her possession, knowing that the checks were stolen in violation of 18 U.S.C. § 1708. She contends on appeal: (1) that the trial court erred in denying her motion for a judgment of acquittal because the evidence did not establish that she knew the cheeks were stolen, and (2) that the trial court erred in admitting evidence of other crimes. We find no merit to either contention and affirm the trial court.

The evidence was more than sufficient to establish not only that the checks were stolen and were in the possession of the defendant, but that she knew the checks were stolen.

The evidence of other crimes objected to by the defendant, showed that the defendant forged the endorsements upon and uttered each of the two checks involved in the unlawful possession charge. This evidence was clearly admissible because the acts were integral parts of the offense for which the defendant was charged. See, United States v. Cochran, 475 F.2d 1080, 1082-1083 (8th Cir. 1973).

Affirmed.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The GATES RUBBER COMPANY, Respondent.
    No. 73-1098.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 16, 1973.
    Decided March 5, 1974.
    Joseph Oertel, N. L. R. B., for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Allison W. Brown, Jr., Attys., N.L.R.B., Washington, D. C., on brief.
    Richard L. Barnes, Tulsa, Okl., for respondent; Charles A. Kothe, Mary T. Matthies, Kothe & Eagleton, Inc., Tulsa, Okl., on brief.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

The National Labor Relations Board asks enforcement of its order finding respondent Gates Rubber Company (Gates) guilty of violating Sections 8(a)(1), (3) and (5) of the National Labor Relations Act, as amended, §§ 158(a)(1), (3) and (5). The Board’s decision and order are reported at 199 NLRB No. 108.

We grant enforcement.

The violations charged, arose from Gates’ discharge of Donald Copass, President of Local 670, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, which represents Gates’ employees at its Nashville, Tennessee, plant, and from Gates’ refusal to deal with Copass as Chairman of the Union’s Grievance Committee, and on other matters. Without extended review of the evidence, we believe that the record discloses that Copass was an ag-gfessive, truculent and sometimes insolent labor leader. The Board’s address to us observes:

“Initially, it is clear from the record that Copass had for some time been a thorn in the Company’s side and that it resented his role as an outspoken advocate for the employees and spokesman for the Union.”

Copass had been president of the Union since 1967, and had held other offices in the Union. There was evidence that Gates had long desired an end to Copass’ leadership in the Union. Fulfillment of this desire was attempted by Gates in October, 1971, when it terminated Co-pass, primarily for his alleged interference with Gates’ participation in the United Givers Fund campaign, then in progress at Nashville.

Gates had planned to show to its management a movie having to do with the United Givers Fund Campaign. The movie was to be brought to the plant by a UGF staff member, Edwin Bryan, a former union man acting as agent to bring labor and management together in serving the purposes of UGF. Bryan called Copass to tell him of the meeting, presumably to maintain good relations with the Union whose cooperation would aid in the campaign. He met with Co-pass at the plant before the scheduled meeting. Copass had expressed a view that his union had not been sufficiently recognized for what it had done in previous drives, and he thought that the union- — probably through him — should be permitted greater participation in the events of the campaign. As a consequence of an early morning meeting between Bryan .and Copass, Bryan felt it best to temporarily call off the exhibition to Gates’ management people. Co-pass was forthwith suspended, and after investigation, including consultation with top management at Gates’ home office in Denver, Colorado, he was terminated.

Gates subsequently refused to deal with Copass as chairman of the union grievance committee or to allow him access to the plant. This action was bottomed upon Gates’ position that Copass was no longer its employee, and was therefore not qualified to serve on the grievance committee. In addition, it also feared that his presence inside the plant would be disruptive. In support of the discharge of Copass, Gates assigned various acts of wrongdoing by Copass which had occurred over several years, but which Gates had overlooked in serving its “peace at any price” effort to avoid trouble. Copass denied most of the events cited to support Gates’ charges.

Were we at liberty to resolve and dispose of the factual issues presented in this case, we might conclude that Gates was justified in its treatment of Copass. As is customary, the Administrative Law Judge — then the Trial Examiner— resolved critical factual disputes by “crediting” the discharged Copass. However one-sided such resolutions may have been, this attitude does not permit us to take over the function of the examiner or the Board, which affirmed the Administrative Law Judge’s findings. N.L.R.B. v. Pittsburgh Steamship Co., 337 U.S. 656, 69 S.Ct. 1283, 93 L.Ed. 1602 (1949).

Notwithstanding the broadened powers of review given to us by the decision in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), we cannot in this case say that the Board’s order and commands are without support of substantial evidence. We are therefore foreclosed from interference.

It may be that supported by his present victory over management, Co-pass’ truculence and aggressiveness will be exacerbated. We indulge the hope that the Board and its agents will not frustrate reasonable efforts of the employer to keep his conduct within bounds.

Enforcement granted.


author: CRAVEN, Circuit Judge:

text:
    FAMOUS KNITWEAR CORPORATION, Appellee, v. DRUG FAIR, INC., Appellant. FAMOUS KNITWEAR CORPORATION, Appellant, v. DRUG FAIR, INC., Appellee.
    Nos. 73-1260, 73-1261.
    United States Court of Appeal's, Fourth Circuit
    Argued Feb. 7, 1974.
    Decided March 14, 1974.

      Henry St. J. Fitzgerald, Arlington, Va. (Peter K. Stackhouse and Tolbert, Lewis & Fitzgerald, Ltd., Arlington, Va., on brief), for appellant in No. 73-1260 and for appellee in No. 73-1261.
    Nathan Lewin (William H. Jeffress, Jr., Miller, Cassidy, Larroca & Lewin, Washington, D. C., J. Strouse Campbell and Herrell, Campbell & Lawson, Arlington, Va., on brief), for appellee in No. 73-1260 and for appellant in No. 73-1261.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

In the course of urging reversal of the judgment below, appellant Drug Fair insists that the district judge’s decision is “freely reviewable,” i. e., that we need only disagree and need not be convinced that the decision is “clearly erroneous” in order to reverse. More succinctly, Drug Fair insists that the “findings” below are without the protection of Fed.R.Civ.P. 52(a). We disagree and affirm.

I

The central issue is whether it was reasonable for Aaron Feder, Famous Knitwear’s agent, to rely upon the manifestations of apparent authority made by Drug Fair as to Bert Arthur, its buyer. The district judge concluded that, based on the appointment of Arthur to a position in which his predecessor had apparent authority to enter binding contracts and the authority, generally, of buyers in the trade to make binding commitments on behalf of their principals, Drug Fair had clothed Arthur with apparent authority to enter into the contract in question. The district judge further found that the size of the transaction was not, of itself, so unusual as to lead a reasonable man to question the scope of that apparent authority. The finding of apparent authority, including, as it must, the reasonableness of Feder’s reliance on Drug Fair’s manifestations in that regard, is an “ultimate factual inference” and is to be reviewed under the “clearly erroneous” standard of Rule 52(a) unless such inference is made “in disregard of the applicable principles of law” or through “gross overemphasis on one relevant principle to the exclusion of others.” Piedmont Minerals Co. v. United States, 429 F.2d 560, 562 (4th Cir. 1970); Jewell Ridge Coal Corp. v. C. I. R„ 318 F.2d 695 (4th Cir. 1963). The district court’s inference of apparent authority was not “induced by an erroneous view of the law,” Bogue Elec. Mfg. Co. v. Coconut Grove Bank, 269 F.2d 1, 4 (5th Cir. 1959), nor are the underlying findings of fact upon which that inference was made clearly erroneous within the meaning of Rule 52(a).

We are not unaware of language contained in Hicks v. United States, 368 F. 2d 626 (4th Cir. 1966), to the effect that a judge’s finding of negligence is a conclusion of law and is reviewable on appeal free of the protection of Rule 52 (a). The fact that negligence, a so-called “mixed question of law and fact,” has been treated as freely reviewable does not mean that all questions which can be so characterized are free of the “clearly erroneous” stricture. See C. Wright & A. Miller, Federal Practice and Procedure: Civil §§ 2589-90. We believe that the creation, duration, and scope of an agency relationship and, specifically, the question of the reasonableness of a third party’s reliance on a principal’s manifestations of the apparent authority of his agent are essentially questions of fact. Bogue Elec. Mfg. Co. v. Coconut Grove Bank, 269 F.2d 1 (5th Cir. 1959); Steinbrugge v. Haddock, 281 F.2d 871 (10th Cir. 1960). As such, the clearly erroneous standard is applicable.

II

Without explanation the district court adopted the lost profits measure of damages set out in section 2-708(2) of the Uniform Commercial Code. Whether this was proper or whether the more usual contract-market formula of section 2-708(1) should have been applied depends upon whether section 2-708(2) was intended to apply to the so-called “lost volume” seller and whether Famous Knitwear was, in fact, a “lost volume” seller. We are persuaded both by the statutory history of section 2-708 and by Official Comment 2 that the lost profits measure of damages outlined in section 2-708(2) was meant to apply to the “lost volume” situation. As the Comment states:

This section permits the recovery of lost profits in all appropriate cases, which would include all standard priced goods. The normal measure there would be list price less cost to the dealer or list price less manufacturing cost to the manufacturer [Emphasis added.]

It may well be that Famous Knitwear, a “middleman” between manufacturer and retailer (Drug Fair), was a lost volume seller, as was the retailer in Neri v. Retail Marine Corp., 30 N.Y.2d 393, 334 N.Y.S.2d 165, 285 N.E.2d 311 (1972). If so, the view of the Court of Appeals of New York in Neri that “the last sentence of subsection (2) [of section 2-708 . . . referring to ‘due credit for payments or proceeds of resale’ is inapplicable to this retail sales contract,” 334 N. Y.S.2d at 169, 285 N.E.2d at 314, is probably the proper approach in this case as well. Were this not the case, then the measure of damages would be substantially the same as the contract-market differential of 2-708(1), and 2-708(2) would have meaning only for seller-manufacturers and not for other sellers of “standard priced goods.” The Official Comment negates any such purpose on the part of the drafters.

We are still left with the question of whether Famous Knitwear is a lost volume seller and, hence, a seller for whom “the measure of damages provided in subsection (1) is inadequate.” Due to the seasonal nature of the goods involved (sweaters) and the long lead-time necessary for Famous Knitwear to secure goods from its suppliers, Drug Fair alleges that, but for its placement of such a large order with Famous Knitwear, the seller would not have had the necessary goods in stock to sell to other buyers subsequent to Drug Fair’s breach. Famous Knitwear, on the other hand, contends that it could have fulfilled its contract with Drug Fair and procured additional goods for sale to the later buyers. Because there are no findings of fact by the district judge as to the conflicting assertions, we are unable to determine if Famous Knitwear is a lost volume seller and, as such, entitled to lost profits under 2-708(2). We, therefore vacate the amount of the judgment and remand for further proceedings. On remand, the district court may make supplemental findings or, in its discretion, reopen the trial on the question of damages.

Ill

In Famous Knitwear’s cross-appeal we are asked to review the district court’s finding that Drug Fair’s order of two lines of sweaters was unconditionally cancelled and that Famous Knitwear was, therefore, not entitled to damages as to those lines. We think these findings were clearly erroneous, and reverse.

Concerned about 'the failure of Drug Fair to supply a written confirmation, including shipment instructions, for Arthur’s February 24 oral commitment, Aaron Feder, Famous Knitwear’s agent, paid a visit to Drug Fair’s corporate headquarters in Alexandria, Virginia, in June of 1970. Feder met with Arthur and expressed his concern. On condition that the entire fall order (except for two lines of sweaters) remain intact, and in exchange for Arthur’s assurance to that effect, Feder agreed to accept cancellation of that part of the February 24 order which dealt with spring goods and for which the delivery date had already passed without shipment instructions from Drug Fair. Since Drug Fair later refused to honor Arthur’s commitment, the condition failed and Famous-Knitwear correctly was awarded damages for Drug Fair’s refusal to accept the spring goods.

At this same June meeting, Feder and Arthur also agreed to cancel two lines of sweaters which were part of the fall goods ordered on February 24. Drug Fair contends that this cancellation was unconditional, though admittedly arising from the same negotiations that led to the conditional cancellations of spring goods. In his opinion from the bench the district judge agreed:

I do think, however, that the Defendant is entitled to the credits for 5R and 1950R because it is my recollection of Mr. Aaron Feder’s testimony in court, not just his deposition, that he said that he could have cancelled those, and I don’t think it was the cancellation of any fall orders that was contingent on their performing their contract.

The district judge correctly recollected that Aaron Feder, on cross-examination, admitted that the two sweater lines had been cancelled. But only on redirect examination was Feder questioned as to the relationship between the agreement to cancel the spring goods and the agreement to cancel the two fall sweater lines. It is apparent from Feder’s testimony on redirect that both, agreements were conditioned on Drug Fair’s acceptance of the remainder of the February 24 order. The district judge’s opinion does not reveal that he disbelieved Fed-er’s redirect testimony, but that he remembered only the content of Feder’s testimony on cross-examination. Lacking any contradictory testimony on the part of Bert Arthur, who was Drug Fair’s agent at the meeting in question and who testified for Drug Fair at the trial, we believe that Feder’s testimony, taken as a whole, establishes a conditional cancellation as to both spring goods and the two fall sweater lines and that the district judge’s contrary conclusion is clearly erroneous. As to Famous Knitwear’s cross-appeal, the judgment is reversed, and the case is remanded to the district court to determine the proper measure of damages as discussed in Part II above.

Affirmed in part, reversed in part, and remanded.

      . Though Learned Hand once wrote that “it is idle to try to define” what is meant by the words “clearly erroneous” in Rule 52(a), United States v. Aluminum Co. of America, 148 F.2d 416, 433 (1945), the definitive test seems to be:
      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 (1948).

      . Although we presently have no occasion to review the correctness of the Hicks decision, we note that seven circuits have taken positions contrary to that decision and have held the clearly erroneous standard applicable to the finding or conclusion of negligence. Socash v. Addison Crane Co., 120 U.S.App.D.C. 308, 346 F.2d 420 (1965) ; Obolensky v. Saldana Schmier, 409 F.2d 52 (1st Cir. 1969) ; Nelson v. Jacksonville Shipyards, Inc., 440 F.2d 668 (5th Cir. 1971) ; J. A. Jones Const. Co. v. Englert Eng. Co., 438 F.2d 3 (6th Cir. 1971) ; Leatherman v. Gateway Transportation Co., 331 F.2d 241 (7th Cir. 1964) ; Sterling Drug, Inc. v. Yarrow, 408 F.2d 978 (8th Cir. 1969) ; Sines v. United States, 430 F.2d 644 (9th Cir. 1970) ; United States v. Sommers, 351 F.2d 354 (10th Cir. 1965). Even the Second Circuit seems to have retreated from Mamiye Bros. v. Barber S. S. Lines, Inc., 360 F.2d 774 (2 Cir., 1966), a case which most clearly stated the minority point of view and upon which the Hicks case relied. In Hendry v. United States, 418 F.2d 774 (1969), Judge Waterman wrote:
      The standard of review to be applied to a district court’s finding of negligence is not the “clearly erroneous” standard the Government advances, for a finding of negligence is reviewable as a matter of law. Nevertheless, the lower court finding “[will] ordinarily stand unless the [lower] court manifests an incorrect conception of the applicable law.”
      418 F.2d at 784 (citations omitted).
      As recently as 1972 we had occasion to note the trend of the majority. In Tucker v. Calmar S. S. Corp., 4 Cir., 457 F.2d 440, we said:
      A district court’s findings regarding unseaworthiness and negligence are generally treated as findings of fact reviewable under the “clearly erroneous” standard of FJR.C.P. Rule 52(a).
      457 F.2d at 444.

      . Section 2-708 (2A Va.Code § 8.2-708) reads as follows:
      § 2-708. Seller’s damages for non-acceptance or repudiation. — •
      (1) Subject to subsection (2) and to the provisions of this title with respect to proof of market price (§ 8.2-723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the, time and place for tender and the unpaid contract price together with any incidental damages provided in this title (§ 8.2-710), but less expenses saved in consequence of the buyer’s breach.
      (2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this title (§ 8.2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.

      . Section 2-708(2) applies only “[i]f the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done . . . . ”

      . The term is that of Professor Harris. See Harris, A Radical Restatement of the Law of Seller’s Damages: Sales Act and Commercial Code Results Compared, 18 Stan.L. Rev. 66 (1964) [hereinafter cited as Harris]. Its meaning is illustrated by Professors White and Summers as follows:
      [A]ssume a contract for the sale of a washing machine with a list price of $500. Buyer breaches, and seller resells that washing machine at the same list price that buyer had been willing to pay. How-over, the resale buyer is one of seller’s regular customers who had intended to purchase a washing machine from him anyway. If the seller’s total cost per machine was $300, he stood to gain an aggregate profit of $400, that is, $200 profit from each of two sales. Clearly the 2-708 contract-market differential formula is inadequate in this situation since it gives no damages to the seller who has lost a $200 profit because of the breach. In such a case the damage award should be the lost profit, that is, $200, for this will place the seller “in as good a position as performance would have done.”
      J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, § 7-9, at 226-27 (1972) [hereinafter cited as White & Summers]. See also Hawkland, Sales and Bulk Sales, 153-54 (1958).

      . See Harris, 97-99; White & Summers at 226 n. 48-49.

      . In a footnote the New York court elaborated :
      The concluding clause, “due credit for payments or proceeds of resale,” is intended to refer to “the privilege of the seller to realize junk value when it is manifestly useless to complete the operation of manufacture.” (Supp. No. 1 to the 1952 Official Draft of Text and Comments of the Uniform Commercial Code, as Amended by the Action of the American Law Institute of the National Conference of Commissioners on Uniform Laws [1954], p. 14).
      334 N.Y.S.2d at 314, 285 N.E.2d at 314. The meaning of 2-708(2), and especially the concluding clause, thus varies according to the type of seller involved. In the context of “components” sellers, the clause can be given effect, see White & Summers at 227-28, but not so in the lost volume seller context.

      . Q. Look on your fall order.
      A. Yes, sir.
      Q. Can you find Item 5-R?
      A. Yes, sir.
      Q. Does that have a line through it?
      A. Yes, sir.
      Q. Was that canceled?
      A. I don’t know. It might have been.
      Q. Do you recall agreeing to accept a cancellation on that?
      A. I might have agreed to cancel all that.
      Q. Do you recall me asking you about this in your deposition in my office, on Page 59, when I said, “What does the line through the 4th line mean?” when we were looking at that page?
      A. I don’t recall offhand, no.
      Q. Do you recall answering this, “Yes. I remember this. This number was also one of the numbers that we had agreed to cancel.
      A. “Do you recall the reason?
      “I don’t recall offhand, no.
      “Read what it was.
      “5-R, 550 dozen, $16.50.”
      Does that refresh your recollection?
      A. Yes, sir. That is correct. There is also another number now, as I recall, and that was number 1950-R, I think it was. Now, I do recall that, yes.

      . Now, there has been some discussion on direct [sic] examination on cancellations that you agreed to with Mr. Arthur in June of 1970, with regard to taking a cancellation of the spring order. Was that conditional in any way?
      A. You mean, the accepting of a cancellation on the spring order?
      Q. Yes.
      A. Yes, sir, it was.
      Q. And what were the conditions?
      THE COURT: He has testified on this, Mr. Lewin.
      Q. How about the cancellations — Mr. Fitzgerald asked you about the cancellation of items 5-R and I think 1950-R, which were crossed out in the fall order; was that similarly conditional?
      A. Yes, sir.
      Q. On the acceptance of the entire fall order?
      A. Yes, sir, all other items that were on there.