text:
    Orval C. LOGUE, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 71-2426.
    United States Court of Appeals, Fifth Circuit.
    Jan. 21, 1974.
    Anthony J. P. Farris, U. S. Atty., William L. Bowers, Jr., Asst. U. S. Atty., Houston, Tex., for defendant-appellant.
    Wm. R. Edwards, Corpus Christi, Tex., Philip K. Maxwell, Corpus Christi, Tex., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
   PER CURIAM:

The Supreme Court of the United States granted certiorari and by its opinion and mandate vacated our prior judgment in this appeal, and remanded the case “for consideration of the liability of the Government insofar as that liability may be based on the negligence of Deputy Marshal Bowers”.

The Supreme Court agreed with our conclusion that the Deputy Marshal, Mr. Bowers, had no authority to control the activities of the employees of the sheriff of Nueces County at the county jail, as supported by both the enabling statute and the contract actually entered into between the parties, the United States and Nueces County. This conclusion sustained approval of our resultant holding that the sheriff’s employees were employed by a “contractor with the United States”, and not therefore employees of a “federal agency”, Title 28, U.S.C., Section 2671, and our corollary holding, 459 F.2d at 411, that “[t]he deputy marshal accordingly violated no duty of safekeeping with respect to the deceased”.

But, said the Supreme Court, 412 U.S. at page 533, 93 S.Ct. at page 2222, the latter conclusion “appears to us to follow from the court’s discussion of the nature of the intergovernmental relationship and the status of the sheriff’s employees, rather than being a separate rejection of the finding of the District Court that Bowers himself was negligent.” The remand was to permit our consideration of the distinct question regarding the negligence of Bowers. This appears to be based upon the concluding sentence of the district court’s Finding of Fact No. 5: “No specific arrangements were made by the Deputy Marshal for constant surveillance of the prisoner, and this was negligence.” The district court made no other finding of negligence on the part of Deputy Marshal Bowers.

By an order entered August 1, 1973, we called for supplemental briefs from the parties dealing with the question of liability of the government “insofar as that liability may be based on the negligence of [U.S.] Deputy Marshal Bowers”.

The supplemental brief of the United States asserts that the portion of the district court’s Finding of Fact No. 5, quoted above, is clearly erroneous for two reasons, (a) because it requires the deputies to do something which they had no power to do, that is to supervise the internal management details of the county jail, and (b) because the testimony shows that Deputy Marshal Jones, Bowers’ superior, had in fact made a request of the county jail employees to place «jail trustees where they could watch the prisoner, which was agreed to, with the knowledge and understanding of Bowers and of Slocomb, the third Southern District of Texas Deputy Marshal involved in the arrangements.

The appellees’ brief argues to the contrary that either Bowers or his superiors in the Marshal’s Office or both knew that it would be unsafe to move Logue from the hospital back to the jail without constant supervision, and that the district court’s finding of negligence is borne out by the evidence.

Our review of the district court’s original memorandum and opinion, 334 F.Supp. 322, reinforces the view we had when the appeal came to this panel originally, that the main consideration of the district court’s findings and conclusions centered upon establishing the government’s liability for negligently permitting Logue to take his life in the Nueces County Jail under a theory that the “contract” exception to the Federal Tort Claims Act, Title 28, U.S.C., Section 2671, was not applicable to the situation present. The quoted concluding sentence from Finding of Fact No. 5 without delineation of supporting facts may well have been no more gratuitous statement made without full consideration of its implications. This may also not be the case, but we think, in view of the critical importance it has now taken on, the finding requires explication by the District Court.

Further consideration of the negligence vel non of Deputy Marshal Bowers, as well as that of Jones and Slocomb and any other government personnel involved, not limited to the alleged failure to make “specific arrangements * * for constant surveillance of the prisoner”, should in the first instance be undertaken by the trial court, upon the original or upon a supplemented record. Complete findings of fact and conclusions of law should be entered by the district court.

This cause is remanded for further proceedings before the district court consistent with this opinion.

      . Logue et al., Petitioners v. United States, 1973, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.24 121.

      . 5 Cir. 1972, 459 F.2d 408, rehearing and rehearing en banc denied, 5 Cir. 1972, 463 F.2d 1340.

      . Title 18, U.S.C., Section 4002.

      . Finding of fact No. 5 in its entirety read as follows:
      “5. Deputy Bowers knew the prisoner had serious suicidal tendencies and should be protected against injuring or killing himself, and at Deputy Bowers’ request, the prisoner was put in a cell which had been stripped of everything except the bunk with a mattress, the commode and wash basin. The steel walls and ceiling of the cell were symetrically perforated with round holes about the size of a half dollar. There was no ceiling light fixture. No specific arrangements were made by the Deputy Marshal for constant surveillance of the prisoner, and this was negligence.” Logue v. United States, S.D.Tex.1971, 334 F.Supp. 322, p. 324.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    John H. ROLFS et al., Petitioners and Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent and Appellee.
    No. 72-2701.
    United States Court of Appeals, Ninth Circuit.
    Nov. 30, 1973.
    Walter G. Schwartz, San Francisco, Cal., for petitioners and appellants.
    Scott P. Crampton, Asst. Atty. Gen., Tax Division, U. S. Dept, of Justice, Lee H. Henkel, Jr., Chief Counsel, I. R. S., Washington, D. C., for respondent and appellee.
    Before CHAMBERS, ELY and HUF-STEDLER, Circuit Judges.
   PER CURIAM:

Taxpayers appeal from a decision of the Tax Court determining deficiencies in their income taxes for 1965. The Tax Court’s opinion is reported at 58 T. C. 360.

Gain from the disposition of shares acquired under a restricted stock option plan is treated as ordinary income if the disposition takes place within six months of the transfer of shares to the option holder. 26 U.S.C. §§ 421(b) and 424(a)(1). “Transfer” for this purpose means . . . the transfer of ownership of such share, or the transfer of substantially all the rights of ownership . . .” 26 C.F.R. § 1.421-1 (f).

Under the terms of taxpayers’ employer’s option plan, taxpayers could exercise their options and give promissory notes to cover the purchase price. But the plan provided that the taxpayers acquired no rights in the shares until the amounts owing on the notes were paid in full. Thus the “transfer” called for by the Code and Regulations did not occur until the amounts owing on the notes were paid. Taxpayers did not pay off their notes until within six months of the subsequent sale, and therefore did not satisfy the holding period required to qualify the gain as long-term capital gain. Swenson v. C. I. R., 309 F.2d 672 (8th Cir., 1972), does not help taxpayers. Under the option plan in that case, the employees acquired substantial ownership rights at the time they exercised their options.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Levi FOX, Defendant-Appellant.
    No. 73-1888.
    United States Court of Appeals, Fifth Circuit.
    Dec. 17, 1973.
    Robert E. Gibney, Mobile, Ala. (Court appointed), for defendant-appellant.
    Charles White-Spunner, U. S. Atty., Irwin W. Coleman, Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   PER CURIAM:

A jury convicted the appellant, Levi Fox, in ten counts of knowingly transporting five stolen motor vehicles in interstate commerce and of knowingly receiving and concealing five stolen motor vehicles which were moving as interstate commerce, 18 U.S.C., §§ 2312, 2313. The stolen vehicles were four Cadillacs and one Buick. He was sentenced to imprisonment for an aggregate of six years, with five years probation. We affirm.

That the cars were stolen and that they were transported in interstate commerce from Michigan to Mobile is not disputed. The evidence from which the jury could infer guilty knowledge was overwhelming. Consequently, the appellate issues are hopefully centered upon asserted trial errors.

Upon consideration of the record, briefs, and oral argument we see no reversible error.

The brief questions asked of Fox when he first arrived in Mobile did not impinge upon his Miranda, rights, United States v. Montos, 5 Cir., 1970, 421 F. 2d 215.

The identification of the stolen automobiles by an examination of the public and confidential identification numbers was accomplished in a constitutionally permissible manner, United States v. Johnson, 5 Cir., 1970, 431 F.2d 441 (en banc) and numerous Fifth Circuit cases subsequently decided on the authority of Johnson.

The District Court correctly retired the jury for further deliberation when a poll revealed that one juror was not certain of her verdict, Rule 31(d), Federal Rules of Criminal Procedure; United States v. Sexton, 5 Cir., 1972, 456 F.2d 961; United States v. Bendicks, 5 Cir., 1971, 449 F.2d 313. The juror was not required to deliberate and vote in open court.

The instructions to the jury, assessed as a whole, were not reversibly erroneous.

The judgment of the District Court is

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Wilson SIMON, Appellant.
    No. 73-1601.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 16, 1973.
    Decided Nov. 19, 1973.
    Rehearing and Rehearing Eh Banc Denied Dec. 21, 1973.
    Wilson Simon, pro se.
    Robert G. Renner, U. S. Atty., and Neal J. Shapiro, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before GIBSON, LAY, and HEA-NEY, Circuit Judges.
   PER CURIAM.

Defendant Wilson Simon was found guilty of violating 26 U.S.C. § 4705(a) and not guilty of violating 21 U.S.C. § 331(q)(2). The Honorable Earl R. Larson, United States District Judge, District of Minnesota, originally sentenced defendant to fifteen years imprisonment, and defendant’s conviction was upheld by this court. United States v. Simon, 453 F.2d 111 (8th Cir. 1971).

Defendant now claims in this proceeding contesting the validity of his sentence that his fifteen year sentence was improper, since it was purportedly based on a presentence report that contained a record of juvenile convictions for which he allegedly did not have counsel.

Defendant filed two pro se motions in the District Court urging what he termed a “reconsideration of his constitutionally impermissible sentence.” In reviewing the sentencing of defendant upon these pro se motions, Judge Larson stated in his order that he did in originally sentencing “refer to various kinds of criminal activity over a seven year period when defendant was 15 to 22 years of age * * Judge Larson continued by explaining in his order denying the defendant’s pro se motions that the fifteen year sentence, which was five years less than the maximum, was prompted by a serious violation of the law, trafficking in the sale of cocaine in a substantial way. Judge Larson concluded that a “hearing would be an exercise in futility”, because “[ajssuming that the defendant’s claims as to lack of counsel in the juvenile proceedings or in any other proceedings antedating the 1971 imposition of sentence are true, this Court [the District Court] • would not modify the 15 year penalty imposed.” Defendant appeals pro se from the denial of his motions by the District Court.

United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and three recent Eighth Circuit cases resolved defendant’s argument. We have recognized that Tucker requires resen-tencing “where prior constitutionally invalid state convictions may have enhanced the punishment allocated by a federal judge in a subsequent criminal ease * * Young v. United States, 485 F.2d 292 (8th Cir. 1973); accord, Ryan v. United States, 485 F.2d 295 (8th Cir. 1973). However, dismissal of defendant’s pro se motions for resen-tencing was proper, since the District Court reconsidered the original sentencing and held that the fifteen year sentence was not based on allegedly invalid convictions and that the sentence would not be modified even if those convictions were constitutionally infirm. A remand for resentencing under these circumstances is improper. Young v. United States, supra; Ryan v. United States, supra; McAnulty v. United States, 469 F.2d 254, 256 (8th Cir. 1972), cert. denied, 411 U.S. 949, 93 S.Ct. 1933, 36 L.Ed.2d 411 (1973).

A presentence report may include convictions that prove to be constitutionally infirm, but nevertheless such a report should be complete in listing a defendant’s prior history of convictions. The mentioning of prior convictions that may be constitutionally invalid in sentencing a defendant does not necessarily mean that resentencing is demanded. Here the District Court has reconsidered defendant’s sentence and held that even if the contested convictions are constitutionally invalid, the fifteen year original sentence would not be modified. Dismissal of defendant’s motion to resen-tence was, therefore, proper.

The District Court is affirmed.


text:
    ELLIS DIESEL SALES & SERVICE, INC., Plaintiff-Appellee, v. M/V ON STRIKE, Defendant-Appellant.
    No. 73-2844
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 17, 1973.

      Daniel N. Heller, Miami, Fla., for defendant-appellant.
    G. E. Hartwig, Ft. Lauderdale, Fla., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

This in rem action was brought by plaintiff, Ellis Diesel Sales & Service, Inc., seeking to enforce a claim for labor and materials, and for attorney fees, against the M/V “ON STRIKE.” Defendant filed a counterclaim alleging damages negligently caused to the vessel. The District Court, sitting without a jury, tried the case and entered a final judgment in favor of plaintiff, including an award of attorney fees, and allowed defendant a setoff on its counterclaim. Defendant appeals.

The record discloses that the district judge failed to enter findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). We therefore vacate the judgment of the District Court and remand the case for appropriate findings and conclusions. Anderson v. United States, 5 Cir., 1969, 413 F.2d 1045; Mladinich v. United States, 5 Cir., 1967, 371 F.2d 940; Oil & Gas Income, Inc. v. Woods Exploration & Producing Co., 5 Cir., 1966, 362 F.2d 309; Employers’ Liability Assur. Corp. v. Weeden, 5 Cir., 1960, 274 F.2d 809; Victory Towing Co., Inc. v. Bordelon, 5 Cir., 1955, 219 F.2d 540.

Vacated and remanded.


author: ROSS, Circuit Judge. BRIGHT, Circuit Judge

text:
    GENERAL MOTORS CORPORATION, Petitioner, v. The Honorable Miles W. LORD, United States District Judge, Respondent, and Phillips Motors Excelsior, et al., Respondents. PHILLIPS MOTORS EXCELSIOR, INC., et al., Appellees, v. GENERAL MOTORS CORPORATION, Appellant.
    Nos. 72-1479 and 72-1502.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 12, 1973.
    Decided Dec. 3, 1973.
    Rehearing Denied Jan. 3, 1974.

      Franklin D. Gray, Minneapolis, Minn., for General Motors.
    Joe A. Walters, Minneapolis, Minn., for Phillips Motors.
    Before MEHAFFY, Chief Judge, and BRIGHT and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

This action, consolidated by the Court, involves the district court’s decision to grant a new trial after a seven week trial in which a jury returned a verdict in favor of the defendant, General Motors (hereinafter GM). GM, alternatively, seeks mandamus directing the district court to vacate its order and reinstate the jury verdict and enter judgment, or, a review of the district court’s decision by way of appeal, reversal of the decision, and instructions to enter judgment on the jury verdict.

Phillips. Motors Excelsior, Inc. (hereinafter Phillips Motors), together with Phillips and Van Dyke, commenced suit against GM on December 29, 1969, seeking damages and injunctive relief under the provisions of 15 U.S.C. §§ 1221-1225 and Minnesota Statutes § 168.27(14) (3). The basis of the suit was that on December 5, 1969, GM terminated the Chevrolet and Oldsmobile franchises in effect between Phillips Motors and GM. Phillips Motors was the holder of the franchises, Phillips was the sole stockholder of Phillips Motors, and Van Dyke was the holder of an agreement to purchase Phillips’ stock. The reason GM gave for the termination was that Phillips had violated the Dealer Selling Agreement with GM by entering into an agreement for the sale by Phillips to Van Dyke of all of the stock of Phillips Motors.

At trial, which commenced on April 17, 1972, evidence was presented, over objection, which indicated that financial statements which Phillips Motors had submitted, on a monthly basis, to GM were falsified as to earnings and capital. Further, the statements varied substantially from the Phillips Motors’ books and tax returns. It was also learned that Phillips Motors had operated in an “out of trust” condition with reference to the bank which financed Phillips Motors’ new and used car purchases. Phillips objected to this evidence arguing that since GM had not assigned these alleged breaches of the Dealership Agreement as cause for termination of the franchises, the evidence was irrelevant and prejudicial.

On June 5, 1972, the jury returned a verdict for GM finding that GM had not refused to renew the franchise without just cause and finding the failure to renew was not done in bad faith. Judgment was entered that day. On June 13, 1972, Phillips Motors, and the others, moved for new trial alleging essentially that the trial court committed prejudicial error in allowing testimony relative to the misrepresentations of the financial condition of the company, the out of trust condition of the company, and the irregularities in the financial records of the company. The motion also asserted that the verdict was contrary to the law and evidence.

On June 21, 1972, counsel were heard on the motions and Phillips Motors filed a brief. Thereafter GM filed a brief contending that the evidence was properly received because it bore upon the issue of liability; because such evidence impeached the . plaintiffs’ testimony; and because the evidence was relevant to damages. Forty-two days after the entry of judgment in favor of GM, on July 17, 1972, the trial court entered the following order: “In the interest of justice a new trial on all issues is hereby ordered.”

Due to the abbreviated nature of the trial court’s statement of reasons for granting new trial, it was impossible to determine whether the court granted Phillips Motors’ motion for the reasons stated in the motion, or, whether the court, acting on its own, granted a new trial for a reason other than that stated in the motion. GM, because of this ambiguity, advanced alternative arguments. First, if the trial court granted Phillips Motors’ motion for the reasons stated in the motion, such action was, on the merits of the motion, an abuse of discretion. Therefore, the court’s act was reviewable by way of appeal or mandamus. Second, if the trial court acted on its own, rather than granting Phillips Motors’ motion, then such an act was without jurisdiction as the act was not timely, without notice to the parties, and without an opportunity to be heard; thus reviewable by appeal or mandamus.

Rather than speculate, this Court remanded the case to the trial court on May 8, 1973, with directions to specify its reasons for granting a new trial. The trial judge responded on October 18, 1973, and its response clearly indicates that the court acted on Phillips Motors’ motion and for the reasons stated in the motion. Therefore, GM’s second argument, with regard to lack of jurisdiction, is not applicable. Two questions remain then: Whether the trial court’s action is reviewable, at this time, by way of appeal or mandamus, and, if the action is reviewable at this time, whether the trial court abused its discretion.

Finding that the trial court’s action is not appealable and finding that the issuance of mandamus is not appropriate to review the trial court’s actions, we dismiss the appeal and deny the petition for writ of mandamus. We express no opinion as to the propriety of granting the new trial.

a. Review by way of appeal.

This Court has long held that, generally, an order granting a new trial is not final and, therefore, the order is not appealable. Richardson v. Communications Workers of America, 469 F.2d 333, 334 (8th Cir. 1972), cert. denied, 414 U.S. 818, 94 S.Ct. 38, 38 L. Ed.2d 50 (1973); Gallon v. Lloyd-Thomas Co., 261 F.2d 26, 27-28 (8th Cir. 1958). The decision to grant a new trial is reviewable in an appeal from the final judgment. Richardson v. Communications Workers of America, supra, 469 F.2d at 334; Gallon v. Lloyd-Thomas Co., supra, 261 F.2d at 28. See also Altrichter v. Shell Oil Co., 263 F.2d 377, 379 (8th Cir. 1959).

b. Review by way of mandamus.

GM requests the issuance of mandamus pursuant to 28 U.S.C. § 1651 and F.R.A.P. 21 to review the district court’s action in granting Phillips Motors’ motion for new trial. But, as we have said before, mandamus is only appropriate in extraordinary circumstances. See, e. g., Gialde v. Time Inc., 480 F.2d 1295, 1302 (8th Cir. 1973).

Extraordinary circumstances may be presented where the district court’s order was made without jurisdiction. Roche v. Evaporated Milk Ass’n, 319 U. S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). Extraordinary circumstances may be presented where the order under attack is characteristic of an erroneous practice likely to reoccur. See, e. g., La Buy v. Howes Leather Co., 352 U.S. 249, 258, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv. L.Rev. 595, 610 (1973). Extraordinary circumstances may be presented where the order under attack exemplifies a novel and important question in need of guidelines for the future resolution of similar cases. See, e. g., Schlagenhauf v. Holder, 379 U.S. 104, 111-112, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Note, Supervisory and Advisory Mandamus Under the All Writs Act, supra, 86 Harv. L.Rev. 618-619.

Generally speaking, however, the grant of a new trial does not present an extraordinary circumstance justifying the issuance of the writ. See, e. g., Thorn v. Parkland Chevrolet Co., 416 F. 2d 95, 96 (4th Cir. 1969); Bigart v. Goodyear Tire & Rubber Co., 361 F.2d 317, 318-319 (2d Cir. 1966); Benton Harbor Malleable Industries v. International Union, 355 F.2d 70, 72-73 (6th Cir. 1966); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2818 at 113-114 n. 37 (1973); 9 J. Moore, Moore’s Federal Practice j[ 110.28 at 310 n. 41 (1970).

GM places principal reliance on the case of Grace Lines, Inc. v. Motley, 439 F.2d 1028, 1031 n. 2 (2d Cir. 1971). In Motley a verdict had been returned for the defendant. However, after the jury had been polled, it became clear that one juror who had been a holdout, voted for the defendant partly because there was no possibility of change on the part of the other jurors. The trial court declared a mistrial, and ordered a new trial.

The Court of Appeals held the trial court’s action precluded the defendant from moving for judgment in accordance with the previous motion for a directed verdict in violation of F.R.Civ.P. 50(b). The Court went on, however, to review the order granting a new trial and found that the juror’s statements did not require nullification of the verdict. Mandamus issued. In a footnote the Court said:

The review of an order granting a new trial ordinarily must await the subsequent entry of a final judgment following a new trial. * * * But the purpose of the All Writs Act * * * is to enable federal appellate courts to review by mandamus non-ap-pealable interlocutory orders which would be the subject of review on appeal from a final judgment. * * * This is not to say that supervisory mandamus is intended, or can be used, to authorize the indiscriminate use of prerogative writs as a medium for reviewing interlocutory orders. Mandamus will lie, in the sound discretion of the appellate court, where the trial court has exceeded or wrongfully refused to exercise its judicial power or has committed a clear abuse of discretion. * * * Only in such cases does the desirability of present review outweigh the policies which confine appeals to the review of final orders. Id. (Citations omitted).

Whatever the propriety of mandamus in Motley, no compelling circumstances justify nullification of the final decision rule here. It is clear that the trial judge in this case granted the motion for new trial primarily because he believed that he had erroneously permitted the introduction of evidence showing breaches of the Dealership Agreement, not assigned by GM as the reason for termination. In granting the motion he decided that:

1. “matters that GM was aware of prior to the termination date and not relied upon by GM at the time of termination should not have been submitted to the jury as grounds justifying GM’s actions” and,
2. even if GM was entitled to use this evidence for impeachment purposes or to refute a claim of damages, the evidence should have been limited to those issues and the jury so instructed.

The evidentiary issues confronted by the trial court, with respect to whether GM could rely on non-assigned reasons for termination as a defense to the law suit, are not simple. The trial judge’s resolution of the issue is not without support. See, e. g., Ohio & Mississippi R. R. v. McCarthy, 96 U.S. 258, 267-268, 24 L.Ed. 693 (1877); Luckenbach S. S. Co., Inc. v. W. R. Grace & Co., Inc., 267 F. 676, 679 (4th Cir.), cert. denied, 254 U. S. 644, 41 S.Ct. 14, 65 L.Ed. 454 (1920). On the other hand, resolution of the matter as GM urges also has support. See, e. g., College Point Boat Corp. v. United States, 267 U.S. 12, 16, 45 S.Ct. 199, 69 L.Ed. 490 (1925); 3 A. Corbin, Corbin on Contracts § 762 at 524-526 (1960). Without intending to express an opinion on the merits, it is clear that the trial court’s resolution of the issue was not so blatantly wrong as to justify the issuance of mandamus.

This evidentiary question, which was the essential question addressed by the trial court, is no different than any other evidentiary issue trial judges decide in the course of granting motions- for new trial. To grant extraodinary relief here would be to abrogate the final judgment rule, and allow any litigant, who is forced to retrial on an evidentiary question, immediate review simply by styling his action a petition for writ of mandamus instead of appeal. The resolution of this question at this time would have little impact on the administration of justice generally and, since it is clear that the trial court had jurisdiction to act, mandamus is clearly inappropriate.

Accordingly, the appeal is dismissed and the petition for writ of mandamus is denied.

BRIGHT, Circuit Judge

(concurring).

With some reluctance, I concur in the opinion of Judge Ross. I am compelled though to comment upon the grant of a new trial in this case, for I am dismayed by the potential waste of legal and judicial manpower necessitated by Judge Lord’s order.

This case has already consumed seven weeks of trial time; another trial will surely utilize an equal amount. And if a contrary result is produced in that trial by the exclusion of the questioned evidence referred to in the majority opinion, yet a third trial may be required — for I am personally convinced that evidence of dealer misconduct not specifically relied on by General Motors in terminating the franchise was admissible in this case on the question of breach of contract, see College Point Boat Corporation v. United States, 267 U.S. 12, 45 S.Ct. 199, 69 L.Ed. 490 (1925); Frank Chevrolet Co. v. General Motors Corp., 304 F.Supp. 307 (N.D. Ohio 1968), aff’d, 419 F.2d 1054 (6th Cir. 1969), on the issue of limitation of damages, and for impeachment purposes.

All of the Minnesota federal judges are exceptionally busy; their individual caseloads are extremely heavy. They can ill afford an unnecessary retrial in a protracted case such as this one. On this circuit, we are quite aware' that Judge Lord has requested and received help from outside judges, including two judges from this court, in managing the crush of a heavy burden of litigation which includes difficult and complex multi-district antitrust litigation. See, e. g., Pfizer, Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972).

I do not suggest that the press of other litigation should deter Judge Lord from granting a new trial in an appropriate case. I do suggest, however, that the present case does not qualify as a likely candidate for a new trial. From my review of the record submitted in this proceeding, the case appears to have been fairly tried and without gross error. The jury denied appellee any recovery. It might have decided otherwise. Perhaps the trial judge would have decided the particular fact issues differently from the jury. But here the jury, not the trial judge, possessed the power to decide the facts.

Although I do not think a new trial necessary in this case and although I believe the district bench of Minnesota should not suffer the burden of unnecessary trials, I agree with Judge Ross, the author of the majority opinion, that we are not empowered to intervene at this stage of the proceedings. I think it unfortunate that, under the final judgment rule, we are precluded from now reviewing Judge Lord’s order granting a new trial. Under circumstances such as presented here, adherence to the final judgment rule is wasteful. The rule should be changed. Since it has been the rule in this circuit for at least half a century that an order granting a new trial is not a final decision subject to immediate appellate review, see Ft. Dodge Cement Corporation v. Monk, 276 F. 113 (8th Cir. 1921), the principle of stare decisis holds back judicially-initiated change. Therefore, I would commend to Congress the task of reforming the often wasteful effect of the final judgment rule by amending 28 U.S.C. § 1292(b), to permit appellate review of a new trial order at the sole discretion of the Court of Appeals.

      . Where the district court lacked jurisdiction to order a new trial, we have held that the issue may be raised immediately by way of appeal. See, e. g., Chicago & Northwestern R. R. v. Britten, 301 F.2d 400, 401-403 (8th Cir. 1962). But as we have indicated, no jurisdictional question is presented here.

      . It is noted that the Motley opinion was accompanied by two concurring opinions. One concurring opinion emphasized the “egregious” nature of the error. The other opinion agreed with the majority only to the extent mandamus was granted to cure the Rule 50(b) error. Motley has been criticized in Note, Supervisory and Advisory Mandamus Under the All Writs Act, supra, 86 Harv.L.Rev. at 597 n.9, 608 & n.62, because of the opinion’s expansive approach to the issuance of mandamus.

      . See generally, 5 S. Williston, A Treatise on the Law of Contracts §§ 742-744 at 519-532 (3 ed. 1961).


author: WEIS, Circuit Judge.

text:
    The MUTUAL BENEFIT LIFE INSURANCE COMPANY, (James P. Moore, Jr., Vice President and Comptroller), Appellee, v. COMMISSIONER OF INTERNAL REVENUE.
    No. 73-1169.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 25, 1973.
    Decided Dec. 12, 1973.
    As Amended Jan. 8, 1974.

      Henry W. Connelly, Shearman & Sterling, New York City, for appellee; Charles W. Kappes, Senior Vice President and Gen. Counsel, Newark, N. J., Michael J. Walsh, Shearman & Sterling, New York City, of counsel.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Ernest J. Brown, Acting Chief, App. Section, Tax Div., Dept, of Justice, Washington, D. C., for appellant.
    Before SEITZ, Chief Judge and HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

WEIS, Circuit Judge.

While there are many who complain that the Internal Revenue Code is incomprehensible, there are some few who revel in the intricacies of its labyrinthine composition. But those who take delight in such pursuits and who also understand the mystic processes of establishing reserves in the life insurance industry are an even rarer specie of the ornithological world. Such are the vagaries of assignments, however, that it has fallen to the lot of this panel to decide a case where the two sciences conjoin. We therefore tread into the thicket with some trepidation.

The immediate question before us is whether the Tax Court properly decided that amounts allocated by the petitioner Insurance Company to an “additional reserve” qualify . as “life insurance reserves” under Section 801 of the Internal Revenue Code of 1954 and the Life Insurance Company Tax Act of 1959, 26 U.S.C. § 801.

The problem is complicated by the fact that in the life insurance industry, as in many others, words acquire a technical significance, and the first step to confusion is to read these special terms as if they mean what they seem to mean. Thus, at the very outset it is appropriate to note that contrary to generally held belief, “reserves” are not trust funds or assets in escrow but factually are merely statements of liability, involving no representation that specific assets are held to meet any particular claim or class of claims. We are concerned here, therefore, with the computations of an amount which is to be entered on the balance sheet of an insurance company as a liability and, thus, has significant tax consequences.

The dispute here has its origin in a real life situation, to be exact, the substantial lenghtening of life which occurred during the first half of the twentieth century.

Beginning in 1908 and continuing through 1945, the Insurance Company sold a series of life policies (called P-Policies) which gave the beneficiary the privilege of electing one of several methods of settlement in lieu of the customary face value lump sum payment. The option of concern here gives the beneficiary the right to receive payments for the rest of his life, but in no event for less than a stated number of these installments. The amount of each payment (which varies with the age of the beneficiary) is fixed and set forth in tables printed in the policy.

The tables were prepared on the assumption that the lump sum payment and the installment option would be roughly equivalent in value so that the liability of the Company in either event would be the same. However, as time went on and the lives of beneficiaries lengthened, it became obvious that the liability of the Company to meet the annuity-type option was becoming substantially greater than the lump sum payment. This situation developed because the amount of each monthly payment was fixed by the tables in the original policies based on life expectancies which were prevalent at that time. Since the beneficiaries began to live longer than the Company had anticipated at the time it wrote the contract, more payments were required and, hence, a greater total expenditure became necessary.

The petitioner had its headquarters in New Jersey, and that state’s insurance laws required the Company to enter on its books annually a “basic reserve” which represented the amount that would be needed to meet the obligation to pay the face amounts of policies which became collectible that year. So long as the costs of lump sum payments and the time payment option were about the same, the accounting procedure was satisfactory and accurately reflected the Company’s liabilities. When, however, the increasing longevity of beneficiaries required payment of sums beyond the amount of the basic reserves, an accounting problem was created.

The difference in amounts between the “basic reserve” and that required to settle under the settlement option was called “strain.” Before 1946, the Company took the amount of “strain” from current surplus at the time that a beneficiary elected to receive the payment option. The problem became increasingly acute, and in 1946 the Legislature of New Jersey enacted a statute (N.J.Stat. Ann. § 17:34-22.1) permitting an insurance company to set up “additional reserves” to meet the anticipated “strain” situation in future years.

The statute provided that the establishment of such reserves initially would be voluntary but that once a company had availed itself of the privilege, reserves could not be changed to a basis producing smaller amounts thereafter except with approval of the insurance commissioner.

The Company decided to avail itself of the statutory provision and computed an “additional reserve” by using:

(1) The 1941 C.S.O. Mortality Tables,
(2) The 1937 Standard Annuity Mortality Table, adjusted by rating down 1 year in age,
(3) An assumed rate of interest of 2%% and additionally:
(a) Projected rate of election of the settlement option,
(b) Age and sex of beneficiaries,
(c) Amount of policy proceeds which would become subject to election, and
(d) The future date on which the election would become effective.

In computing the additional reserve requirements which would be required as of December 31, 1946, the Company assumed that the “strain” experienced in previous years, as compared to the lump sum death claims and endowment benefits paid, would remain at a constant ratio during the remaining years in which the P-Policies would be in effect, that is, to the year 2031. Rather than debit this amount in one year — which would have had a strong, adverse effect on the Company surplus and reduce the dividends to policyholders — -it was decided to strengthen the reserves over a period of years until the desired level was achieved. The computations and procedures followed by the Company were approved by the Insurance Commissioner of New Jersey.

As of December 31, 1956, the “additional reserve” amounted to $21,254,529.-00. It was then decided to recalculate this reserve by utilizing the Company’s experience during the preceding five years, that is, 1952 to 1956 inclusive. This resulted in a reduction for 1957 to $18,586,369.00.

In computing the “additional reserve” in 1956, the Company followed basically the same formula except that in this later calcuation the mortality experience of the Company during the years 1952-1956 was used to determine the life expectancy of the insured person instead of the 1941 mortality table which was used in the 1946 calculation. Both calculations, however, relied upon the use of the 1937 Standard Annuity Mortality Table in estimating the life of the beneficiary under the settlement option.

The 1957 calculations were approved by the New Jersey Insurance Commissioner and resulted, as has been seen, in a reduction in the amount of the “additional reserve” from that which would have been applicable under the original calculation. Similar mechanics were followed in determining the “additional reserve” for 1958, 1959, and 1960. The “additional reserves” as of December 31 for those respective years were $17,752,981.00; $17,355,262.00; and $17,021,768.00, respectively.

The Commissioner assessed a deficiency for each of those years. After a trial, the Tax Court found against the Commissioner and determined that no deficiencies existed.

The Commissioner contends that the “additional reserves” do not qualify as life insurance reserves under the Act because :

(1) Section 801(b)(2) requires that the establishment of the reserves be “required by law” and since the Insurance Company voluntarily established the reserve initially, that qualification was not met.
(2) The Act, Section 801(b)(1)(A) defines a reserve as one computed on the bases of mortality tables and an assumed rate of interest. Therefore, since the calculations here used additional factors, such as lapse rate, rate of election, and company experience, the Commissioner contends that the reserve lost its eligibility to be considered as a life insurance reserve.
(3) The Code excludes “deficiency reserves,” and its definition would include the “additional reserve” here.

We first consider the qualification that the reserve be required by law. The income tax regulations, Section 1.-801-5(b), define “required by law” as follows:

“For purposes of part I, subchapter L, chapter 1 of the Code, the term ‘reserves required by law’ means reserves which are required either by express statutory provisions or by rules and regulations of the insurance department of a State, Territory, or the District of Columbia when promulgated in the exercise of a power conferred by statute, and which are reported in the annual statement of the company and accepted by state regulatory authorities as held for the fulfillment of the claims of policyholders or beneficiaries.”

The New Jersey statute applicable, that is, Section 17:34-22.1, permitted the setting up of an additional reserve but imposed the restriction that “The basis of such additional reserves set aside by any company at the close of any year shall not thereafter be changed to a basis producing smaller aggregate reserves except upon approval by the commissioner of the company’s application therefor . . . ”

Thus, while the initial decision to set up a reserve was entirely voluntary, its continuance was not. What the Company did in 1946 was of its own choosing, but in 1958 to 1960 it was not free to drop the reserve or to alter its formulation without having specific permission from the Insurance Commissioner. To argue that the Company was not required to carry the reserve in the years in question is to ignore reality. A man who volunteers for the Armed Forces is as subject to its discipline and regulations thereafter as any other person in service. His voluntary act in enlisting does not give him the right thereafter to question the lawful exercise of authority by his superiors. A man may enter into a marriage voluntarily, but that is not a reason to limit his obligation imposed by law to support his family. Similarly here, the Company could elect to take action permitted by the New Jersey statute, but when it did take that step, it did submit itself to the requirement that the reserve be continued thereafter. A fair reading of the income tax regulation requires us to conclude that in 1958-1960, the reserve was “required by law.”

Next we consider whether the “additional reserve” was a “life insurance reserve” within the meaning of the Code. It seems clear that the establishment of the “additional reserve” was the exercise of good business judgment, was in the best interest of policyholders and beneficiaries, and had the approval of the State of New Jersey. Admittedly, however, these factors are not determinative when definitions under the tax laws of the United States are involved.

Taxation of insurance companies has always involved some specific treatment by Congress in recognition of the peculiar nature of the industry. Thus, it has been acknowledged that part of the money taken in by the Company as premiums and part of the money earned on investments really belong to the policyholders. United States v. Atlas Life Insurance Co., 381 U.S. 233, 247, 85 S.Ct. 1379, 14 L. Ed.2d 358 (1965). Accordingly, it became necessary to make provision for accounting procedures to be consistent with this approach by incorporating the use of “reserves.”

In 1942 Congress defined reserves as being based on recognized mortality tables and an assumed rate of interest. The definition was intended to broaden the concept of reserves rather to restrict it. There is no indication since that time that Congress intended to exclude other factors which would make the calculations of the reserve more precise or accurate. Indeed, in the 1959 Life Insurance Company Tax Act Congress recognized that a company might determine that it was necessary to weaken or strengthen its reserves and made appropriate provisions for the process.

The pertinent portion of the statutory definition, 26 U.S.C. § 801(b)(1), reads:

“ . . . ‘life insurance reserves’ means amounts .
(A) which are computed or estimated on the basis of recognized mortality . tables and assumed rates of interest, and
(B) which are set aside to . liquidate, either by payment or reinsurance, future unaccrued claims arising from life insurance contracts . . . involving, at the time with respect to which the reserve is computed, life . . . contingencies.”

It may be seen that the “basic reserve” applicable to a lump sum payment is fully covered by this definition.

The Commissioner appears to argue that the “additional reserve” does not qualify because the optional mode of settlement involved in this case does not create any liability on the insurance company until such time as elected by the beneficiary. The Commissioner characterizes the transaction as the purchase of an annuity by a beneficiary with the lump sum proceeds of the policy.

We disagree and find that the insurer, in making payment under the specific settlement option involved in this controversy, does not enter into a new contract with the beneficiary but merely carries out the contractual obligation which arose with the initial issuance of the life insurance contract. See 19 Couch on Insurance 2d § 81:4. We see nothing in the statute which requires the construction which the Commissioner advocates and believe it contrary to generally accepted insurance law. Indeed, the government’s position would come as somewhat of a surprise to the policyholder who pays the premium with the understanding that his beneficiary has the choice to take the optional settlement — at the values set out in the policy and regardless of any inclination of the insurance company to the contrary.

While it may be said that as to any one individual policy it could not be determined at issuance that the settlement option would be exercised, there is no doubt that as to the entire class of policies, utilization of the option was not speculative but a fact thoroughly established by experience in a large number of claims throughout the industry. For all practical purposes, then, the obligation of the Company to meet the ■ “strain” was just as certain and definite as it was to meet the lump sum payment requirements for which the “basic reserve” was established.

The fact that the computation for the reserve included elements other than mortality tables and assumed rates of interest, is not sufficient to disqualify the “additional reserve.” There is nothing in the statute which states that these two elements are the only factors which are permissible and that all others must be excluded. In the factual context present here, we can perceive no considerations which would require us to adopt a construction of the Act so narrow as to mandate the exclusion of circumstances which would tend to make the calculation of the reserve more exact.

Congress obviously sought to prevent abuse, and with this, of course, we thoroughly agree. The additional elements used here accomplished exactly what Congress did intend. We cannot ignore the fact that the additional elements of lapse rate, rate of election, and lowered mortality rates of the insured resulted in substantial reductions of the reserve. The recalculation to the lower levels in 1956 was at the request or insistence of the New Jersey Insurance Commission which felt that the reserves were higher than need be. In a real sense then the adjustment of the reserves and inclusion of additional elements was necessary to establish compliance with New Jersey law. We need not hold that this action was necessary to meet the “required by law” test, but we do note that Congress was aware of the extensive, continuing supervision of the insurance industry by the states. It is obvious that subjecting the reserves to the scrutiny of the state regulatory agencies is an additional safeguard against overreaching by the companies.

There was testimony in this case to establish that if the challenged elements had not been used in the computations, the reserves would have been four or five times as high and would have been considered excessive by New Jersey. The substantial actuarial data used in this ease and the approval by the State Commission which resulted in a realistic rather than an inflated reserve lead us to conclude that a tunnel vision approach to the Act here would result in distortion rather than a proper construction. The “additional reserve” represented money due the policyholders just as truly as did the “basic reserve.”

The final shot fired by the Commissioner is that the “additional reserve” is a “deficiency reserve” and, thus, specifically excluded by the Code. The first and obvious question is, what is a “deficiency reserve.” It is a technical term having a specific meaning in the industry which must be used in interpreting the definition of the Act. Alinco Life Insurance Company v. United States, 373 F.2d 336, 178 Ct.Cl. 813 (1967).

The statutory definition, 26 U.S.C. § 801(b)(4), reads:

“ . . . that portion of the reserve equal to the amount . by which — (A) the present value of the future net premiums required for such contract, exceeds (B) the present value of the future actual premiums and consideration charged for such contract.”

The “deficiency reserve” is a concept in the industry which resulted from the rigid formulas imposed by state regulatory agencies in calculating “basic reserves.” Many states required that the “basic reserve” for a policy was to be computed on the basis of the experience or mortality table in use at the time the policy was sold even though it was known at that time that life expectancy was increasing. This meant that in many instances the reserve was computed on the basis of a life expectancy lower than reality and therefore the premiums charged would be larger than necessary. Some companies set premium levels which they felt were adequate in view of the lengthening of life expectancy but which were less than that which strict adherence to the tables would require. The state required that in such a situation a “deficiency reserve” be set up to account for the difference between the premiums which should have been charged according to the mortality tables and those which were actually paid by the policyholder.

It may be seen that one of the distinguishing characteristics of a “deficiency reserve” is that it is calculable at the moment of issue of a policy. At that time, the premium actually charged and that required by the standard mortality table are known and the “deficiency” in premium may easily be established. The adoption of updated and more accurate mortality tables resulted in the elimination or decrease of many “deficiency reserve” requirements for policies sold thereafter.

A “deficiency reserve” is not used to increase a policy “basic reserve” which was adequate when issued. With this explanation as a background, it is clear that a “deficiency reserve” as that term is used in the industry is not applicable to an “additional reserve” which-is set up after the policy is issued and to deal with problems that arose after issue.

When the definition in the Act is read in conjunction with the industry meaning of the term, it is clear that the Commissioner was in error in considering the “additional reserve” as a “deficiency reserve.” Here the “additional reserve” could not be ascertained at the time the policy was issued, and it was established to meet events which occurred many years after issuance of the policies.

Recognizing that the unresolved problems of the tax accountability of insurance reserves are many and complex, we have trod a narrow path chartered by the specific factual situations present here, and our opinion should be so understood. We emerge, concluding that the decision of the Tax Court was correct, and therefore its judgment will be affirmed.

      . No less an authority than Learned Hand once said, “In my own case the words of such an act as the Income Tax, for 'example, merely dance before my eyes in a meaningless procession : cross-reference to cross-reference, exception upon exception — couched in abstract terms that offer no handle to seize hold of — leave my mind only a confused sense of something vitally important, but successfully concealed, purport, which it is my duty to extract, but which is within my power, if at all, only after the most inordinate expenditure of time.” Hand, Eulogy of Thomas Walter Swan, 57 Yale L.J. 167, 169 (1947).

      . Knickerbocker, The Present Status of Life Insurance Reserves, 23 Tax Lawyer, Winter 1970, 367, 374 n. 22. 8 Mertens, Law of Federal Taxation, § 44.26 n. 1.

      . Because of the requirements of state law that reserves for the lump sum payment, the “basic reserve”, be calculated on a rigid formula which made no provision for meeting the annuity-type option, it was not possible to increase that reserve to meet the “strain.” Thus, although the Company took in more than enough in premiums to meet the “strain” obligation, the structure of state regulation required that the amount of premiums in excess of that required to maintain the “basic reserve” be transferred to surplus or returned to the policyholder in the form of dividends. Generally the Company returned the excess amounts to the policyholder as dividends.

      . C.S.O. is the abbreviation for Commissioner’s Standard Ordinary Table. It was based on the experience of a group of the principal insurance companies from 1930 to 1940. See, MacLean, Life Insurance, 9th ed. 1962 at 72,

      . Findings of Fact of the Tax Court, n. 2.

      . This circumstance would result in a lesser exclusion, and hence the change in the Insurance Company’s reserves would not adversely affect the government. Ordinarily one would not expect the Commissioner to object to such action. However, his attack here is to refuse recognition to the reserve in its entirety, claiming that the additional factors which were used to reduce the reserve destroyed its eligibility for inclusion altogether.

      . The basic 1956 calculation was utilized in determining the 1958, 1959, and 1960 reserves. This was done by a method of increasing the reserve by 3% per year (the same yearly percentage which had been used in discounting the amount originally projected for the whole period of the P-Policy) and then deducting the actual “strain” incurred during each year. We are not called upon to pass on this particular accounting procedure since we are concerned in this appeal only with the determination of whether the reserves are properly denominated as insurance reserves.

      . A more detailed statement of the facts and the mathematical computations involved may be found in the opinion of the Tax Court, 58 T.C. 679, filed July 27, 1972. We have limited our recitation of the factual background to that necessary for an understanding of the legal issues.

      . While not binding on this Court or the Tax Court, the opinion of the Insurance Commissioner of New Jersey who was charged with administration of the state law is entitled to some weight. He testified that “To the extent that the reserve was established, at that point it was required by law because it required the approval of the Commissioner for it to be reduced or eliminated.” (Transcript of Testimony, p. 51). See also Knickerbocker, supra, n. 2 at 375:
      “However, once the company has established such a reserve, the company is no longer free to reduce or eliminate the reserve as long as it remains subject to the risk so represented, unless permission to adjust the reserve is granted by the state insurance department.”

      . 8 Mertens, supra, n. 2, §§ 44.16, 44.17.

      . S.Rep. No. 1631, 77th Cong., 2d Sess. (1942), reprinted in 1942-2 C.B. 504.

      . Sections 806(b) and 810(d) ; See also, H. R.Rep. No. 34, 86tli Cong., 1st Sess. (1959), reprinted in 1959-2 C.B. 736, 794.

      . The Senate Committee report, in discussing the definition of life insurance reserves under § 201(C) (2) of the predecessor Act, said in part, “The elimination of contingent claims from the House bill is to permit the liability arising from insurance contracts providing for the payment of the proceeds in installments certain for a specified period and a continuation of their installment payments to a beneficiary so long as he might live, to be classified as a reserve if the contract involved a life contingency even if some part of the liability was held to meet noncontingent claims.” S.Rep. No. 1631, 77th Cong., 2d Sess. (1942), Reprinted 1942-2 C.B. 504, 612. We interpret this to mean that the Senate Committee would recognize a reserve to meet the settlement option contingency if it were formulated at the time the policy is issued.

      . See MacLean, Life Insurance, (9th ed. 1962), at p. 73.

      . As one of the witnesses explained at the trial of this case, “deficiency reserves” relate only to the situation at the time a policy is issued, and there is no situation after a policy is issued which would require a “deficiency reserve.”

      . 8 Mertens, supra, § 44.15 at p. 36, 37. See also General Life Insurance Co. v. Commissioner of Internal Revenue, 137 F.2d 185, 190, n. 1 (5th Cir. 1943).


text:
    Nathaniel VINCENT, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1666.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1973.
    Decided Dec. 18, 1973.
    Nathaniel Vincent, pro se.
    Donald J. Stohr, U. S. Atty., and Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., on brief for appellee.
    Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

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

   PER CURIAM.

Nathaniel Vincent was convicted under count one of an indictment for unlawfully carrying a quantity of heroin from New York to St. Louis County on September 19, 1963, in violation of 26 U.S.C. § 4724(b):

Except as otherwise provided in this subsection, it shall be unlawful for any person to send, ship, carry, or deliver narcotic drugs from any State or Territory or the District of Columbia, or any insular possession of the United States, into any other State or Territory or the District of Columbia, or any insular possession of the United States. Nothing contained in this subsection shall apply—
(1) to any person who shall have registered and paid the special tax as required by sections 4721 and 4722;
* * * * * *

He was also convicted under count two for concealing the same drug on that date, knowing it to have been illegally imported, in violation of 21 U.S.C. § 174. A sentence of ten years’ imprisonment was imposed on each count to be served consecutively for a total term of twenty years. That conviction and sentence were affirmed by this Court in Vincent v. United States, 337 F.2d 891 (8th Cir. 1964).

Vincent thereafter brought this 28 U. S.C. § 2255 motion seeking to vacate the sentence imposed on the 26 U.S.C. § 4724(b) violation on the grounds that the statute violates his privilege against self-incrimination as provided by the Fifth Amendment. The district court denied Vincent’s motion. This appeal followed.

During the course of his incarceration, Vincent has brought nine motions to set aside his conviction under the above charges. This is the third such attempt, under 28 U.S.C. § 2255, to raise the constitutionality of the statutes under which he was convicted, relying on Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969). The most recent consideration of this cause was in Vincent v. United States, No. 70 C 109(2) (E.D.Mo., May 5, 1970). Therein the district court considered the constitutional claim which Vincent asserts here and dismissed Vincent’s motion to vacate his sentence on the merits of the claim. That district court order was not appealed.

28 U.S.C. § 2255, in part, provides:

The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

The Supreme Court has summarized the rules which bar consideration of section 2255 petitions raising grounds decided once before in a federal collateral action. In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the Court said that a federal court may give controlling weight to the denial of the prior application when:

(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

Id. at 15, 83 S.Ct. at 1077.

Under these criteria, the district court was privileged to give controlling weight to the prior adverse determinations. Vincent’s successive application for similar relief was properly dismissed. See Patrick v. United States, 466 F.2d 502 (8th Cir. 1972); Young v. United States, 457 F.2d 800 (8th Cir. 1972).

For the reasons hereinbefore set forth, the judgment of the district court is affirmed.


author: ROSENN, Circuit Judge.

text:
    John J. WOJCIECHOWSKI v. LONG-AIRDOX DIVISION OF MARMON GROUP, INC. a corporation and Marmon Group, Inc. a corporation, Appellants, v. PITTSBURGH COAL COMPANY DIVISION OF CONSOLIDATION COAL COMPANY.
    No. 72-1839.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 14, 1973.
    Decided Nov. 29, 1973.

      Bernard J. McAuley, Wayman, Irvin, Trushel & McAuley, Pittsburgh, Pa., for appellants.
    Anthony J. Polito, Rose, Schmidt & Dixon, Pittsburgh, Pa., for Pittsburgh Coal Co.
    Saul Davis, Pittsburgh, Pa., for John J. Wojciechowski.
    Before BIGGS, ADAMS and RO-SENN, Circuit Judges.
   OPINION OF THE COURT •

ROSENN, Circuit Judge.

This is an appeal by the defendant manufacturer from an adverse jury verdict in a suit for personal injuries grounded solely upon the strict liability theory of Section 402(a) of the Restatement (Second) of Torts. Since we find appellant’s contentions of trial error without merit, we affirm.

Plaintiff Wojciechowski was employed by the third party defendant, Pittsburgh Coal Company Division of Consolidated Coal Company (Employer). The Employer leased from defendant, Long-Air-dox Division of Marmon Group, Inc., (Long-Airdox), a number of identical compressed air blasting devices manufactured by Long-Airdox. The Long-Airdox system, a replacement for the older method of blasting with powder to release coal for mining, utilizes a sudden release of compressed air to fracture a coal seam. Air is compressed in a generator located on the company premises. The generator is connected by piping to a number of “blowdown valves,” each of which is in turn connected by about 125 feet of tubing to a single shell. The blowdown valve, regulating the air flow to and from the shell to which it is connected, actually consists of two separate control valves. The air supply valve, regulated by a lever, controls the flow of compressed air from the generator into the shell. The bleeder or air release valve, regulated by a removable hexagonal wrench, controls the return flow of air from the shell back to the valve and then into the atmosphere. The shell itself is about fourteen feet long and weighs about eighty pounds.

During normal operation a trained, licensed employee, called a shot firer, opens the air release valve and closes the air supply valve, thereby releasing most compressed air from the shell. He then walks over to the coal face and inserts the shell into a hole previously made in the face. Assuring himself that no one is in the vicinity of the shell, he then returns to the blowdown valve. He uses the wrench (hex key) to shut the bleeder valve and he manually opens the air supply valve, the result being a build-up of compressed air in the shell. After approximately a half minute, the pressure in the shell reaches a predetermined level of approximately 8000 pounds per square inch. At that moment the air in the shell is released from the head with an explosive force sufficient to fracture the coal face in the vicinity. The shot firer, still at the blowdown valve, reverses the air flow by closing the air supply valve and opening the bleeder valve. The air remaining in the shell after the explosion makes a loud hissing noise as it returns from the shell through the pipe to the blowdown valve. The shot firer can then return to the coal face, place the shell into another previously made hole, and repeat the operation. It should be noted that the Airdox system has an automatic repeat feature; if the supply valve is kept open and the bleeder valve kept shut, the shell will fire continuously every half minute as the pressure in the shell rebuilds up to the predetermined level.

The Employer’s safety regulations and Long-Airdox’s written and oral instructions to the Employer required that the entire operation be performed by a single person and that the shot firer take the hex key with him when he returned to the coal face to move the shell. The rule was intended to protect the person at the coal face. The shell at the coal face can not be seen from the site of the valve. If someone else remained with the hex key at the valve, the latter might through a mix-up in signals prematurely reset the valves and cause the shell to fire before the person at the face was in the clear.

On the evening of Friday, September 1, 1967, plaintiff had fired two shots by himself without incident when his foreman, Davis, requested that plaintiff hurry the blasting, operation. Davis suggested that they work together in performing further firings. Plaintiff would stay at the coal face between shots, while Davis would remain at the valve and set off successive blasts. Plaintiff, who had been a shot firer since 1949, complied with Davis’ request even though he knew the procedure would violate company safety rules. The first two shots went off without incident, plaintiff placing the shell into holes in the coal face and stepping into the clear, and Davis then setting off a blast. Just before Davis set off the second blast, Baughman, on his way to the coal face where his job was to drill the holes for the shell, came up to Davis at the valve. Baughman waited there until Davis fired the shot. Baughman testified that he saw Davis then shut the supply valve and open the bleeder valve; he then heard the sound of air returning from the shell. Davis told Baughman that he had to leave the valve, but Baughman left the valve for the coal face with no knowledge of whether Davis actually left the valve.

Meanwhile, after Davis’ second blast plaintiff returned to the shell. As he was placing the shell in the next hole, the shell gave a full force blast into his face causing him serious injury. The blast occurred in plain view of Baugh-man, who by that time was at the coal face. Although plaintiff had not heard any sound of air before the blast, immediately thereafter he heard the sound of air bleeding out of the shell. Several employees immediately went to aid plaintiff. However, there was no testimony concerning events at the blowdown valve between the time Baughman left the valve and four to five minutes after the succeeding blast. At that later time the bleeder valve was open as it should be following a blast; the wrench which controlled the valve and had been used by Davis was not there. The deposition of Davis, who died before trial, was read into evidence at the trial. Davis stated that after Baughman left the valve, he had walked away to speak to another employee, Spotty, who was dead at the time Davis gave his deposition.

The same shell and valve were used without incident for the remainder of the Friday evening shift. The following morning, Taylor, the company safety expert, fired the shell several times without incident, finding no evidence of a defect which might have caused the accident. Taylor returned to the mine for the entire Sunday night and Monday night shifts to observe the firing of the suspect shell, and during those sixteen hours of continuous firings he saw no malfunction or anything else unusual.

Plaintiff, who was precluded by the Workmen’s Compensation Act from bringing suit against his employer, Pittsburgh Coal, sued Long-Airdox in diversity on theories of strict products liability and also negligent design of the equipment allegedly causing the injury. Long-Airdox filed a third party action grounded in negligence for contribution by Pittsburgh Coal. Plaintiff abandoned his negligence theory before any testimony was taken, leaving only his strict liability claim to be tried.

The strict liability claim was based on Section 402A of the Restatement (Second) of Torts (1965), which has been adopted by the Pennsylvania Supreme Court as the law of Pennsylvania. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). That section states :

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The Pennsylvania courts have also adopted Comment G to Section 402A, which provides that

The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.

Woods v. Pleasant Hills Motor Co., 219 Pa.Super. 381, 281 A.2d 649, 651 (1971).

At the close of defendant’s case, the Employer’s motion for dismissal was granted. The dismissal was based on the court’s finding that the evidence would not support a finding by the jury that the accident was caused concurrently by a defect in the equipment as well as improper human intervention at the blowdown valve. The trial judge’s theory was that regardless of whether or not the Employer was negligent, the accident was caused either from the shell improperly exploding while the valves remained in the bleeding position, or else exploding, as it was designed to do, because someone at the valve fired the shell. Under neither of these alternatives would the Employer be liable for any damages, and its dismissal would avoid the possibility of an inconsistent verdict holding the defendants jointly liable. The jury, after being properly instructed on the elements of Section 402A liability, found against Long-Air-dox, the only remaining defendant. Damages of $120,000 were awarded at a separate hearing.

Long-Airdox contends that the trial court erred by (1) permitting testimony concerning prior and subsequent incidents involving Airdox shells; (2) dismissing the action against the Employer on the ground that the possibility of concurrent causation of the accident was too speculative; (3) failing to instruct the jury on assumption of risk by plaintiff; (4) refusing to permit Long-Air-dox to call plaintiff’s expert as a witness or to permit Long-Airdox to introduce interrogatories answered by plaintiff’s expert, after plaintiff elected not to call the expert as his own witness; (5) prohibiting defendant’s counsel from asking Taylor, the company safety expert, his opinion as to the cause of the accident; and (6) refusing to answer a jury question relating to payment of Workmen’s Compensation, medical bills and disability income submitted during the jury deliberations. We consider these objections in turn.

I. TESTIMONY CONCERNING PRIOR AND SUBSEQUENT INCIDENTS

The trial judge permitted plaintiff and other Pittsburgh Coal employees to testify about several of their abnormal experiences with Airdox shells. Plaintiff himself testified that about three weeks before the accident in question, a sudden release of air from the shell with which he was working blew some powder into his eye, not embedding anything in his skin but requiring that his eye be cleaned out. He testified that on two other occasions, once while he was about to place a shell in a new hole and once while a shell was lying unconnected on the ground, he had seen the shell “poof” or “fizz” from the release of pressurized air. Spender, another Pittsburgh Coal employee, testified that on at least one occasion several weeks after the accident, apparently because of condensation blocking the line, air was released very slowly out of the bleeder valve. However, the shell was used without incident immediately after this slow bleeding. Finally, Duke, another employee, testified that several weeks after the accident he had seen an unattached Airdox shell with no apparent cause suddenly jump eighteen inches off the ground.

Although there was no evidence that the shells involved in these incidents were the same shell that injured plaintiff, there was testimony that each of the shells was of identical design with the suspect shell. Furthermore, aside from being direct evidence that the suspect shell was itself defective, the testimony was intended to counter defendant’s contention that the shell design made impossible a misfiring caused by air retention. Such a contention could best be refuted by examples to the contrary, and defendant had full opportunity to cross-examine plaintiff’s witnesses to develop any significant differences in circumstances that it deemed relevant. Even now defendant does not state specifically how the differences in circumstances affect the probative value of the admittedly minor incidents to refute the defendant’s general contention that the shell design made misfiring impossible.

In determining the admissibility of the testimony, we must apply Federal Rule of Civil Procedure 43(a) and give plaintiff the benefit of the more liberal of the Pennsylvania or federal rule. Under the circumstances, however, we need not decide whether there is any difference between the two standards. Under both the state and federal standards the trial court, acted within its discretion in admitting the testimony.

II. SUFFICIENCY OF EVIDENCE TO SUPPORT JOINT CAUSATION

We first note that defendant does not argue that there was insufficient evidence of a defect in the Airdox shell to properly submit the question of manufacturer liability itself to the jury. Although plaintiff has the burden of showing the existence of a defect, a malfunction may itself, in the absence of abnormal use and reasonable secondary causes, be sufficient evidence of a defect to make the existence of a defect a jury question. MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969); Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3d Cir. 1969). This permissible inference simply changes plaintiff’s burden (in the absence of significant independent proof of a defect to one of showing the likelihood that the accident was indeed caused by a malfunction. A plaintiff can satisfy this burden by negating the likelihood of other reasonable causes of the accident. We doubt that in the present case plaintiff has sufficiently negated the possibility that human error caused thé accident to allow the accident by itself to evidence a malfunction. See Woods v. Pleasant Hills Motor Co., 219 Pa.Super. 381, 281 A.2d 649, 656 (1971); Kaczmarek v. Mesta Machine Co., 463 F.2d 675 (3d Cir. 1972); Finnie v. Ford Motor Co., 331 F.Supp. 321 (W.D.Pa.1971); McMeekin v. Gimbel Bros., Inc., 223 F. Supp. 896 (W.D.Pa.1963). See also Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 640 (8th Cir. 1972). We need not decide the question, however, since it is not raised on this appeal nor was it properly raised at trial.

We now come to defendant’s narrower point, namely that the Employer was improperly dismissed at the close of the evidence because, contrary to the trial court’s finding upon which the dismissal was necessarily based, the evidence would support a finding that the accident was jointly caused by a defect in the Airdox equipment and improper human intervention at the blowdown valve. After a careful review of the entire record, we agree with the trial judge that no such inference would have been permissible. The problem with such a finding of concurrent causation is that even if there were sufficient evidence in the record to support the finding of a defect, such a finding is permissible only in the absence of a finding of human intervention. Given a finding of human intervention at the blowdown valve, the accident does not in itself provide support for the finding of a malfunction, which is necessary to support the inference of a defect.

Nor are we persuaded that there is enough independent evidence of a defect, aside from the happening of the accident, to permit a finding of a defect concurrently with a finding of human intervention at the valve. Taylor’s experiments on the suspect shell and valve were uncontradicted. Furthermore, the relatively minor incidents involving air retention by a shell, although of some probative value of a defect when combined with a permissible finding of a malfunction, are by themselves rather insubstantial evidence of a defect. None of the incidents involved the normal operational full force blast, and none therefore involved the rapid buildup of new air in a shell, as opposed to a residual release of air remaining after an explosion.

III. THE ASSUMPTION OF RISK DEFENSE

Defendant’s counsel initially requested an assumption of risk charge on the theory that when plaintiff violated safety regulations by operating the Airdox system together with Davis, he assumed the risk that someone at the valve would prematurely explode the shell. The trial judge thought the charge was superfluous, since assumption of this risk would be irrelevant under the only finding that would allow recovery, namely that the manufacturer alone caused the accident. Defendant’s counsel accepted this proposition and dropped his request for an assumption of risk charge. There is no contention that the trial judge did not charge in accordance with his statement which induced counsel to drop his request. By dropping the request, defendant waived his right to allege error on appeal. Federal Rules of Civil Procedure, Rule 51; Stilwell v. Hertz Drivurself Stations, 174 F.2d 714 (3d Cir. 1949). In any event, since we agree that the evidence would not support a finding of joint causation of the accident, we also agree that an assumption of risk charge would have been superfluous for the reason stated.

IV. OTHER CONTENTIONS OF APPELLANT

Plaintiff’s expert, Dr. Weinstein, was hired to support plaintiff’s original theory that the accident was due to negligent design of the Airdox equipment. When plaintiff entirely dropped the negligence theory before trial, the trial judge did not abuse his discretion in refusing to allow defendant to call plaintiff’s expert as his own witness. Defendant’s questioning would have inevitably distracted the jury from the primary issue by bringing up the irrelevant question of negligence.

Nor did the trial judge abuse his discretion in prohibiting defendant’s counsel from asking Taylor his opinion as to the cause of the accident, since Taylor was not named as an expert as required by the pretrial rules of the court. In any event, defendant was not significantly prejudiced by the ruling, since he was allowed to present to the jury testimony of Taylor strongly implying that Taylor thought the accident was caused by human intervention.

Finally, as to the contention that the trial judge should have answered the jury’s question concerning collateral medical benefits, appellant concedes that the court followed existing law. Gladden v. P. Henderson & Co., 385 F.2d 480, 483 (3d Cir. 1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968).

The judgment of the district court will be affirmed.

      . Taylor testified that he found a slight leakage in the supply valve, permitting some air to flow into the shell even when the valve was closed. However, Taylor said that when he also closed the bleeder valve, the shell did not fire during the six minutes he waited. He next opened the supply valve and also opened the bleeder valve halfway, sending some of the supply air into the shell and the rest directly out the bleeder valve. The shell did not fire during the three minutes that Taylor waited. ' When he then closed the bleeder valve, the shell fired as it should have. These experiments on the suspect shell provide almost conclusive evidence that the leak in the supply valve could not have caused the accident.

      . 77 P.S. § 481. Hartwell v. Allied Chemical Corp., 457 F.2d 1335, 1337 (3d Cir. 1972). Socha v. Metz, 385 Pa. 632, 123 A.2d 837, 839-840 (1956).

      . Such suits against third parties are permitted under Pennsylvania law. Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563, 580-582 (3d Cir. 1963).

      . Socha v. Metz, 385 Pa. 632, 123 A.2d 837, 840 (1956).

      . We must apply Pennsylvania choice of law rules in this diversity case. Since the accident in question and all significant contacts involve Pennsylvania, it is clear that Pennsylvania courts woud apply Pennsylvania law. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).

      . If the jury found Long-Airdox entirely responsible for causing the accident, the latter would of course have no right of contribution from the Employer. On the other hand, if the jury found the Employer entirely responsible, plaintiff’s suit against Long-Airdox fails and there is no recovery requiring contribution. See cases cited at notes 2-4 supra. The Employer was not dismissed at an earlier stage of the trial because of the possibility that Long-Airdox might introduce sufficient evidence to support a finding of joint causation.

      . Defendant’s counsel admitted to the court at the close of the evidence that “basically the only defense we have in this case [is] that it couldn’t have happened.” At no point did defendant request a statement by the judge to the jury that the other accidents were only evidence to counter defendant’s defense of impossibility, rather than affirmative evidence that the shell involved in the accident was defective.

      . See Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 396-397 (5th Cir. 1972), applying Rule 43(a) to the particular point.

      . Brandon v. People’s Natural Gas Co., 417 Pa. 128, 207 A.2d 843, 846-847 (1965) ; DiFrischia v. New York Central Ry. Co., 307 F.2d 473, 476 (3d Cir. 1962) ; Fenton v. McCrory Corp., 47 F.R.D. 260, 261 (W.D. Pa.1969). Compare Prashker v. Beech Aircraft Corp., 258 F.2d 602, 608-609 (3d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958), where statistical airplane accident reports were held inadmissible to show a design defect because of the strong possibility that the accidents were caused by pilot error. There is no contention in the present case that the other incidents were caused by external factors. Cf. Uitts v. General Motors Corp., 58 F.R.D. 450 (E.D.Pa.1972).

      . We find persuasive the reasoning in the following cases: Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 396-398 (5th Cir. 1972) ; Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394, 400 (5th Cir. 1965) ; P.B. Mutrie Motor Transportation, Inc. v. Interchemical Corp., 378 F.2d 447, 450-451 (1st Cir. 1967). See Annotation, 42 A.L.R.3d 780.

        . Compare MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969) ; Dennis v. Ford Motor Co., 471 F.2d 753 (3d Cir. 1973) ; Burchill v. Kearney-National Corp., 468 F.2d 384 (3d Cir. 1972) ; Kridler v. Ford Motor Co., 422 F.2d 1182 (3d Cir. 1970) ; Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3d Cir. 1969) ; Frankel v. Lull Engineering Co., 334 F.Supp. 913 (E.D.Pa. 1971) , aff’d 470 F.2d 995 (3d Cir. 1973) ; McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971) ; Duckworth v. Ford Motor Co., 211 F.Supp. 888 (E.D.Pa.1962), rev’d in part, 320 F.2d 130 (3d Cir. 1963).

      . It was after the jury verdict that defendant first raised the general question of sufficiency of the evidence, in its motion for a new trial or in the alternative a judgment notwithstanding the verdict. This was too late to preserve the point for appeal. Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129 (3d Cir. 1965). We note that the question of sufficiency of the evidence to support the finding of a defect is independent of the question of sufficiency of the evidence that the product was unchanged from the time of sale to the time of the accident. Only if a defect is found at the time of the accident does the jury reach the question of whether the defect existed at the time of the sale.

      . We assume that, pursuant to a permissible finding of joint causation, a defendant liable under a strict liability theory would be entitled to contribution from a third party defendant liable under a negligence theory. This was the holding of Chamberlain v. Carborundum Co., 485 F.2d 31 (3d Cir. 1973), decided subsequent to the trial in question.

      . Defendant does not raise on appeal the further point that even if the trial court was correct in finding impermissible an inference of concurrent mechanical and human causation, the court nevertheless erred by thereupon dismissing the action against the employer and submitting to the jury the sole remaining issue of manufacturer liability. We therefore decline to consider this issue. Compare the procedure followed by the trial court in Jackson v. Ulrich Manufacturing Co., 44 F.R.D. 473 (E.D.Pa.1972), aff’d 485 F.2d 680, (3d Cir. 1973) and in Grasha v. Ingersoll-Rand Co., 439 Pa. 216, 266 A.2d 710 (1970).

      . The defendant did not request an instruction that under plaintiff’s evidence in support of his claim of prior malfunctions of Airdox shells plaintiff may have voluntarily assumed the risk of this alleged malfunction.