author: EDWARDS, Circuit Judge. WILSON, District Judge

text:
    Plummer GIDDINGS, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 72-2081.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 12, 1973.
    Decided May 17, 1973.
    Frank W. Wilson, District Judge, dissented and filed opinion.

      Edward M. Welch, Jr., Muskegon, Mich., for plaintiff-appellant; Mc-Croskey, Libner, Van Leuven, Kortering, Cochrane & Brock, P. C., Muskegon, Mich., on brief.
    Robert C. Greene, Asst. U. S. Atty., Grand Rapids, Mich., for defendant-appellee; John Milanowski, U. S. Atty., W. D. Michigan, Grand Rapids, Mich., on brief.
    Before EDWARDS and PECK, Circuit Judges, and WILSON, District Judge.

       Honorable Frank W. Wilson, Chief Judge, United States District Court for the Eastern District of Tennessee, sitting by designation.

   EDWARDS, Circuit Judge.

This is an appeal from the judgment of the United States District Court for the Western District of Michigan affirming the denial of Social Security disability benefits. The Hearing Examiner and the Appeals Council of the Department of Health, Education and Welfare found “impairments due to a respiratory condition, a back condition and other conditions,” but held such conditions not sufficiently severe to preclude all substantial gainful activity for twelve months.

Appellant is a 57-year-old former factory worker from Muskegon, Michigan, who claims disability benefits partly because of back injuries with respect to which undisputed medical evidence indicates that he is disabled from heavy lifting. More particularly, he asserts that he is disabled because of pulmonary problems defined medically as chronic bronchitis and emphysema. He asserts that there is no substantial evidence to support the adverse decisions of the Department and of the District Court.

We believe that this case is controlled by this court’s decision in Whitson v. Finch, 437 F.2d 728 (6th Cir. 1971), and we reverse.

The background facts in this record are agreed upon by the parties as follows:

Plummer Giddings was born on October 26, 1915. He completed eight grades of education. After leaving the eighth grade, he worked on a farm until age 20, at which time he worked for a government survey on Lake Huron for approximately one year. Thereafter he worked for Brunswick Corporation and Norge Machine Company, both of Muskegon. He worked for Continental Motors Corporation of Muskegon from May 29, 1943, until February, 1969. His employment in the latter three jobs was that of a machine operator.

Mr. Giddings also repaired machinery and learned to read and work from blueprints during his working career.

Prior to 1964, Mr. Giddings was in relatively good health and not under the regular care of any doctor. In 1964 Mr. Giddings developed problems with breathing, was hospitalized and was diagnosed as having pneumonia. He has been plagued by breathing problems and frequent colds and has been “on and off work ever since.” Mr. Giddings left Continental Motors in' February, 1969, and has not been gainfully employed since that time. He has been receiving retirement benefits from Continental Motors Corporation based on disability.
In August of 1969, Mr. Giddings injured his back while getting down from a pickup truck. This resulted in an aggravation of a back injury which he had received in about 1947.
Mr. Giddings testified that since February of 1969, he has spent most of his time at home or walking in his yard. He watehes some television and does not regularly attend any clubs or social organizations. He has no particular hobbies. He is unable to do any hunting or fishing, although he did some in the past. He is able to drive a pickup truck but does not drive any long distances. He does a little gardening in a small portion of his property. He cuts his own grass but is not able to do it all in one day.
Mr. Giddings testified that he would not be able to return to any job which he has previously held. He indicated that the dust and fumes at Continental Motors would prevent him from working there. He indicated that the same would be true with respect to work he performed at Norge Machine and' at Brunswick. He indicated that the cold weather and draft would prevent him from doing the survey work which he performed for the government. He indicates that his back would prevent him from engaging in farming.

The dispute in this case really arises out of evaluation of medical reports submitted by the opposing parties. As we read the record, it appears to us that appellant has made a strong prima facie case of disability under the terms of 42 U.S.C. § 423(d)(1)(A) (1970).

1) His last employer, Continental Motors, forced his retirement on the basis of disability before he would have been able to retire otherwise.

2) Dr. Emil J. Lauretti, who examined appellant for Continental and recommended his being retired, entered the following findings:

ON EXAMINATION: The patient is 6'y2" tall and weighs 213 pounds. His blood pressure is 150/110.
PUPILS — Are round, regular and equal and react to light and accommodation.
EAR, NOSE AND THROAT — Revealed no pathology. He had full range of the neck muscles, and could move his head in all directions.
CHEST — There was a slight amount of wheezing, but as I had this man exercise in my office by assimilating running, after about one minute of active exercise he did begin to wheeze, he began to cough, his blood pressure went up to about 180 and he became extremely short of breath. These were actual objective findings. This patient could not put on the shortness of breath or the wheezing he had. It was very much like an asthmatic type of breathing that could be heard throughout both lung fields and both sides of the chest. He did state that whenever he does any amount of work which requires bending or lifting he becomes somewhat short of breath and begins to cough and wheeze.
I also checked his back and this man has findings which would indicate he has chronic muscular bruising in his back. On straight leg raising he could raise his left leg to the full range of motion at the hip joint, but could only raise his right leg to about seventy degrees and then complained of pain in his back. As he attempted to place his right heel on his left kneecap, he complained of pain in his back, but when he reversed this and placed his left heel on his right kneecap he had no trouble. As one flexed the right leg on his abdomen and pushed down on the left thigh toward the floor, he complained of pain in his back.
REFLEXES — The biceps, triceps, patellar and achilles reflexes were bilaterally present and equal, although the achilles reflexes were somewhat sluggish. These tests would indicate this man has muscular pathology on the right side of his back.
FAMILY HISTORY: The patient states he is divorced. He did raise nine children. He is married for the second time and is living with his second wife. He has been at the hospital on several occasions. The last time he was in Henry Ford Hospital from May 1 to May 9 in 1969 because of his chest. He also was at the Osteopathic Hospital in 1964 for almost a month because of a heart attack.
X-rays of his chest are normal. In spite of x-ray findings, I do not think this man is able to work except at a desk job where he would have to do no physical exercises. Any type of work that would require exertion on his part would cause him to wheeze and cough.

I feel he is disabled from the field of ordinary labor and should be retired. 3) His own physician who had seen and treated him regularly for many years said:

Mr. Giddings has an intractable pulmonary deficiency that has necessitated his being totally and permanently disabled.
We have treated him for this condition for years and have been unable to clear it up, and he has gotten no relief or help at the Ford Hospital, or with Dr. Swedenberg.

There are various medical reports introduced in the administrative file as government exhibits which fail to deal with the question of appellant’s ability to work. The government appears to rely upon the fact that these reports do not say that appellant is completely and permanently disabled. Such reliance upon the absence of disability testimony in some medical reports to rebut a prima facie case of disability is misplaced.

In Whitson v. Finch this court said:
The facts in this record are: first, appellant’s two treating physicians flatly stated that he was disabled from working for over a 12-month period of time; and, second, the government’s examining physician never said that appellant was able to go to work at any job. Whitson v. Finch, 437 F. 2d 728, 732 (6th Cir. 1971).

See also Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967); Branham v. Gardner, 383 F.2d 614 (6th Cir. 1967); Miracle v. Celebrezze, 351 F.2d 361 (6th Cir. 1965).

We have not overlooked the fact that one physician, Dr. Donald R. Eck, an orthopedic surgeon, marked a Functional Residual Capacity Report form supplied him by the government so as to indicate that appellant was capable of performing “sedentary work.” Dr. Eck’s report, however, makes clear that he was asked to and did evaluate only appellant's “back impairment condition” and that he never purported to examine or comment on the bronchial and pulmonary problems upon which appellant primarily relies.

The government relies strongly in its argument for affirmance upon Floyd v. Finch, 441 F.2d 73 (6th Cir. 1971). In that case, however, this court’s opinion in reviewing the record found (with one judge dissenting) substantial medical evidence to support the denial of Floyd’s disability claim. The majority opinion summarized the medical record supporting the government’s ease as follows:

The medical evidence submitted by the Secretary was essentially that claimant had mild arthritis which would not prevent him from engaging in substantial gainful activity. It was also to the effect that his subjective symptoms were not supported by the clinical findings. Dr. Ray stated that his subjective symptoms were far out of proportion to the objective findings. Floyd v. Finch, supra at 75.

We find no such evidence in our instant appeal.

Contrary to the view expressed by the dissent in this case, we find no conflict between our holding and the regulation adopted by the Secretary of Health, Education and Welfare cited and quoted therein. We fully agree that: “The weight to be given such physician’s statement [referring to ability to work] depends on the extent to which it is supported by specific and complete clinical findings and is consistent with other evidence as to the severity and probable duration of the individual’s impairment or impairments.” 20 C.F.R. 404.1526 (1972). In our view plaintiff’s prima facie case did present such “specific and complete clinical findings” to support his doctor’s conclusion that he was unable to work. To meet such a prima facie case it is not sufficient for the government to rely upon inconclusive medical discussion of a claimant’s problems without relating them to the claimant’s residual capacities in the field of employment. In Whitson v. Finch, supra, we made this point as follows:

Appellant had made a prima facie case. To overcome such a ease with medical witness testimony alone, the medical expert must at least be prepared to commit his professional opinion as to whether or not appellant is capable of working and as to what he can do. Anything less is not in our view “substantial evidence.” Whitson v. Finch, supra, 437 F.2d at 732.

The judgment of the District Court is reversed and the case is remanded for entry of an order awarding disability benefits.

WILSON, District Judge

(dissenting).

As I read the record in this case, I find what I interpret to be substantial evidence to sustain the decision of the District Court. Accordingly, I must respectfully dissent from the majority opinion.

This case presents the not infrequent claim of disability based upon a combination of lung and back impairments. While, in light of the claimant’s age, limited education, employment experience and medical history, I agree with the majority opinion when it states that a prima facie case of disability was made out by the claimant, I nevertheless find in the record what I believe to be quite substantial evidence to support the Hearing Examiner’s findings, as approved by the District Court, namely, that the claimant was not under such “disability” as to be entitled to disability benefits under the Social Security Law.

Substantial evidence, while admittedly a rather subjective standard, is nevertheless definable. As usually defined, “substantial evidence (is) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . enough to justify, if the trial were to a jury, a refusal to direct a verdict . . .” National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S. Ct. 501, 83 L.Ed. 660 (1939). See also Miracle v. Celebrezze, 351 F.2d 361 (6th Cir. 1965). Stated in other terms: “Substantial evidence means more than a scintilla; it is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” Combs v. Gardner, 382 F.2d 949 (6th Cir. 1967). Applying either or both of these definitions to the record in this case, I find substantial evidence to support the decision of the lower court.

The medical record upon which this case must largely be decided consists of the report of three medical doctors, two doctors of osteopathy, two radiologists and one doctor of Chiropractic. As I analyze those reports, the reports of Dr. Lauretti, M.D., and Dr. Scheerer, D.O., would support the claim of disability. All the remainder of the reports, including all clinical findings other than those stated in Dr. Lauretti’s report, would support a claim for partial disability only. For example, Dr. Clawson, M.D., who made the most recent medical examination of the plaintiff (April 27, 1971), reported in part that:

“. . . If he takes his time he can walk any distance. He can’t run more than half a block . . . Heart is normal in size, regular sinus rhythm, without murmur and all peripheral pulsations are present and equal . The back functions seem to be normal and the straight leg raising test is negative . . . The chest x-ray revealed no pulmonary active disease and no cardiac enlargement The pulmonary function studies were considered to be normal There is no acute change and no evidence of a former infarction

Relying principally upon the case of Whitson v. Finch, 437 F.2d 728 (6th Cir. 1971), the majority opinion, as I read it, would disregard all medical and clinical findings adverse to the plaintiff’s claim as well as the testimony of the vocational specialist, upon the ground that the medical witnesses failed to express any opinion upon the work disability of the claimant. I would prefer to confine the holding in the Whitson case to the facts of that case. To the extent that the case purports to establish a rule that medical witnesses must express an opinion of work disability or otherwise have their findings discounted as insubstantial evidence, I believe the holding in the Whitson ease to be in direct conflict with an applicable regulation duly adopted by the Secretary of Health, Education and Welfare. See 20 C.F.R. 404.-1526, wherein it is provided:

The function of deciding whether or not an individual is under a disability is the responsibility of the Secretary. A statement by a physician that an individual is, or is not, “disabled,” “permanently disabled,” “totally disabled,” “totally and permanently disabled,” “unable to work,” or a statement of similar import, being a conclusion upon the ultimate issue to be decided by the Secretary, shall not be determinative of the question of whether or not an individual is under a disability. The weight to be given such physician’s statement depends on the extent to which it is supported by specific and complete clinical findings and is consistent with other evidence as to the severity and probable duration of the individual’s impairment or impairments.

I believe the foregoing regulation is a lawful and valid one. If so, it is binding upon this Court. Public Utilities Commission v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470, reh. denied 356 U.S. 925, 78 S.Ct. 713, 2 L.Ed. 2d 760; Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292. If this line of reasoning is valid, as I believe it is, I would confine Whitson v. Finch, supra, to the facts of that case and either overrule the rule of evidence therein announced or modify that rule to accord with 20 C.F.R. 404.1526. I would also affirm the decision of the District Court in this case as being supported by substantial evidence upon the record before us.

      . (d)(1) The term “disability” means— (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ; . . . . 42 U.S.C. § 423(d)(1)(A) (1970).


source: Caselaw Access Project

author: TIMBERS, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Gregory Crawford LAVIN, Appellant.
    No. 519, Docket 72-2028.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 18, 1973.
    Decided June 5, 1973.

      M. James Spitzer, Jr., New York Civil Liberties Union, New York City, for appellant.
    George E. Wilson, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., Peter L. Truebner and Richard J. Davis, Asst. U. S. Attys., New York City, on the brief) for appellee.
    Before FRIENDLY, OAKES and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Gregory Crawford Lavin appeals from a judgment of conviction entered June 9, 1972 following a nonjury trial in the Southern District of New York, Milton Pollack, District Judge, 346 F.Supp. 76 (S.D.N.Y.1972), for refusing to submit to induction into the Armed Forces of the United States, in violation of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a) (1970), and 32 C.F.R. § 1632.14 (1972).

On appeal, appellant raises two claims of error, each of which was considered and rejected by the district court: (1) that his Selective Service file, which was the basis for the government’s case, was not properly authenticated and therefore was erroneously admitted- in evidence; and (2) that he was denied the required consideration by his local board of an alleged medical defect. For the reasons below, we affirm.

i.

On February 26, 1970, appellant, at the time a college senior with a 2-S (full-time undergraduate college student) draft classification, was given a pre-induction physical examination. Pursuant to that examination, he was recalled for specialty consultations on June 1, 1970, at which time he was seen by a cardiologist and an ophthalmologist. The result of the examination and consultations was that he was found acceptable for induction into the Armed Forces.

During March and April of 1970, appellant had applied for reclassification as a conscientious objector. That claim was denied on August 20, the local board having concluded that he opposed only the war in Southeast Asia. He was reclassified from 2-S to 1-A (available for military service).

Following an unsuccessful appeal of that reclassification, appellant was ordered on December 14 to report for induction on December 28. He complied with that order to the extent of reporting to the Armed Forces Examining and Entrance Station in New York City where he was given another physical examination. He again was found acceptable for induction. When called upon to step forward, however, he refused to submit for induction.

On August 13, 1971, appellant was charged in a one count indictment with refusing to submit for induction. He waived jury trial. The ease was tried before Judge Pollack on May 17 and 18, 1972. The government introduced appellant’s Selective Service file and called a number of witnesses. Appellant did not testify and offered no evidence. On June 9, the court filed a written opinion finding appellant guilty as charged. On August 16, he was sentenced to two years imprisonment, six months to be served in a jail-type institution and the balance suspended. A two year probation term was also imposed to commence upon his release from confinement, during which he is required to secure and hold employment of national importance, to the satisfaction of the Probation Officer. He has been enlarged on bail pending appeal.

Although appellant urged a number of legal grounds in the district court in support of. his motion for acquittal, all of which were carefully considered and rejected by Judge Pollack in his well reasoned opinion, appellant raises on appeal only the two claims of error stated above, to which we now turn.

II.

Appellant’s first contention is that the district court erred in admitting in evidence his Selective Service file on the basis of an authentication by an employee of the New York City, rather than the New York State, Selective Service System.

To prove the essential elements of its case, the government relied largely on appellant’s Selective Service file. To establish the required foundation for the file, the government called Mrs. Kathryn Broadhurst to authenticate it. She had been employed by the New York City Selective Service System for 28 years. Appellant, having registered originally in Peekskill, New York, was a registrant of a local board there which was included in the New York State Selective Service System. The applicable regulation clearly provides that the City system is not a component of the State system, the two being in all respects independent of each other.

Mrs. Broadhurst identified appellant’s registration card and other documents in the file as records which were made, received and kept in the regular course of business of the local board and she testified that it was the regular course of business of the local board to make, receive and keep such records. She admitted, however, that she had no personal knowledge of the documents in the file or of their genuineness; that her knowledge of the contents of the file was based on her examination of the file and her familiarity with Selective Service System practices; and that she had never seen the file prior to the afternoon of May 17, 1972, the date on which she appeared as a witness.

Appellant argues from these facts that his file was never properly authenticated, because Mrs. Broadhurst, the witness presented at the trial as the custodian of the file, was not the proper custodian within the meaning of the law. Under the applicable Selective Service regulation, 32 C.F.R. § 1606.35(a) (1972), “[a]ny officer or employee of the Selective Service System who produces the records of a registrant in court shall be considered the custodian of such records for the purpose of this section.” (emphasis added). This provision broadens the class of persons who may authenticate such records under the federal statute and rules so as to include officers and employees of the Selective Service System other than those with actual permanent custody over, and familiarity with, a registrant’s records. See, e. g., Yates v. United States, 404 F.2d 462, 466-67 (1 Cir. 1968), cert. denied, 395 U.S. 925 (1969).

The question presented here is whether an employee of the Selective Service System other than a person employed by the local board where the registrant’s file was maintained may authenticate that file once it has been removed from a continuous chain of custody within the Selective Service System — here, removed solely for the purpose of placing it in the custody of the Assistant United States Attorney in charge of the criminal case. While the decisions that have dealt with the general problem of authentication of Selective Service records uniformly have adopted a liberal interpretation of Section 1606.35(a), none has faced this precise issue.

In Yates, the defendant originally had registered with a local board in South Carolina. When ordered to report for induction, he requested a transfer of induction to Boston where he then lived. Upon his refusal to submit to induction, he was indicted and tried in Massachusetts. At trial, his Selective Service file, which had been maintained in South Carolina, was offered in evidence by the government through the Deputy Director of Selective Service for Massachusetts, who testified that (1) the file was an official government record; (2) that he was the custodian of the file; and (3) that the material contained therein was made and kept in the ordinary course of Selective Service business. The Court of Appeals, in rejecting the defendant’s contention that the jurisdiction of the witness was limited to Massachusetts whereas the file had been maintained in South Carolina, held, first, that under the regulation (Section 1606.35(a)) the Massachusetts Deputy Director was properly considered the custodian of the file, he being an officer of the Selective Service System; and, second, that his status as custodian was not defeated simply because he had no personal knowledge of the substance of the file: “A custodian of records is not obliged to possess personal knowledge of the content of the file. He need only authenticate its source.” 404 F.2d at 467.

Other eases involving similar facts have reached like results. In United States v. Rogers, 454 F.2d 601 (7 Cir. 1971), for example, the defendant’s file was held properly authenticated by an Air Force Lt. Colonel assigned to the Illinois Selective Service System who had testified only that he had read the file and that it had been kept in the ordinary course of the System’s business. Numerous other cases (including those cited below by Judge Pollack, 346 F. Supp. at 83) have sanctioned authentication by state supervisory personnel who lacked knowledge of the precise record-keeping methods utilized by the registrant’s local board. E. g., United States v. Holmes, 387 F.2d 781, 783-84 (7 Cir. 1967), cert. denied, 391 U.S. 936 (1968); Pardo v. United States, 369 F.2d 922, 925-26 (5 Cir. 1966). Cf. United States v. Ward, 173 F.2d 628 (2 Cir. 1949) (clerk in Office of Selective Service Records).

The rationale of these cases is unmistakable — that the peculiar administrative problems of the Selective Service System justify some relaxation of the strict rules of authentication in order to avoid undue disruption of the System with little or no benefit to the defendant. The wisdom of that policy is well exemplified here where the file gives no hint of unreliability and appellant does not challenge the regularity of anything contained therein. In cases of this sort, therefore, the courts uniformly have sanctioned authentication of a file, as the regulation provides, by “\_a\ny officer or employee of the Selective Service System” (emphasis added) — not limited to those employees assigned either to the particular local board where the registrant’s file is maintained or to the state system with jurisdiction over that local board. We see no justification, under the circumstances of the instant case, for imposing a limitation upon the effect of the regulation which no court, so far as we are aware, has seen fit to impose.

This does not end our inquiry, however, for the chain of custody within the Selective Service System that was present in Yates and other cases was interrupted here for a period of time. While we have not been informed exactly when the file was removed from appellant’s local board, it is clear that the file was delivered to Mrs. Broadhurst on May 17, 1972 by the Assistant United States Attorney in charge of the case.

The theory behind the exception to the hearsay rule for records made in the regular course of business is “to permit the admission of business memoranda which impart a circumstantial guarantee of trustworthiness. The test is one of reliability.” United States v. Hickey, 360 F.2d 127, 143 (7 Cir.), cert. denied, 385 U.S. 928 (1966). See Ross v. American Export Isbrandtsen Lines, Inc., 453 F.2d 1199, 1201 n. 2 (2 Cir. 1972). A critical element of “reliability” is a continuous chain of custody that is not likely to defeat that guarantee of trustworthiness. What must be demonstrated is that “the possibilities of misidentification and adulteration be eliminated, not absolutely, but as a matter of reasonable probability.” Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969). In the final analysis, the determination of whether that reliability exists must be left to the sound discretion of the trial judge. E. g., United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2 Cir. 1943).

Here the district court was satisfied that the file retained that essential trustworthiness the absence of which would defeat its admissibility. On the particular facts of this case, we are unwilling to overturn that determination. In so holding, however, we place special reliance upon two factors: (1) that the only break in the Selective Service System’s continuous chain of custody was when the file was in the possession of the Assistant United States Attorney in charge of the ease — a break which, without more, does not suggest any increased likelihood of unreliability; and (2) that appellant has made no claim that the file as received in evidence contained any irregularities, and our examination of the file discloses none.

In short, while we do not condone the laxity with which the government approached the laying of a proper foundation for the introduction of appellant’s file in evidence, neither the authentication by Mrs. Broadhurst nor the temporary possession of the file by the Assistant United States Attorney created sufficient doubt as to its reliability to render it inadmissible.

We hold that the district court did not err in admitting the file in evidence.

III.

Appellant’s second contention is that his local board violated both the Selective Service regulation and the requirements of due process when it failed to consider in advance of his pre-induction physical examination on February 26, 1970 two medical reports which had been submitted by appellant on February 20 and 26.

On February 20, six days before he was scheduled to report for a pre-induction physical, appellant submitted to his local board a letter from Dr. Philip Knapp, a New York ophthalmologist. The letter states that Dr. Knapp had examined appellant in 1966 and that he had shown an esotropia. A second letter from Dr. Maurice Tannenbaum, submitted by appellant at the Armed Forces Examining and Entrance Station on the date of his physical, stated that he had shown “Alternating Esotropia since birth”. Each of these documents bears a stamp indicating that it was reviewed and considered by the local board on June 1, 1970. Appellant contends that he was entitled to have the letters considered by the local board in advance of his February 26 physical, and that the board’s failure to do so violated both the applicable regulation and due process of law.

Under the Selective Service regulation then in effect, “[w]henever a registrant . claims that he has one or more of the disqualifying physical defects which appear in the list [prescribed by the Surgeon General], the local board shall order him to present himself for interview with the medical advisor.” 32 C.F.R. § 1628.2(b) (1970) (revoked, 35 Fed.Reg. 13719, August 27, 1970). Included in the list in effect at the time appellant’s letters were submitted was the following provision:

“2-12 Eyes. The causes for rejection for appointment, enlistment, and induction are
* * *
h. Ocular mobility and motility
* -X- -X-
(4) Strabismus of 40 prism diopters or more, uncorrectable by lenses to less than 40 diopters.
(5) Strabismus of any degree accompanied by documented diplopia.”
Army Reg. 40-501, f[2-12h(4), (5).

Appellant’s medical letters indicated that he had shown alternating esotropia, a form of strabismus. Nothing in the letters, however, indicated that his condition was of the degree specified in [¶] 2-12h(4), or that his condition was accompanied by diplopia as specified in jf2-12h(5). Since the medical information presented by appellant to the local board did not claim one of the disqualifying physical defects specified in the Surgeon General’s list, the board was not required under Section 1628.-2(b) to refer him for an interview with the medical advisor. Cf. United States ex rel. Signorelli v. Malleck, 314 F.Supp. 153, 155 n. 4 (D.Conn.), aff’d per curiam on opinion below, 428 F.2d 823 (2 Cir. 1969), cert. denied, 397 U.S. 1008 (1970).

By the same token, submission . of the medical letters did not require the local board to reopen appellant’s file immediately upon request. The general rule, as stated in Mulloy v. United States, 398 U.S. 410 (1970), is that “where the registrant has set out new facts that establish a prima facie case for a new classification, a board must reopen to determine whether he is entitled to that classification.” Id. at 415. Nevertheless, “the board need not reopen where the claim is plainly incredible, or where, even if true, it would not warrant reclassification. . . .” Id. at 418 n. 7 (emphasis added). Here the medical evidence did not establish a prima facie case for reclassification. The board was not required to reopen the file. Consideration of the claim was properly left in the first instance to the medical personnel at the examining station.

We affirm the judgment of conviction and we commend Judge Pollack for his characteristically lucid, carefully reasoned opinion.

Affirmed.

      .' The government’s witnesses were Kathryn Broadhurst, a legal assistant for the New York City Selective Service System, who authenticated appellant’s Selective Service file; James A. Vopni, a United States Army Captain, who testified to appellant’s refusal to submit to induction on December 28, 1970; Dr. Jay N. Joy, a member of the United States Naval Reserve Medical Corps, who had examined appellant on December 28, 1970 and found him fit for induction; and Dr. Emanuel Krimsky, an ophthalmologist, who testified as an expert witness with regard to the eye defect claimed by appellant.

      . In addition to the claims pressed here, appellant raised at trial such arguments as the failure of the local board to secure and consider the documentation of the rejection (for physical reasons) of his 1966 application for admission to the United States Military Academy; the illegality of the United States’ participation in the war in Southeast Asia; and the omission of entries in certain boxes on the Medical Examination Report of appellant’s induction physical, purportedly invalidating that examination.

      . 32 C.F.R. § 1604.13 (1972).

      . We note in passing that this entire situation could have been avoided by only slightly greater attention on the part of the government to its case and to the calendar. Trial originally was set for March 21, 1972, but was adjourned at the government’s request. A number of further delays followed. Finally, on May 17, appellant’s counsel informed the court that appellant was en route from his home in upstate New York; and that, if trial could not begin before Judge Pollack either that day or the next, he would request that the case be assigned to another judge. Judge Pollack agreed to begin the trial immediately after the submission to a jury of another ease then before him. Accordingly, the clerk called appellant’s case on May 17 at 6:00 P.M. In the brief period available to it, the government was unable to transport an employee of appellant’s local board to the courthouse. As the headquarters office for the City system was close to the courthouse, the government arranged for an employee of that office to be used for authentication purposes at the trial.
      Particularly in view of appellant’s stated willingness to go to trial on either May 17 or 18, we have no doubt that, even if appellant’s counsel had refused to stipulate that Mrs. Broadhurst could testify as a custodian, the court would have granted a government request to adjourn the trial until the morning of May 18 to permit the attendance of an employee of appellant’s local board. That surely would have been the preferable course.
      In ruling as we do, we nevertheless suggest in the future that the government take all necessary steps to assure that the authenticating witness is able to comply with the spirit, as well as the letter, of the applicable rules of authentication.

      . The government records counterpart of the Federal Business Records Act, 28 U.S.C. § 1733(a) (1970), provides that books or records of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence of which the same were made.
      Fed.R.Civ.P. 44(c) provides that such an official record may be evidenced by an official publication or by a copy attested by the officer having legal custody of the record or by his deputy.
      Fed.R.Crim.P. 27 makes applicable to criminal cases the civil action provisions referred to above.

      . Moreover, a lengthy line of cases has established the admissibility of Selective Service files authenticated by a clerk of a registrant’s local board, who, while having personal knowledge of the methods used, was not the maker of the records and lacked knowledge of the substantive accuracy of the contents. E. g., Nelloms v. United States, 399 F.2d 295, 296 (5 Cir. 1968), cert. denied, 393 U.S. 1071 (1969) ; Fults v. United States, 395 F.2d 852, 854 (10 Cir. 1968) ; Doty v. United States, 218 F.2d 93, 96 (8 Cir. 1955) ; United States v. Borisuk, 206 F.2d 338, 340 (3 Cir. 1953). Cf. United States v. Rucker, 435 F.2d 950, 951 (8 Cir. 1971) ; United States v. Daniels, 429 F.2d 1273, 1274 (6 Cir. 1970) (both involving authentication by executive secretary for several local boards).

      . In Yates, the file was mailed from the South Carolina board to the Massachusetts board. In the intra-jurisdiction cases, the typical procedure is for the file to be delivered by the local board to the authenticating official who maintains possession until trial. , See, e. g., Pardo v. United States, supra, 369 F.2d at 926 n. 6.

      . This letter, dated February 19, 1970, reads as follows:
      “TO WHOM IT MAY CONCERN: Gregory C. Lavin asked that I send a report of his eye findings of January 14, 1966 to you.
      The visual acuity in each eye is 20/20 for distance and near without correction and the near point of accommodation is thirteen centimeters in each eye. He shows an esotropia of 25 for distance and 30 for near with a double hypertropia. He has some peripheral fusion and gross steropsis on the Synoptophor. lie had normal retinal correspondence on the above instrument and with the the [sic] after-image test.
      Sincerely yours,
      /s/ Philip Knapp
      Philip Knapp, M.D.”

      . This letter, dated February 24, 1970, was from Dr. Maurice Tannenbaum of Peek-skill, New York. The report contained therein was said to have been “[c]opied from the records of S. Karash M.D. [deceased] .” The report reads: “Alternating Esotropia since birth. Last vision Nov. 1964 20/20 OD, 20/20 OS. No fusion present.”

      . Appellant also argues that the two medical letters were not considered by the board at its meeting on August 20, 1970 when it rejected his conscientious objector application and reclassified him from 2-S to 1-A. No evidence was offered in support of this claim. As the district court correctly held, it therefore was entitled “to presume that the board acted in compliance with the regulations and considered all the material in the file including all of defendant’s medical papers. . . .” 346 F.Supp. at 80. See also Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 241 (1968) (Harlan, J., concurring) ; United States v. Harris, 436 F.2d 775, 777 (9 Cir. 1970), cert, denied, 402 U.S. 981 (1971).

      . The eases urged by appellant to the contrary involved new information presented in settings of far greater immediacy than that present here — e. g., subsequent to a 1-A classification and the passing of a preinduction physical, United States v. King, 455 F.2d 345 (1 Cir. 1972) ; United States v. Moyer, 307 F.Supp. 613 (S.D.N.Y.1969), or subsequent to a notice to report for induction, United States v. Jackson, 454 F.2d 821 (5 Cir. 1972) ; United States v. Ford, 431 F.2d 1310 (1 Cir. 1970) ; Helden v. Laird, 306 F.Supp. 1351 (S.D.N.Y.1969).


author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dennis E. SMITH, Defendant-Appellant (two cases).
    Nos. 72-3217, 72-3218.
    United States Court of Appeals, Fifth Circuit.
    June 26, 1973.

      William A. Meadows, Jr., Eugene C. Heiman, Charles L. Neustein, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., George A. Kokus, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

After a jury trial, Dennis Smith was convicted of conspiring to travel in interstate commerce to carry on an unlawful activity, and the completed substantive act of the unlawful traveling, in violation of 18 U.S.C. §§ 371, 1951 and 1952. He was sentenced to imprisonment for concurrent terms of one year. Upon due consideration, we remand for a new trial.

Issues

The only issue now considered is the possible misrepresentation of the government to the court and to the jury concerning the result of plea bargaining with a co-conspirator who testified as a witness for the prosecution. Other errors raised on appeal, if meritorious, are cured by the remand for a new trial and, therefore, are not considered here.

A key witness for the prosecution in the trial of Dennis E. Smith was Kenneth Wayne Smiddy, an alleged co-conspirator with Smith. A brief history of the interaction between Smiddy and the prosecution is essential for a full understanding of the facts with which this court is faced.

Smiddy, the alleged co-conspirator, was arraigned May 8, 1972, and counsel present were George A. Kokus for the government, and Daniel J. Tribell for Kenneth Wayne Smiddy. Neither the defendant Dennis E. Smith nor his counsel was present. Smiddy entered a plea of guilty after the district judge had ascertained that Smiddy had a full understanding of the proceedings and it was by his own will that he so pleaded.

During that arraignment the court stated that as a result of plea bargaining the government was recommending a sentence of not more than two years. Smiddy’s attorney then informed the court that the United States Attorney had agreed that if Smiddy were cooperative in all respects regarding the government’s upcoming case against Dennis E. Smith, the government would have no objection to probation.

Smiddy’s arraignment transcript was not filed until November 14, 1972. Dennis E. Smith’s trial was the previous June. The attorney for Dennis E. Smith was not aware that any deal had been made between the government and Smiddy until the government mentioned it four days prior to the trial of Smith. Even then neither Smith’s attorney nor the trial court was aware of all that was involved in that deal. Neither knew of the government’s promise not to object to probation and they were never informed of this fact by the government prosecutor who did know.

The trial of Dennis E. Smith began in June of 1972, and Kenneth Wayne Smiddy was called as a witness for the government on June 21st. During direct examination of Kenneth Wayne Smiddy by the government prosecutor, Smiddy stated that the only deal he had with the government was that in return for a guilty plea he would only get two years in prison. On direct examination then it was never mentioned that the government had promised not to oppose probation if Smiddy willingly cooperated and testified at Dennis Smith’s trial.

On cross-examination of Smiddy by the defendant’s counsel, Smiddy stated that he would have testified with or without the deal. The defense asked no other questions of Smiddy and never learned all that was involved in this plea bargain.

During final argument to the jury at the trial below the attorney for the defendant, in referring to the credibility of the witness Smiddy, pointed to the government’s bargain with Smiddy involving only two years in prison. It should be remembered that neither the defendant’s counsel nor the district judge had any knowledge of the government’s promise not to oppose probation. The prosecution, on rebuttal, attempted to re-establish the credibility of his witness, Smiddy, by stating:

Wayne Smiddy and Troy Kivett made a deal with the Government. It was for two years in a federal penitentiary. That is a fantastic deal, ladies and gentlemen. Troy Kivett pleaded guilty to one count which he can serve up to five years in a federal penitentiary. Is that a great deal? (Emphasis added).

This statement, although partially true, was not the whole truth and, in fact, the sentence “It was for two years in a federal penitentiary” was such an affirmative misrepresentation as to make it, as used, absolutely false. The prosecutor who made this statement was the only party at the trial who had knowledge of the entire bargain.

The proof of the pudding is, however, in the eating. On August 16, 1972, Smiddy was given a sentencing hearing before the district judge who originally arraigned him. He was sentenced to two years; however, that sentence was deferred and he was placed on probation. During that hearing, the court stated to Smiddy:

I am giving you a break now. I am inclined to send you to the penitentiary, but in view of the fact that you did testify for the Government and cooperated and all that sort of thing I am giving you a break.....

It should be noted that the government attorney present was quick to point out to the court Smiddy’s aid in convicting Dennis E. Smith, stating;

. Mr. Smiddy testified in behalf of the Government and the defendants in the other case were convicted. During the trial in front of Judge Choate his cooperation was extensive and his testimony was very valuable.

The government then was performing its part of the bargain with Smiddy by doing all it could to ensure he received probation and not two years in prison.

The fact that this was an important part of the agreement between Smiddy and the government was never made known at the trial of Dennis E. Smith.

The government might contend it made somewhat of an attempt to apprise the court and defense counsel of what had transpired at Smiddy’s arraignment hearing. An examination of the trial transcript shows, however, that any disclosure made was not a full disclosure, and, therefore, falls short of the duty of the prosecutor to comply with the “rudimentary demands of justice”. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The facts of this case then demand that Dennis E. Smith receive a new trial.

I.

In order to overturn a conviction on suppression-of-evidence grounds, the evidence suppressed must have been material or probative. Giglio v. United States, 405 U.S. 150, 92 S.Gt. 763, 31 L.Ed.2d 104 (1972). In Giglio the petitioner filed a motion for a new tral on the basis of newly discovered evidence, contending that the government failed to disclose an alleged promise of leniency made to the key witness in return for his testimony. At the hearing on this motion, the Assistant United States Attorney who presented the case to the grand jury admitted that he promised the witness that he would not be prosecuted if he testified to the grand jury and at trial. The assistant who tried the case was unaware of the promise. The Supreme Court held that neither the assistant’s lack of authority nor his failure to inform his superiors and associates is controlling, and the prosecution’s duty to present all material evidence to the jury was not fulfilled and constitutes a violation of due process, thus, requiring a new trial.

The Supreme Court has recognized that the suppressed evidence’s materiality requirement may be satisfied even though such evidence would do no more than affect the credibility of a witness whose testimony prejudiced the defendant’s ease. Giglio v. United States, supra. It should be noted, however, that evidence, to be sufficiently material, must be useful as to discredit a key witness to the point of probably or possibly affecting the result of the trial. Link v. United States, 8 Cir. 1965, 352 F.2d 207, cert. den. 383 U.S. 915, 86 S. Ct. 906, 15 L.Ed.2d 669 (1966).

II.

The recent Fifth Circuit case of United States v. Tashman, 478 F.2d 129, 1973, 72-2273 clearly delineates the burden of responsibility carried by the government in a case such as the one before this court. Appellant contended in Tashman that prior to trial defense counsel was not informed that an agreement had been reached between the government and one of the co-conspirators on trial. Consummation of the government’s part of the agreement was contingent upon the value of the co-conspirator’s testimony against the other defendants. This circuit found that the defense had no way of combating the testimony of the government’s witness, being unaware of what had occurred. United States v. Tashman, supra, at 131.

The facts before this court then plainly show the defense had no way of knowing all that was involved in the government’s deal with Smiddy. Therefore, the government’s less-than-full disclosure certainly can be seen to have the same effect here as lack of disclosure did in Tashman. The government failed to disclose information which had a direct hearing on the credibility of the witness. Furthermore, as was stated by this circuit in Tashman:

The Supreme Court has made it clear that the failure of the Government to disclose to a jury plea bargaining negotiations with a key witness deprives a defendant of constitutional due process. Tashman, supra, at 131.

The facts before this court present not merely a failure to disclose but also a completely untrue statement made by the government to the court and jury during the course of the trial. This type of affirmative misrepresentation by an officer of the court cannot be permitted. The facts misrepresented were obviously germane to the defense counsel’s impeachment argument. Two years in a federal prison seem far different from two years of freedom only on probation. This difference might easily have had an effect on how cooperative a person might be in his testimony on behalf of the government, and the jury has the right to know all facts relating to a key witness’ testimony so as to be better able to judge his truthfulness.

For the reasons set out above, this case is reversed and remanded for a new trial.

      . The pertinent part of Smiddy’s arraignment is set out below:
      Q (By the court) Do you understand that if you should plead guilty, then it will be my duty to adjudge you guilty and the maximum sentence which the Court might impose under Count I would be imprisonment up to five years and a fine of $10,000.00 or both; and that the maximum sentence which the Court might impose in Count III would be imprisonment up to five years and a fine of $10,000.00 or both; and that the said sentences could run consecutively, but I have been advised, however, that as a result of the plea negotiations and bargaining the Government has agreed that they ivoiild recommend to the Court that upon being adjudged guilty of these two counts the Court would not impose a sentence exceeding two years; is that correct, sir? (Emphasis added).
      A (By Mr. Kokus) That’s correct, Tour Honor.
      * * * *!■ *
      A (By Mr. Tribell) That is correct, Tour Honor. And the United States Attorney has confirmed that if my client is cooperative in all respects in this case the Government ivould have no objection to probation. (Emphasis added).

      . It should be noted that the district judge who arraigned Smiddy and later sentenced him was not the same district judge who tried this case of Dennis E. Smith. If the same district judge had presided over all these proceedings, possibly this error would have been corrected as to misrepresentation concerning the deal made with Smiddy by the government.

      . The pertinent questions the government prosecutor, Mr. Kokus, asked Smiddy, and his answers, are set out here:
      Q (By Mr. Kokus) Sir, were any promises made by the Government concerning the charges which are against you for this crime?
      A (By Mr. Smiddy) Yes, sir.
      Q (By Mr. Kokus) What was the promise the Government made?
      A (By Mr. Smiddy) If I turned state’s evidence he would break one of the charges down.
      Q (By Mr. Kokus) Was there any agreement as to maximum penalty?
      A (By Mr. Smiddy) Yes, sir.
      Q (By Mr. Kokus) What was that agreement?
      A (By Mr. Smiddy) Two years.

      . The defense attorney’s remarks showing lack of further knowledge were:
      . . . The Government has made a deal with one of them that he will not get more than a two-year sentence. That is Wayne Smiddy. It was subsequent to that, and this is in the evidence, subsequent to the entry of that plea and the deal with him for a two-year sentence that he went to the F.B.I. and made that statement which he has testified to here today . . .

      . The portion that the government might rely on as proof of its attempt to disclose the deal to the court can be seen to be in no way convincing in light of the lack of full disclosure. At the beginning of the trial the following discussion occurred :
      (The government prosecutor) Brady versus Maryland has a new ruling on that; that if any pre-negotiations were entered with the co-defendant, it should be known to the court and to the defense attorney and in this case Mr. Meadows. In the case of Wayne Smiddy a plea was accepted before Judge Mehrtens of not more than two years imprisonment. It was negotiated in plea in which Judge Mehrtens concurred, and this is probably shown in the record or the court’s file. (The Court) Call my attention to that. (Government) I am saying it for the benefit of Mr. Meadows.
      (Defense) Judge, I do not know whether that is in the court file or not. I would like to see it if it is. It was not entered two weeks ago. I do not know when this plea was entered. I was not advised of this.
      (Government) Last Thursday I did. (Defense) Your Honor, there is nothing in the court file, but I would request permission somewhere along the line that I be furnished with it so I may see it, what actually happened.
      (Government) If there is anything in the roeord, the court reporter took it down. (Defense) I do not see why I should liave to order it.
      (Government) I told him what the promise was that was made by the Government in the case; not more than two years imprisonment and that was accepted by the court in this particular case.
      (Defense) This of course, happened two or three weeks ago, Your Honor, I was not advised of it until Thursday.

      . The evidence here being the information of the plea bargaining which was not made available to the defense or the court and, therefore, deprived the defense of use of this information in an attempt to discredit a key government witness.

      . “As the Supreme Court said in Napue v. People of the State of Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), ‘The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness’ testimony in testifying falsely that a defendant’s life or liberty may depend.’ ” United States v. Tashman, 478 F.2d 129, 1973, No. 72-2273.

      . The government prosecutor’s statement (luring his final argument to the jury positively stated when speaking of the bargain with Smiddy:
      it was for two years in a federal penitentiary .
      This court finds his statement to be completely untrue, especially when considered in the context in which it was made.

      . The guarantee of due process of law is one of the most important to be found in the Federal Constitution or any of the amendments; it has been described as the very essence of a scheme of ordered justice. Brock v. North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1953) ; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), ovrld. on other grounds, Brock v. North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1953) ; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), ovrld. on other grounds, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The fundamental guarantee of due process is absolute and not merely relative. Hammond Packing Company v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909).


text:
    ASBESTOS CORP. LTD. et al., Plaintiffs-Appellees, v. COMPAGNIE DE NAVIGATION FRAIS-SINET ET CYPRIEN FABRE et al., Defendants-Appellants.
    No. 679, Docket 72-2178.
    United States Court of Appeals, Second Circuit.
    Argued April 9, 1973.
    Decided June 5, 1973.

      James H. Simonson, New York City (John T. Kochendorfer, and Bigham Englar Jones & Houston, New York City, on the brief), for plaintiffs-appellees.
    Edward L. Smith, New York City (Walter P. Hickey, Kevin D. Slakas, and Kirlin, Campbell & Keating, New York City, on the brief), for defendants-appellants.
    Before SMITH, HAYS and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Appellants, owners of the French vessel M. V. Marquette, appeal from an interlocutory judgment entered in the Southern District of New York, Richard H. Levet, District Judge, 345 F.Supp. 814 (S.D.N.Y.1972), holding them liable for damage to cargo for which the appellee shippers held bills of lading. The damage was caused by a fire that broke out aboard the vessel on July 21, 1964 while she was crossing the North Atlantic en route from United States and Canadian ports on the Great Lakes to European ports. The essential issues, which Judge Levet decided adversely to appellants, are whether the vessel was unseaworthy because of the absence of fire fighting equipment adequate to fight an engine room fire, and whether appellants are entitled to claim certain statutory exemptions from liability. We affirm the judgment of the district court.

Judge Levet’s opinion of June 15, 1972 sets forth a clear, comprehensive and detailed statement of both the facts and the controlling law. We agree with his application of the law to the facts. It is sufficient for our purpose therefore merely to state the essential claims of fact and law, and the district court’s rulings thereon.

I.

The first issue is whether the Marquette was unseaworthy because she failed to maintain fire fighting equipment adequate to fight an engine room fire.

The facts are not in dispute. A fire broke out in the vessel’s engine room when a defective screw fell from an oil pump. This caused oil to spray out and to become ignited by the manifold of an adjacent propulsion engine. It is not claimed that this ignition of the fire was caused by any negligence on the part of appellants. The fire spread slowly from the engine room and reached the cargo hold several hours later. It could not be extinguished because all the fire fighting equipment was either located in or controlled from the engine room.

Upon these facts and others set forth in his opinion, Judge Levet held that the Marquette was unseaworthy because appellants had failed to exercise due diligence in equipping the vessel adequately to fight an engine room fire. He properly looked to all the circumstances to determine whether the vessel was seaworthy. See, e. g., Edmond Weil, Inc. v. American West African Line, Inc., 147 F.2d 363 (2 Cir. 1945). He found that an engine room is the compartment of a ship most prone to fire because of the presence of large quantities of hot oil and numerous surfaces sufficiently hot to ignite the oil. A shipowner therefore may reasonably be expected to anticipate that a fire may break out in the engine room, thus disabling all fire fighting equipment located in or controlled from that room. Consequently, it is negligence to fail to provide an emergency pump or fire extinguisher system located or controlled from outside the engine room. Christopher v. Grueby, 40 F.2d 8, 11-12 (1 Cir.), cert. denied, 282 U.S. 876 (1930). Appellants failed to maintain equipment which could be utilized in the event of a fire in the engine room notwithstanding that adequate equipment could have been provided with little effort and expense.

Appellants contend that the vessel’s fire fighting system was presumptively adequate because she had been issued a safety certificate pursuant to the Safety of Life at Sea Convention (SO-LAS). Such certificates are issued if a vessel meets certain safety standards prescribed by SOLAS, including fire equipment standards. SOLAS, Ch. I, Reg. 11(1948). Although the Marquette had been issued such a certificate prior to the fire here involved, we agree with Judge Levet that compliance with SO-LAS did not establish the vessel’s seaworthiness under COGSA. Since appellants expressly agreed in the bills of lading to be bound by COGSA, the standard of seaworthiness prescribed in that Act is controlling. The COGSA standard requires the court to make an independent determination, based among other things upon expert testimony and accepted safety practices, as to whether the vessel had adequate equipment. See, e. g., Edmond Weil, Inc. v. American West African Line, Inc., supra. We are satisfied that Judge Levet gave appropriate weight to the SOLAS certificate and other evidence relating to the fitness of the Marquette’s fire fighting equipment.

Appellants further contend that the standard for seaworthiness should be conformity with the practice generally existing in the trade. They argue that the Marquette met that standard. While proof of trade practice is not necessarily proof of what constitutes seaworthiness under the circumstances, see, e. g., Petition of Skibs A/S Jolund, 250 F.2d 777, 786 (2 Cir. 1957), cert. denied, 356 U.S. 933 (1958), Judge Levet found that “[t]he use of emergency fire pumps or CO2 or foam systems with controls loeated outside the engine room is a practice which is not uncommon in the maritime industry.” 345 F.Supp. at 822.

We agree with Judge Levet’s conclusion that the Marquette was unseaworthy because of her owners’ failure to exercise due diligence.

II.

The next issue arises from appellants’ claim that they are exempt from liability under the Fire Statute and COGSA.

Pursuant to these statutory provisions, shipowners are exempt from liability for cargo damage caused by shipboard fire except when the fire is “caused by the design or neglect of such owner” (Fire Statute) or unless the fire is “caused by the actual fault or privity of the carrier” (COGSA). These two phrases have essentially the same meaning.

Appellants urge as to each a narrow reading of the exception to the exemption. Under their construction, a fire ignited because of lack of due diligence by the shipowner would result in liability, but failure to maintain equipment adequate to extinguish a nonnegligently ignited fire before it causes the damage would not. Judge Levet rejected this construction. He held that an inexcusable condition of unseaworthiness of a vessel, which in fact causes the damage — either by starting a fire or by preventing its extinguishment — will exclude the shipowners from the exemption of the Fire Statute and COGSA. We agree.

Several courts have indicated that the exception to the general statutory exemptions applies where the shipowner’s negligence did not cause ignition of the fire but where damage to the cargo could have been prevented despite the ignition of the fire had it not been for the negligence of the shipowner. American Mail Line, Ltd. v. Tokyo Marine and Fire Ins. Co., Ltd., 270 F.2d 499, 501 (9 Cir. 1959); Rio Gualeguary, 205 F.2d 886, 889 (5 Cir.) (dictum), cert, denied sub nom. Fidelity-Phenix Fire Ins. Co. v. Flota Mercante Del Estado, 346 U.S. 915 (1953); Globe & Rutgers Co. v. United States, 105 F.2d 160, 165-66 (2 Cir.) (dictum), cert. denied, 308 U.S. 611 (1939); The Virginia, 264 F. 986, 996 (D.Md.1920), aff’d sub nom. Hines v. Butler, 278 F. 877 (4 Cir. 1921), cert, denied, 257 U.S. 659 (1922). Such interpretation of the exception to the fire exemption statutory provisions is consistent with the wise observation that “the warranty of seaworthiness is a favorite of the admiralty and exceptions to it or limitations upon it, are narrowly scrutinized.” Metropolitan Coal Co. v. Howard, 155 F.2d 780, 783-84 (2 Cir. 1946) (L. Hand, J.).

Generally a shipper can recover against the carrier for damage to his goods merely by showing that the carrier received the goods in sound condition and delivered them damaged. See, e. g., American Tobacco Co. v. The Katingo Hadjipatera, 81 F.Supp. 438, 445 (S.D.N.Y.1948), aff’d, 194 F.2d 449 (2 Cir. 1951), cert. denied, 343 U.S. 978 (1952). The burden of proof is on the carrier to show that he exercised due diligence. The fire exemption provisions merely shift this burden of proof to the shipper. If the carrier shows that the damage was caused by fire, the shipper must prove that the carrier’s negligence caused the damage. To interpret these provisions, as appellants invite us to do here, so that the shipper cannot recover against the carrier even though he shows that the damage would not have occurred but for a condition of unseaworthiness caused by the carrier’s negligence — because the condition pertained to control of the fire rather than its ignition — would run counter to the principle announced in Metropolitan Coal. We decline the invitation.

We hold, as the district court did, that appellants are not exempt from liability under the Fire Statute or COG-SA.

In short, we affirm on the well reasoned opinion of Judge Levet below. 345 F.Supp. 814 (S.D.N.Y.1972).

Affirmed.

      . The interlocutory judgment provides for determination of damages by a special master.

      . Under the terms of the bills of lading here involved, the rights of the parties are governed by the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300-1315 (1970), and the Fire Statute, 46 U.S.C. § 182 (1970).
      Under Section 3(1) of COGSA, 46 U.S.C. § 1303(1), it is the duty of the carrier “to exercise due diligence to make the ship seaworthy. ...” Section 4(1), 46 U.S.C. § 1304 (1), provides that “[w]henever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier.

      . The Marquette was equipped with three pumps that could be used to fight fires.
      All were located in the engine room, were controlled from that room, and to operate them it was necessary to enter that room. The vessel also had three foam extinguishers, three CO2 extinguishers, and two boxes of sand for fire fighting purposes. All this equipment was located in the engine room.
      The vessel also maintained a steam smothering system for fighting fires. This system had outlets in the engine room and in the cargo holds. To operate the system, however, it was necessary to be in the engine room to light the auxiliary steam boiler and to open the values.

      . Actually it appears that the Marquette did not have to meet any requirements as to fire fighting equipment in order to be certified under SOLAS. The vessel was constructed when SOLAS (1929 Convention) did not have any such standards applicable to a vessel such as the Marquette. The standards adopted in 1948 do not apply to vessels “existing” before the Convention became effective. The certificate here relied upon appears to be totally lacking in probative value.

      . The Fire Statute, 46 U.S.C. § 182, provides :
      “Loss by Fire
      No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.”

      . Section 4(2) (b) of COGSA, 46 U.S.C.
      § 1304(2) (b), provides:
      “Rights and Immunities oe Carrier and Ship — Unseaworthiness
      H *1* *H
      Uncontrollable causes of loss
      (2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
      * $ *
      (b) Fire, unless caused by the actual fault or privity of the carrier;

      . The only other effect of these provisions is that the “design or neglect” through which the owner loses the exemption must be personal to him. Walker v. The Western Transp. Co., 70 U.S. (3 Wall.) 150 (1866). Negligence on the part of the master, mariners, or other agents is not attributable to the owner under principles of respondeat superior. Appellants assert no claim here of freedom from liability on that basis.


author: LUMBARD, Circuit Judge:

text:
    In the Matter of the Petition for Naturalization of YAO QUINN LEE. YAO QUINN LEE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 654, Docket 72-2351.
    United States Court of Appeals, Second Circuit.
    Argued March 29, 1973.
    Decided June 15, 1973.
    Sanford Jay Rosen, American Civil Liberties Union Foundation, New York City (Melvin L. Wulf and Joel M. Gora, New York City, on the brief), for petitioner-appellant.
    Stanley H. Wallenstein, Sp. Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and Joseph P. Marro, Sp. Asst. U. S. Atty., on the brief), for respondent-appellee.
    Before LUMBARD and FRIENDLY, Circuit Judges, and THOMSEN, District Judge.

       Senior District Judge of the District of Maryland, sitting by designation.

   LUMBARD, Circuit Judge:

Yao Quinn Lee appeals from an order of the Southern District, entered on October 4, 1972, denying his petition for naturalization. We vacate the judgment below and remand to the district court with a direction to dismiss.

Petitioner was born in Hong Kong in 1942, and has resided in the United States continuously since 1949. He was lawfully admitted for permanent residence on May 8, 1967. On April 6, 1971, he filed a petition for naturalization under section 319(a) of the Immigration and Nationality Act (the “Act”), 8 U.S. C. § 1430(a). This section provides for naturalization after three years of permanent residence, instead of the five year requirement of section 316(a)(1), 8 U.S.C. § 1427(a)(1), for any applicant whose spouse is a United States citizen.

At the final hearing on October 4, 1972, the Immigration and Naturalization Service (the “Service”), recommended that Lee’s petition be denied because (1) he had given false testimony, (2) he had committed adultery, and (3) he was unwilling to take the full oath of allegiance to the United States without qualification or mental reservation. Judge Pollack did not find it necessary to pass on the Service’s third contention because he found that Lee had given false testimony in support of his petition and that he had committed adultery during the period in which his petition was pending. Judge Pollack therefore denied the petition, finding that Lee was not “a person of good moral character” as required by section 316(a)(3) of the Act, 8 U.S.C. § 1427(a)(3).

On this appeal petitioner alleges several errors in the proceedings below and asserts that he was fully qualified for citizenship at the final hearing and that his petition should have been granted. However, petitioner has informed us, and the Service does not dispute the fact, that on January 15, 1973, several months after entry of the judgment below, petitioner’s wife secured a final decree of divorce. Section 319(a) of the Act states that “[a]ny person whose spouse is a citizen of the United States may be naturalized . . . ” under the special three year residency provisions. Because petitioner is not currently married to an American citizen, he no longer falls within the literal purview of section 319(a) and he is ineligible for naturalization under that section. Petitioner’s appeal has therefore become moot, and, in the absence of any “case or controversy,” this Court is without jurisdiction over the subject matter. Kerrigan v. Boucher, 450 F.2d 487 (2 Cir. 1971).

To avoid this result, petitioner contends that the only requirement of marriage to a United States citizen contained in section 319(a) is the statement that an applicant must “during the three years immediately preceding the date of filing his petition [have] been living in marital union with the citizen spouse.” According to petitioner, the purpose of section 319(a) was to make naturalization available after a shorter period of time to those applicants who, because they had lived in close association with a citizen spouse for three years, had been able to absorb the basic concepts of citizenship more quickly than those not similarly situated. See Petition for Naturalization of Kostas, 169 F.Supp. 77, 78 (D.Del.1958); Letter from Hon. Ramsey Clark to Hon. Emanuel Celler dated July 11, 1967, appended to S.Rep. No. 1303, 90th Cong., 2nd Sess. (1968). Petitioner argues that it would be contrary to the spirit and intention of section 319(a) to deny citizenship to an applicant who has met the three year marriage requirement at the time of filing his petition simply because he was no longer married to his citizen spouse at the time of naturalization.

The difficulty with this approach is two-fold. First, the legislative history of Section 319(a) provides absolutely no support to petitioner’s view, since it is entirely devoid of any reference to the intention of Congress in enacting this section. See 1952 U.S.Code Cong. & Ad.News, p. 1737; In re Petition of Zimmerman, 52 Misc.2d 502, 276 N.Y.S. 2d 46 (Sup.Ct. 1966). Second, the statutory language itself, contrary to petitioner’s contention, quite plainly requires marriage to a citizen spouse not only for three years prior to filing the petition, but also at the time of naturalization. See In re Naturalization of No-land, 185 F.Supp. 948 (D.Neb.1960); In re Petition of Zimmerman, supra. In effect, what petitioner is asking us to do is to read out of the statute the first clause of section 319(a), and this we decline to do. “[S]ection [319(a)] manifestly contemplates a situation in which, from the filing of the petition for citizenship (as well as during at least three years theretofore) until final decree, the petitioner shall be the spouse of the same citizen husband of wife.” In re Naturalization of Noland, supra, 185 F. Supp. at 952-953.

Alternatively, petitioner contends that section 319(a) only requires marriage to a citizen spouse up to the time of the final hearing. The statute states that “any person whose spouse is a citizen of the United States may be naturalized . ” in three years upon compliance with the requirements of section 319(a). Noting that naturalization normally occurs at the final hearing, petitioner argues that what the statute actually contemplates is marriage to a citizen spouse at the final hearing rather than at the date of naturalization. Since petitioner met this requirement, he claims that he remains eligible for citizenship under section 319(a) despite his subsequent divorce. Petitioner also argues that it would be unfair to read the statute to require marriage to a citizen spouse at the date of naturalization because an applicant who was erroneously denied citizenship at the final hearing, as petitioner claims that he was, but was divorced before his denial could be reversed at the appellate level would no longer be able to qualify for citizenship.

Assuming for the moment that petitioner’s initial premise that he was erroneously denied citizenship at the final hearing is correct, which we do not believe to be the case, the short answer to his contention is again that it is completely contrary to the clear language of the statute. The final hearing and the act of naturalization are two distinct events, though they often occur in close proximity. In enacting section 319(a) Congress was free to choose either one as the point up to which an applicant would be required to be married to his citizen spouse. Congress chose the date of naturalization and we are bound by that choice. As to possible unfairness, it must be remembered that even though petitioner no longer qualifies for citizenship under section 319(a), he is still free to reapply for citizenship under the normal five year provision of section 316(a), 8 U.S.C. § 1427(a). Since we vacate the judgment below and remand to the district court with a direction to dismiss in accordance with United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), in any subsequent judicial proceedings under section 316(a) the findings of the district court in this case will have no collateral estoppel effect.

Moreover, if we were to rule on the merits of petitioner’s case, we would affirm the denial of the petition on the basis of the district court’s finding that petitioner gave false testimony to facilitate his naturalization. 8 U.S.C. § 1101(f)(6). In August, 1971, petitioner’s wife moved out of their apartment because she and petitioner were not “getting along.” Although she may have returned on various occasions to pick up her mail and clothes, she never again resumed living with petitioner, and sometime during the summer of 1972 she instituted divorce proceedings. At the preliminary examination held on January 5, 1972, some five months after petitioner’s wife had left him, petitioner was asked, “After the date you filed your Petition for Naturalization, have you married, been widowed, separated or divorced?” He responded “No ma’am.” He was then asked “are you still living with your wife?” to which he answered “Yes, ma’am.”

In view of the fact that petitioner’s wife had left him five months before, the district court was fully warranted in finding that petitioner’s affirmative answer to the question whether he was still living with his wife was knowingly false. It is well settled that in a naturalization proceeding the petitioner has the burden of proving his good moral character, Berenyi v. District Director, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967); Tieri v. Immigration & Naturalization Service, 457 F.2d 391, 393 (2d Cir. 1972), and any doubts are to be resolved against him, United States v. Manzi, 276 U.S. 463, 467, 48 S.Ct. 328, 72 L.Ed. 654 (1928); United States v. Macintosh, 283 U.S. 605, 626, 51 S.Ct. 570, 75 L.Ed. 1302 (1931), overruled in other respects, Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). Here the evidence of falsehood was clear and it provided a substantial basis for the finding of the district court that petitioner failed to sustain his burden of proof.

Petitioner suggests, however, that his falsehood, if any, was not material to the approval of his petition and therefore that it did not violate the statute. It is true, as petitioner suggests, that if he had admitted at the proper time that he was no longer living with his wife, he could not have been denied naturalization on that basis alone. However, whether the specific information withheld would have resulted in automatic denial of the petition is not the only factor bearing on materiality. See In re Petition of Kovacs, 2 Cir., 476 F.2d 843 (April 25, 1973). By giving false testimony during the preliminary examination petitioner may have completely closed off legitimate avenues of questioning and investigation which might have led to discovery of information concerning other aspects of petitioner's character which were pertinent to petitioner’s eligibility for citizenship. Berenyi v. District Director, supra, 385 U. S., at 638, 87 S.Ct. 666; In re Petition of Haniatakis, 376 F.2d 728, 730 (3d Cir. 1967). In foreclosing such inquiry petitioner’s false testimony was certainly material. As the Third Circuit has said, “[h]aving asked a question which it deems significant to determine the qualifications of one seeking citizenship, the government is entitled to full disclosure.” In re Petition of Haniatakis, supra, at 730. See In re Petition of Kovacs, supra.

The remaining question is whether petitioner’s false response was given “for the purpose of obtaining any benefits under [the Act].” 8 U.S.C. § 1101(f)(6). In light of the fact that petitioner was seeking the privilege of citizenship and in doing so knowingly provided the Service with material misinformation, the district court could properly conclude, despite petitioner’s testimony to the contrary, that petitioner had the necessary intent. This is especially so since the question eliciting the false response dealt with petitioner’s marital status. An applicant unfamiliar with the statute might well be unwilling to reveal the break-up of his marriage under the mistaken view that because marriage to a citizen spouse is a prerequisite to filing under section 319(a), the continued success of the marriage would also be important to the ultimate success of the petition for naturalization.

Vacated and remanded with a direction to dismiss.

      . § 1430. Married persons and employees of certain nonprofit organizations.
      (a) Any person whose spouse is a citizen of the United States may be naturalized upon compliance with all the requirements of this subchapter except the provisions of paragraph (1) of section 1427(a) of this title if such person immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his petition has been living in marital union with the citizen spouse, who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State in which he filed his petition for at least six months.

      . An applicant for naturalization is required by section 337(a) of the Act, 8 U.S.C. § 1448(a), to take an oath of renunciation and allegiance to the United States before being admitted to citizenship.

      . Except for the special residency requirements of section 319(a), an applicant for naturalization under this section still has to satisfy the other requirements of the Act. See 8 U.S.C. § 1430 (a). Section 316(a)(3) states that an applicant must be “a person of good moral character.” 8 U.S.C. § 1427 (a) (3). Section 1101(f) further defines the term “good moral character” in the following way:
      “For the purposes of this chapter— No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was—
      (2) one who during such period has committed adultery;
      (6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;
      8 U.S.C. § 1101(f).

      . A copy of the final decree of divorce was filed with the Clerk of the Court of Appeals for the Second Circuit.

      . We cannot agree with petitioner’s argument that this court should treat his petition as if it had been filed pursuant to section 316(a). While it appears that petitioner may now have resided as a permanent resident alien for over 5 years, he had not, as is required by section 316(a), resided as a permanent resident alien for 5 years at the time his petition was first filed.

      . Between the date of the filing of the petition and the date of naturalization, section 319(a) only requires that a legaily valid marriage remain in existence, See In re Petition of Olan, 257 F.Supp. 884 (S.D.Cal.1966).


author: VAN DUSEN, Circuit Judge.

text:
    Robert L. GUY v. Gordon Willis RUDD et al., Appellants in No. 72-1890. Appeal of Theodore James WILSON and Eastern Stainless Steel Corporation, in No. 72-1889. Theodore WILSON, Appellant in Nos. 72-1892, 72-1893, v. Robert L. GUY et al. v. EASTERN STAINLESS STEEL CORPORATION. Appeal of Gordon Willis RUDD and Universal Oil Products Company, in No. 72-1891.
    Nos. 72-1889 to 72-1893.
    United States Court of Appeals, Third Circuit.
    Argued May 14, 1973.
    Decided June 15, 1973.

      Robert Palkovitz, Palkovitz & Palkovitz, McKeesport, Pa., for Robert L. Guy.
    James A. McGregor, Jr., Egler, Mc-Gregor & Reinstadtler, Pittsburgh, Pa., for Robert L. Guy and Cooper-Jarrett Motor Freight, Inc.
    Norman J. Cowie, Thomson, Rhodes & Grigsby, Pittsburgh, Pa., for Theodore James Wilson and Eastern Stainless Steel Corp.
    Thomas F. Weis, Weis & Weis, Pittsburgh, Pa., for Gordon Willis Rudd and Universal Oil Products Co.
    Dennis C. Harrington, Harrington, Feeney & Schweers, Pittsburgh, Pa., for Theodore Wilson.
    Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal requires determination of the extent to which allegedly inconsistent answers to interrogatories submitted to a jury were properly harmonized by the district court in entering its judgment. See Gallick v. B & O RR. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed. 2d 618 (1963); Swift v. Martin, 258 F.2d 797, 799 (3d Cir. 1958).

The background facts, including the interrogatories submitted to the jury and the judgment entered, are stated as follows in the district court opinion, 345 F.Supp. 1382, denying Motions for New Trial.

The above actions arose out of an accident involving three tractor-trailer outfits which occurred on September 19, 1968, at approximately 2:00 a. m. on the bridge of the Pennsylvania Turnpike crossing the Allegheny River in Plum Borough, Allegheny County, Pennsylvania. The bridge has two lanes for westbound traffic and two lanes for eastbound traffic with a medial barrier in the center. At the time of the accident, the bridge was wet and slippery. Prior to the happening of the accident, Rudd had been operating a tractor-trailer in a westerly direction. Wilson and Guy had been operating their tractor-trailers in an easterly direction. There was conflicting testimony among the three drivers and the state policeman as to the manner in which this accident occurred.
In general, it appears Rudd went out of control and his outfit, wound up on top of the medial barrier projecting into one eastbound lane and thereafter there were collisions between Wilson and Guy. Wilson having attempted to pass Guy shortly before impact.
In view of the large number of conflicting claims and crossclaims, this court submitted the case to the jury for a special verdict containing five written interrogatories and the answers thereto by the jury were as follows:
“1. Was the defendant, Theodore James Wilson, driver for Eastern Stainless Steel Corporation, guilty of negligence which was a proximate cause of this accident? Answer: Yes.
2. Was the defendant, Gordon Willis Rudd, driver for Universal Oil Products Company, guilty of negligence which was a proximate cause of this accident? Answer: Yes.
3. Was Robert L. Guy, driver for Cooper-Jarrett Motor Freight, Inc., guilty of negligence which was a proximate cause of the accident? Answer: No.
4. Was Robert L. Guy, as plaintiff, guilty of contributory negligence which was a proximate cause of his own injuries? Answer: No.
5. Was Theodore Wilson, as plaintiff, guilty of contributory negligence which was a proximate cause of his own injuries? Answer: No.”
We ordered that judgments be entered on the special verdict as follows:
1. Guy v. Rudd, Wilson, Eastern Stainless Steel Corporation and Universal Oil Products Co. — $25,000. in favor of Guy.
2. Wilson v. Guy, Cooper-Jarrett, Gordon Rudd and Universal Oil Products Corporation — in favor of defendant and against plaintiff.
3. On erossclaim by Guy and Cooper-Jarrett against Rudd and Universal Oil Products in favor of crossclaimants and against Rudd and Universal Oil Products — $1305.10.
4. Claim by Guy and Cooper-Jarrett against Eastern Stainless Steel Corporation in favor of claimants-— $1305.10.
5. As to counterclaim by Guy and Cooper-Jarrett against Wilson, the same having been withdrawn by Guy, judgment in favor of Cooper-Jarrett and against Wilson for $1305.10 with no duplication of recovery.
6. As to crossclaim by Rudd and Universal Oil against Guy and Cooper-Jarrett, judgment in favor of defendants in the crossclaim.
(The amounts given were stipulated by counsel after the verdict on liability was returned.)
Theodore Wilson and Eastern Stainless Steel Corporation together with Rudd and Universal Oil Products Company are now seeking a new trial of all or part of the issues on the ground that the answers to the interrogatories are hopelessly inconsistent and irreconcilable under the law and the evidence in this case.
It is quite clear that the jury, having considered all the evidence, found Wilson guilty of negligence as to Guy since Wilson could not be found guilty of negligence as to Rudd who made no claim of his own. At the same time the jury also found Guy free of contributory negligence in his own case. Similarly, Guy was found free of negligence as a defendant in the claim of Wilson. Further, the jury found that the injuries sustained by Wilson were not the result of contributory negligence on his part.

Although neither counsel for Wilson as plaintiff nor counsel for Wilson and Eastern Stainless Steel Corporation (Eastern) as defendants asked the trial judge after the jury’s verdict was taken to return the jury for further consideration of its answers to questions 1 and 5, they both requested the withdrawal of a juror and a new trial due to an inconsistent verdict (N.T. 73 of Document 33). Counsel for the other parties asked that the trial judge mold the verdict disregarding the answer to question 5 as unnecessary, in view of the answer to question 1. The trial judge adopted this course, taking the position that there was no inconsistency between the answers to questions 1 and 5.

After careful consideration of the record, we have concluded that the answers to interrogatories 1 and 5 are so inconsistent that the judgments entered against Wilson and his employer, Eastern, must be vacated. We cannot agree with the trial judge’s suggestion that the jury may have found that the slippery conditions of the road resulting from rain, excessive tar used in patching the road surface, and gasoline from the damaged extra gasoline container of Rudd’s vehicle were the sole causes of the injuries to Wilson, eliminating as such a cause his negligence in colliding with Guy’s tractor. There is no suggestion in the charge or elsewhere in the contentions of counsel in the trial record that specifically directed the attention of the jury to this possibility. However, no convincing reason has been advanced for depriving Guy and Cooper-Jarrett of the jury’s findings in their favor that do not directly affect Wilson and Eastern.

If questions of the type used by the district court in this case are to be submitted to a jury, language such as the following should be inserted at the end of questions such as question 1:

If the answer to question 1 is “yes,” please do not answer question 5. If your answer to question 1 is “no,” please answer question 5.

See, for example, Cooper v. D/S A/S Progress, 188 F.Supp. 578, 580-581 (E.D.Pa.1960).

The district court judgment in Civil Actions Nos. 70-918 and 72-33 (filed as Document 27 in No. 72-33) will be amended (A) by deleting the words “Theodore James Wilson and Eastern Stainless Steel Corporation” from the last paragraph of page 1 referring to Civil Action No. 70-918; (B) by deleting the words “Gordon Rudd and Universal Oil Products Corporation” in the first paragraph on page 2 of such Document 27 referring to Civil Action No. 72-33; and (C) by deleting the last two complete paragraphs on page 2 of such judgment. In view of the inconsistent verdict as to Wilson’s negligence and contributory negligence, the cases will be remanded for a new trial as to the issue of Wilson’s negligence and its causative effect on such of these claims as are not withdrawn by the parties:

(1) Claim of Guy against Wilson and Eastern in Civil Action No. 70-918.

(2) Claim of Wilson against Rudd and Universal in Civil Action No. 72-33.

(3) Claim of Guy and Cooper-Jarrett against Eastern, as third-party defendant in Civil Action No. 72-33.

(4) Counterclaim of Guy and Cooper-Jarrett against Wilson in Civil Action No. 72-33.

      . The damage amounts were stipulated by the parties (N. T. 85 of Document 33).

      . No objection was made by any of the counsel to the questions which had been prepared by the trial judge (N. T. 10 of Document 33). Counsel for Wilson and Eastern as defendants did suggest that the questions be rephrased to separate the existence of negligence on the part of the two drivers who were plaintiffs from the causation of this negligence with respect to the harm to others and to themselves (N. T. 16-17 of Document 33). Although the trial judge suggested elimination of questions 4 and 5 concerning contributory negligence, counsel for Rudd and Universal Oil Products Co. (Universal) refused to agree to this suggestion (N. T. 14 of Document 33).

      . The statement in the charge that the assured clear distance ahead rule (75 P.S. § 1002(a)) would not apply “to the possibility of oil being on the pavement creating a slippery condition which a driver could not anticipate,” because it might be so deceptive in appearance that a reasonably careful driver would not have realized its presence until he was actually upon it- (N. T. 67 of Document 33), which is referred to by the judge in his opinion, did not focus the jury’s attention on the possibility of their finding one cause of the collision between the Wilson and Guy vehicles and a completely separate cause of Wilson’s injuries.

      . The determination of the jury in this case as to Guy’s freedom from negligence and contributory negligence and the negligence of Rudd, driver for Universal Oil Products Corporation, shall be binding upon the parties in the new trial. See Curtis v. A. Garcia y Cia, 272 F.2d 235, 238 (3d Cir. 1959).

      . The district court judgment as so amended will read as follows :
      AND NOW, to wit, March 8, 1972, this action having come on for trial before the court and a jury and the issues having been duly tried and the jury having rendered a special verdict copy of which is attached hereto,
      IT IS ORDERED AND ADJUDGED that in Civil Action No. 70-918, judgment be entered in favor of the plaintiff Robert L. Guy and against the defendants Gordon Willis Rudd and Universal Oil Products Company in the sum of $25,000.
      IT IS FURTHER ORDERED AND ADJUDGED that in Civil Action No. 72-33, in the claim of Theodore Wilson against defendants Robert L. Guy and Cooper-Jarrett Motor Freight, Inc., that judgment be entered in favor of such defendants and against the plaintiff.
      IT IS FURTHER ORDERED AND ADJUDGED that in Civil Action 72-33 on the crossclaim by defendants Guy and Cooper-Jarrett Motor Freight against Gordon Rudd and Universal Oil Products Corporation that judgment be entered in favor of Robert L. Guy and Cooper-Jarrett Motor Freight, Inc. and against Gordon Willis Rudd and Universal Oil Products Corporation in the amount of $1305.10.
      IT IS FURTHER ORDERED AND ADJUDGED in Civil Action No. 72-33 with respect to the cross-claim by defendants Rudd and Universal Oil Products vs. defendants Guy and Cooper-Jarrett that judgment be entered in favor of the defendants in the cross-claim Robert U. Guy and Cooper-Jarrett Motor Freight, Inc. and against the cross claimants Gordon Rudd and Universal Oil Products Corporation.
      IT IS FURTHER ORDERED AND ADJUDGED in both of said actions that said judgments be and hereby are entered with costs to the successful party or parties.