author: WEICK, Circuit Judge.

text:
    Beecher D. STEELE, Plaintiff-Appellee, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Defendant-Appellant.
    No. 74-1366.
    United States Court of Appeals, Sixth Circuit.
    Dec. 11, 1974.

      Smith H. Tyler, Jr., Dinsmore, Shohl, Coates & Deupree, Frank C. Woodside, III, Cincinnati, Ohio, for defendant-appellant.
    C. Richard Grieser, Tyler, Richards, Grieser & Schafer, James B. Blumenstiel, Columbus, Ohio, for plaintiff-appellee.
    Before WEICK, EDWARDS and EN-GEL, Circuit Judges.
   WEICK, Circuit Judge.

Louisville and Nashville Railroad Company [L&N] has appealed from a judgment entered in the District Court upon a jury verdict in favor of plaintiff-appellee Steele, in the amount of $64,160, awarded in an action for damages for personal injuries brought under the provisions of the Federal Employers’ Liability Act, 45 U.S.C. § 51.

Steele was an experienced switchman employed by L&N since 1952. He had four years’ previous experience working for the Baltimore & Ohio Railroad Company.

Steele sustained an injury to his back on June 30, 1967, at switch number 21 in the D yard of the L&N’s DeCoursey yards at Latonia, Kentucky, where he was a member of a three-man crew engaged in switching railroad cars.

In order to throw a switch it was necessary for Steele to squat down, take hold of the ball at the end of a manual lever, lift the lever up to a vertical position, and then push it over to complete the 180° arc.

Just prior to his injury Steele had thrown this particular switch twice, without incident, although he did testify that it was hard to throw. He testified that in throwing the switch the third time he got it up to about a 45° angle—

when it just seemed like it locked and it felt like somebody stabbed me in the back with a knife or ice pick or something, but the switch gave and I shoved it over.

Steele did not claim that he was struck by the lever. After his injury his fellow employees had no difficulty in throwing the switch.

Steele was taken to St. Elizabeth Hospital in Covington, Kentucky, and released after x-rays were taken. He returned to work on the following day. His condition, however, gradually deteriorated, with complaints of low-back and leg pains. On May 6, 1968 a lumbar laminectomy was performed for a herniated disc. While there was some improvement following the surgery Steele’s condition again deteriorated with the same complaints. Again, surgery was performed on his back on January 13, 1971.

Steele claims that he has permanent back and leg problems which have resulted in his missing work, and decreasing his physical activities, including sexual and social activities with his wife. However, L&N has provided him with sedentary work, at which he is presently engaged. No issues are raised in the appeal with respect to his back injuries or with respect to the amount of the verdict.

Nearly five years after his accident, namely, on March 1, 1972, Steele suffered an acute myocardial infarction. His original complaint sought to recover damages only for injuries to his back. After his heart attack, however, he amended his complaint in order to allege that his heart attack resulted from the incident occurring on June 30, 1967.

In its appeal L&N raises two issues, namely:

1— That the District Court erred in denying its motions for a directed verdict on the ground that it had no actual or constructive notice of an unsafe place to work; and

2— That the District Court erred in refusing to strike testimony of Dr. Dominick D. Davolos, plaintiff’s expert, because his—

answer to the hypothetical question was based on facts not in evidence and refusing to strike the testimony of Dr. Davolos as not probative and incompetent as an inference based on an inference.

I

In resolving the issue whether the District Court erred in not directing a verdict in favor of L&N, we must view the evidence, as well as inferences properly deducible therefrom, in the light most favorable to the plaintiff. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Miller v. Cincinnati, New Orleans & Texas Pac. Ry., 317 F.2d 693, 700 (6th Cir. 1963).

The Supreme Court has stated the test as follows:

Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.
Rogers v. Missouri Pac.R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957).

We have stated that the question is—

[Wjhether the railroad, by failing to exercise all reasonable care, participated in any manner to effect or permit the unsafe condition.
Bridger v. Union Ry., 355 F.2d 382, 386 (6th Cir. 1966).

There was some evidence of insufficient ballast of the roadbed around the ties on which the switch was located; that the roadbed sloped down to the east of the switch stand and that there was a lack of ballast at the end, and no retaining wall to hold the ballast; and that the ballast was continually shifting. When the ties are not properly ballasted the switch stand and the rails will move, causing the switch to bind or making the lever hard to throw. Also, we do not find proof of regular inspection of the switches and ballast.

We are of the opinion that this evidence was sufficient to take the case to the jury and that the District Court did not err in refusing to direct a verdict. Webb v. Illinois Central Ry., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503 (1957); Atlantic Coast Line R.R. v. Collins, 235 F.2d 805 (4th Cir. 1956), cert. denied, 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d 238 (1956).

The evidence in F.E.L.A. cases is viewed with great liberality. Gallick v. B&O R.R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946).

II

The hypothetical question finally propounded to Dr. Davolos did not assume the fact that prior to his injury Steele had arteriosclerosis. However, in answering the question Dr. Davolos testified:

I believe there is a very strong probability that the injury, the surgical procedures, the pain, mainly the physical inactivity — very important — personal frustration, the economic frustration and the duress of unemployment, played a strong role in accelerating the course of any preexisting coronary heart disease that may have been present; and the fact that he had been off for a month before the coronary would strongly suggest to me that these factors played a role in precipitating the myocardial infarction. (38a)

Doctor Davolos further testified:

In my own personal experience I am aware that the withdrawal of this kind of activity very often accelerates preexisting heart disease.
THE COURT: Doctor, that’s the second time. Did you get in that hypothetical anything that led you to believe that he had a preexisting heart disease before 1967?
THE WITNESS: Well, I think that we can deduce this logically from the fact that he is a male 45 that had a myocardial infarction. The probability that he would have had coronary arteriosclerosis prior to ’67 is about 95 percent.
THE COURT: All right. Go ahead. I am sorry to interrupt, but I had to get that clear for everybody’s sake.
THE WITNESS: Thank you, sir. (39-40a)

Dr. Davolos’ testimony was corroborated in some particulars by two doctors called by the defendant who testified by way of deposition. They were Doctor C. C. Hugan and Doctor John C. Holmes. The deposition was not in evidence at the time when Dr. Davolos testified, but it was later admitted in evidence. Both of these doctors gave their opinion that Steele had arteriosclerotic heart disease which involved a gradual narrowing of the blood vessels, over a long period of time. Dr. Holmes thought that the disease began many years ago.

Doctors Hugan and Holmes, however, disagreed with Doctor Davolos that the accident and the various stresses which followed it had anything to do with Steele’s heart attack. They were of the opinion that he would have suffered the heart attack without the accident and the stresses which followed it.

It was for the jury to pass upon the credibility of the medical experts.

In our opinion the evidence of Steele’s injury to his back alone would have supported the amount of the verdict.

The Court instructed the jury on the subject of the heart attack as follows:

Now, you should consider each opinion received in evidence in this case, give it such weight as you think it deserves. If you decide that the opinion of an expert witness is not based upon such education or experience or if you should conclude that the opinion is not based on a fact or if you conclude that the reasons given in support of the opinion are not sound or if you feel that it’s outweighed by evidence, other evidence in the case, you may disregard the opinion of any expert or experts accordingly. (Tr. 668)
The cardinal rule of damages is this: We don’t guess. We don’t speculate. We don’t conjecture. We put the burden of proof on the plaintiff by a preponderance in connection with any question of damage we are considering and only make an award if that burden of proof has been established; . . . . (Tr. 676)
We are not attempting to single out anything at all here, but this in connection with this heart problem in this case. The law takes the plaintiffs as it finds them; and in dealing with the question of what item or items resulted from a given incident the question is not what would the incident have done to the ordinary person. The question is what injury to this particular plaintiff is involved and did this accident play a part in producing that injury. (Tr. 677)
So a defendant is not responsible for the natural, congenital or geriatric or aging defects of any plaintiff; nor is a defendant responsible for the normal progress of any such defects or ailments, if any.
So you will not award to the plaintiff any damages relating to or resulting from any natural or normal ailment or defect or the natural or normal progression thereof.
The mere fact that the plaintiff suffered a heart attack — there is no dispute about the fact that he suffered a heart attack, March the 1st — doesn’t permit you to infer simply from that fact that the defendant was or is in any way legally responsible for that heart attack; and if you find that the defendant was negligent but also find from a preponderance of the evidence that the plaintiff’s heart attack would just as likely have happened in the absence of any negligence on the part of the defendant, then the plaintiff could not recover damages for that heart attack or any items reasonably connected therewith.
Once again, in considering any item of damage, if you find, the evidence is in equipoise, even Stephen, so you can’t say it leans in favor of the plaintiff, the plaintiff having the burden of proof would lose in respect to that item and you should not award any compensation in respect thereto. (Tr. 677-678)

We find no error in the denial of the motion to strike the testimony of Doctor Davolos.

Affirmed.


source: Caselaw Access Project

author: ADAMS, Circuit Judge: WEIS, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Herman Eugene LARDIERI, Appellant.
    No. 73-1750.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 9, 1974.
    Reargued before the original panel Sept. 13, 1974.
    Decided Dec. 18, 1974.

      Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., Carl L. LoPresti, Michael P. Lesniak, Sp. Attys., U. S. Dept, of Justice, Organized Crime & Racketeering Section, Pittsburgh, Pa., for appellee.
    Louis J. Grippo, Pittsburgh, Pa., for appellant.
    Before ADAMS, HUNTER and WEIS, Circuit Judges.
   ADAMS, Circuit Judge:

The issue posed by the petition for rehearing before the panel is whether an indictment for perjury allegedly committed during the course of testimony before a grand jury may be dismissed because of the failure by the prosecutor to inform the witness of the recantation provision of § 1623.

The events leading to Herman Lardieri’s perjury conviction occurred during an investigation of the tax affairs of Louis Sorrentino. Lardieri performed some managerial functions at Steurer’s Restaurant in Altoona, which was owned from July, 1967 to July, 1969 by Sorrentino, a New York City resident. The connection between Lardieri’s activities and the financial interests of Sorrentino prompted the government to seek information from Lardieri. Agent Dye of the Internal Revenue Service accordingly interviewed Lardieri in June of 1971. During the interview, Agent Dye questioned Lardieri with respect to the execution of checks drawn on the restaurant’s account. Lardieri stated to Agent Dye that he did sign some of the restaurant’s cheeks.

On April 10, 1972, Lardieri was subpoenaed to testify before a special grand jury. The subpoena was served on Lardieri the day before he was to appear.

At the grand jury proceeding, Lardieri was examined on the procedures by which the restaurant’s checks were made out and signed. He testified that he “never signed a check as long as the place [Steurer’s Restaurant] was there.” The prosecutor, apparently recognizing an inconsistency between Lardieri’s statements to Agent Dye and his grand jury testimony, engaged with Lardieri in the following exchange:

Q. Did you sign a bank signature card at that time. At the bank?
A. I don’t remember.
Q. Mr. Lardieri, do you know what perjury is?
A. (No response.)
Q. Do you know what perjury is?
A. No.
Q. You don’t know?
A. I don’t know what perjury is.
Q. You have no idea what perjury is?
A. You have to tell the truth and if you don’t tell the truth, you wind up in jail.
Q-And there is also a $10,000 fine as well. Now, with that in mind, I will ask you again: did you participate in any way in the opening of the account for Steurer’s Restaurant at Mid-State Bank?
A. I don’t remember.
Q. Were you authorized to sign checks on that account?
A. No, I know that.
Q. I don’t think you have been candid with us today, with the members of the grand jury.
A. I told you the truth.
Q. I will tell you what I am going to do. I am going to give you a chance to straighten out your testimony.
A. That is it.
Q. Is there anything that you have said in here today that you would like to modify or change?
A. No, just put down what I said.

On the basis of this testimony, Lardieri was indicted for perjury. At his trial before a jury he contended that he had made the false statements because he was tired, having not slept for 36 hours in order to prepare for a banquet scheduled for the day of his grand jury appearance. He asserted that he lost his temper, did not know what he was doing, and was not in the right frame of mind.

At the conclusion of the trial, he was convicted of making a false statement before the grand jury in violation of Section 1623. Upon his appeal to this Court Lardieri originally contended that (1) the false statements were not material to the grand jury’s investigation; (2) the trial court erred in failing to charge the jury on the elements of willfulness; and (3) the prosecutor made prejudicial remarks in his closing statement to the jury. In an opinion filed May 14, 1974, this Court found no merit in Lardieri’s contentions, but remanded to the district court for a hearing to determine if the indictment should be dismissed because of the failure of the prosecutor to inform Lardieri of the recantation provisions of Section 1623, inasmuch as the prosecutor had warned him of the punitive provisions of that section.

A petition for rehearing filed by the United States raised the question whether Section 1623 requires the prosecutor to notify a grand jury witness of the recantation provision.

On this rehearing Lardieri contends that the legislative purpose embodied in Section 1623(d) is to encourage witnesses to divulge the truth by permitting them, when they have lied under oath, to correct their false testimony without subjecting themselves to perjury convictions. If subsection (d) is to serve this purpose, Lardieri argues, it is necessary for witnesses to be aware of their right to recant, and therefore for the prosecutor to notify them of such right. Accordingly, Lardieri concludes that this case should be remanded to the district court for a determination whether the indictment should be dismissed for the prosecutor’s failure to so notify Lardieri.

b.

Upon reconsideration we conclude that a reversal of the conviction is not required by section 1623 as a result of the prosecutor’s not having given Lardieri further notification of the recantation provision in the statute. Nor do we consider such reversal an appropriate exercise of any supervisory powers over the grand jury which may be vested in this Court.

We first review the statutory language and the legislative history to determine whether the statutory intent requires that such a notice regarding recantation be given to a witness before a grand jury. It is clear that the statute, by its terms, does not expressly require the prosecutor to warn the witness of the recantation provision "of section 1623(d). The recantation provision was intended to encourage the witness to correct false testimony promptly, by allowing him to escape prosecution if he recants before the proceeding has been “substantially affected” or before it has “become manifest that such falsity has been or will be exposed.”

Lardieri has not shown that the purpose of this provision would be frustrated if the prosecutor were permitted to remind the witness of the penalties for perjury without telling him of the recantation provision as well. No empirical evidence has been presented which demonstrates that a statement regarding penalties by the prosecutor would deter the witness from correcting his testimony. On the contrary, it is reasonable to assume that if Congress had found disclosure of the recantation provision necessary in order to stimulate the correction of false testimony, they would have included a disclosure requirement in the statute.

The recantation provision in section 1623(d) was modeled after Section 210.25 of the New York Penal Law, McKinney’s Consol.Laws, c. 40, which codified the ruling of the New York Court of Appeals in People v. Ezaugi, 2 N.Y.2d 439, 161 N.Y.S.2d 75, 141 N.E.2d 580 (1957). See 2 U.S. Code Cong. & Admin. News, p. 4024 (1970). It is significant that neither the New York Legislature nor the New York courts have found it necessary or appropriate to impose on the prosecutor an obligation to notify the grand jury witness of the provision for recantation when the prosecutor tells the witness of the penalties for perjury.

Additionally, it was the congressional judgment that the overall purpose of Section 1623, obtaining more truthful responses from witnesses before courts and grand juries, would be best accomplished by facilitating perjury convictions for those who had violated their oaths. In order to remove encumbrances from such convictions, Congress abandoned the two-witness rule, discontinued the requirement that the prosecutor prove the truth of one of two irreconcilable statements under oath, and required only a “knowing” rather than a “willful” state of mind. The Senate Judiciary Committee described the intent of the Section as follows:

A subpoena can compel the attendance of a witness before a grand jury or at trial. * * * But only the possibility of some sanction such as a perjury prosecution can provide any guarantee that his testimony will be truthful.
Today, however, the possibility of perjury prosecution is not likely, and if it materializes, the likelihood of a conviction is not high. * * *
[Section 1623] creates a new federal false declaration provision that will not be circumscribed by rigid common law rules of evidence. S.Rep. No. 91—617, 91st Cong., 1st Sess. 57—59 (1969).

Congress thus sought to promote more truthful testimony by facilitating perjury prosecutions and convictions.

On the other hand, Congress also provided that a witness who had testified falsely could, under limited circumstances, avoid prosecution. As noted earlier, Lardieri has not demonstrated that a requirement that the prosecutor notify witnesses of the recantation provision would induce more people to recant. However, dismissing perjury indictments where the prosecutor has not given such notice would create a new impediment to successful perjury prosecutions, thereby jeopardizing the deterrent effect Congress specifically sought to establish by rendering perjury convictions easier to obtain. The statutory history, therefore, does not reveal a Congressional intent that prosecutions be dismissed where such warnings are not given.

c.

The concept of fairness to the criminally accused is incorporated in the doctrine of due process. However, it has not been asserted, either by the parties or in the dissent, that the prosecutor’s conduct here rises to the level of a deprivation of Lardieri’s constitutional rights. Rather, in his dissent, Judge Weis contends that we should, under our supervisory powers, extend the notion of “fundamental fairness” to hold that a perjury indictment may be dismissed because the prosecutor did not warn the witness of the recantation provision. There has recently been widespread controversy whether the grand jury functions as an effective safeguard for individual rights or merely as an instrument manipulated by the prosecutor for his own benefit. Such concerns have resulted in proposals both to strengthen and to abolish the grand jury system, as well as in measures to provide greater protection for witnesses before the grand jury. Adoption of the proposed rule would admittedly furnish an additional safeguard for such witnesses.

In this situation, however, dismissal of the indictment because of the lack of notification to Lardieri of the recantation' provision would disturb the balance Congress has advertently established between the competing interests of prosecution and recantation. Congress has utilized in section 1623 two inducements to truthful testimony — prosecution and recantation. It is the business of the legislative branch, with its superior investigative facilities, to determine how these competing inducements may best be reconciled to produce the greatest stimulus to truthful testimony. The congressional judgment on this matter is not to be displaced by the judiciary unless there is no reasonable basis for it. Therefore, even if we were to concede that requiring the proposed notice would to some degree increase the incidence of recantation by those who have testified falsely, it would be improper for us, in the exercise of our supervisory powers, to dismiss prosecutions because of the lack of such advice from the prosecutor, thereby endangering the stimulus provided by the threat of criminal sanctions.

In addition, dismissal of the indictment because Lardieri was not informed of the statute’s recantation provisions would provide greater protection to Lardieri’s statutory right than is afforded to his constitutional rights. Thus when a grand jury witness who has committed a crime is asked if he has done so, he has the choice of incriminating himself in that crime, committing perjury, or asserting his right to remain silent. If he has not been warned of his Fifth Amendment right to silence and thinking he must answer, commits perjury, this Court has held that he may be prosecuted for doing so. But, under the rule suggested by Lardieri, if the grand jury witness has not been advised of his statutory opportunity to recant, he may be insulated from prosecution for his perjury. Thus the proposed rule would not permit the witness to waive his statutory right to recant without notice of that right being supplied by the prosecution, although he could simultaneously waive a constitutional right without such notice. It would not appear appropriate to utilize whatever supervisory powers we may have to attain so anomalous a result.

d.

In addition, assuming the existence in this Court of supervisory powers over the conduct of grand juries and assuming the propriety of applying a rule promulgated under those powers to reverse a conviction based on conduct which occurred prior to the promulgation of such rule, the facts of this case do not merit upsetting Lardieri’s conviction under such supervisory powers, since the prosecutor substantially complied with the proposed rule. Although he did not explain the statutory basis therefor, the prosecutor did, in fact, offer Lardieri an opportunity to correct his testimony:

Q. I will tell you what I am going to do. I am going to give you a chance to straighten out your testimony. * * * Is there anything that you have said in here today that you would like to modify or change?

The specific circumstances here, therefore, would not justify dismissing the indictment, thus insulating Lardieri from prosecution for his false testimony.

Accordingly, the judgment of the district court will be affirmed.

WEIS, Circuit Judge

(dissenting):

The issue posed in the previous opinion by this panel was a narrow one. In a situation where the United States Attorney volunteered legal information on the punitive portions of the perjury statute to an uncounseled witness, did fundamental fairness require that he also advise the witness of a favorable recantation provision of the act? United States v. Lardieri, 497 F.2d 317 (3d Cir. 1974).

There was no necessity to decide the broader question which has been urged by the government’s petition for rehearing and pervades the majority opinion— that is, whether there is a statutory duty to make a disclosure to every grand jury witness under all circumstances. Though an argument might be made to that effect, the thrust of precedent in this Circuit is to the contrary. United States v. DiMichele, 375 F.2d 959 (3d Cir. 1967). Our original opinion went no farther than to say that if the United States Attorney chooses to advise a witness on the applicable law of perjury, the factual circumstances may be such that, in the interest of fairness, the prosecutor should disclose the favorable as well as the unfavorable aspects of the statute..

That opinion was based on the concepts of fundamental fairness and our supervisory authority over grand jury activity. For these propositions we need not look for express statutory direction. Our judicial obligation requires us to assure ourselves that proceedings before bodies over which the courts have control are conducted with evenhanded concern for both sides, not allowing one to gain an unseemly advantage over the other. Fundamental fairness is essential to the effective functioning of the adversary process which is at the heart of the common law system.

As the majority recognizes, there has been much debate in recent years over the desirability of retaining the grand jury as an institution. The charge has been made all too frequently that the grand jury is simply a tool of the prosecutor and, therefore, should be abolished. Not enough attention has been focused on one of the fundamental functions of the grand jury — that is, to protect the citizen from the rigors of an unjustified prosecution for a serious crime by shielding him from arbitrary governmental action. The screening process of the grand jury is a significant constitutional protection which should remain viable and effective. The courts must be alert to prevent its erosion.

There should be no doubt that the courts do possess the authority to supervise grand jury activity. In Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960), it was said:

“The grand jury is an arm of the court and its in camera proceedings constitute ‘a judicial inquiry.’ ”

Earlier, in Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940), the Court wrote:

“ • . . The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it is attached and to which, from time to time, it reports its findings. The proceeding before a grand jury constitutes ‘a judicial inquiry’, Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 375, 50 L.Ed. 652, of the most ancient lineage.”

In re Schofield, 486 F.2d 85 (3d Cir. 1973), was an assertion of supervisory power and an indication of our continuing concern with the problem of grand jury proceedings. In United States v. Goldstein, 502 F.2d 526 (3d Cir. 1974), we emphasized the importance of the screening role.

The grand jury function is best served by extending fair treatment' to those who appear before it. Questioning before that body must often be probing and insistent, but physical compulsion on a witness, for example, could not be sanctioned. And, just as vigoro.us cross-examination in a trial is permissible, but is always subject to control by the presiding judge, so should interrogation of a witness before a grand jury be subject to supervision of the court. Failure to extend the protection of the court to a witness is as detrimental in one situation as the other. I do not believe, therefore, that it is necessary to find specific statutory direction to reach the result we did in our prior opinion. What is involved is not an assessment of the wording of the statute but, rather, its administration — a function traditionally entrusted to the courts. In this respect, Section 1623 does not differ from other criminal statutes.

It is of some significance that this statute is aimed at false statements made before or ancillary to a court or grand jury. While the law is designed to make it easier to secure convictions, it is balanced by giving a witness the opportunity to clear himself, if need be, by recantation. The purpose is to make Section 1623 a more effective device for obtaining the truth in proceedings before courts and grand juries. It may have been assumed that, in those two forums, reasoned judgments would be utilized to make the most effective use of the combination of compulsion by punishment and inducement by recantation to discover the truth. It bears repeating that it is the discovery of truth, not the successful prosecution of perjury, which is the ultimate objective of this statute. Our original ruling gave no license to lie before a grand jury and would not hinder the prosecution in its quest for truth.

There is no need at this point to answer spéculation as to whether the defendant would have recanted or that he understood the prosecutor as having granted him that privilege. These are factual matters which should be decided upon remand after a full development of the pertinent circumstances. The district court, after such a proceeding, would be in a far better position than we to decide those matters.

The discussion of the New York statute and cases decided under it is not really helpful for a determination of the question that is presented here. The circumstances are different, and I am not persuaded that, if confronted with the same situation as we have been here, the New York courts would decide in the same fashion as the majority does.

I believe our prior opinion represented only a small step forward, but its reversal is a large step backward. I dissent.

      . 18 U.S.C. § 1623 (Supp.1974):
      “(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      “Xd) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.”

      . Lardieri was warned of the punitive provisions of 18 U.S.C. § 1623, relating to perjury before a court or grand jury, and was in fact convicted under that statute. For a discussion whether the government could instead have prosecuted him under § 1621, the general perjury statute, see United States v. Kahn, 472 F.2d 272, 283 (2d Cir. 1973), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973).

      . The rehearing was not addressed to the contentions originally raised by Lardieri in his appeal to this Court. However, as to those contentions, we reaffirm the conclusion reached in our opinion of May 14, 1974, that they are without merit.

      . 2 U.S. Code Cong. & Admin. News, p. 4024 (1970). For purposes of this opinion we have assumed, without deciding, that circumstances had not foreclosed the availability to Lardieri of the recantation defense.

      . In this context it should be noted that section 1623(d) is the product of an extensive examination of the functions and efficacy of perjury prosecutions. See S.Rep. No. 91-617, 91st Cong., 1st Sess. 57-59 (1969).

      . N. Y. Penal Law § 210.25:
      In any prosecution for perjury, it is an affirmative defense that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed. L.1965, c. 1030, eff. Sept. 1, 1967.

      . S. Rep. No. 91-617, 91st Cong., 1st Sess. 57-59 (1967).

      . See 18 U.S.C. § 1623 (Supp.1974); 2 U.S. Code Cong. & Admin. News, p. 4024 (1970); S. Rep. No. 91-617, 91st Cong., 1st Sess. 57-59, 149-50 (1969).

      . “As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). See Hoffa v. United States, 385 U.S. 293, 310-311, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

      . In United States v. DiMichele, 375 F.2d 959 (3d Cir. 1967), for instance, DiMichele was seen leaving the site of a gambling game when the FBI raised the game. Called before a grand jury investigating the incident, he testified, without being warned at the time of his grand jury appearance of his right to consult counsel and to remain silent, that he had not been present at the scene of the game. This Court upheld DiMichele’s conviction for perjury. See United States v. Winter, 348 F.2d 204 (2d Cir. 1965). Cf. United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969). See also Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911); United States v. Hockenberry, 474 F.2d 247, 259 (3d Cir. 1973).

      . Compare United States v. Schiavo, 504 F.2d 1 at 7, (3d Cir., 1974), petition for cert. filed sub nom. Ditter v. Phila. Newspapers Inc., 42 [43] U.S.L.W. 3282 (U. S. Nov. 6, 1974), with Id. at 12 (concurring opinion); Id. at 17 (dissenting opinion).

      . That case held that there is no duty to warn a grand jury witness of his right to invoke the Fifth Amendment. For a criticism of the doctrine and a discussion of grand jury proceedings in general, see The Rights of a Witness Before a Grand Jury, 1967 Duke L.J. 97.


author: PER CURIAM:

text:
    Leonard TAYLOR, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
    No. 74-2209.
    United States Court of Appeals, Fifth Circuit.
    Jan. 13, 1975.

      John L. Hill, Atty. Gen., Larry F. York, Joe B. Dibrell, Randall S. Boyd, Roland Daniel, Bert Pluymen, Asst. Attys. Gen., Austin, Tex., for respondent-appellant.
    Ray J. McQuary, Staff Counsel for Inmates, Tex. Dept, of Corrections, Rosharon, Tex., for petitioner-appellee.
    Before RIVES, GODBOLD and GEE, Circuit Judges.
   PER CURIAM:

After careful consideration, we find ourselves in substantial agreement with the memorandum opinion of the experienced and able district judge, attached hereto as Appendix 1. In our opinion, the prosecuting attorney acted unfairly toward the accused when he told the victim, Schneider, that the man he had identified was not the man on trial. (See App. 84, quoted infra n. 1.) Again the prosecuting attorney acted unfairly toward the accused when, instead of conducting another line-up, he directed the victim’s attention to the defendant alone and suggested that Schneider have him stand up, face him, turn with his back away from him, anything he desired, take as much time as he needed and state to the jury whether or not he was the man who held the pistol on him. A third grossly unfair act of the prosecuting attorney toward the accused was his argument to the jury “that he could understand this erroneous identification in the pre-trial lineup because the six negro men looked like ‘six black crows on a limb.’ ” From the totality of the circumstances we agree with the district court “that the robbery victim’s in-court identification was so impermissibly suggestive as to be conducive to irreparable misidentification.”

For the reasons stated, we affirm the judgment of the district court, attached as Appendix 2 to this opinion, but with the modification that ninety days from the date of this Court’s mandate shall be the period within which the State of Texas may re-try the petitioner, and further that he shall not be re-tried unless, upon remand, the district court is satisfied that the State of Texas can introduce substantial evidence of identification of the petitioner as the assailant of Schneider in addition to the testimony of Schneider himself. As so modified, the judgment of the district court is affirmed.

Modified and affirmed.

APPENDIX 1

In The United States District Court For The Northern District of Texas Abilene Division

Leonard Glenn Taylor vs. CA 1-613

March 7, 1974

Dr. George Beto, Director,

Texas Department of Corrections

MEMORANDUM OPINION

This habeas corpus action under 28 U.S.C. § 2254 seeks to have set aside petitioner’s conviction and 25 year prison sentence for robbery in Cause No. 10,-508 — A, State of Texas v. Leonard Glenn Taylor, in the 42nd District Court of Taylor County, Texas. The conviction was affirmed in Taylor v. State, Tex.Cr. App., 474 S.W.2d 207.

The grounds urged for setting aside the conviction are (1) that his in-court identification was so conducive to irreparable mistaken identification that he was denied due process of law, and (2) that he did not have adequate representation by counsel. There is not enough merit to the last contention to require any discussion of it; but the Court is of the opinion that the conviction must be set aside on the first ground.

At about 10:30 P.M. on December 23, 1969, Harry Schneider, a 23 year old college student, closed and locked up the Colonial Food Store in Abilene, Texas, where he was employed. He was alone when he went to his car parked nearby under a bright yellow dock light of the store. While opening the car door, Schneider heard a noise behind him. He turned around to face a man about two feet away. The assailant placed a pistol to Schneider’s temple and said, “Get out of the light”. Two other men quickly appeared from behind a trash receptacle, and the three assailants pulled the victim to the back of the store where there was no light. They then robbed him of $40.00, his wallet, his cigarette lighter, and other personal items. After discovering that Schneider could not reopen the store doors, the threesome bound and gagged him and fled.

Schneider called the police upon freeing himself. A search of the area shortly thereafter failed to reveal any of the three men or any instrumentalities of the crime. Schneider gave the police a description of the man who placed a gun to his head, but he was unable to describe the other two men. That night the police showed him some 35 or 40 photographs of men, but he was unable to make any identification. There were no pictures of petitioner Taylor in that array. Schneider was shown 12 more photographs the next day, none of which was a picture of Taylor. Again, Schneider made no identification. On December 26th, he was shown four more photographs and this time the victim identified petitioner here as his assailant. On December the 30th, Schneider was shown another display of eight photographs by the Abilene Police Department and the victim again identified petitioner. Taylor was arrested on January 10, 1970, as a result of Schneider’s photographic identification. He was subsequently indicted for the offense, and the trial date was set for September 14, 1970.

At the request of Taylor’s trial attorney and by agreement with the prosecuting attorney, a line-up was conducted at 9:00 A.M. on the morning of the trial. Prior to that time, only a photographic identification had been made. Taylor and five other black men whom Taylor had selected were seated on a courtroom bench for the line-up. Taylor’s attorney and the prosecuting attorney were both present. The lighting in the courtroom was good. Mr. Schneider looked at this line-up for three or four minutes from a distance of 28 feet through the courtroom door at an angle of 30 degrees. During the line-up, Taylor, while never looking directly at the witness, turned his head to the right, left, up and down, and Schneider had an opportunity to examine his facial characteristics. During that reviewing, the participants in the line-up stayed seated, and some had their heads down or they were not looking at Schneider. The prosecuting attorney asked Schneider if he had plenty of time to make his identification, and if he was sure that he could identify his assailant. Schneider replied in the affirmative to both questions. After that admonishment, Schneider identified one David Williams, and not Leonard Taylor, as his assailant. Subsequent to the line-up, the prosecuting attorney told Schneider that the man he identified was not the man on trial. Schneider was also told that the prosecuting attorney would have the accused speak out during the trial.

The only evidence at the trial to establish Taylor’s identity as the robber was testimony by Schneider to the effect that Taylor was his assailant on the occasion in question. The identification was predicated on the in-court viewing and on the pictures above mentioned. The picture identifications lose significance, because Schneider identified Williams as his robber after he had identified petitioner by the pictures. Petitioner did not testify in the robbery trial, but he offered some alibi witnesses.

During the trial Schneider was shown State’s Exhibits Nos. 2, 3, 4, and 5, which were four pictures of negro males. Schneider identified these exhibits as some of the pictures that officers had shown him subsequent to the robbery. One of these exhibits was the picture of the accused. Some of those had facial hair, though the defendant did not, but all fit the general description Schneider had given the police. Also, during direct examination of the complaining witness, the following took place:

“Q. Mr. Schneider, if you would look at the defendant in this case, Leonard Glenn Taylor. You may, at your request, have him stand up, walk around, face you, turn with his back, away from you, anything which you desire. If you would, please look at him. Take as much time as you need, and state to the jury whether or not he was the man that held the pistol on you.
“MR. EVANS: Your Honor, we would object at this time to the district attorney pointing out any one individual, and ask the question generally as to whether or not this witness can identify anyone in the courtroom.
“MR. INGALSBE: Your Honor, this is the man on trial here. I think that the identification should be of this man.
“THE COURT: All right, I am going to overrule the objection and let him testify.
“MR. INGALSBE: We request that the defendant stand up, and request that he walk around in front of the table and face Mr. Schneider.
“THE WITNESS: (to the defendant) Turn sideways. The other way.
“MR. INGALSBE: And further, request that he weigh the words ‘Get out of the light.’
“THE DEFENDANT: Get out of the light.
“THE WITNESS: O.K.
“MR. INGALSBE: Q. All right, Mr. Schneider, is this the man that held the pistol on you or not?
“THE WITNESS: A. I wasn’t sure because, with that pointing out a while ago; but the voice rasp, I won’t forget that. He is definitely the man.
“Q. This Leonard Glenn Taylor is the man that held the pistol on you and robbed you?
“A. Yes, sir.
“Q. Is there any doubt whatsoever in your mind?
“A. No, sir.”

On cross examination it was elicited from Schneider that he had mis-identified Williams as his assailant at the pretrial line-up. Petitioner’s counsel then had Williams stand beside the petitioner and elicited from Schneider that the petitioner’s arms were longer, his hands were bigger, his skin was lighter, he was four inches taller than Williams, and that there was a difference in facial features of the two men. All of this was in a lengthy cross examination of Schneider as to the accuracy of his pre-trial and in-court identifications and Schneider explained that he had been wrong before, but that he was quite sure of his identification he made in court. In jury argument, the prosecuting attorney stated that he could understand this erroneous identification in the pre-trial line-up because the six negro men looked like “six black crows on a limb”, which was objected to by the defense and the court sustained the objection and admonished the jury to disregard the comment. No motion for mis-trial was made.

The Court is of the opinion from the totality of these circumstances that the robbery victim’s in-court identification was so impermissibly suggestive as to be conducive to irreparable misidentification. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1969); Neil v. Biggers, 409 U.S 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

This opinion will serve as the Court’s findings of fact and conclusions of law.

Judgment will be entered in accordance herewith.

Signed, March 6, 1974.

(s) Leo Brewster JUDGE

APPENDIX 2

JUDGMENT

An evidentiary hearing has been duly held after proper notice on petitioner’s application for writ of habeas corpus, with petitioner and his attorney and counsel for the respondent all present in person and participating. The Court has reached the conclusion that the petitioner’s conviction and sentence attacked herein by his application must be set aside for the reasons set out in its memorandum opinion filed in connection herewith.

It is accordingly decreed that the judgment of conviction and the sentence of petitioner in Cause No. 10,508 — A, State of Texas v. Leonard Glenn Taylor, in the 42nd District Court of Taylor County, Texas, be set aside, and that petitioner be remanded to the Sheriff of Taylor County, Texas, or such officer as may be lawfully designated by him, to await trial on the charge against him in such case.

It is further ordered that the State of Texas shall have a reasonable time within which to try petitioner, and that he shall be discharged in the event he is not so tried.

Nothing herein is intended to prevent petitioner from making bail according to the law of the State of Texas.

Signed, March 6, 1974.

(s) Leo Brewster JUDGE

      . Mr. Evans, the attorney who represented Taylor at the time of his trial and conviction in the Texas state court, testifying as a witness in the federal habeas hearing, explained his failure to object to Taylor’s speaking out before the jury as follows:
      “Once I objected to him being pointed out by the District Attorney at the table, and the District Attorney had stood up and pointed down at his head and said, ‘I am talking about this man right here. This is the man I want to identify.’
      “I felt like after the exchanges in the hall where the District Attorney had told the witness that he identified the wrong man, and that he would have this man speak out in the Courtroom. And, of course, I wasn’t aware of that at that time. I didn’t know he told him he had identified the wrong man.
      “Well, I felt that there was error committed right there, when he pointed to that man, and pointed to his head and said, T mean this defendant right here. This is the one I am talking about.’ ” (App. p. 84.)


author: SEITZ, Chief Judge. GARTH, Circuit Judge

text:
    UNITED STATES of America ex rel. James Hoey FEAR, Appellee, v. Alfred T. RUNDLE, Superintendent, Edwin Anderson, Physician, Raymond Place, Physician, and Commonwealth of Pennsylvania, Appellants.
    No. 73-2052.
    United States Court of Appeals, Third Circuit
    Argued Sept. 5, 1974.
    Decided Dec. 26, 1974.

      Gerald Jay Pomerantz, Glickstein, Pomerantz & Briskin, Philadelphia, Pa., for appellee.
    Israel Packel, Atty. Gen., Lawrence Barth, Asst. Atty. Gen., Michael Minkin, Asst. Atty. Gen., Chief, Civil Litigation, Eastern Region Office, Michael von Mos- • chzisker, Deputy Atty. Gen., Eastern Regional Director, for appellants.
    Before SEITZ, Chief Judge, and GIBBONS and GARTH, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

This is an appeal from a lower court monetary judgment in favor of the plaintiff in a diversity action based on negligence. The action was initiated by a pro-se complaint of a former inmate in a prison operated by the Commonwealth of Pennsylvania. The plaintiff sued the superintendent of the prison in which he was confined and two physicians associated with the prison who had treated him for an injury sustained during his imprisonment. The plaintiff alleged that the medical treatment which he received with respect to his injury was negligent and that all three defendants were responsible for this negligent care. The lower court, which heard the case without a jury, found that the defendant physicians had been negligent and were liable to the plaintiff since they were not protected by sovereign immunity. The court, however, held that the defendant superintendent, by virtue of his office and duties, was immune from suit. The defendant physicians have appealed, alleging that they, as public officers, are also immune from suit.

Since we are of the opinion that the evidence supports the lower court’s finding of negligence on the part of the physicians, the essential issue on this appeal is whether they are shielded from plaintiff’s suit because they are officers of the Commonwealth of Pennsylvania.

Factual Background

The cause of action in this case arose out of a series of events commencing around 2:00 p.m. on January 24, 1968, at Graterford prison in Montgomery County, Pennsylvania, the correctional facility in which plaintiff was confined. At that time the plaintiff, who was unloading a truck, slipped on a piece of ice in the truck bed and fell, injuring his right wrist as he attempted to break his fall. Shortly thereafter, the plaintiff reported to the prison infirmary where he was examined by the defendant Dr. Anderson, who was the prison’s full-time physician. At that time, Dr. Anderson diagnosed the wrist injury as a sprain.

The following day, the plaintiff was examined by the defendant, Dr. Place, who worked for the prison on a part time basis. After the examination by Dr. Place, the plaintiff’s wrist was xrayed. Almost a week later, on January 30, 1968, the x-ray report was made revealing that the navicular bone in the plaintiff’s right wrist had been fractured. Despite the medical standard prevalent in Montgomery County in 1968, which the district court found to require that a patient with a broken bone be instructed to keep the injured area immobilized and that consultation with an orthopedic specialist be provided as soon as possible, the defendant physicians failed to inform plaintiff that his wrist was broken. They also chose to comply with a prison administrative rule then in effect which required there to be fifteen inmates in need of consultation with an orthopedic specialist — regardless of the time any number less than fifteen had to wait — before such a specialist could be brought into the prison.

Because of the negligence of the defendant physicians, the plaintiff was not even placed on the “list of fifteen” until February 8, 1968, a full two weeks after the navicular bone in his right wrist was fractured. As a result of the defendants’ negligent decision to follow an administrative rule which directly contravened the standards for practice of their profession, the plaintiff did not actually see an orthopedic specialist until April 11, 1968, two and one half months after his injury.

On April 11, the orthopedic specialist placed a cast around the plaintiff’s wrist. From that time until some time in August of the same year, the plaintiff wore a cast on his wrist. Throughout the entire period, the plaintiff continued to work as a mechanic since defendants did not execute a medical work release in his behalf. Moreover, the defendants did not recommend to the warden that the plaintiff should be relieved of his duties, despite a Pennsylvania statute in effect at that time which required:

The [prison] physician shall inquire into the mental as well as the bodily state of every prisoner, and when he shall have reason to believe that the mind or body is materially affected by the discipline, treatment, or diet, he shall inform the warden thereof, and shall enter his observation on the journal hereinafter directed to be kept, which shall be an authority for the warden for altering the discipline, treatment or diet of any prisoner, until the next meeting of the inspectors, who shall inquire into the case and make orders accordingly. Pa. Stat.Ann., tit. 61, § 372 (1964).

In August, when the cast was removed from his wrist, the plaintiff was informed that the two segments of the navicular bone had failed to knit. The lower court concluded that the failure to heal could be attributed to the defendants’ negligence in (1) failing to see to it that the plaintiff’s wrist was immobilized at an early stage, (2) failing to immediately arrange consultation between plaintiff and an orthopedic specialist, (3) failing to execute a medical release in behalf of the plaintiff so that he would not be required to perform his duties as a mechanic, and (4) failing to comply with Section 372 of Title 61, Pa.Stat. Ann. (hereinafter “Section 372”). The lower court found that as a result of the defendants’ negligence, the plaintiff had suffered a substantial impairment of the use of his right hand.

The defendants contend that this is in reality a suit against the Commonwealth and is accordingly controlled by early cases which hold that the Commonwealth and its agents are shielded from suit under the doctrine of sovereign immunity. In advancing this contention, the defendants argue that this case falls within the rule enunciated in Biello v. Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973).

Biello involved a wrongful death action against the Pennsylvania Liquor Control Board and its individual members. In that case, the Supreme Court of Pennsylvania, having concluded that the individual defendants were “nominal parties to the record” and that the suit was, in effect, a suit against an agency of the Commonwealth, held that the Board was immune from suit since it was performing a governmental function. See also Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973).

We do not believe, as the defendants contend, that the individual defendants in this case, like those in Biello, are merely “nominal parties to the record” and that the present action is in reality a suit against the Commonwealth. We think that Biello can be distinguished from the case at bar because in Biello, none of the persons sued were individually the perpetrators of the acts that allegedly were the direct cause of the personal injuries which were the gravamen of the suit in that case. The plaintiff in Biello alleged that the Commonwealth, the liquor control board, its individual members, and the manager of a retail store were liable for the sale of liquor to a minor who subsequently became intoxicated and, allegedly because of his intoxicated state, plunged from a fire escape to his death.

In Biello the defendants were not actors; they were sued because of their official responsibilities with respect to the retail sale of liquor on the theory that they should be held vicariously liable. Here, however, plaintiff sues two actors, whose decision to act in one way and whose failure to act in another were found by the lower court to be the proximate cause of plaintiff’s injuries. We therefore believe that the instant case is governed by Pennsylvania decisions dealing with suits against public officials as individuals.

Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958), relied upon by the district court in reaching its decision in the case at bar, is one of the most significant Pennsylvania cases dealing with suits against public officials as individuals. Montgomery involved a damage action grounded in slander that was brought by a contractor, who had undertaken to build two buildings for the City of Philadelphia, against two city officials. The defendants claimed they were immune from suit.

In responding to this defense, the Supreme Court of Pennsylvania noted that there are two forms of official privilege commonly recognized in this country. Under both, conduct otherwise actionable escapes liability because it is in furtherance of some socially important interest. The first form is qualified immunity. It shields a public official who acts in the performance of his official duties so long as the plaintiff cannot prove that the official has abused the privilege by acting in an improper manner, or did not have reasonable justification for his actions.

The second form is absolute immunity. It shields an official absolutely, that is to say, without regard for whether he had reasonable justification for his actions, so long as he acted in the course of his official duties.

The Montgomery court noted that not every official was protected by absolute immunity. The Court stated:

[Wjhether a particular public officer is protected by absolute privilege should depend upon the nature of his duties, the importance of his office, and particularly whether or not he has policy-making functions. Id. at 105.

However, the Court found that both city officials involved in the case before it were entitled to absolute immunity.

Although Montgomery was a defamation case, a subsequent opinion of the Pennsylvania Supreme Court, Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968), specifically stated that the Montgomery rule was not to be limited to defamation cases. Moreover, despite the municipal context of the suit in Montgomery, we think the doctrine enunciated in that case was intended to apply to public officers generally. Thus, the Montgomery dichotomy of high and low officials is potentially applicable to the instant case. Montgomery, however, because it was concerned with the immunity of high officials, never indicated the nature and extent of the “qualified” immunity which is extended to low officials. A recent decision of the Superior Court of Pennsylvania, Ammlung v. City of Chester, 224 Pa.Super. 47, 302 A.2d 491 (1973), suggests that the qualified immunity to which lower officials are entitled affords them protection with respect to any exercise of discretion which is not reckless, wanton or malicious. Indeed, this is exactly the limitation imposed by an early decision of the Pennsylvania Supreme Court, Yealy v. Fink, 43 Pa. 212 (1862), on the immunity held by certain public officials involved in that case.

No case has come to our attention that applies the Montgomery rule as expanded by Ammlung to a damage suit against a low official in the performance of a non-discretionary duty. However, we believe that the instant ease presents such a fact situation.

Based on our reading of Yealy, Montgomery and Ammlung, we believe that the rule in Pennsylvania is that persons are deemed low officials if they do not have extensive responsibility to fashion public policies, and if their duties and office are, when judged in the broad context of the state government in its entirety, not so consistently of public significance as to warrant the extension to them of an extraordinary and privileged status.

Applying this rule of law to the defendant physicians we find that neither defendant had sufficiently broad responsibility to formulate public policy or had a sufficiently significant office or sufficiently important duties, when compared with the office and duties of other state officials such as the deputy commissioner of public property or the city architect in Montgomery, to warrant his classification as a “high” official.

As low officials, the defendants’ liability to plaintiff for their tortious action or failure to act is dependent, under Montgomery and Ammlung, upon whether their decision to act or to refrain from acting was left to their discretion by state law. Were defendants performing a discretionary function when they caused plaintiff’s injury, they would only be liable to plaintiff, under Pennsylvania law, if their action or failure to act was reckless, malicious or wanton. Were the defendants performing a non-discretionary function, we believe they could be held liable to plaintiff, under Pennsylvania law, if their action or omission was merely negligent.

Although in the normal performance of their duties as prison physicians, the defendants may have had certain discretionary functions, they also had a statutory duty, under Section 372, to make inquiries concerning the health of each prisoner, and upon learning of physical infirmity affected by prison treatment, to inform the warden of the condition.

This duty was part of a statutory scheme which provided the warden with the opportunity and authority to alter the treatment of a prisoner in order to protect his health. The lower court found that the defendant physicians had failed to comply with this statute. We find that the defendant physicians had a non-discretionary duty to comply with the statute. We conclude that as low officials who failed to perform a non-discretionary act, the defendants are not to be judged by the “reckless, wanton or malicious” standard, but by the standard of negligence used in malpractice actions generally in Pennsylvania.

Inasmuch as the district court found the standard of practice in the Montgomery County area at the time of plaintiff’s injury dictated that plaintiff be given a work release and because we are of the opinion that Section 372 provided a statutory mandate with respect to such an alteration of a prisoner’s routine, we conclude that the defendants’ failure to perform the non-discretionary act required by Section 372 constituted negligence when judged by the standards of defendants’ profession. Furthermore, since the district court found that defendants’ failure to comply with Section 372 was a substantial factor in causing plaintiff’s injury to heal improperly, we conclude that the district court was correct in holding defendants liable to plaintiff. Finding liability on this one ground renders it unnecessary for us to determine whether the defendants here would be liable to the plaintiff, under Pennsylvania law, in the absence of Section 372.

The judgment of the district court will be affirmed.

GARTH, Circuit Judge

(dissenting):

I respectfully dissent inasmuch as I believe the substantive law of Pennsylvania dictates a conclusion as to defendants’ liability contrary to that reached by the majority.

Insofar as diversity is the jurisdictional basis in this action, we are required to follow state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Although the doctrine of immunity may be under attack in Pennsylvania and immunity has been withdrawn from governmental units, municipal corporations and quasi-corporations, Ayala v. Philadelphia Board of Public Educ., 453 Pa. 584, 305 A.2d 877 (1973), it nevertheless remains that state’s law that employees of Pennsylvania may, under certain circumstances, be immune from liability. Brungard v. Hartman, 12 Pa.Cmwlth. 477, 315 A.2d 913 (1974); Dubree v. Commonwealth of Pennsylvania, 8 Pa.Cmwlth. 567, 303 A.2d 530 (1973); Ammlung v. City of Chester, 224 Pa.Super. 47, 302 A.2d 491 (1973). See Daye v. Commonwealth of Pennsylvania, 483 F.2d 294, 299 (3d Cir. 1973) (applying Pennsylvania law). I believe those circumstances giving rise to immunity are present in this case. Accordingly, I would give effect to the doctrine of conditional immunity for lower level officials or employees of the Commonwealth, even though I would be inclined to hold the defendants liable were I presented with this issue on a de novo basis and was not bound by the prevailing substantive law of Pennsylvania. Where the state courts and the state legislature have declined to revise state law granting conditional immunity, the federal courts may not do so in a case based on federal diversity jurisdiction. Daye, 483 F.2d at 299. Cf. Harris v. Pennsylvania Turnpike Comm’n, 410 F.2d 1332 (3d Cir. 1969).

I agree with the majority’s characterization of the defendant doctors as lower level state employees. Characterized as such, as I read the governing Pennsylvania cases, the defendants are entitled to conditional immunity if they were acting within the scope of their authority and if their alleged negligent conduct was not intentionally malicious, wanton or reckless. Burton v. Fulton, 49 Pa. 151 (1865); Yealy v. Fink, 43 Pa. 212 (1862); Dubree v. Commonwealth of Pennsylvania, supra. See Daye v. Commonwealth of Pennsylvania, supra (where this Court affirmed the continued application of Pennsylvania’s doctrine of immunity for state officials and employees). As the plaintiff has failed to allege or prove that the defendants’ conduct was intentionally malicious, wanton or reckless in their medical treatment of him, I believe that this Court is obliged to reverse the district court’s determination of liability inasmuch as Pennsylvania law provides that the defendants are still cloaked with conditional immunity. The allegations in this complaint of simple negligence and the failure by the district court to find that the defendants’ conduct was intentionally malicious, wanton or reckless are insufficient bases on which the defendants, as employees of the Commonwealth, may be found liable. Brungard v. Hartman, 315 A.2d at 914-915; Dubree v. Commonwealth of Pennsylvania, 303 A.2d at 534.

Despite the consistent expressions of the Pennsylvania courts that low-level public employees are to be afforded conditional immunity, the majority, without citation of any Pennsylvania precedent, contends that “as low officials who failed to perform a non-discretionary act, the defendants are not to be judged by the ‘reckless, wanton or malicious’ standard, but by the standard of negligence used in malpractice actions generally in Pennsylvania.” (Majority Opinion at 335) (footnote omitted). The majority’s formula of liability includes as an essential ingredient the additional characterization of a “ministerial-discretionary” distinction. I believe, as does the majority, that this distinction is neither helpful nor controlling in the determination of conditional immunity under Pennsylvania law. (Accord, Majority Opinion at 335 n. 4). Yet, the majority finds it necessary to accept this distinction in order to support its theory of public employee liability. Simple negligence, the majority states, is sufficient to hold these employees liable because the defendants had a non-discretionary duty to comply with an 1829 statute and they failed to perform that non-discretionary act. In essence, the majority is of the view that these defendants were negligent as a matter of law and that because their negligence per se was found by the district court to be a substantial factor in causing plaintiff’s injury, the defendants were correctly held to be liable.

Even if I were to agree with the majority’s theory of liability and non-immunity (and I do not agree for the reasons expressed above), nevertheless I would still reverse thé district court’s judgment as I find no evidence in the record which supports the liability of the defendants for having violated a statutory duty.

The defendants’ violation of a statute, constituting negligence per se, cannot support the imposition of liability upon the defendants unless the violation of that statute proximately caused the injury sustained by the plaintiff. Wisniewski v. Chestnut Hill Hospital, 403 Pa. 610, 170 A.2d 595 (1961); Shakley v. Lee, 368 Pa. 476, 84 A.2d 322, 323 (1951). Where the critical facts, including those of causal connection are in dispute, as they are here, “proximate cause” is to be determined by the fact-finder — here the district court judge. See W. Prosser, Law of Torts, § 52 (3d ed. 1964). Compare Schreffler v. Birdsboro Corp., 490 F.2d 1148 (3d Cir. 1974) (applying Pennsylvania law); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A.2d 336 (1966). Although the trial judge concluded that the violation of the statute was a “substantial factor” in causing the plaintiff’s injury, there is a total absence of any evidence in the record below to support a finding that the statutory violation was a proximate cause of the plaintiff’s injury.

The pertinent portion of the statute on which the majority relies in affirming the district court’s judgment, involves the obligation of the defendant doctors to record their medical observations of the prisoner and to inform the warden if the physician believes the prisoner’s health is affected by the prisoner’s routine. In the record below there is no evidence of:

(a) the relationship, if any, of the medical work release to the statute claimed by the majority to have been violated by the defendants;

(b) whether or not entries were made by the defendants in the journal directed to be kept;

(c) whether the warden was informed by the defendants — or if and when he consulted the medical journal;

(d) whether the statutory procedures were followed at any time;

(e) the relationship of the statutory procedures to the administrative rule requiring 15 inmates to be in need of an orthopedic specialist before such a specialist could be brought into the prison;

(f) when or if the next meeting of inspectors (now the Board of Trustees) would take place;

(g) the effect upon the prisoner’s injury of defendants’ alleged failure to comply with the statute (apart from the failure to execute a medical work release).

In short, there is no competent evidence in the record to supply the necessary causal nexus between the purported violation of 61 P.S. § 372 and the injury suffered by the plaintiff.

Further, the only evidence in the record pertaining to an action of a prison physician which would directly affect the prisoner’s daily routine (without hospitalizing the prisoner), was the evidence of the doctors’ failure to issue a medical release excusing the plaintiff from work. However, as noted, no proof was submitted and the record is silent, as to the relation, if any, between the defendants’ failure to execute a medical release, the defendants’ obligation under the pertinent portion of the statute involved here, and the proximate cause of the injury suffered by plaintiff.

Confronted then, as I am, with an absence of evidence pertaining to the 1829 statute, and being unwilling to accept the premise that a violation of that statute must of necessity constitute the proximate cause of any injury suffered by a prisoner who was improperly treated by prison physicians, I believe that the theory on which the majority affirms defendants’ liability is untenable here.

Furthermore, I .believe that defendants’ violation of the statute, (if in fact such a violation occurred), constituting negligence as a matter of law, does not, of and by itself, supply the essential willfulness or wantonness precluding a defense of conditional immunity. E. g., Gulf, M. & O. R. Co. v. Freund, 183 F.2d 1005 (8th Cir. 1950), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950) (applying Illinois law). I believe that defendants’ violation of the statute involved here, may result in a characterization of their conduct as being negligent with all the effects of common law negligence, but with no greater effects. See W. Prosser, Law of Torts, § 35 at 202 (3d ed. 1964). Consequently, their negligence as a matter of law is not of the magnitude required to hold them to be liable as employees of the Commonwealth.

Accordingly, I would reverse the judgment of the district court which holds the defendant doctors liable as: (1) the plaintiff has failed in his proofs to surmount the defense of conditional immunity which shields the defendants; and (2) even if the majority is correct in its interpretation of Pennsylvania law, the plaintiff has failed to establish “ordinary negligence” proofs sufficient to impose liability upon the defendants.

      . See, e. g., O’Connor v. Pittsburgh, 18 Pa. 187 (1851).

      . A decision of the Commonwealth Court of Pennsylvania, Dubree v. Commonwealth, 8 Pa.Cmwlth. 567, 303 A.2d 530 (1973), held:
      To place liability upon a public official who is not a high public official, therefore, it is merely necessary to show that the officer concerned was not acting within the scope of his authority, and that the conduct complained of was intentional, as well as malicious, wanton or reckless. Id.

      . 43 Pa. at 216. The Superior Court of Pennsylvania in Ammlung, supra, apparently concluded that the county supervisors in Yealy were low officials. 302 A.2d at 495.

      . Some cases have suggested that duties of a public officer that are nondiscretionary should be deemed “ministerial.” See Ammlung v. City of Chester, supra; 67 C.J.S. Officers § 127 at 422. But courts and commentators alike have expressed discontent with the discretionary-ministerial distinction. See, e. g., Larson v. Domestic & Foreign Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655 (2d Cir. 1962); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 218-19 (1968). Although a distinction must, of necessity, be drawn between functions which are discretionary and those which are not, we believe that the labels “discretionary” and “ministerial” are too often used in a manner that tends to preclude careful analysis of a public official’s legal mandate to determine whether that official has, by law, been given discretion to perform a specific act.

      . Cases in other jurisdictions have found strong public policies to underly statutory provisions similar to those here. See, e. g., Pisacano v. State, 8 A.D.2d 335, 188 N.Y.S.2d 35 (1959).

      . In Pennsylvania the rule is that the doctor is required to: “exercise only such reasonable skill and diligence as is ordinarily exercised in his profession,” Duckworth v. Bennett, 320 Pa. 47, 181 A. 558, 559 (1935), see also Saltzer v. Reckord, 319 Pa. 208, 179 A. 449, 450 (1935), and to give “due regard to the advanced state of the profession and to exercise the care and judgment of a reasonable man in the exercise of medical skill and knowledge.” Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206, 217 (1971).

      . We have no trouble, as does the dissent, in finding that defendants’ failure to comply with Section 372 proximately caused plaintiff’s injury. Although the district court did not use the term “proximate cause,” it did find that defendants’ failure was a substantial factor in causing plaintiff’s injury. The Supreme Court of Pennsylvania has held, in a negligence case where the plaintiff claimed to have been injured by the defendant’s failure to comply with a statutory duty: “It is well settled in Pennsylvania that in order to find that defendant proximately caused an injury it must be found that his allegedly wrongful conduct was a substantial factor in bringing about plaintiff’s injury even though it need not be the only factor.” Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873, 877 (1965). We have no difficulty finding that plaintiff, in the instant case, was in the class of people protected by Section 372, toward whom defendants had a statutory duty. We think that the expert testimony contained in the record adequately supports the district court’s holding that defendants’ neglect of this duty was a substantial factor in causing plaintiff’s injury. Compare Dornon v. Johnston, 421 Pa. 58, 218 A.2d 808 (1966).

      . Pennsylvania law with regard to the individual liability of employees of the Commonwealth (state highway officials) was set forth in Dubree v. Commonwealth of Pennsylvania, 8 Pa.Cmwlth. at 574-575, 303 A.2d at 534:
      To place liability upon a public official who is not a high public official, therefore, it is merely necessary to show that the officer concerned was not acting within the scope of his authority, and that the conduct complained of was intentional, as well as malicious, wanton or reckless. He may escape liability, however, if he did act within the scope of his authority and if his negligent conduct was not intentionally malicious, wanton or reckless.

      . Burton, supra, involved members of a school board who were held conditionally immune from liability for having removed a teacher from her position; Yealy, supra, involved two highway supervisors who were held immune from liability when a bridge they constructed diverted water from a downstream mill; Brungard, supra, involved a college professor who was held immune from liability for an explosion in a laboratory classroom; Dubree, supra, involved the following state highway employees, all of whom were held to be conditionally immune from liability in a wrongful death action based on allegations that the defendants had removed a bridge and had not given warnings of the excavation: a District Engineer; an Assistant District Engineer; a Superintendent of the Maintenance Department; an Assistant Superintendent of the Maintenance Department; and two Foremen.

      . ' 61 P.S. § 372 in pertinent part provides:
      The [prison] physician shall inquire into the mental as well as the bodily state of every prisoner, and when he shall have reason to believe that the mind or body is materially affected by the discipline, treatment, or diet, he shall inform the warden thereof, and shall enter his observation on the journal hereinafter directed to be kept, which shall be an authority for the warden for altering the discipline, treatment or diet of any prisoner, until the next meeting of the inspectors, who shall inquire into the case and make orders accordingly.

      . This conclusion is found in Conclusions of Law 10 through 12 of the district court’s opinion. Although denominated a Conclusion of Law, a finding of proximate cause in the instant context is properly a finding of fact. See Kridler v. Ford Motor Co., 422 F.2d 1182, 1185 (3d Cir. 1970) (applying Pennsylvania law); Anderson v. Bushong, 404 Pa. 382, 391, 171 A.2d 771, 775 (1961). Findings of fact are not to be set aside unless clearly erroneous, F.R.Civ.P. 52(a), Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972), and thus cannot stand in the absence of an evidential basis. Thornton v. United States, 493 F.2d 164, 167 (3d Cir. 1974).

      . The district court treated the failure of the defendants to execute a medical release separately from the failure of the defendants to comply with 61 P.S. § 372. In Conclusion of Law 9, the district court held that the failure of the physicians to execute a medical release breached a duty owed to the plaintiff and that the negligence resulting therefrom was a substantial factor in causing the plaintiffs fracture to heal improperly. In any event, as I read the majority opinion, it does not rely upon the failure of the defendants to issue a medical release as a basis for affirming liability.