text:
    UNITED STATES of America, Plaintiff-Appellee, v. ALLSTATE MORTGAGE CORPORATION et al., Defendants-Appellants.
    No. 74-1322.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 23, 1974.
    Decided Dec. 10, 1974.
    Rehearing Denied Jan. 13, 1975.

      Patrick A. Tuite and Edward Genson, Chicago, Ill., for defendants-appellants.

      James R. Thompson, U. S. Atty., Gary L. Starkman and Michael D. Groark, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, CASTLE, and KILKENNY, Senior Circuit Judges.

       Honorable John F. Kilkenny of the United States Court of Appeals for the Ninth Circuit is sitting by designation.

   PER CURIAM.

Appellants were indicted and convicted, in a court trial, on eleven mail fraud counts in violation of 18 U.S.C. § 1341. Additionally, appellants Allstate and Karp were indicted and convicted on two and Karp alone on three false statement counts in violation of 18 U.S.C. § 1010.

SUFFICIENCY OF EVIDENCE

Without going into the fetid details of appellants’ fraudulent schemes and false statements, it is sufficient to say that the record supports their convictions on each of the counts on which they were convicted. This is particularly true when we invoke the rule in Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and view the evidence and all permissible inferences in the light most favorable to the government. The fact that the court acquitted most of the co-defendant salesmen fortifies, rather than undermines, the validity of the convictions. This action clearly demonstrates the alertness of the court on the issue of intent. Obviously, the district court, as trier of fact, had a doubt on whether the salesmen, as distinguished from appellants, had an intent to participate in the fraudulent schemes. The record before us bears no resemblance to United States v. Maybury, 274 F.2d 899 (CA2 1960), upon which appellants rely. Nor did the court’s offhand reference in its findings to co-appellant Berg’s post-scheme statement in any way affect its ultimate findings of guilt against Allstate and Karp. It is clear that the court considered Berg’s post-scheme statement only with reference to Berg, even though in many respects his actions characterized an important aspect of the over-all scheme to defraud. Absent a showing of substantive prejudice, the court, in a bench trial, is deemed to have considered only admissible and relevant material. United States v. Penick, 496 F.2d 1105, 1108 (CA7 1974). Even if, as contended by Allstate and Karp, the evidence was erroneously admitted as to them, the action should be considered harmless under Rule 52(a), F.R.Crim.P. There remains, aside from such evidence, an abundance of relevant and competent evidence to establish their guilt beyond a reasonable doubt.

The court’s findings are sufficient to sustain the judgments of convictions as to all appellants and are fully supported by the evidence.

IMMUNITY

Without citing authority in support of their views, appellants Karp and Allstate contend that the district court committed error in denying Allstate’s petition asking that defense witness Ross be granted use immunity from self-incrimination under the provisions of 18 U.S.C. §§ 6002 and 6003. Ross, an employee of an independent mortgage company, asserted his Fifth Amendment privilege during the course of his direct examination and refused to answer questions with reference to the use of certain FHA forms.

In the petition for immunity, appellants offered to prove that Ross would testify that it was the policy and practice of his company and, so far as he knew, the practice of the mortgage banking industry to follow the practice commonly followed by appellants in filling out the particular forms. The district court held that it had no power under the statutes to grant the petition. We agree.

In our view, there is no significant difference between the statute before the court in Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531 (1966), cert. denied 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967), and 18 U.S.C. §§ 6002 and 6003. Appellants’ argument that the immunity involved in Earl was transactional and that the immunity before us is use, is a distinction without a difference. Under neither statute is anyone other than the United States Attorney, with the approval of superior officials, authorized to request an order granting immunity to a witness. While the Congress may have the power to grant appellants a right comparable to the right granted to the government, the judicial creation of such a right is beyond the power of the courts. Earl, supra, at 534.

The rule in Earl has been uniformly followed subsequent to the enactment of §§ 6002 and 6003. Cerda v. United States, 488 F.2d 720, 723 (CA9 1973); United States v. Berrigan, 482 F.2d 171, 190 (CA3 1973); United States v. Jenkins, 470 F.2d 1061, 1063-1064 (CA9 1972), cert. denied 411 U.S. 920, 93 S.Ct. 1544, 36 L.Ed.2d 313 (1973). As recently as August 6, 1974, this circuit in United States v. Ramsey, 503 F.2d 524 (CA7 1974), in speaking on the subject, said: “[Tjhere is no merit to the argument that a defendant has a constitutional right to have immunity conferred upon a defense witness who exercises his privilege against self-incrimination.” Here, as in Ramsey, the prosecution did not secure any of its evidence by means of an immunity grant. Our recent decision in United States v. Watkins, 505 F.2d 545 (CA7 Nov., 1974), is consistent with these conclusions.

OTHER CONTENTIONS

(1) Appellants Allstate and Karp complain of the receipt in evidence of other false statements to the FHA similar to those charged in the indictment. This circuit recognizes the rule that evidence of prior similar offenses is admissible if it bears a strong resemblance to the pattern of the offenses charged. This evidence is highly relevant on the issue of knowledge and intent, as tending to show a consistent pattern of conduct. United States v. Marine, 413 F.2d 214, 216 (CA7 1969), cert. denied 396 U.S. 1001, 90 S.Ct. 550, 24 L.Ed.2d 493 (1970). See also United States v. Jones, 438 F.2d 461, 465-466 (CA7 1971), and United States v. Turner, 423 F.2d 481, 484 (CA7 . 1970), cert. denied 398 U.S. 967, 90 S.Ct. 2183, 26 L.Ed.2d 552.

Appellants’ reliance on United States v. Baum, 482 F.2d 1325 (CA2 1973), and Mills v. United States, 367 F.2d 366 (CA10 1966), is completely misplaced. Baum recognizes the rule just stated, but reversed the conviction on account of the government’s failure to provide, in pretrial proceedings, the name of the witness to the alleged prior crime. Reversal was further warranted by the trial court’s denial of defendant’s motion for a continuance to prepare cross-examination of the witness presenting the evidence of the prior offense. In substantial part, Baum stands for the proposition that the prosecution must disclose its witnesses to the defense prior to trial. Mills, too, recognizes that evidence of other offenses is admissible to show motive, intent, knowledge and course of conduct. The court reversed on the ground that only one of a large number of “no fund” cheeks issued by defendant and received in evidence had anything whatsoever to do with the interstate transportation of a stolen motor vehicle, the crime charged in the indictment.

Other authorities cited by appellants have received our attention, but they are no more in point.

(2) Appellant Berg maintains that the district court committed error in denying his pre-trial motion for a severance. Since the ultimate decision rests within the sound discretion of the trial judge, Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954), the appellant carries a heavy burden. Severance will be granted only for the most cogent reasons. The moving party must show that he will be unable to obtain a fair trial without severance, not merely that a separate trial will offer a better chance for acquittal. United States v. Blue, 440 F.2d 300, 302 (CA7 1971), cert. denied 404 U.S. 836, 92 S.Ct. 123, 30 L.Ed.2d 68. Another statement of the rule is that judicial economy, efficiency, speed and the public interest in avoiding multiple trials, dictates that defendants jointly indicted should be tried together, except for the most compelling reasons. Parker v. United States, 404 F.2d 1193, 1196 (CA9 1968), cert. denied 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969); United States v. Kahn, 381 F.2d 824, 839 (CA7 1967), cert. denied 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661. Our study of appellants’ motion and of the evidence introduced during the course of the trial, convinces us that there was no abuse of discretion in denying the motion nor did anything occur during the course of the trial which would require the court sua sponte to order a severance at the close of the government’s case.

(3) Appellants’ other contentions are peripheral to those just discussed. We find them meritless.

The judgments of conviction are affirmed.


source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    George A. CUNNINGHAM, Appellant, v. Jerome GANS, d/b/a Atlanta Engineering Company, et al., Appellees.
    No. 50, Docket 73-1747.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 1, 1974.
    Decided Dec. 2, 1974.

      John R. Mitchell, Charleston, W. Va. (Paul Stone, and Di Trapano, Mitchell, Lawson & Field, Charleston, W. Va., on the brief), for appellant.
    David D. Rothbart, Brooklyn, N.Y. (Abraham-Reingold, and Glabman, Ru-benstein, Reingold & Rothbart, Brooklyn, N.Y., on the brief), for appellee Gans.
    Irwin H. Haut, New York City (Sidney A. Schwartz, and Alexander, Ash, Schwartz & Cohen, New York City, on the brief), for appellees Kahn, Green-berg, Donald N. Boas, James M. Boas, and Central Iron Manufacturing Co., Inc.
    Before LUMBARD, MOORE and MANSFIELD, Circuit Judges.
   LUMBARD, Circuit Judge:

George Cunningham appeals from a judgment of the Eastern District, dismissing his complaint and directing a verdict for defendants. He claims that rulings by the trial judge, refusing to admit certain pieces of evidence as business records, refusing to receive the testimony of two witnesses offered by Cunningham as experts, and refusing to allow Cunningham to examine certain witnesses as adverse witnesses, were erroneous and were unduly restrictive and that they prevented Cunningham from establishing his tort and contract claims against defendants. Since we are in basic agreement with plaintiff’s position, we reverse and remand for new trial.

Cunningham was employed by M. K. Kellogg Co. (Kellogg) as a pipe-fitter on a construction project at Belle, West Virginia, where an ammonia plant was being built for E. I. duPont de Nemours Co. On September 1, 1966, Cunningham helped erect a ten-inch steel pipe that connected a furnace to a boiler line. The pipe was over forty feet long, weighed several thousand pounds, and was to be installed approximately thirty feet above the ground. In order to install the pipe it was necessary to use pipe hangers, which consisted in part of clamps that were fastened around the pipe. After Cunningham had completed the installation of one such clamp, the devices used temporarily to hold the pipe in place were released. Almost immediately thereafter the clamp that Cunningham had installed broke and the pipe fell downward. Cunningham was knocked from his perch and he was injured when he fell thirty feet to the ground.

Cunningham filed this diversity action in August 1968 against the principals of Atlanta Engineering Co. (Atlanta), the alleged seller of the clamp, and Central Iron Manufacturing Co. (Central), the alleged manufacturer of the clamp. In his complaint Cunningham claimed that the clamp that broke and caused his injury was negligently designed and manufactured and that the defendants breached an express warranty of fitness and an implied warranty of fitness and merchantability. After extensive pre-trial proceedings, the case came to trial in January 1973. At the trial it became apparent that Cunningham faced several very difficult hurdles that had to be surmounted if he was to affix liability on the defendants. The problems stemmed from the fact that the clamp that broke was no longer available and could not be introduced into evidence and the fact that there was uneontroverted evidence that the clamp intended for use in hanging the pipe in question could not be found on the morning of the installation, and that another, lighter clamp had been substituted. Thus, there was no direct evidence that the clamp that broke was manufactured or sold by defendants, while there was evidence to show that a lighter, less sturdy clamp than called for in the plans had been used.

In an attempt to overcome these problems Cunningham endeavored to show that Atlanta was the only firm that had contracted to supply Kellogg with clamps, that no clamps were bought in West Virginia, and that no clamps were manufactured at the job site. If Cunningham could establish these facts, he would have shown through circumstantial evidence that it was probable that the clamp that broke was made and sold by defendants. In order to overcome the problem caused by the substitution of a lighter clamp, Cunningham attempted to show that the clamp actually used, as described by the witnesses who saw it, would have held a pipe of the size involved here, if that clamp met defendants’ warranted specifications.

In order to establish these contentions Cunningham offered several documents into evidence and called two witnesses as experts. After initially allowing some of the documents into evidence, the trial judge changed his mind and ruled that they were all inadmissible. In the case of one of plaintiff’s experts, the judge ruled that he was not an expert. In the case of the other expert, the judge restricted the extent to which Cunningham was allowed to ask him hypothetical questions.

Exhibit 22

Exhibit 22 was a material status report on the Belle construction project, compiled by employees of Kellogg, that listed all of the purchase orders for that project. The exhibit was crucial to plaintiff’s case because it apparently established that all of the clamps ordered for the project were supplied by Atlanta. Cunningham established that Mr. Connell, the Kellogg employee who had accompanied the document to the trial, was familiar with the internal records of Kellogg, that Kellogg kept records concerning the materials ordered for a project in the ordinary course of its business, and that Exhibit 22 was that record for the Belle project. Defendants - attacked Exhibit 22 as not falling under the business records exception to the hearsay rule because Connell did not personally take Exhibit 22 from the company files (his superior gave it to him), was not positive that he had seen Exhibit 22 before it was handed to him, and was not employed in the records or purchasing division of Kellogg. The judge initially ruled Exhibit 22 was admissible, but the following day he changed his mind and refused to allow it into evidence.

While matters such as these are usually left to the discretion of the trial judge, it appears that the judge in this case based his decision on what we feel was an erroneous reading of two cases: Palmer v. Hoffman, 318 U.S, 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and Hartzog v. United States, 217 F.2d 706 (4th Cir. 1954). This fact, together with our' feeling that the evidentiary rulings in this case were unduly restrictive, requires us to reverse the judgment. In Palmer, the Supreme Court excluded from evidence a statement made by the engineer of a train to a railroad company official following a train accident because the statement was not made in the ordinary course of the railroad’s business, which the Court said was railroading, not investigating accidents. In doing so, however, the Court noted that the business records exception “should of course be liberally interpreted so as to do away with the anachronistic rules which gave rise to its need.” Palmer v. Hoffman, supra, 318 U.S. at 115, 63 S.Ct. at 481. In Hartzog, the Fourth Circuit refused to allow into evidence as business records the written summaries of business records prepared by a deceased government investigator in anticipation of litigation. Both of these decisions are based on a desire to exclude from the business records exception to the hearsay rule statements made or prepared with an eye toward litigation. Neither of these cases even faintly suggests that Exhibit 22 was not admissible as a business record since it clearly was prepared in the course of Kellogg’s business and not for litigation.

Our recent cases also call for the admission of the Exhibit. In United States v. Rosenstein, 474 F.2d 705 (1973), we held that it was not required that the witness introducing the records had personally kept the records. It was enough that “someone who is sufficiently familiar with the business practice [testifies] that [the] records were made as part of that practice.” United States v. Rosen-stein, supra, at 710. See also United States v. Dawson, 400 F.2d 194, 198 (2d Cir. 1968). Connell testified that he was familiar with Kellogg’s procedures and that Exhibit 22 was made in accordance with those procedures. There was no reason to believe that the record was unreliable and it should have been admitted.

Exhibit 23

Mr. Connell also produced a xerox copy of an isometric drawing that depicted the pipe that was being installed when the accident occurred. The drawing was an important element in Cunningham’s case: he intended to use it to establish the weight of the pipe. It will be remembered that he had to establish that weight in order to show that the clamp that broke should have been able to support that weight. Connell testified that the xeroxed copy was a fair representation of the drawings that were used on the Belle project and that the copy had been made from the original which was in the files of Kellogg Co. The defendants’ objections were similar to those raised against Exhibit 22. Once again, we feel, for the reasons discussed above, that Exhibit 23 should have been admitted.

Exhibit 24

Exhibit 24 consisted of documents that tended to show that Kellogg had problems with several of the clamps purchased from Atlanta. One of the documents was a laboratory report that indicated that the wrong kind of steel was used in manufacturing the clamps. Another indicated that Atlanta replaced many of the clamps because of the problems that Kellogg had with them. Cunningham sought to use these documents to establish that the clamp that broke was defective. However, the judge ruled that these documents (which were all dated within two months of Cunningham’s injury) were inadmissible because they did not pertain to the specific clamp that plaintiff claimed caused his injury. Since plaintiff established that all of the clamps supplied by Atlanta had been delivered prior to the date of the accident, it seems to us that these documents, which dealt with the clamps supplied by Atlanta, were relevant and should have been admitted. Of course, Cunningham still must establish that Atlanta did supply the clamp that broke. If the jury decides that Atlanta did supply the clamp in question, they should be able to consider evidence that showed that other clamps supplied by Atlanta were defective. As expressed by McCormick: “[T]he most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence.” C. McCormick, Evidence § 185, at 437 (1972). We think that Exhibit 24 easily meets this test and should have been admitted into evidence.

John Young as an Expert Witness

Plaintiff attempted to have John Young give an expert opinion as to whether the clamp actually used should have been able to support the pipe that was being installed. In order to qualify Young as an expert in the field of pipe-hanger construction, plaintiff showed that Young had been a pipefitter for 33 years, had designed dies for making pipe-hangers, had made many thousands of hangers over a period of 16 years, had spent 17 years working exclusively as a pipefitter, and had been a general foreman in charge of pipefitting at the Belle plant. Defendants objected that these qualifications were not enough to establish Young as an expert, largely because Mr. Young was not a metallurgist and because some of his experience in the field had taken place many years ago. We do not find these objections persuasive. Indeed, the latter objection only establishes that Young had been around a long time. Moreover, in light of Young’s long practical experience in the field, we do not think that his lack of metallurgic training disqualifies him as an expert witness. While we normally allow a trial judge considerable freedom in deciding whether a witness qualifies as an expert, see, e. g., Butkowski v. General Motors Corp., 497 F.2d 1158, at 1159 (1974), we feel in this case that Young should have been allowed to testify as an expert. Young’s extensive experience in this field certainly qualified him as a person who could aid the jury in the resolution of the question of how much weight the clamp actually used should have been able to support. See generally C. McCormick, Evidence § 13 (1972). Of course, the defendants are free to cross-examine Young to develop any shortcomings in his qualifications.

Emanuel Silkiss as an Expert Witness

Cunningham called Emanuel Silkiss as an expert witness to establish that the clamp that broke should have been able to support the pipe. In his questioning of Silkiss plaintiff’s attorney was greatly hindered by defense counsels’ objections to the hypothetical questions he was posing. Although those questions sometimes covered over a page of printed transcript defense counsel always objected and claimed that plaintiff’s attorney had misstated a minor point. These objections were sustained by the trial judge, and as a result Cunningham was unable to elicit helpful testimony from Silkiss. We feel the trial court’s rulings were unduly restrictive. On retrial a better trial procedure would be for Cunningham’s attorney to ask shorter, less detailed hypothetical questions. Then defense counsel should attack the expert’s testimony by showing his conclusions would be different if certain facts were also assumed or if certain assumed facts were changed rather than by voicing picky objections to complicated hypothetical questions. Such a procedure has been advocated by many authorities. See, e. g., Proposed Federal Rule of Evidence 705 and advisory committee’s note; C. McCormick, Evidence § 16 (1972).

Adverse Witnesses

Cunningham also claims that he should have been allowed to call, and then question as adverse witnesses, two persons who were formerly employed by Central. Since these two men were never directors, officers or managing agents of Central, the application of rule 43 which allows a party to call and treat certain individuals as adverse witnesses is unclear. See 9 C. Wright and A. Miller, Federal Practice & Procedure, § 2413, at 369-70 (1971). However, we need not determine that issue since Cunningham does not show how he was prejudiced by his inability to treat the witnesses as adverse. He only suggests that one witness testified differently at trial than he did at the time of his deposition. Since rule 32(a)(1) allows any party to impeach a witness who deviates from his deposition answers at trial, we do not see how Cunningham was prejudiced. Fed.R.Civ.P. 32(a)(1). See also United States v. Freeman, 302 F.2d 347 (2d Cir. 1962) (party may impeach own witness).

Because the trial judge’s erroneous rulings on the admissibility of business records and the appropriateness of expert testimony were unduly restrictive, plaintiff was prevented from establishing his case. We think that the offered evidence should have been admitted, and that if it had been, plaintiff would have presented sufficient evidence to require submission of the case to a jury. Reversed and remanded for a new trial before a different judge.

      . The business-records exception to the hearsay rule is statutorily established in 28 U.S.C. § 1732:
      “(a) In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence,, or event or within a reasonable time thereafter.
      All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. . . . ”


author: CHOY, Circuit Judge: WALLACE, Circuit Judge CURTIS, District Judge

text:
    Viola McKINNEY et al., Plaintiffs-Appellants, v. Lee E. DE BORD et al., Defendants-Appellees.
    No. 71-1209.
    United States Court of Appeals, Ninth Circuit.
    Nov. 21, 1974.

      Mervin C. McKinney, in pro. per.
    Anthony L. Dicce, Deputy Atty. Gen. (appeared), Sacramento, Cal., Thos. A. Welch, Brobeck, Phleger & Harrison (appeared), San Francisco, Cal., for defendants-appellees.

      Before CHOY  and WALLACE, Circuit Judges, and CURTIS, District Judge.

       The Honorable Oliver D. Hamlin, Jr., Senior Judge of the Ninth Circuit Court of Appeals, who was a member of the panel which heard this appeal, died before this case was decided. Judge Choy was designated to substitute for Judge Hamlin.

       The Honorable Jesse W. Curtis, United States District Judge for the Central District of California, sitting by designation.

   OPINION

CHOY, Circuit Judge:

State prisoner McKinney filed suit under the Civil Rights Act, 42 U.S.C. § 1983, for himself, his mother Viola and another state prisoner Wimberley against 23 employees of the California prison system, a lawbook publishing company and one of its employees. He alleged 10 substantive counts and one count for punitive damages. Of the 10 substantive counts, 9 concerned actions of the prison officials, largely involving allegations of denial of access to various legal materials. Apparently McKinney was substantially involved in giving advice and preparing legal documents for himself and others. In the remaining substantive count McKinney alleged that the lawbook publishing company and one of its salesmen had conspired with prison officials to prevent him from receiving lawbooks his mother had purchased for him. As a result of defense motions for dismissal and summary judgment, the trial court disposed of the case in favor of defendants-appellees. McKinney v. DeBord, 324 F.Supp. 928 (E.D.Cal.1970).

Although the notice of appeal purports to be on behalf of all plaintiffs, it is signed only by McKinney. The notice of appeal must be signed by the party or the party’s attorney. Fed.R. Civ.P. 11. See Wilson v. Dixon, 256 F.2d 536 (9th Cir.), cert. denied, 358 U.S. 856, 79 S.Ct. 89, 3 L.Ed.2d 90 (1958). Since McKinney is not an attorney, the purported appeals by Viola McKinney and Wimberley must be dismissed and it is so ordered. Additionally, since McKinney is no longer incarcerated, his request for declaratory judgment and his allegations concerning prison conditions are moot. As to the remaining issues, we agree basically with the disposition by the district court, but we feel it necessary to amplify the lower court’s treatment of the case on several of McKinney’s claims. With the specific exception discussed below, we affirm.

In count three, McKinney claims that prison officials refused to allow him to show his mother certain catalogues and brochures from lawbook companies. The district court dismissed this count as failing to state a cause of action upon which relief could be granted because it found that McKinney’s intention was to have her buy “legal books which he intended to keep in his cell” and that he “was seeking to purchase more books than he was permitted to possess in his cell under applicable prison regulations . . . .” 324 F.Supp. at 932.

We are admonished by the oft-repeated rule of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that a complaint should only be dismissed under Fed.R. Civ.P. 12(b)(6) if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” That, of course, requires that every factual difference be resolved in the plaintiff’s favor. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 at 601 (1969). In line with this rule, we suppose that it is conceivable McKinney could have had a legitimate purpose in having his mother purchase the law books for him — one which would not have entailed violation of the prison regulation limiting at sixteen the number of books a prisoner could have in his cell. He could have wished to replace books in his cell with those his mother would purchase, thereby staying within the sixteen book limit; or he might possibly have donated the newly acquired volumes to the prison library, also a permissible form of access to law books. See In re Harrell, 2 Cal.3d 675, 697 & n. 23, 87 Cal.Rptr. 504, 518-519, 470 P.2d 640, 654-655 (1970), cert. denied, 401 U.S. 914, 91 S.Ct. 890, 27 L.Ed.2d 814 (1971).

But, in construing a complaint most favorably for the plaintiff, a court need not give a. plaintiff the benefit of every conceivable doubt; rather, a court is required only to draw every reasonable or warranted factual inference in the plaintiff’s favor. And the same rule which requires us to apply “less stringent” standards to pro se complaints “than [to] formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), also teaches that we should use common sense in interpreting the frequently diffuse pleadings of pro se complainants. Cf. Weller v. Dickson, 314 F.2d 598, 601—602 (9th Cir.) (Duniway, J., concurring), cert. denied, 375 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72 (1963).

With this in view, it is clear here that the district court was correct in finding that it was McKinney’s intention to purchase books for his cell. McKinney, in both his brief here and his memoranda filed below, makes it evident that it was never his intention to have his mother replace books in his cell library or to donate them to the prison library. Nowhere does McKinney argue other than that he intended to purchase the books for his cell.

Thus, interpreting the third count of McKinney’s complaint in a common sense manner, we affirm the district court’s dismissal of it. We would be blind to the realities of this case were we to do otherwise and hypothetically assume that McKinney had some other factual possibility in mind in his complaint than that which he repeatedly declares in his arguing papers. Cf. S & S Logging Co. v. Barker, 366 F.2d 617, 623 (9th Cir. 1966).

McKinney complains in counts five and seven that prison officials denied his First Amendment rights by seizing letters sent by him to the law book company. These letters protested that the company had not sent 42 books McKinney had previously ordered. Earlier, after a consultation with prison officials revealed that it would violate prison regulations for McKinney to receive the books, the company had declined to send them to McKinney; instead, it shipped them to his mother. At the time the letters were seized, McKinney had already sent several other messages objecting to the actions of Bancroft Whitney, and according to the complaint, these had not been suppressed.

Recently, in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court ruled on the extent to which prisoner correspondence can be censored or suppressed. It held that censorship regulations “must further an important or substantial governmental interest unrelated to the suppression of expression” and “the limitation of First Amendment freedoms must be no greater than is necessary or essential to the particular governmental interest involved.” Id. at 413, 94 S.Ct. at 1811.

Under this standard we do not think the suppression of the letters violated McKinney’s (or the publisher’s) First Amendment rights. The letters were sent only to prompt the law book publisher to send the volumes McKinney had ordered. Receipt of the books would have caused McKinney to be in violation of prison regulations. The letters were seized only after it became clear that the correspondence could well prompt violation of a valid prison regulation and hence seizure was an aid to enforcement of the sixteen book limit. Their seizure thus furthered an important governmental interest unrelated to the suppression of expression.

Our conclusion is strengthened by prison regulations approved by the three judge court in Martinez which would seemingly legitimate what the prison authorities did here. The regulations, which were cited approvingly by the Supreme Court as “indicative of one solution to the [censorship] problem,” allow authorities to censor any outgoing letter if it “concerns plans for activities in violation of institutional rules.” Procunier v. Martinez, 416 U.S. at 416 n. 15, 94 S.Ct. at 1813. That proscription is applicable to McKinney’s repetitious letters of complaint.

However, the Supreme Court in Martinez also required that when delivery of a letter is withheld, certain procedural safeguards be supplied. Id. at 417 — 419, 94 S.Ct. at 1814. The Martinez district court had defined the procedural minimum as notice of rejection of the letter to the inmate and an opportunity to protest to a prison official other than the person who originally disapproved of the correspondence, id. at 418-419, 94 S.Ct. at 1814; the Supreme Court approved of these safeguards as not “unduly burdensome.” Id. In McKinney’s case no procedural safeguards were provided, which is understandable in that the censorship here substantially predated Martinez. Thus it may well be that the failure to provide safeguards was the result of good faith enforcement of the then valid prison rules on mail censorship, a fact which would immunize the conduct of the prison officials under § 1983. See, e. g., Wimberley v. Campoy, 446 F.2d 895 (9th Cir. 1971). But, we cannot so conclude with utter certainty. Since this count was dismissed by way of a Rule 12(b)(6) motion, we are therefore forced, under the principle of Conley v. Gibson, to remand on this limited issue for further proceedings.

McKinney separately appeals the dismissal of his cause of action against the law book publisher and its representative. Assuming timely notice of that appeal was filed, see Fed.R.App.P. 3, 4, the appeal is frivolous.

Affirmed in part; reversed and remanded in part.

WALLACE, Circuit Judge

(concurring and dissenting):

I concur in Judge Choy’s opinion except as to its treatment of count 3. In this count, McKinney claims that prison officials refused to allow him to show his mother certain catalogues and brochures from lawbook companies. The district court dismissed this count as failing to state a cause of action upon which relief could be granted because it assumed that McKinney’s intention was to have her buy “legal books which he intended to keep in his cell” and that he “was seeking to purchase more books than he was permitted to possess in his cell under applicable prison regulations . . . .” McKinney v. DeBord, 324 F.Supp. 928, 932 (E.D.Cal.1970).

Based upon statements in documents other than the unanswered complaint, Judge Choy concludes that McKinney would have put the books, to be purchased in his cell. The district court could not have relied upon these statements, however, without treating the motion as one for summary judgment. If it did so, it would be required to allow McKinney to respond. Dale v. Hahn, 440 F.2d 633, 638 (2d Cir. 1971). Nor do 1 believe the district court could dismiss the complaint as a sham on the basis of pleadings of the defendants without allowing McKinney to respond. Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960). At no time was McKinney required to or requested to respond. As the court gave no indication it was dismissing other than based upon the complaint itself, I believe we must review the action of the district court under the strict standards referred to by Judge Choy governing dismissals of complaints. We may do so only by referring to the complaint and not to other materials. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Williford v. California, 352 F.2d 474 (9th Cir. 1965); Marshall v. Sawyer, 301 F.2d 639, 647 (9th Cir. 1962).

I cannot say that the complaint, considered by itself with all factual disputes resolved in favor of McKinney, alleges no facts that could be proved which would support a claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although it could be inferred that McKinney did intend to keep the books in his cell, to reach such a conclusion the evidence would have to be viewed most favorably to the defendants. This the district court cannot do in ruling on a motion to dismiss. Fed.R. Civ.P. 12(b)(5).

I would reverse and remand count 3.

CURTIS, District Judge

(concurring and dissenting):

I concur with Judge Choy’s holding that the trial court’s dismissal of count 3 should be affirmed, but I dissent from his holding that the trial court’s dismissal of counts 5 and 7 be reversed and remanded.

The appellant, who at the time of filing the complaint was a state prisoner, seeks damages by way of this civil rights action, brought pursuant to the provisions of Title 42 U.S.C. § 1983, for alleged wrongs done to him during his incarceration.

His complaint is quite typical of pro se pleadings. It is a lengthy and disorganized narrative of alleged injustices which he claims have been perpetrated upon him by prison officials. The complaint is replete with irrelevancies and inconsistencies, and the precise nature of his claims often appear vague and obscure. On the whole it appears to be a challenge to the prison officials’ authority to enact and enforce disciplinary rules, a contention which is without substantial merit.

The trial court, after patiently sifting through the pleadings and considering each of appellant’s claims, decided all eleven counts against him. McKinney v. DeBord, 324 F.Supp. 928 (E.D.Cal.1970). We are in agreement that the decision of the trial judge should be affirmed as to all counts, except 3, 5 and 7. As to the latter we have differing views.

In order to understand the true nature of appellant’s complaint in these counts, they must be read in the light of the complaint when read as a whole. Putting the events which appellant alleges in some chronological order, the following appear to be the facts:

Beginning at least as early as January 1969, the appellant undertook to provide legal services for fellow inmates, as well as for himself. In April of that year he began to collect law books, stationery, and other office supplies in his cell for use in connection with the performance of this service.

Prior to June 1, 1969, he alleges that there was in effect a prison rule prohibiting an inmate from having more than eight law books in his cell at any one time. At about that time, the rule was changed to allow not more than sixteen law books in an inmate’s cell. The principal thrust of appellant’s complaint is his contention that any such rule limiting the books which an inmate may have in his cell is unconstitutional. On this ground he directly attacked the validity of the rule in count 8, which was dismissed by the trial court as being without merit. We agree that such dismissal was proper.

Most of the other counts relate to the occasions upon which appellant’s attempt to obtain these books were frustrated.

In April and May of 1969, he attempted to contact various publishing companies including Bancroft-Whitney in San Francisco, but the prison authorities intercepted his letters. He also complains that he was prevented from showing his mother certain catalogues and brochures of law books which he wished to purchase.

Notwithstanding these allegations, he admits that during the year he was able to accumulate, by way of loan and purchase, sixty-four books which were confiscated from his cell in November and December of 1969. He further admits that from May to November he corresponded with law book publishing companies, apparently obtaining brochures and catalogues. With the knowledge and consent of prison authorities he arranged, presumably through his mother, to purchase forty-two of these books. When delivery was attempted at the prison, officials refused to accept them and ordered them delivered to the appellant’s mother. On several occasions she attempted to deliver them to the appellant, but each time she was refused by prison officials and the books were ultimately returned to the publishers.

In count 3, the appellant claims damages because of prison officials’ refusal to let him show his mother the law book brochures and catalogues. Judge Wallace holds that a dismissal of this count was improper because the trial judge assumed that the books, which were the subject matter of the purchase, were to be kept in the appellant’s cell which, of course, was in violation of the rule. Since the count contains no explicit allegation to this effect, it does not rule out the possible inference that the appellant intended to put the books to some legitimate use. In the face of such a factual dispute, Judge Wallace feels that the trial court should not have dismissed the count without at least giving the appellant an opportunity to respond. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

I concur completely with Judge Choy’s holding that in light of the allegations in the complaint, taken as a whole, the trial court was well within its discretion in construing count 3 to refer to the purchase of law books for use in appellant’s cell. Furthermore, appellant’s response to the motions for dismissal and motions for summary judgment was the filing of an affidavit stating:

“Your affiant is willing to stand on his well-pleaded complaint and is further willing to take the matter, as it now stands prepared, to [sic] Court of Appeals, therefore, no additional pleading will be filed. Plaintiffs stand or fall on their well-pleaded drafted Civil Right [sic] Act complaint. . . .”

In counts 5 and 7, appellant alleges that certain letters addressed to law book publishers were intercepted and suppressed. I agree with Judge Choy that for the reasons set forth in his opinion the interception and suppression of these letters was permissible unless the officers were acting in bad faith. Whereas, Judge Choy would remand for a clarification of the issue of good faith, I would affirm in reliance upon the presumption “that official duty has been regularly performed.” Cal.Evid.Code § 664 (West 1966).

It has long been the law of the State of California that a complaint seeking to charge official misconduct must negative the presumption of regularity of official action as declared by the Code. Los An-geles Athletic Club v. City of Long Beach, 128 Cal.App. 427, 17 P.2d 1061 (1st Dist. 1932). Cf. In re Sichofsky, 201 Cal. 360, 368, 257 P. 439 (1927).

The same presumption exists for Civil Rights Act cases of this sort, Urbano v. McCorkle, 346 F.Supp. 51, 54 (D.N.J. 1973), aff’d 481 F.2d 1400 (3d Cir. 1973).

The nearest the plaintiff comes to alleging anything in the way of bad faith first occurs in the fifth claim where he alleges “Letters to the Bureau of N. Affairs was [sic] removed from the mails by Sergeant K. W. Miranda. Letters to M. Neil Smith, Bancroft-Whitney local representative, was [sic] also removed. Letters to Bancroft-Whitney were stolen from the mails. Letters to p 'stal authorities were stolen from the ils in an attempt to thwart a postal investigation of the charges that plaintiff had lodged against Miranda and others.”

Although plaintiff had a clear opportunity to allege bad faith, he carefully avoided doing so, alleging only that the defendants removed the letters and that certain letters were stolen by unnamed persons. Again in the seventh claim he alleges that certain letters “have not been allowed to leave the institution.” He again alleges that he “sought to send other letters to Bancroft-Whitney through the regular mail channels and these were summarily returned and rejected . . . ” by prison officials. In my view these allegations fall far short of charging bad faith or misconduct sufficient to negative the presumption of regularity of official action.

Furthermore, trial judges should have broad discretion in interpreting the pro se pleadings of prisoners, especially in civil rights actions. As Judge Duniway said in his concurring opinion in Weller v. Dickson, 314 F.2d 598, 601-602 (9th Cir.), cert. denied, 375 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72 (1963):

“I also think that the district judge should have a broader discretion in civil actions brought by prisoners against their jailers than in other civil actions. We know from sad experience with habeas corpus and 2255 cases that imprisoned felons are seldom, if ever, deterred by the. penalties of perjury. They do not hesitate to allege whatever they think is required in order to get themselves even the temporary relief of a proceeding in court. The prospect of amercing their jailers in damages must be a most tempting one, even if it will not get them their freedom. The disruption of prison discipline that the maintenance of such suits, at government expense, can bring about is not difficult to imagine.”

I can only conclude that the dismissal of counts 3, 5 and 7 was proper and, at least, the trial court, in doing so, was not clearly in error.

I would affirm.

      . McKinney also attempted to plead a class action, but he neither succeeded nor perfected his right to proceed. See Fed.R.Civ.P. 23(c)(1).

      . See, e. g., DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966).

      . See Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 973 (8th Cir. 1968), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969); Ryan v. Scoggin, 245 F.2d 54, 57 (10th Cir. 1957); Ogden River Water Users’ Ass’n v. Weber Basin Water Conservancy, 238 F.2d 936, 940 (10th Cir. 1956); International Bank of Miami v. Banco de Economias y Prestamos, 55 F.R.D. 180, 186 (D.Puerto Rico 1972); Herman v. C. O. Porter Machinery Co., 333 F.Supp. 416, 417 (M.D.Pa.1971); cf. Margetta v. Pam Pam Corp., 354 F.Supp. 158 (S.D.Cal.1973).

      . See also Smart v. Heinze, 347 F.2d 114, 116 n. 2 (9th Cir.), cert. denied, 382 U.S. 896, 86 S.Ct. 192, 15 L.Ed.2d 153 (1965).

      . In his brief here McKinney put the third claim as follows:

        Third Claim

      At the time of the Third Claim inmates were permitted 8 hardbound volumes (or hardbound books) in their possession. No limit on “advance sheets” or soft-back law matters existed. Affiant McKinney was denied his right to purchase books “up to the Rule limit”
      Br. at 20. In a memorandum filed in the lower court McKinney negatived any intention to have his mother replace volumes in his cell:
      Attorneys for the defendants would have the affiant make use of the mails at rates he cannot afford in order to switch parts of these law books [the ones he wished to have his mother purchase and the ones that were ultimately purchased but not delivered] from time to time. . . . They make no comment on the frustrations of being able to partially research a matter, then, have to wait for two weeks or so for other volumes to be sent to the researcher.
      Cl.R. at 399.


author: PHILLIPS, Chief Judge.

text:
    EXECUTIVE JET AVIATION, INC., et al., Appellants, v. UNITED STATES of America, Appellee.
    No. 74-1243.
    United States Court of Appeals, Sixth Circuit.
    Dec. 12, 1974.

      Phillip D. Bostwick, Shaw, Pittman, Potts & Trowbridge, James Thomas Len-hart, Washington, D. C., Ron Tonidandel, Spieth, Bell, McCurdy & Newell, Phillip J. Campanella, Cleveland, Ohio, for appellants.
    Fredrick M. Coleman, U. S. Atty., Cleveland, Ohio, Philip Silverman, Chief, Aviation Unit, Dept, of Justice, Leonard Schaitman, James C. Hair, Jr., Washington, D. C., Carla A. Hills, Asst. Atty. Gen., New York City, Karen K. Siegel, Washington, D. C., for appellee.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   PHILLIPS, Chief Judge.

Executive Jet Aviation, Inc., and Executive Jet Sales, Inc., brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680. The District Court dismissed the complaint, holding that Executive Jet is not the real party in interest and that lack of jurisdiction prevents joinder of Executive Jet’s insurers, who are the real parties in interest. Executive Jet appeals from this dismissal. For the reasons stated below, we reverse and remand for further proceedings.

On July 28, 1968, one of Executive Jet’s aircraft crashed on takeoff from the Cleveland, Ohio, airport after its engines had ingested a large number of seagulls that had been roosting on the runway. The plane was covered by a $1,300,000 policy of aircraft hull insurance issued by a group of British insurance companies. On October 17, 1968, Executive Jet received $1,300,000 from the insurers pursuant to a typical loan receipt agreement, under which Executive Jet was obligated to make repayment only out of any net recovery it might obtain from those liable for the crash. In addition, the agreement required that Executive Jet stand ready to institute suit in its own name for the purpose of effecting such a recovery. The insurers, however, were to bear the expense and to assume direction and control of any such litigation.

By letter dated May 6, 1969, Executive Jet submitted to the Federal Aviation Administration a written claim in the amount of $1,763,643.64. The letter’ made no reference to the insurers or to the loan receipt agreement.

On May 12, 1969, Executive Jet filed a complaint against the United States in the action out of which this appeal arises, alleging negligence on the part of the FAA air traffic controllers in not warning of the presence of seagulls on the runway and praying for $1,763,643.64 in damages. In an answer filed July 24, 1969, the Government raised several issues, including the defense that Executive Jet was not the real party in interest.

In an unreported opinion rendered on November 2, 1973, the District Court looked to the law of Ohio as stated in Cleveland Paint & Color Co. v. Bauer Manufacturing Co., 155 Ohio St. 17, 97 N.E.2d 545 (1951), and concluded that the loan receipt arrangement was a mere fiction that would not avoid subrogation. Thus the insurers, rather than Executive Jet, were held to be the real parties in interest. The court noted in passing that even if federal law were to control the effect of the loan receipt, the same result would be achieved under what the court considered the better federal rule announced in City Stores Co. v. Lerner Shops, Inc., 133 U.S.App.D.C. 311, 410 F.2d 1010 (1969). Further, the District Court held that because the insurers had not filed an administrative claim within two years of the accident as required by 28 U.S.C. § 2401(b), the insurers could not be joined as plaintiffs. Therefore, the court dismissed the complaint with prejudice, and Executive Jet perfected this appeal.

I

In the view that we take of this case, we need not decide whether the effect of the loan receipt arrangement is governed by state or federal law. It is conceded that under the law of Ohio payment pursuant to a loan receipt is considered outright payment and does not avoid subrogation of the insurer. Cleveland Paint & Color Co. v. Bauer Mfg. Co., supra, 155 Ohio St. 17, 97 N.E.2d 545 (1951). In our opinion the federal courts should follow the same rule. Thus we would reach the same result on the subrogation issue regardless of whether we apply the State law of Ohio or federal law.

Executive Jet insists that the federal practice has been to respect the form of loan receipts and to find no subrogation when this device is employed. Principal reliance is placed on Luckenbach v. W. J. McCahan Sugar Refining Co., 248 U.S. 139, 39 S.Ct. 53, 63 L.Ed. 170 (1918), an admiralty case in which the Supreme Court considered a loan receipt transaction and found “no good reason . . . either for questioning its legality or for denying it effect.” Id. at 148, 39 S.Ct. at 55. Luckenbach, however, is distinguishable because of its unusual factual setting. In that case the insurer was liable only contingently — it would have incurred liability to the insured shipper only after it had been established that recovery against the carrier for the lost cargo was impossible. Furthermore, if the insurer had paid the shipper outright before the carrier’s liability had been determined, the carrier would have become liable to no one. Therefore, the loan receipt device was used so that the insured would not be deprived of the use of the money for which either the insurer or the carrier eventually would incur liability.

Thus in Luckenbach there were present at least some of the indicia of a true loan. In the case at bar, not only were the insurers absolutely liable to Executive Jet, but the terms of the loan did not require repayment of a definite sum at a definite time and did not assess any interest charges. Nor is it mere coincidence that the amount loaned was precisely equal to the aircraft’s agreed value in the insurance policy. Further, we note that under the loan receipt agreement the insurers assumed the expense, control, and direction of litigation against any third parties who might be liable for the plane crash. This, of course, is precisely the result that would be achieved in the ordinary case of payment and subrogation. These circumstances lead us to conclude that the transfer of $1,300,000 to Executive Jet was a loan in name only. In fact it was an outright settlement of a loss covered under the insurance policy, and we are unwilling to permit the form of the transaction to control its substance.

Executive Jet insists, however, that it does not rely solely upon Luckenbach and that subsequent federal cases have given literal effect to loan receipt agreements in circumstances similar to those in the case at bar. Executive Jet refers us particularly to Augusta Broadcasting Co. v. United States, 170 F.2d 199 (5th Cir. 1948), a case under the Tort Claims Act in which the court held “that the giving of the loan receipt did not affect [the insured’s] right to sue . . ..” Id. at 200. However, the court in that case stated its conclusion without any reasoning or analysis. Moreover, it appeared to rely only on Luckenbach and a decision by the Georgia Court of Appeals. Obviously the Georgia case can provide no support for Executive Jet’s position, and insofar as Augusta Broadcasting relies on Luckenbach, its theoretical underpinnings seem weak.

In many of the other cases cited by Executive Jet as authority for giving literal effect to loan receipts, the court looked for guidance to Luckenbach or to state law or to both. See, e. g., Sanders v. Liberty Mut. Ins. Co., 354 F.2d 777 (5th Cir. 1965); Export Leaf Tobacco Co. v. American Ins. Co., 260 F.2d 839 (4th Cir. 1958); Dixey v. Federal Compress & Warehouse Co., 132 F.2d 275 (8th Cir. 1942); First Nat’l Bank v. Lloyd’s of London, 116 F.2d 221 (7th Cir. 1940). These cases would seem subject to the same observations we made about Augusta Broadcasting. In any event, we do not find the reasoning in this line of cases to be compelling in the case at bar.

On the other hand, we note that our conclusion is supported by the relatively recent case of City Stores Co. v. Lerner Shops, Inc., supra, 133 U.S.App.D.C. 311, 410 F.2d 1010 (1969). In this case the court first analyzed Luckenbach and found it not controlling. It could discern only one purpose for the use of a loan receipt — to avoid subrogation and thereby to circumvent the requirement of the Federal Rules that “[e]very action shall be prosecuted in the name of the real party in interest.” Fed.R.Civ.P. 17(a). The court summed up its views about loan receipts as follows:

“It does not seem sensible to say that an insured who has been paid in full by his insurer is nevertheless the real party in interest merely because of a sham ‘loan agreement’ which is a transparent subterfuge to avoid subro-gation and to evade a federal rule.” 410 F.2d at 1015.

We agree with the reasoning and with the decision in the City Stores case, and we note that it does not stand alone among federal cases in refusing to give literal effect to a loan receipt. See Potomac Elec. Power Co. v. Babcock & Wilcox Co., 54 F.R.D. 486, 489 (D.Md.1972) (concluding that a loan receipt “hardly amounts to a bona fide loan”); Condor Inv. Co. v. Pacific Coca-Cola Bottling Co., 211 F.Supp. 671 (D.Or.1962) (finding outright payment despite use of loan receipt).

We hold, then, that despite the use of the loan receipt, when the insurers in this case transferred $1,300,000 to Executive Jet, they became subrogated to Executive Jet’s claims against the Government. That being so, the insurers are real parties in interest under Federal Rule 17(a) to the extent of the payment. United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 380-382, 70 S.Ct. 207, 94 L.Ed. 171 (1949).

II

Executive Jet’s complaint prayed for damages in the amount of $1,763,643.64, including $13,643.64 for salvage costs, $200,000 for loss of use of the aircraft, and $1,550,000 for injury to the aircraft itself. Executive Jet received only $1,300,000 from the insurers. Despite this, the District Court dismissed Executive Jet’s complaint in its entirety, apparently concluding that the insurers were subrogated to the insured’s whole claim. The Government attempts to justify this result by arguing that the $1,300,000 agreed value set forth in the insurance policy is conclusive as to the fair market value of the plane before the crash and thus establishes a maximum recovery for loss of the aircraft itself. In addition, the Government insists that Executive Jet’s claims for salvage expenses and loss of use are spurious as a matter of law.

Under Ohio law, the measure of damages for injury to personal property is the difference between the fair market value of the property before the damage occurred and its fair market value after the damage occurred. Falter v. City of Toledo, 169 Ohio St. 238, 158 N.E.2d 893 (1959); Otte v. American Airlines, Inc., 104 Ohio App. 517, 522, 145 N.E.2d 322, 325 (1957). The pre-injury fair market value of the aircraft in question here is an issue of fact to be decided upon the relevant evidence adduced at trial. The value set by Executive Jet and its insurers may be probative of the plane’s value for purposes of computing damages, but it does not conclusively establish a maximum recovery as a matter of law. This is the effect of our decision in Taylor v. B. Heller & Co., 364 F.2d 608, 612-613 (6th Cir. 1966) (applying Ohio law); see Maloney v. General Tire Sales, Inc., 34 Ohio App.2d 177, 185-186, 296 N.E.2d 831, 837 (1973).

It also appears that in Ohio a litigant may recover for loss of the use of personal property if the property was damaged but not if the property was totally destroyed. Hayes Freight Lines, Inc. v. Tarver, 148 Ohio St. 82, 73 N.E.2d 192 (1947). We note that Executive Jet’s original complaint alleged that the aircraft was “totally destroyed.” Subsequently the District Court permitted Executive Jet to file an amended complaint alleging that the plane was “extensively damaged.” Thus the facts necessary to support a claim for loss of use were set out properly in the pleadings. Whether the aircraft actually was destroyed or merely damaged is a question for the trial court to decide upon the evidence presented by the parties. We cannot resolve that factual issue at this stage in the proceedings, nor can we hold the claim for loss of use spurious as a matter of law.

Finally, the Government argues that Executive Jet’s claim for salvage expenses of $13,643.64 is spurious because $50,000 was received for the wreckage of the aircraft after the accident. Therefore, the argument goes, Executive Jet already has been compensated fully for the cost of salvaging the downed plane. As we understand the law of Ohio, the $50,000 received by Executive Jet constitutes evidence of the plane’s fair market value after the crash. As such, it would be deducted from the pre-accident fair market value in determining damages for the injury to the plane itself. See Maloney v. General Tire Sales, Inc., 34 Ohio App.2d 177, 296 N.E.2d 831 (1973); Powell v. Bishoff, 23 Ohio App.2d 173, 261 N.E.2d 302 (1970). Therefore, it should be a matter of little moment to the Government whether the $13,643.64 in salvage expenses is treated as a separate item of damages or is used, as the Government suggests, to offset part of the $50,000 salvage price received by Executive Jet. If determined to be liable, the Government would be subject to the same net recovery in either case.

However, this question conceivably could be of importance to Executive Jet. The salvage expenses may constitute an uninsured loss if they are treated as a separate item of damages, but not if they merely reduce the salvage value of the aircraft. The resolution of this issue will depend in part upon the terms of the hull insurance policy, which does not appear in the record before us. In any event, we believe that this question in the first instance should be specifically considered by the District Court.

It may develop at trial that Executive Jet is unable to prove that it has sustained any uninsured losses. Nevertheless, we conclude that the allegations in its complaint are sufficient to permit Executive Jet to introduce its evidence. We cannot say as a matter of law that Executive Jet has suffered no uninsured losses. Thus according to the averments of the complaint in this case there has been only a partial subrogation, and both Executive Jet and its insurers are real parties in interest.

Ill

When an action is prosecuted in the name of a person who is not the real party in interest, dismissal is not necessarily the appropriate course. The last sentence of Rule 17(a) provides as follows:

“No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” Fed.R.Civ.P. 17(a).

In this case, however, the Government insists that the District Court was required to grant a pro tanto dismissal to the extent of the insurers’ claims. This argument is based on 28 U.S.C. § 2401(b), which provides as follows:

“(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. As amended July 18, 1966, Pub.L. 89-506, § 7, 80 Stat. 307.”

Because the insurers neither filed their own administrative claim nor expressly joined in Executive Jet’s claim within the two-year limitations period, the Government contends that the insurers are forever barred from recovery under the Tort Claims Act. Furthermore, as the Government points out, the administrative claim procedure prescribed in 28 U.S.C. § 2675 is jurisdictional. No suit may be maintained under the Act in the absence of compliance, which cannot be waived by the Government. Caton v. United States, 495 F.2d 635 (9th Cir. 1974); Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971).

For the reasons stated below, we conclude that on the particular facts of this case the administrative claim filed by Executive Jet served to toll the limitation period of § 2401(b) with respect to the claim of the insurers. Therefore, Executive Jet should be permitted to amend its administrative claim to show the insurers as joint claimants, and the insurers should be given an opportunity to join in this action as plaintiffs.

The present mandatory administrative claims procedure was added to the Federal Tort Claims Act in 1966. Act of July 18, 1966, Pub.L.No.89-506, 80 Stat. 306. The purpose of the amendment was not to make recovery from the Government technically more difficult. Rather, the purpose was “to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” S.Rep.No.1327, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin.News, p. 2516. The decision we have reached in this case is entirely consistent with the purpose of the 1966 amendments. Within one year after the crash, the Federal Aviation Administration received a formal written notice fully detailing the nature and amount of the claim that Executive Jet was asserting against the United States. It does not appear that the Government would have been more inclined or better able to negotiate a settlement of the claim if the insurers had been listed as claimants. In fact, the Government is asserting as defenses lack of negligence, assumption of the risk, and contributory negligence. Thus it appears that litigation would have been necessary even if the insurers had filed an administrative claim. It seems unlikely that the Government would have wished to settle this large and factually unusual claim, but it certainly was not prevented from attempting a compromise simply because the insurers did not join in Executive Jet’s administrative claim.

Similarly, we believe that our decision in this case is not at odds with the underlying purpose of the limitations period established by § 2401(b). The general purpose of statutes of limitations has been well stated as follows:

“Statutes of limitation, like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944).

In the case at bar, Executive Jet presented its claim well within the statutory period. At that point the Government was on sufficient notice to begin assembling witnesses and evidence in preparation for a defense on the merits. In no sense was this claim permitted to slumber or to become stale. Indeed, under general principles of subrogation, the subrogee stands in the shoes of the sub-rogor. Aetna Ins. Co. v. Loveland Gas & Elec. Co., 369 F.2d 648, 650 (6th Cir. 1966) (applying Ohio law). Thus it is difficult to see how the Government’s substantive defense would have been affected if the insurers had joined in Executive Jet’s administrative claim and in the present litigation.

In addition, the United States cannot claim surprise at the insurers’ late entry into the case. The Government does not argue that it was unaware of the insurers’ interest in the claim. In fact, the Government raised in its answer the defense that Executive Jet was not the real party in interest, and this pleading was filed more than one year before the statute of limitations had run. We are convinced that our decision in no way will prejudice the Government except insofar as it may have hoped to avoid entirely a substantial portion of its potential liability through an adroit application of § 2401(b). On the other hand, it is clear that to sustain the Government’s position would produce a harsh result for the insurers, for they would be left with no recourse against the United States, which is alleged to have been the party ultimately responsible for this airplane accident.

In American Pipe and Construction Co. v. Utah, 414 U.S. 538, 559, 94 S.Ct. 756, 769, 38 L.Ed.2d 713 (1974), the Supreme Court said:

“These cases fully support the conclusion that the mere fact that a federal statute providing for substantive liability also sets a time limitation upon thé institution of suit does not restrict the power of the federal courts to hold that the statute of. limitations is tolled under certain circumstances not inconsistent with the legislative purpose.”

Our decision rests to a large extent on the particular facts of this case. Thus we intimate no opinion about the proper result in generally similar situations not involving subrogation, nor in cases in which the subrogor has not filed a timely and complete administrative claim. We are convinced, however, that in this case, it is appropriate to consider the § 2401(b) statute of limitations tolled so that Executive Jet’s insurers may join in this litigation as plaintiffs.

The judgment of the District Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

No costs are taxed. Each party will bear its own costs on this appeal.

      . This same accident was involved in Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), aff'g 448 F.2d 151 (6th Cir. 1971).

      . The claim letter provided as follows:
      CERTIFIED MAIL
      RETURN RECEIPT REQUESTED
      Mr. John A. Shaffer, Administrator Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D. C.
      Re: Crash of Executive Jet Aviation, Inc’s Falcon Jet, Registration No. N367EJ, at Burke Lakefront Airport, Cleveland, Ohio, on July 28, 1968
      Dear Mr. Shaffer:
      This law firm has been retained by Executive Jet Aviation, Inc. and Executive Jet Sales, Inc. to recover all damages incurred as a result of the above crash. This letter will constitute a written claim presented to the appropriate federal agency as required by the Federal Tort Claims Act, 28 U.S.C. § 2675(a).
      Executive Jet Sales, Inc. and Executive Jet Aviation, Inc., the owner and operator respectively of a Falcon Jet Registration No. N367EJ, hereby claim the sum of $1,763,-643.64 from the United States of America as damages resulting from the negligence of employees of the Federal Aviation Administration while acting within the scope and course of their employment. The particular allegations of negligence of these employees and the damages incurred are set forth in the complaints being filed in the following two actions:
      1. Executive Jet Aviation, Inc. and Executive Jet Sales, Inc., Plaintiffs, v. United States of America, Defendant (U.S.District Court, N.D. Ohio)
      2. Executive Jet Aviation, Inc. and Executive Jet Sales, Inc., Plaintiffs, v. City of Cleveland, Ohio, Phillip A. Schwenz and Howard E. Dicken, Defendants (Court of Common Pleas, County of Cuyahoga, State of Ohio)
      Xerox copies of these complaints are enclosed and all allegations stated therein are hereby incorporated by reference into this letter.
      We would appreciate being advised as soon as possible whether the United States intends to deny this claim. Your early attention to this matter will be appreciated.

      . 28 U.S.C. § 2675 provides as follows:
      (a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.
      (b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.
      (c) Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of liability or amount of damages.

      . We note that we are not alone in holding that the technical procedures of the Tort Claims Act must give way to the clear demands of justice. For example, in Sky Harbor Air Service, Inc. v. United States, 348 F.Supp. 594 (D.Neb. 1972), the insured filed an administrative claim that listed the names of the insurers together with the amounts paid by them. However, the insurers were not designated formerly as claimants. After the insured and the insurers had commenced suit against the United States, the statute of limitation ran, and it appeared that the insurers were partially subrogated and to that extent the real parties in interest. The Government argued that since the insurers never filed their own administrative claim, summary judgment against them was required. The court characterized the Government’s position as standing upon “quicksand” and concluded that the insured’s filing was effective also for the insurers.
      In Ozark Air Lines, Inc. v. Delta Air Lines, Inc., 63 F.R.D. 69 (N.D.Ill.1974), Delta filed an administrative claim as the owner of a plane that had been involved in a collision. In the ensuing litigation it developed that in fact Delta was only the lessee of the aircraft. The Government asserted that the administrative claim was, therefore, defective and insufficient to confer jurisdiction over a Tort Claims Act case. The court found the Government’s argument “hypertechnical” and held that the Act’s claim procedure requirements had been satisfied.
      In Young v. United States, 372 F.Supp. 736 (S.D.Ga.1974), a husband filed an administrative claim in connection with the death of his wife, but no reference was made to the minor children, who under state law also had a cause of action for the death of their mother. At trial, the Government moved to dismiss the children because of their failure to file administrative claims. After a lengthy discussion of tort claim procedures and the applicable regulations, the court found in favor of the children, upon whom “strict reliance on the technicalities of the Regulations would work an injustice. . .” Id. at 741. In a factually similar case, another district court has reached essentially the same result. Locke v. United States, 351 F.Supp. 185 (D.Hawaii 1972). Cf. Stokes v. United States, 444 F.2d 69 (4th Cir.), cert. denied, 404 U.S. 1002, 92 S.Ct. 571, 30 L.Ed.2d 743 (1971).
      Finally, there are several cases in which litigants have been permitted to sue the United States for damages in excess of the amount stated in the administrative claim despite the prohibition of such ■ suits in 28 U.S.C. § 2675(b). See, e. g., McCarter v. United States, 373 F.Supp. 1152 (E.D.Tenn. 1973); Little v. United States, 31, Supp. 8 (E.D.Pa.1970); Rabovsky v. Uniteu States, 265 F.Supp. 587 (D.Conn.1967). These cases purported to rely upon the express “newly discovered evidence” exception to the general rule of § 2675(b). However, in each case the court clearly was straining the exception to avoid the unjust result that a strictly literal application of the statute seemed to require.
      We recognize that none of the cases discussed above is precisely analogous to the case at bar. Nevertheless they do support our conclusion that technical failure to comply with the administrative claim procedures is not necessarily fatal to recovery, particularly when the Government is not prejudiced by the noncompliance.