author: HILL, Circuit Judge.

text:
    Joan NICHOLS, Administratrix of the Estate of Raymond L. Nichols, Deceased, Plaintiff-Appellee, v. Herbert A. MARSHALL, Administrator of the Estate of Frank W. Frombaugh, Deceased, Defendant-Appellant. Joan NICHOLS, Plaintiff-Appellee, v. Herbert A. MARSHALL, Administrator of the Estate of Frank W. Frombaugh, Deceased, Defendant-Appellant.
    Nos. 73-1215, 73-1216.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 11, 1973.
    Decided Nov. 5, 1973.

      Frank Saunders, Jr., Overland Park, Kan., for defendant-appellant.
    John E. Shamberg, Kansas City, Kan. (Charles S. Schnider and Lynn R. Johnson, Kansas City, Kan., on the brief), for plaintiff-appellee.
    Before CLARK, Associate Justice, LEWIS, Chief Judge, and HILL, Circuit Judge.

       Associate Justice, United States Supreme Court, Retired, sitting by designation.

   HILL, Circuit Judge.

This appeal results from two jury verdicts returned in a diversity action in the United States District Court for Kansas. Three tort actions, each arising as a result of an automobile accident in 1969, were consolidated for trial on the issue of damages only. After the jury returned sizable verdicts on the claims, judgment was entered and defendant now appeals. After reviewing the various claims of error presented by the appellant in these two appeals, we affirm. The evidence concerning the accident was undisputed. The appellees’ automobile was proceeding eastward on the Kansas Turnpike, a four-lane controlled access highway, when it was struck headon by an automobile driven by Frank W. Frombaugh, who was also killed in the accident. As Frombaugh was traveling the wrong direction in the one-way lanes of the highway reserved for eastbound traffic, liability was admitted before trial. As a result of this collision, the passengers in the appellees’ automobile were seriously injured. Involved in the trial were the claims for the personal injuries of Joan Nichols, the personal injuries of Raymond Nichols, and the wrongful death of Raymond Nichols, the driver of the automobile. After a thorough trial on the sole issue of damages, the jury returned verdicts of $154,375.15 for bodily injury to Joan Nichols, $78,095.20 for bodily injury to Raymond Nichols, and $37,550.42 for the wrongful death of Raymond Nichols. In a separate appeal, appellant has challenged the verdict in the wrongful death action, and in these appeals has attacked only the jury awards for the bodily injury to Joan Nichols and Raymond Nichols. Appellant makes two claims: (1) error on the part of the trial judge, and (2) that the verdicts are excessive and clearly the result of passion and prejudice on the part of the jury.

Appellant first contends, as to the verdict for the personal injuries to Raymond Nichols, that there was no evidence that he endured any conscious pain or suffering and therefore the jury’s verdict could not have exceeded $3,095.20, the admitted medical expenses incurred before his death. This claim for damages was presented under K.S.A. 60-1801 which commands that, among others, claims for injury to the person shall survive and become an asset of a decedent’s estate. In Kansas such claims are identical to those that would exist if the deceased injured party had survived his injuries. Such claims include pain and suffering, and appellant contends that the $75,000 above medical expenses awarded in this case cannot stand as no evidence of conscious pain and suffering was presented. We disagree.

There is no question that pain and suffering must be realized by the injured party before it is compensable, and such an issue of fact was clearly one for the jury in this case. Appellant wishes us to hold that any lay testimony concerning indication of consciousness is incompetent. However, in this case, as Nichols survived nine days before his death and as the medical testimony was less than positive as to his condition during that period, such lay testimony was clearly competent to aid the jury in fulfilling their duty to determine if Nichols was conscious of his pain, suffering and injuries before his death. The important lay testimony in this ease included those witnesses who observed Nichols before he arrived at the hospital for medical treatment. The first was a witness who arrived at the scene and observed Nichols before he was removed from the automobile. The second witness was the ambulance attendant who accompanied Nichols to the hospital. Both testified as to his bodily action and as to the sounds he was making. Medical testimony was not available to indicate the condition of Nichols at these times. The jury’s only real view of these important minutes necessarily came from lay witnesses. Such witnesses are competent to report what they observed without offering medical opinions as to the consciousness of the deceased. Later at the hospital, a friend of the deceased asked him to wiggle his toe if he could hear him, and he testified that Nichols did wiggle his toe at that time. This testimony of lay witnesses in conjunction with medical testimony that the doctors could not be certain as to his condition the entire time of his treatment in the hospital clearly justifies the result reached by the jury in regard to this challenged verdict. As we have stated previously, to justify setting aside a verdict of a jury, the evidence must be all one way from which only one reasonable inference can be drawn. Such is not the case here.

Additionally, appellant asserts that the instructions to the jury did not clearly inform them that they must find conscious pain and suffering. This argument is based upon a single word in that instruction. In pertinent part the instructions listed the following as elements of personal injury: pain, suffering, disabilities, disfigurement, and any accompanying mental anguish sustained by Raymond L. Nichols until his death. Appellant contends that the use of the word “sustained” renders this instruction error. It appears very clearly that pain and suffering are conscious experiences and do not exist in an unconscious state. A jury need not be specifically instructed that such elements must be consciously perceived. Such an instruction would merely reinforce knowledge common to all. It is true this language in the instructions is not as precise as it could be ideally, but it does not amount to error and does not demand reversal.

As to the verdict in the suit for personal injuries suffered by Mrs. Nichols, appellant claims that he should have been allowed to introduce evidence to the effect that Mrs. Nichols had remarried prior to the trial of the case. In an early pre-trial motion, appellant requested that these three eases be consolidated. After that consolidation was granted, appellees requested a restrictive order in the wrongful death case to prevent any mention of remarriage during the trial. This order was granted and subsequently reaffirmed during the trial. It had the effect of preventing any mention of remarriage in all three cases. We hold that the order was not error under the facts and circumstances of these two cases. It appears that the accident occurred in August, 1969, and the trial was not commenced' until September, 1972. Mrs. Nichols had remarried in June, 1972. This evidence was completely irrelevant to the two actions here considered.

Also in regard to this order, appellant asserts he was denied any opportunity to question the potential jurors as to their acquaintance with Mrs. Nichols’ new husband. This he claims was error which merits a new trial of the case. We believe it is sufficient to indicate that counsel would be very unimaginative if, as he claims, he could not adequately question the jurors without disclosing that Mrs. Nichols had remarried. Any questions that this order would prohibit could only be designed to inform rather than inquire of the jurors. The defendant’s right to voir dire was not prejudiced by this order.

Additionally, in both cases here appealed appellant urges that the jury should have been instructed as to the treatment funds received by reason of the verdicts are afforded under applicable federal income tax laws. Though such a precautionary instruction could be given, it is not error to deny such an instruction. Such considerations are not required of the jury in reaching its verdict. The jury in these cases was charged with placing a monetary value upon elements of damage that are incapable of precise measurement. They have performed this function, and tax consequences are not required to be considered in their deliberation.

Lastly, appellant attacks each verdict as evidencing passion and prejudice on the part of the jury. Though the verdicts are sizable, they do not appear excessive in light of the severe injuries suffered by both Mr. and Mrs. Nichols. In all good conscience we can but uphold these verdicts as being based upon the evidence adduced and considered by the jury.

Affirmed.

      . Champion Home Builders v. Shumate, 388 F.2d 802 (10th Cir. 1967) ; United States v. Hess, 341 F.2d 444 (10th Cir. 1965) ; United States v. Fenix and Scisson, Inc., 360 F. 2d 260 (10th Cir. 1966).

      . Payne v. Baltimore & Ohio R. R. Co., 309 F.2d 546 (6th Cir. 1962) ; McWeeney v. New York, N. H. & H. Ry. Co., 282 F.2d 34 (2d Cir. 1960).


source: Caselaw Access Project

author: CASTLE, Senior Circuit Judge.

license: Public Domain

text:
    Richard Allen NAGLEK and Donna Diane Nagler, Plaintiffs-Appellees, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.
    No. 72-1601.
    United States Court of Appeals, Seventh Circuit.
    Argued May 23, 1973. ,
    Decided July 9, 1973.
    Rehearing Denied July 30, 1973.

      G. Edward McHie, Hammond, Ind., George W. Gessler, Harlan L. Hackbert, Chicage, Ill., for defendant-appellant.
    Joel C. Levy, Hammond, Ind., Allen L. Ginsberg, Chicago, Ill., for plaintiffs-appellees.
    Before CLARK, Associate Justice, CASTLE, Senior Circuit Judge, and STEVENS, Circuit Judge.

       The Honorable Tom C. Clark, Associate Justice of the Supreme Court of the United States, retired, is sitting by designation.

   CASTLE, Senior Circuit Judge.

A jury verdict awarded plaintiff Richard Allen Nagler $1,030,000.00 for injuries sustained while he was working in defendant’s steel mill. His wife was awarded $150,000.00 for loss of consortium. The United States Steel Corporation prosecutes this appeal contesting its liability for plaintiffs’ damages.

As part of its operations at Gary, Indiana, United States Steel operates a 46" Slab Mill, where ingots of assorted sizes are heated in furnaces called soaking pits to approximately 2350° before being rolled out into variously-shaped slabs. The mill contains about fifty-six soaking pits arranged in batteries of four, every battery having its own heat source. Each individual pit is twenty-seven feet long, nine and a half feet wide, and fifteen feet high. Each is topped with a movable cover that slides on rails to allow overhead cranes to lower ingots in for heating.

A typical soaking pit at the mill consists of three steel walls lined with a 30-inch thickness of brick refractory material. The fourth wall, which serves as a common wall between two soaking pits, is a 40-inch barrier constructed of brick. The top 1% feet of each wall are capped with coping or curbs, which consist of plastic-like bricks that are pounded down on the refractory material and are fused together by the heat of the furnace.

On occasions it is necessary to repair and replace the refractory material and/or coping in each soaking pit. Several causes of deterioration necessitate repairs. The most prominent is the accumulation of slag, which coats the pit and gradually eats away at the refractory walls, making them sag. At times crane operators accidentally drop ingots while they are lowering them into or removing them from a pit, causing the floors of the pit to become beveled or the walls to be damaged. Fins which protrude from ingots formed in imperfect molds may also strike the walls or the coping on occasion.

In order to determine when a given soaking pit must be repaired or rebuilt, certain U.S. Steel officials make visual inspections of the pits while they are in operation and when the walls are consequently red from heat. If this inspection, conducted from a catwalk several feet above and beyond the pit, discovers damage or wear, the pit is shut down and another inspection is made when the walls cool somewhat to determine exactly what repairs or replacements are necessary. This later inspection is apparently conducted from walkways level with the top of the pit and running perpendicular to the twenty-seven-foot long walls of the pit. Three kinds of repairs can be ordered after inspection — the pit can be “gunned” or sprayed with a substance that forstalls weakening, masonry repairs can be made, or the walls or portions of them can be torn down and completely rebuilt.

When the decision has been made to rebuild portions of a pit lining, U.S. Steel has usually called upon Furnace Services, Inc., an independant contractor, to tear down the coping and/or refractory brick in preparation for reconstruction by U.S. Steel masons. To accomplish its tear-down work, Furnace Services makes use of its own “pit machine,” a telescopic-armed device which straddles and is locked onto the rails on which the pit cover normally slides. The arm of the machine reaches into the pit and, in a jack hammer-like manner, its point digs into the refractory material, causing it to fall when the point is withdrawn. The operator of the pit machine usually stands or sits above the pit and operates the device with a control box of several buttons.

Before Furnace Services knocks refractory material from a pit or wall, it removes the dumping bells and plates from the floor of the soaking pit to open up two holes approximately three feet by nine and one-half feet. Debris knocked from a wall falls or is pushed by a paddle attached to the pit machine through these holes into the basement below the pit, where it is removed by a Furnace Services employee with a payloader tractor.

On August 27, 1969, U.S. Steel engaged Furnace Services to work on pit 11D in the 46" Slab Mill. A job order and diagram given to the pit machine operator specified that the Furnace Services crew was to remove the refractory material and coping on three walls and the floor of the pit, but that the twenty-seven-foot long south wall serving as the common wall between pits 11D and 11C was to be left standing. Demolition was started at 8:00 in the morning by a three-man work crew consisting of a pit machine operator, a laborer, and plaintiff Richard A. Nagler, who operated the payloader under the pit. At 3:30 a new pit machine operator took over the tear-down .task, but since Furnace Services did not have another payloader operator available, Na-gler continued the basement cleanup task. Sometime after 9:00 p. m., when the pit machine operator had ceased knocking bricks from the walls and just as an overhead crane was passing above the pit, Nagler drove under one of the 3 x 9% foot dumping holes to pick up another load of rubble. At this point a large chunk of coping fell from the south division wall, passed through the dumping hole, and struck Nagler. He sustained a compression fracture to his first lumbar vertebra and had his spinal cord severed. He is now paralyzed from the waist down.

The testimony and evidence produced at trial will be recounted where relevant to the consideration of the various issues raised by defendant United States Steel on this appeal: 1) whether the district court erred in failing to direct a verdict in its favor because the evidence failed as a matter of law to prove that it was negligent and because an independent contractor had control over the area where plaintiff was performing his work, and 2) whether the district court erred in refusing defendant’s tendered instructions on assumption of risk and the effect of federal income taxes upon damages awarded.

I. Failure to Direct Verdict in Favor of Defendant.

U.S. Steel argues that the trial court should have directed a verdict in its favor because the evidence failed to establish that it was guilty of negligence that proximately caused plaintiff’s injuries. Its two-pronged theory on appeal contends that it was not shown to be negligent in its inspection of the soaking pit before turning' control over the pit to Furnace Services, and that it could not be liable for any accidents occurring during the time that Furnace Services was working on the pit, since that independent contractor had exclusive control over the pit.

Two rules of legal liability for injury are involved in this case. The first, understandably stressed by the plaintiff, holds that U.S. Steel owed Richard Nagler the duty to provide a safe place to work, since Nagler, as an employee of an independent contractor, was a business invitee of U.S. Steel. Broadhurst v. Davis, 146 Ind.App. 329, 330, 255 N.E.2d 544, 545 (1970). Such a duty obligated U.S. Steel to exercise reasonable care to inspect the soaking pit to discover defects or dangerous conditions in it and to warn Furnace Services and its employees of these dangers. Verplank v. Commercial Bank, 145 Ind.App. 324, 334, 251 N.E.2d 52, 58 (1969) ;. Broadhurst v. Davis, supra, 146 Ind. App. at 330-331, 255 N.E.2d at 545-546, Hoosier Cardinal Corp. v. Brizius, 136 Ind.App. 363, 376-77, 199 N.E.2d 481, 487-488 (1964). On the other hand, the defendant stresses the rule that an owner of property is not generally liable for injuries to employees of an independent contractor when the owner exercises no direction over the work of the employees. Marion Shoe Co. v. Eppley, 181 Ind. 219, 222-223, 104 N.E. 65, 66 (1914); Bauer v. Plumbers’ Supply Corp., 137 Ind.App. 106, 110-111, 205 N.E.2d 567, 569 (1965); see also Wolfe v. Bethlehem Steel, 460 F.2d 675, 677 (7th Cir. 1972); Dismore v. Aetna Casualty, 338 F.2d 568, 573 (7th Cir. 1964). These two rules, of course, are compatible: An owner is not liable for negligent injuries to an employee of an independent contractor unless he actively participated in the negligent act causing the injury or unless he failed to warn of hidden dangers on the premises of which he had or ought to have had knowledge and of which the employee had not. Titan Steel Corporation v. Walton, 365 F. 2d 542, 546 (10th Cir. 1966). The issue, then, is whether there was sufficient evidence for a jury to find U.S. Steel liable under this theory.

In determining whether to direct a verdict, a court must consider whether there is any evidence from which a reasonable inference can be drawn that tends to support one or more allegations of negligence charged in a complaint. If so, there is a question for the jury and the direction of a verdict is improper. Adkins v. Elvard, Ind.App., 294 N.E.2d 160, 162 (1973); Wallace v. Doan, Ind.App., 292 N.E.2d 820, 826 (1973); United States Steel v. Warner, 378 F.2d 995, 998 (10th Cir. 1967). Naturally the mere existence of a defect is insufficient to establish liability of the owner of a business. But we believe that there was sufficient evidence introduced at trial to support a jury’s reasonable conclusion that the failure of the defendant to exercise due care proximately caused plaintiffs’ injuries.

It is evident that one can only rely on inferences from the evidence as to what caused the coping to fall from the south wall of pit 11D on the night of August 27, 1969. The plaintiffs tried their lawsuit under the theory that the coping was loose before the pit was turned over to Furnace Services on August 27, 1969, and that it was finally shaken loose by the vibrations of the crane passing overhead just prior to the accident. Under this theory, defendant was negligent and violated its duty to provide a safe place to work by inadequately inspecting the division wall, failing to discover that the coping was loose, and neglecting to warn Furnace Services’ employees of the defective condition.

There was ample evidence presented at the trial to support the theory that the coping on the south wall was weakened and in danger of being shaken loose when U.S. Steel employees inspected it, and that their inspection was not reasonably conducted to discover this condition. Evidence at trial established that U.S. Steel had ample warning that the coping on the south wall could become damaged in many ways. Supervisors recounted that coping could be damaged when being struck by fins protruding from ingots or being brushed by ingots improperly placed into or removed from the pit. On occasions ingots were also dropped from cranes, causing either the soaking pits or the surrounding area to reverberate from the resulting thud. Vibrations caused by the overhead cranes, ingot buggies, and rolling tables contributed to the general deterioration of the coping caused by the immense heat in the soaking pits. More particularly, U.S. Steel repair records showed that the coping on the south division wall had been installed two years previous to the accident, at the time that the other walls — which Furnace Services was to demolish — were also installed. These records suggested that the coping on the south wall was a maintenance problem for U.S. Steel, for this coping had been sprayed to forestall weakening on two occasions when no spraying or repairs had been performed on other walls or coping in pit 11D.

There was also evidence from which the jury could conclude that U.S. Steel did not exercise due care in its inspection of the pit to determine which walls were weak and in need of repair. Although no U.S. Steel supervisor could remember the inspection made in pit 11D before the determination of the repairs needed, the common practice at the mill apparently was to conduct two visual inspections of a pit — one from a catwalk eight feet above the pit, and another from a walkway on the east side of the pit and level with its top. From their vantage point on the east walkway, inspectors would have been at least 13 % feet from the middle of the south division wall running perpendicular to the walk, and 27 feet from its farthest end. Defendant’s supervisors also admitted that they depended exclusively upon their own visual estimation of the strength of the walls. No scrutiny of repair records was conducted to determine how long a wall had gone without being repaired or replaced. No consultation was had with plant personnel responsible for employee safety. No tapping of the coping was done to determine its strength. Masonry department supervisors were not regularly consulted. Though witnesses testified that it was sometimes necessary to scrape the walls to discover cracks, no one recalled performing such a close inspection to pit 11D prior to the' accident. In fact, one supervisor’s admission that he had no idea how hot the coping might be at the time of inspection supports the inference that no contact with the coping ever occurred during an inspection. We conclude that there was sufficient evidence to support the jurors’ conclusion that something more than a mere visual inspection was required by defendant’s duty to exercise due care for the safety of plaintiff Richard Nagler.

Finally, there was evidence to support a jury’s finding that the defendant failed to give Furnace Services’ employees proper warning of the general danger of coping falling from pit walls. Supervisors admitted that on occasion coping would fall without being struck by any object, and that they would direct their employees to knock precariously-hanging pieces of coping off the wall if they noticed the pieces were about to fall. Yet no one gave notice of this danger to Furnace Services’ employees.

We conclude that the evidence supported reasonable inferences that the coping was loose before the pit was turned over to Furnace Services and that U.S. Steel could have discovered this fact by exercising reasonable care in conducting its inspection. The plaintiffs introduced sufficient evidence to establish that the visual inspections of the pits were insufficient and to show that U.S. Steel failed to fulfill its duty to warn Richard Nagler or his supervisors of the general danger of falling coping.

Defendant has strenuously argued that it is immune from liability because it had turned over exclusive control of the soaking pit to Furnace Services thirteen hours before the accident, and that during this time it was the duty of Furnace Services to maintain surveillance of the pit walls. As noted above, this argument on appeal cannot support the contention that Furnace Services’ employees proximately caused the accident, for the jury — on sufficient evidence — concluded otherwise. Apparently defendant is seeking to establish that Furnace Services’ exclusive control over the soaking pit relieved U.S. Steel as a matter of law from any liability arising out of its failure to adequately inspect the coping or to warn Furnace Services’ employees of the danger of it falling.

Initially, we cannot accept the defendant’s characterization of Furnace Services as having exclusive control of the pit. The job order written up by U.S. Steel specifically instructed Furnace Services to dismantle three walls, but not the south wall from which the coping fell. Standing instructions to Furnace Services required approval of high supervisory personnel before any work not called for in the job order could be undertaken. The evidence showed that Furnace Services’ pit machine operators would keep on the lookout for dangerous conditions, and that they would either knock down portions of walls posing a danger to payloader drivers or warn them of the hazard. The pit machine operator working at the time of the accident testified that he had kept an eye on the south wall while he was working, and that he had noticed a one-inch crack in the coping, but did not tell his supervisor about it. Such evidence, although establishing that Furnace Services’ employees paid some heed to their own safety, shows only that as business invitees they were on the lookout for obvious dangers- which U.S. Steel was under no duty to warn them about. W. Prosser, Law of Torts 394 (4th Ed. 1971). Nothing in the record indicates that Furnace Services was told that it had the duty to conduct an adequate, detailed examination for latent defects on the south wall that it was not ordered to work on.

We conclude, therefore, that the jury had sufficient evidence before it upon which it could have reasonably concluded that Richard A. Nagler’s injuries were due to the condition of the premises which he entered as a business invitee and that he was injured by defendant’s negligence in either failing to exercise due care in inspecting the premises or warning him of the danger of falling coping.

II. Failure to Deliver Instructions Tendered by Defendant.

U.S. Steel submits that the district court erred in failing to deliver two instructions it requested, one dealing with the assumption of risk, the other with the impact of income taxes upon the amount of damages awarded.. We find no error in the refusal of these instructions.

Defendant’s instruction on the assumption of risk would have informed the jury that any vibrations caused by certain machinery operating in the slab mill were accepted by plaintiff Richard Nagler as a condition of his work, and that he assumed any risk resulting from such conditions. Defendant argues that the refusal of this instruction, coupled with the admission of testimony about the vibrations caused by cranes, ingot buggies, roller tables, and other equipment, was prejudicial error.

It is true that plaintiff did know about the vibrations caused by various machines in the mill. But the record is devoid of any evidence that he knew of the risks of these vibrations — specifically, that they could cause coping to fall upon him from the south wall while he was driving under a dumping hole. In order to justify delivery of an instruction on the assumption of risk similar to the one tendered by the defendant in this case, Indiana law requires that there be some evidence of knowledge of these risks. National Motor Vehicle Co. v. Kellum, 184 Ind. 457, 468, 109 N.E. 196, 199 (1915); Booher v. Alhom, Inc., Ind.App., 295 N.E.2d 841, 848 (1973). In the absence of such evidence, refusal of the instruction was proper.

U.S. Steel also requested the delivery of the instruction that “any award made to the plaintiff ... is not income to the plaintiff within the meaning of federal income tax law” and that the jury should in no event “either add to or subtract from that award on account of federal income taxes.” Such an instruction recently received the blessing of the third circuit in Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245 (3rd Cir. 1971), where the court directed that it be given henceforth in that circuit upon request. We note only that Indiana law is apparently unfavorable to this instruction, High-shew v. Kushto, 235 Ind. 505, 507-508, 134 N.E.2d 555, 556, 135 N.E.2d 251 (1956) and that whatever its desirability, it is not within our province to hold that its refusal was reversible error.

The judgment of the district court is affirmed.

Affirmed.

      . The evidence does not specify whether the crack was one inch long or one inch wide.

      . Nor do we interpret a clause in the contract between Furnace Services and U. S. Steel making Furnace Services responsible for the safety of its own employees as requiring such inspection.

      . It is also quite doubtful whether a business proprietor can avoid the consequences of the breach of his duty to inspect his premises by asserting that he delegated this duty to an independent contractor and that the independent contractor had failed in its inspection. The defendant has cited us no Indiana authority bearing on this issue or contradicting Professor Prosser’s viewpoint that “[i]t is generally agreed that the obligation as to the condition of the premises is of such importance that it cannot be delegated.” W. Prosser, Law of Torts 395 (4th Ed. 1971). The rule imposing the duty upon a business inviter to inspect his premises and to warn of defects arises from a public policy in favor of preventing accidents by placing the onus of safety upon the occupier of a premises who has the most information as to the operations creating dangerous conditions on his premises, the best means of inspection, and the actual existence of the dangers. Hoosier Cardinal Corp. v. Brizius, supra. Allowing a business proprietor to escape liability by delegating this duty to one with less knowledge and less experience -would appear to be contrary to such a public policy.


author: LAY, Circuit Judge.

text:
    Dale C. RICHARDSON, Appellee, v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, and Communications Workers of America, AFL-CIO, Local 7495, Appellants.
    No. 73-1018.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1973.
    Decided Oct. 26, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 20, 1973.
    See also 469 F.2d 333.

      J. Patrick Green, Omaha, Neb., for appellants.
    Edith D. Hakola, Arlington, Va., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

This is an action by Dale C. Richardson under § 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C. § 185(a) against his former employer, Western Electric Company, and the Communications Workers of America, AFL-CIO (hereinafter called the International) and Local 7495, an affiliate of the International (hereinafter called the Local). The claim initially arose from an alleged breach of the existing collective bargaining agreement in which Richardson claimed that by reason of his nonunion membership he was wrongfully discharged from his employment with Western Electric. In the first trial Richardson received a verdict of $20,000. However, the trial court reduced the verdict to $1,500 on the ground that damages were allowable only for six and one-half months — the remaining life of the collective bargaining agreement. On appeal, this court held that ruling to be error.. We also held to be error the district court’s refusal to entertain plaintiff’s suit for mental anguish arising out of the unions’ alleged intentional discrimination. We remanded the case for a new trial in the § 301 suit on damages only and additionally ordered a reinstatement of the discrimination claim against the unions. See Richardson v. Communications Workers, 443 F.2d 974 (8th Cir. 1971).

On the second trial the jury awarded damages in the § 301 suit against the employer, Western Electric, as well as against both unions, in the sum of $92,000. The jury apportioned the damages according to the respective roles of the defendants in the wrongful discharge of Richardson, 30% against Western Electric and 70% against the defendant unions. The Court thereafter entered judgment against the unions jointly in the sum of $64,400. It is from this judgment that the unions now appeal. Western Electric did not appeal.

On this appeal the unions claim that the trial court erred in (1) charging that the Local and International Unions were responsible for the acts of the members, officers and stewards as a matter of law; (2) failing to sever the question of the International’s liability from that of the Local and thereby failing to instruct the jury to apportion the damage between the two. unions; and (3) refusing to grant a new trial on the ground that the damages of $92,000 were excessive. We affirm the judgment of the district court.

The first two claims were not raised by the unions until the § 301 suit was remanded for a new trial on damages. In the original trial, the jury found each of the defendants liable for the wrongful discharge in breach of the collective bargaining agreement. The record fails to show that either union sought a directed verdict in the first trial on the theories now raised. When the trial court reduced the original verdict to $1,500, the plaintiff filed a notice of appeal and the employer and the unions cross-appealed. However, the only ground of the unions’ cross appeals, even though there existed a judgment of liability against both unions, asserted that the plaintiff should have exhausted his administrative remedy provided by contract. No challenge was made as to the issues governing liability now raised.

The unions here urge that the prior finding of liability does not specify the basis in fact for such liability and therefore the International’s liability for the acts of the Local should have been left to the jury. We disagree. Although the prior finding of the jury was that the International separately breached its duty in failing to adequately represent the plaintiff, the basis of liability as instructed upon by the trial court relates to agency principles. In the original trial the court considered the liability of the International to be a question of fact under all the evidence. The trial court there instructed:

“In order for the conduct of the local union through its agents to be attributed as also being the conduct of the international, the international union must join with the local in authorizing the general conduct which led to the breach of contract, if any, or sympathized or by some other means required such conduct.”

In our prior opinion ordering a new trial on damages we discussed the unions as a single party since no claim as to their having any separate interests was raised on appeal. We remanded the case with directions to try the cause on damages only with apportionment of fault between the employer and the “union” to be determined under the principles of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

The earlier judgment of the district court is the law of the case as it reflects upon any possible defenses to liability of the two unions. See, e. g., United States v. Hoffa, 402 F.2d 380, 387 (7th Cir. 1968), cert, denied, 400 U.S. 1000, 91 S.Ct. 455, 27 L.Ed.2d 451 (1971); White v. Murtha, 377 F.2d 428, 431-432 (5th Cir. 1967); Stonega Coke & Coal Co. v. Price, 116 F.2d 618, 621 (4th Cir. 1940); Toucey v. New York Life Ins. Co., 112 F.2d 927, 928 (8th Cir. 1940), aff’d, 313 U.S. 538, 61 S.Ct. 833, 85 L.Ed. 1507 (1941); 1B Moore’s Federal Practice § 0.404 [10] (2d Ed. 1965). The defendants’ failure to properly preserve these defenses in their motion for directed verdict in the original trial and their total abandonment of these issues on the original appeal precluded their consideration in the second trial and prevents the unions from belatedly raising these issues on appeal. These questions have been adjudicated and no appeal has ever been properly perfected challenging them. As such, the unions are precluded from challenging the finding of liability on the § 301 charge on this appeal. Cf. Smith v. American Guild of Variety Artists, 368 F.2d 511 (8th Cir. 1966), cert, denied, 387 U.S. 931, 87 S.Ct. 2052, 18 L.Ed.2d 991 (1967).

Defendants additionally urge that although the finding of liability from the prior trial might stand, the jury on remand should still have been instructed to apportion the damage between the International and the Local. However, in view of (1) the basis of liability of the International as originally instructed upon by the district court, (2) the failure of the unions’ counsel to object to this instruction, (3) the jury’s finding that the International’s liability was based on its authorization of the Local’s conduct, and more significantly,

(4) the unions’ abandonment of these issues on the first appeal, we approve the district court’s instruction at the second trial grouping the International and Local together for purposes of apportioning the damage between the employer and the unions.

This brings us to defendants’ final claim that the damages were excessive. Richardson was awarded $92,000 as damages arising from his wrongful discharge. At the time of his discharge on September 1, 1966, he was 27 years of age. He had reached the highest grade which an hourly employee could hold (Grade 5) and was second in seniority among the 164 hourly rated shop and warehouse employees in the Omaha plant. By the time of the second trial, he had secured alternate employment as a village police officer and it was stipulated that his lost wages to the date of trial were approximately $12,000.

In discussing the damage question under a § 301 claim, we observed in our prior opinion:

“[A]n employee wrongfully discharged under a collective bargaining agreement, as exists here, suffers more than just the loss of a job itself. His damage must be appraised in terms of not only his wages, but the loss of seniority and the benefits which flow from it; he has thus lost his reasonable expectancy as to his continued employment. To measure this loss only to the expiration of an existing bargaining agreement fails to take into consideration the realities existing. It is true that this expectancy of continued employment might expire if the company goes out of business or if the collective bargaining agreement is not renewed with the union. . . . However, as these factors affect the employee’s expectancy of work, in the present case they are even less contingent than the employee’s possible contemplation of his own death or unforeseen disability. None of these considerations provide an automatic bar to a recovery for future wages beyond the termination of the bargaining agreement.
“Federal jurisdiction under § 301 is more than a proving ground for breach of employment contracts; it is rather a statutory ground for suits brought to implement labor policy as suggested by the Labor Management Relations Act. . . . When an employee’s expectancy of employment is challenged by invidious discrimination of the company or the union arising from his nonunion membership, the law should not react niggardly as to realization of his whole damage. As the Supreme Court has written, ‘there are problems so vital to the implementation of federal labor policy that they will command a high degree' of inventiveness from the courts,’ ” quoting United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 701, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). Richardson v. Communications Workers, 443 F.2d 974, 979 (8th Cir. 1971).

In the charge to the jury the trial court instructed the jury in accord with our directions.

The trial court reviewed the charge of excessiveness on the § 301 claim on the unions’ motion for new trial. It denied the same. The damages awarded cannot be reduced to any mathematical formula. In view of all of the diverse factors for jury consideration we cannot say that the trial court abused its discretion in finding the award was not excessive. See Krall v. Crouch Brothers, Inc., 473 F.2d 717 (8th Cir. 1973); Scoville v. Missouri Pacific R.R., 458 F.2d 639 (8th Cir. 1972); O’Brien v. Stover, 443 F.2d 1013 (8th Cir. 1971); Perry v. Bertsch, 441 F.2d 939 (8th Cir. 1971).

Judgment affirmed.

      . 29 U.S.C. § 185(a) reads:
      “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”

      . The jury additionally awarded the sum of $250,000 against the unions on the second claim arising from the alleged intentional discrimination. Separate appeals were lodged by both unions from the judgment on the first claim under § 301, the subject of this appeal, and by the plaintiff Richardson from the district court’s order granting the unions a new trial on the second claim relating to damages for mental distress. This court refused to entertain both appeals on the jurisdictional basis that neither order was appealable. We held that a grant of a motion for new trial is not a final order and that, since a claim between the parties was therefore still pending in the district court, there was no final judgment yet appealable under the § 301 claim. Richardson v. Communications Workers, 469 F.2d 333 (8th Cir. 1972), cert, denied, 414 U.S. 818, 94 S.Ct. 38, 37 L.Ed.2d 50 (1973). Thereafter defendants secured an order from the district court under Rule 54(b) of the Federal Rules of Civil Procedure and their appeal from the § 301 judgment was properly lodged in this court. We find no merit in plaintiff’s claim that the district court was without authority to enter the 54(b) order before the issuance of mandate in the second appeal. The orders appealed from were not final and therefore the entire case still rested in the district court. Cf. Gallon v. Lloyd-Thomas Co., 261 F.2d 26 (8th Cir. 1958) ; Ruby v. Secretary of United States Navy, 365 F.2d 385, 388 (9th Cir. 1966) (en banc), cert, denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967).

      . The record discloses that the motion for directed verdict in the first trial was dictated into the record by the unions’ attorney and was based only on two grounds: (1) that the plaintiff had failed to prove a prima facie case under § 301 and (2) that plaintiff had failed to prove conspiracy.

      . Article 5, § 2 of the bargaining agreement specifies that the International delegates to each of its Locals the right to process all grievances initiated by the employees. In the instant case, the Local refused to process Richardson’s grievance. Thus, there was a clear basis upon which the jury could find that the International breached its agreement and as to these facts the action of the Local did become the action of the International.

      . In the original proceeding, the unions responded to plaintiff’s complaint with a joint answer filed by the same attorney. The answer did not allege that the defenses of the two unions were in any way separate and distinct. In their amended answer filed before the second trial, the unions again filed a joint answer by the same attorney, and for the first time denied that “at all times alleged in the amended complaint that the local union was an agent of the defendant international union.” We note also that at all times the two unions have filed joint briefs prepared by the same counsel, evidently without thought as to the possible conflict of interest between the two parties by reason of the same representation.

      . In the second trial the district court in instructing on the § 301 claim stated:
      “You are also instructed that the Court has already determined and you must accept as already established as a matter of law, that plaintiff’s discharge from employment was wrongfully and unlawfully induced by the defendants Communications Workers of America, AFL-CIO and Local 7495, Communications Workers of Ameri-ca, AFL-CIO, because of plaintiff’s non-membership in the defendant unions.”
      The court also instructed as to the apportionment of damages in part as follows:
      “On the other hand if you find that plaintiff’s damages, if any, were contributed to by both the unlawful breach of contract by the defendant company, and the unlawful conduct of the defendant unions in inducing such breach, then you will apportion the damages between the defendant employer and the defendant unions according to the degree of fault of each, as called for by the special interrogatories to be submitted ’to you. The verdict you return, however, will reflect only the total amount of damages, if any, plaintiff has sustained on his first claim.” (Our emphasis.)
      Interrogatory No. 3 reads:
      “3. IF YOUR ANSWER TO INTERROGATORY NUMBER 1 IS ‘YES’ INDICATE THE PERCENTAGE OF THE RESPONSIBILITY FOR THE PLAINTIFF’S DISCHARGE THAT YOU FIND FROM THE EVIDENCE. (ON THE BASIS OF THEIR RESPECTIVE ROLES IN CAUSING IT), SHOULD BE APPORTIONED TO EACH DEFENDANT.
      A percentage for Western Electric and a-percentage for the defendant unions. WESTERN ELECTRIC -% THE DEFENDANT UNIONS-% (The percentage apportioned to either of the defendants may range from 0% to 100%, but the aggregate of the percentages apportioned must total 100%).”
      On the mental suffering claim, the court instructed that the agents of the local union are at the same time agents of the national union when, as under the facts here, the local union is subject to the control of the national. No such instruction appears as to the first claim. In excepting to the instructions the unions’ joint counsel simply stated:
      “Defendant unions except to the instruction lumping together the local and national or international unions as one.
      “The defendant unions further except to the instruction which stated in substance that the agency of the international union or, as referred to by the Court, the national union, could be determined by the acts of the members of the local union.” It is obvious, we think, that the defendants’
      exception was directed to the actual instruction in the second claim. The claim for intentional discrimination, based on the unions’ statutory duty of fair representation, involved only the unions, and was directed in this court’s prior opinion to be tried as to both liability and damages, since neither had been determined. The trial court has now granted a new trial on this claim.
      Whether the court erred in instructing as a matter of law on the liability of the International, or whether the court should have instructed, as it did in the original trial, that the International’s liability is one of fact, is an issue involved in the discrimination claim and is not before us on this appeal. No objection was taken to the interrogatories; no different form of interrogatory was re-guested by the defendant unions. Under the circumstances, an alternate basis for denying the unions’ belated claim is that it was not properly presented to the trial court. Rule 51 of the Federal Rules of Civil Procedure requires that objections to instructions be made before the jury retires. We have spoken many times as to the efficacy of such a rule. See, e.g., Fulton v. Chicago, R.I. & P.R.R., 481 F.2d 326 (8th Cir. 1973) ; Walther v. Omaha Public Power Dist., 412 F.2d 1164 (8th Cir. 1969) ; Continental Casualty Co. v. Jackson, 400 F.2d 285 (8th Cir. 1968).

      . The charge reads:
      “Elements of plaintiff’s alleged damage include loss of direct wages, overtime pay, such fringe benefits as paid vacations, insurance benefits, pension and retirement, and seniority rights. In this regard you should determine the period of time for which plaintiff would likely have continued in the employ of the defendant Western Electric Company, Inc., in the absence of the unlawful discharge, and you should determine the value of the wages, overtime pay, and such fringe benefits as seniority rights, paid vacations, insurance benefits, pension and retirement benefits, which he could reasonably have expected to receive during such period of employment. From such total sum as you determine plaintiff would have received had he not been wrongfully discharged, you must deduct from such total sum the value of the compensation and fringe benefits which an individual with the plaintiff’s earning capacity could reasonably be expected, in the exercise of due diligence, to receive from other available employment during the said period. Plaintiff’s present employment is not necessarily such other available employment, but may be given consideration by you in making your determination.
      “Upon arriving at the net loss, if any, suffered by plaintiff as just described, you shall determine the amount of any such net loss suffered to date, and the amount of any such net loss attributable to periods in the future. You shall reduce such future losses, if any, to their present value, as you will be more fully instructed later, but any net loss sustained by plaintiff to date are not to be reduced.”


author: KILEY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Melvin L. MEDANSKY, Defendant-Appellant.
    No. 72-1790.
    United States Court of Appeals, Seventh Circuit.
    Argued June 15, 1973.
    Decided Oct. 3, 1973.
    As Amended on Denial of Rehearing En Banc Nov. 2, 1973.

      Harvey M. Silets, Theodore A. Sinars, Louis Carbonaro, Peter J. Valentino, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, and Ann P. Sheldon, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before KILEY, PELL and STEVENS, Circuit Judges.
   KILEY, Circuit Judge.

Melvin L. Medansky, an attorney, appeals from his conviction by a jury on ten counts of an eleven count indictment charging him, and Dr. William Becker, with devising and carrying out a scheme to defraud Medansky’s clients and insurance companies in violation of 18 U.S.C. § 1341. We affirm the conviction.

Each of the counts charged a separate instance of a specific mailing in the operation of the scheme. The indictment charged the following: Medansky agreed to refer accident victims to Dr. Becker who in turn would prepare false medical bills which both Becker and Me-dansky knew were false. Becker would then mail the bills to Medansky who then mailed them to the insurance companies. Upon obtaining a settlement of his clients’ insurance claims, Medansky would deduct the full amount of the fraudulent medical bills from the settlement and then divide the excess payment with Becker.

The appeal before us is from the judgment in the second trial of the indictment. The first trial began on November 24, 1971. After presentation of the evidence by both sides, the case went to the jury, with the instruction that each count of the indictment should be treated independently. The jury was given three forms of verdict, one for conviction on all counts, another for acquittal on all counts, and a third for whatever verdicts the jury might find necessary among the several counts. The jury failed to reach a verdict, it so informed the court, and subsequently the court, over the objection of Medansky, declared a mistrial as a result of a hung jury. After the ruling Medansky moved for dismissal of the indictment on the ground of double jeopardy. The motion was denied, and the ease was reset for the trial subject of this appeal.

The second trial commenced on April 11, 1972, with the selection of the jury. Medansky renewed his motion to dismiss the indictment, on the double jeopardy ground. The motion was denied. Becker was called as the government’s first witness. He testified that he had been a practicing physician since 1945, that in June, 1970, he was convicted of mail fraud for mailing false medical bills to an attorney other than Medansky, and that in return for probation agreed to testify truthfully in any future proceedings involving mail fraud of which he had knowledge.

Becker testified that he first met Me-dansky in late 1964 or early 1965, while Becker was working for another personal injury lawyer who was assisted by Medansky in a scheme similar to the one before us. According to Becker, Medan-sky asked Becker to join him in the alleged fraudulent scheme subject of the indictment, and both “understood” the fraudulent nature of the enterprise they were establishing.

Becker testified that during the operation of the alleged scheme, and until late 1968 or early 1969, Medansky referred 30 to 40 “patients” to him, and Becker prepared, with respect to each, and submitted to Medansky, an inflated bill, and that within six or eight months of Becker’s submission of each bill Me-dansky would remit to him “40 to 60% of the face amount of the bill.” Becker’s testimony as to the method of referral, the date of the injury, the services actually performed, the services billed, and the amount he ultimately received, covered each of the eleven counts.

The testimony with respect to the ten counts of the indictment before us in-eluded descriptions of the accidents, the victims’ contacts with Medansky, and their referral to Becker. The accident victims then described their contacts with and actual treatment by Becker. The insurance company representatives testified as to the total amounts of the settlements. Three of the insurance company representatives testified that their companies used mathematical formulas by which a multiplier was applied to the expenses submitted to determine the final payment due.

The cross-examination of Becker during three days extends over nearly 300 pages of the transcript. The aim of Me-dansky’s attorney was to impeach Becker by showing his guilty plea to an indictment originally containing 17 counts, his “deal” with the government to testify against Medansky, contradictions between his testimony at the first and second trials, and his false medical bills sent to Medansky. The cross-examination adduced ample evidence for Medan-sky’s purpose to enable the jury to measure Becker’s credibility.

I.

THE CONSTITUTIONAL QUESTIONS

A. Medansky contends that the district court denied him his Sixth Amendment right to trial by jury in refusing to accept verdicts, if any, from the first jury on some counts of the indictment, and by refusing to inquire whether the jury had reached verdicts on any of the counts. He relies on Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L. Ed. 283 (1932), for the proposition that the district court had no power to decline to accept partial jury verdicts. There the district court, relying on its discretion, refused to issue a bench warrant based on a proper grand jury indictment. .The Court held that it was for the grand jury to determine probable cause and that the district court did not have the power to refuse to “enforce” the indictment. That decision is inapposite. The same is true of United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333 (1920), and Ex parte United States, 242 U.S. 27, 37 S. Ct. 72, 61 L.Ed. 129 (1916).

We cannot say there was denial of Medansky’s right to trial by jury in the court’s refusal to make “an in-depth interrogation of each juror” to determine whether the jury had reached “possible verdicts” on any of the counts in “this case which charges an over-all scheme ... to defraud.” In United States v. Skidmore, 123 F.2d 604, 612 (7th Cir. 1941), this court approved a district judge’s receipt of a guilty verdict in one of two consolidated cases and his inquiry of jury prospects of agreement upon the other indictment. The holding of this court there did not compel the judge here either to inquire about the jury’s disposition on the various counts where there was no indication that agreement had been reached on any, or to permit Medansky’s attorney to inquire whether the jury had reached verdicts on any counts. And no one can fairly infer from the colloquy with the foreman that some verdicts were reached. Neither does the second Circuit’s decision in United States v. Cotter, 60 F.2d 689 (2nd Cir. 1932), or United States v. Frankel, 65 F.2d 285 (2nd Cir. 1933), compel that result here.

Even if we assume, arguendo, that the district court was compelled to accept partial verdicts, the record here does not warrant the premise that the jury had reached verdicts on some of the counts of the indictment. The record precludes application of Selvester v. United States 170 U.S. 262, 18 S.Ct. 580, 42 L.Ed. 1029 (1898), and Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). In fact, the last two sentences in the following quotation from Selves-ter 170 U.S. at 269, 18 S.Ct. at 582, support the contrary of Medansky’s contention:

Doubtless, where a jury, although convicting as to some, are silent as to other counts in an indictment and are discharged . . . the effect . is “equivalent to acquittal,” But such obviously is not the case, where ... a disagreement is formally entered on the record. The effect of such entry justifies the discharge of the jury, and therefore a subsequent prosecution [and] would not constitute second jeopardy.

Based on our analysis of the facts, we perceive no substance to Medansky’s argument that the district court denied his Sixth Amendment right to trial by jury.

B. We think that the vital issue before us is whether Medansky’s Fifth Amendment protection against being twice placed in jeopardy was violated by his second trial. He contends that the district court was under logical and legal compulsion to inquire whether the jury in the first trial reached a verdict on some counts of the indictment. No decision cited nor found has announced that rule, and our conclusion above in Section A weakens Medansky’s contention on this vital issue.

The touchstone for constitutional evaluation of the mandate of the double jeopardy clause of the Fifth Amendment is United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), involving discharge of a jury “unable to agree.” There Justice Story stated the rule that “the law has invested courts with the authority to discharge a jury from giving any verdict, whenever . . . [under] all the cir-eumstances . . . there is a manifest necessity ... or the ends of public justice would otherwise be defeated.” He does not speak in terms of a duty incumbent on the court, but characterizes the court’s responsibility as an “exercise [of] sound discretion” and a “power [which] ought to be used with the greatest caution.” The issue therefore is not whether the district judge violated a duty in declaring a mistrial, but whether the court abused its discretion in exercising that power.

The Perez rule was substantially restated in the most recent opinion of the Supreme Court dealing with double jeopardy, Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973), where the Court said, after reliance upon Perez:

This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court.
****** Similarly, in Gori v. United States, 367 U.S. 364 [81 S.Ct. 1523, 6 L.Ed.2d 901] (1961), the Court again underscored the breadth of a trial judge’s discretion, and the reasons therefor, to declare a mistrial.
“Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared . . . even over his [defendant’s] objection, and he may be retried consistently with the Fifth Amendment.” Id., at 368 [81 S.Ct. at 1526].

The Court in Somerville, at 467, 93 S.Ct. at 1072, stated “the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” Having once determined that jeopardy has attached, the court then looks to see if “ ‘manifest necessity’ ... or the ‘ends of public justice’ ” require abrogation of the rule. See United States v. Perez, supra,.

Some of the circumstances that qualify as exceptions to the general rule are: disqualification of a juror, death or other incapacity of the trial judge and probably of counsel, and the tactical needs of the military in time of war. “The classic example is a mistrial because the jury is unable to agree. United States v. Perez, supra; Logan v. United States, 144 U.S. 263, 298 [12 S.Ct. 617, 628, 36 L.Ed. 429]; Dreyer v. Illinois, 187 U.S. 71, 85-86 [23 S.Ct. 28, 32-33, 47 L.Ed. 79]; Keerl v. Montana, 213 U.S. 135 [29 S.Ct. 469, 53 L.Ed. 734].” Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L. Ed.2d 100 (1963): Even this classic exception, however, is not to be “mechanically” applied. We rather look to the facts and circumstances surrounding the discharge “resoIv[ing] any doubt ‘in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion.’ ” Downum at 738, 83 S.Ct. at 1035, citing United States v. Watson, 28 F.Cas. pp. 499, 500-501, 16, 650a.

With these rules in mind, we turn to the question whether the district court under the particular circumstances could properly exercise its discretion by declaring a mistrial as required by manifest necessity or public justice.

Before the jury retired, at the first trial, the district court gave three forms of verdict: one form for the jury to find guilt on all counts, another finding not guilty as to all counts, and a third form for the jury to find the defendant guilty or not guilty on one or more counts less than all. In the third form the jury could record its vote separately as to each count.

The jury retired for deliberation the morning of December 9, 1971. At 10:00 p. m. that night it had not reached a verdict. At 8:30 a. m. on December 10 the jury resumed deliberation. Some time before 11:00 a. m., the jury foreman reported to the marshal that the jury was in “irrevocable” disagreement, had been all along, and that “if it took two weeks they wouldn’t arrive at a verdict.” Over objections of Medansky’s counsel the court determined that it would recall the jury at 12:30 p. m. and if no verdict was reached the court would declare a mistrial.

When the jury was recalled at 12:30 p. m. the following dialogue took place:

THE COURT: Good morning, ladies and gentlemen of the jury. Mr. Calligaris, I infer from your occupying the first seat, that you were elected the foreman of the jury. That is good circumstantial evidence.
The marshal has advised me that the jury, through you, or otherwise, have informed him that you are irrevocably in disagreement, is that correct?
THE FOREMAN: Right, sir.
THE COURT: He tells me, as a matter of fact, there has been no change in the position of the members of the jury since last evening with respect to verdicts in this case.
THE FOREMAN: That is correct.
THE COURT: I think under those circumstances then, that there will be
no further purpose served in your deliberating further. Do you agree with that?
THE FOREMAN: Wholeheartedly.
THE COURT: Under those circumstances I am going to declare that you are in fact hung, if you tell me you are.
THE FOREMAN: Yes, sir, we are hung.
THE COURT: You are hung?
THE FOREMAN: We are hung.

In our view of the record there is no reasonable doubt that the district court could properly determine that there was a manifest necessity for declaring a mistrial and that public justice did not require that the trial continue. The circumstances surrounding the court’s ruling we think clearly met the Perez-Somerville test. The jury was informed by the three forms of verdict that they could find Medansky guilty, or not guilty as charged, or guilty or not guilty as to each of the separate counts; and the forms were a constant reminder in the jury room throughout deliberation. The jury deliberated throughout December 9 until 10:00 p. m. and the next day from 8:30 a. m. to 11 a. m. when it told the court, through the marshal, that it was in irrevocable disagreement. The court decided to prolong the deliberation for another hour arid a half. Upon recall the colloquy between the jury foreman and the court we think justified the court in concluding that it was clear that requiring further deliberation would be imprudent, of no possible benefit to Medansky or the government, and a waste of time of jurors, court and attorneys and a needless expense.

The record does not disclose whether the forms of verdict were returned to the courtroom. We know that verdicts were not reached with respect to the general forms. We cannot assume that any one of the forms was signed in any way. And the district court did not err in refusing to inquire whether the jury had reached a tentative verdict on the third form with respect to any of the counts. What decisions or eqncessions are made by jurors on any count of an indictment are not binding until a verdict is signed and returned in open court. Moreover, a normal response to the questions asked by the district court would have led the foreman to reveal a final verdict on some of the counts if his fellow jurors had agreed to and recorded a verdict on any count. We hold the district court under these circumstances did not abuse its discretion in declaring the mistrial in the first trial.

We are not persuaded by Medan-sky’s argument that a mistrial was not necessary because the trial court had available alternatives that would have avoided the mistrial. His suggestion that the district court give a “modified” Allen charge, Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528 (1896), was rejected by the court which stated “it may very well have a coercive effect.” Another alternative Medansky suggested was that he be allowed to question the jury about the possibility that any verdicts might have been reached. At the time of Medan-sky’s first trial the appropriateness of the use of a modified Allen charge was highly controversial. The decision not to give such a supplemental instruction was within the discretion of the trial judge. See United States v. Brown, 411 F.2d 930 (7th Cir. 1969). We have already found no error in the district court’s refusal to probe into the state of mind with respect to tentative verdicts, where as here no formal verdicts are returned. No good purpose would have been served even if the court had inquired and received an affirmative answer. The court could not order the tentative verdict made final. We think the district court was well within its right to reject Medansky’s suggestion. The inquiry requested was pregnant with danger to the free deliberation so essential to the proper functioning of the jury.

II.

CONTENTIONS AS TO CLAIMS OF ERROR AT TRIAL

In addition to the constitutional arguments raised, Medansky asserts five other grounds for reversal of his conviction at the second trial.

We see no merit in his challenge to the admission of testimony as to the ultimate disposition by Medansky of the proceeds obtained in the settlement of each claim subject of a count now before us. We see no prejudice to Medansky in the court’s permitting employees of the victim insurance companies to testify relating to the formula used by the companies to reach a settlement in personal injury cases and the anticipated use of these funds. The testimony was merely to show the company’s settlement procedures.

Medansky’s contention that that testimony wrongfully accused him of cheating his clients is sufficiently refuted by the words of the indictment itself. It provides: “Melvin L. Medansky . and William Becker . devised ... a scheme and artifice to defraud and to obtain money . from insurance firms . and from persons who were clients of said defendant. . . .’’If the direct examination by the government had the effect of accusing Medansky of cheating his clients, as he argues, that effect was clearly within the purview of the indictment. Furthermore Medansky testified on direct examination that his fee was one-third of each settlement.

The district court, upon introduction by the government of a portion of a State Farm Insurance Company file relevant to Count IV of the indictment, admitted a memorandum from an adjuster’s supervisor to an adjuster, to “work something out” to reduce the damages. The document further contains the following opinion of the supervisor: “I think . . . this attorney seems to be trying to build it [the accident] all out of proportion by keeping the man out of work for three weeks.” Me-dansky claims prejudice because the opinion expressed in the memorandum was offered to prove the truth of a portion of the indictment, and invaded the right of the jury to decide an ultimate issue arising from the charge in the indictment that it was a part of the scheme that Medansky and Becker “would and did cause clients of Melvin L. Medansky to absent themselves from employment to increase their alleged damages.”

The record does not support Medan-sky’s argument that the evidence was offered to prove the truth of the matter asserted. The document admitted into evidence by the court was introduced to prove the communication of information within the insurance company and not to prove the truth of paragraph ten of the indictment. The evidence was introduced to prove a relevant material fact, i. e., the determination by the company to pay the claim. United States v. Wyatt, 437 F.2d 1168, 1170 (7th Cir. 1971), is totally inapposite. There the police report admitted was “[t]he only direct evidence offered to prove the automobile in question was stolen . . . . ”

Medansky also claims that under 28 U.S.C. § 1732 the admission of the memorandum was error. The evidence established the memorandum was a writing made in the regular course of the insurance business, which carried with it sufficient trustworthiness to justify admissibility.

We disagree with Medansky that the trial court exceeded the bounds of impartiality by excessive participation in the interrogation of witnesses and by interjecting comments “in a tone [of voice] which left no doubt that the Court . . . disbelieved the defendant • . . . . ” Medansky relies primarily on United States v. Carmel, 267 F.2d 345, 350 (7th Cir. 1959), and United States v. Dellinger, 472 F.2d 340, 386-387 (7th Cir. 1972). He argues that the “cumulative effect” of the trial judge’s “questions . . . comments, remarks and statements” taken as a whole are so highly prejudicial that we must reverse.

We have read the record to determine if the trial judge’s actions were in performance of his duty to oversee the presentation of evidence and generally supervise the proper conduct of the trial, or whether his actions overstepped the bounds of propriety. The record shows that the conduct of the trial judge here was not “deprecatory” or “antagonistic,” nor was the challenged type of conduct “evident in the record from the very beginning.” United States v. Dellinger, 472 F.2d 340, 386 (7th Cir. 1972). Moreover, this was not a “close case” at the second trial, as were United States v. Hill, 332 F.2d 105 (7th Cir. 1964), and United States v. Carmel, 267 F.2d 345 (7th Cir. 1959).

The judge questioned Dr. Becker with respect to injuries of certain clients of Medansky, who had been X-rayed by a Dr. Gerber. He was clearly attempting to resolve ambiguity in Dr. Gerber’s conclusion that: “No. 1, prominent transverse process of C-7, simulating cervical ribs. No. 2, no recent fractures are demonstrated in the cervical areas, but soft tissue injury should be considered.” The meaning of the conclusion, as well as Dr. Becker’s testimony with respect thereto, was clearly ambiguous and remained so even after questions by the government. We think the court acted in the best interests of the jury, Medansky, and the government, as well as the court, and properly intended to clarify the issue. United States v. No-wak, 448 F.2d 134, 140 (7th Cir. 1971), cert, denied, 404 U.S. 1039, 92 S.Ct. 714, 30 L.Ed.2d 731 (1972). And there is no merit in the claim that the “judge undertook to contradict Mr. Medansky’s testimony [contrary to Becker’s] point by point . . . .” Absent a recording of the trial, we are unable to appraise the alleged prejudicial “tone” of voice used by the trial court.

We find no reversible error in the claimed “highly prejudicial, improper government argument to [the] jury .” Three grounds are stated: (1) the prosecutor argued that if the jury chose to believe appellant they must disbelieve all other witnesses; (2) he said that in effect the jury as insured persons had been defrauded by appellant; and (3) he referred to accident photographs that appellant claimed to have and said: “I will bet you ten to one . . . there were not any.”

Medansky contends that the prosecutor’s “all or nothing” argument improperly “shifted the burden of proof to the defendant.” In United States v. Dichiarinte, 385 F.2d 333, 340 (7th Cir. 1967), this court said a similar argument ought to be balanced by an instruction reminding the jury that it was free to consider the theory of innocence offered by the defense. While here the district court did not expressly tell the jury it was free to consider Medansky’s theory of innocence, the instructions are implicit with that idea. And there is no basis for criticism of the instruction that the jury must accept either the evidence favorable to the government or that favorable to Medansky. This did not invade the jury’s freedom to consider Medansky’s theory of innocence, i. e., that Becker lied. The theory of innocence here was based on the argument that Becker was not worthy of belief even under oath, that his testimony was “incredible,” that he lied on the stand and that the other “clients” who testified were “pawns” of Becker or testifying inconsistently with reality because of the “terrifying” fear of the government they felt upon entering the United States Courthouse. We think Medansky essentially asked the jury to accept the “all or nothing” view. In any event, the court’s instructions adequately complied with our admonition in Dichiarinte.

The prosecutor did not say that Medansky was “in effect” defrauding the jury. He said: “Mr. Medansky not only now was cheating everybody who has to pay for automobile insurance, the companies, [and] his clients. . . . Now he was cheating . . . Dr. Becker.” There was ample evidence that exaggerated claims ultimately resulted in higher insurance rates, and the reference to Becker was an attempt to characterize him as comparatively less culpable than Medan-sky.

Finally, with respect to the photographs, Medansky offered to produce them as evidence at trial but the court refused to admit them because the government had failed to prove a part of the indictment which charged that Me-dansky submitted false property damage bills. Instead the court offered to strike that portion of the indictment, finding “no probative relationship between the picture of a bent-up automobile and injuries of the passenger.” After the prosecutor referred to the absence of photographs in closing argument, the court offered Medansky the opportunity to use them in his closing argument. We see no reversible error in the prosecutor’s argument.

The judge, shortly after the jury retired, entered the jury room and, after each attorney expressed “no objection,” told the jury, in response to the jury’s request, that there was no transcript and that even if there had been it could not be given to the jury which had to rely upon its recollection of the evidence. Three months after the trial this court granted Medansky’s motion for remand for a hearing limited to making a record for appeal regarding the district judge’s action. The record of the hearing, with testimony taken from the judge and jurors, shows that while the judge was with the jury, a juror spoke up in response to the judge’s statement that there was no transcript and asked what counsel was reading from when they were trying to impeach witnesses. The judge told the jury that what counsel were using were transcripts from the first trial and should not concern the jury in their deliberations.

Even though the incident did not seriously concern Medansky until three months after his conviction, a hearing was held, to develop all the pertinent facts and circumstances. We are not persuaded that the district judge’s conduct was prejudicial to Medansky so as to deprive him of his Sixth Amendment right to a jury trial or to violate Rule 43 in the light of the harmless error rule. 52(a) F.R.Cr.P. See United States v. Arriagada, 451 F.2d 487, 488 (4th Cir. 1971), citing Judge L. Hand in United States v. Compagna, 146 F.2d 524, 528 (2nd Cir. 1944), cert, denied, 324 U.S. 867, 65 S.Ct. 912, 89 L.Ed. 1422.

For the reasons given, the judgment of conviction is affirmed.

      . “Frauds and swindles.”

      . In the interim, on January 10, 1972, Me-dansky filed a petition for a writ of mandamus in this court (No. 71-1025) seeking in the alternative an order that the district court dismiss the indictment, an order that the district court conduct a hearing to allow the defense to interrogate jurors in order to discover whether verdicts had been reached on any counts in the indictment, and an order staying the second trial until full hearing on the mandamus petition in this court. This court denied the mandamus petition without calling for a response, and subsequently the Supreme Court denied leave to appellant to file a petition for mandamus.

      . In United States v. Conti, 361 F.2d 153, 159 (2nd Cir. 1966), the court held that the district court had not prejudiced the defendant by asking a jury, which was still deliberating and had not indicated it was in disagreement, which counts it was in agreement on, especially where all counsel acquiesced in that inquiry.

      . This statement was after commenting on the many exceptions to the fundamental rule “that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again.” Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 224, 2 L.Ed.2d 199 (1957), citing Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974; Kepner v. United States, 195 U.S. 100, 128, 24 S.Ct. 797, 49 L.Ed. 114 (1904).

      . Note, 77 Harv.L.Rev. 1272, 1277 (1964), citing Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894) ; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891) ; Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 93 L.Ed. 974 (1949) ; and others.

      . In Brown the appellant argued that to give an Allen charge rather than to declare a jury hung deprived him of a mistrial which would have safeguarded his liberty. The decision focused on the questions of when an Allen charge was permissible and what form it ought to take. An assumption underlying the decision was that the instruction should not be given automatically whenever a jury seemed to be deadlocked, but only after the trial court, in its discretion, determined the instruction would help the jury reach a ver-diet. This court’s recent decision in United States v. Silvern, 484 F.2d 879 (1973), does not require the use of the modified Allen charge approved there.

      . Although not yet effective, Proposed Rule of Evidence 803(6) would allow the admission of a document similar to the one at issue here. Moore’s Federal Practice, Proposed Rules of Evidence 122 (Temp.Pamph. 1973) ; see Advisory Committee’s Note, id. at 129-32.

      . A similar incident occurred after Becker testified that an X-ray found: “Reduction of physiologic cervical lordosis consistent with posture of spasm. No evidence of traumatic bony pathology or dislocation. Normal findings in the lumbosacral and sacroiliac regions.”