author: SPRECHER, Circuit Judge.

text:
    FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, an Agency of the United States, Plaintiff-Appellee, v. Quinn HOGAN, Defendant-Appellant.
    No. 71-1902.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 16, 1973.
    Decided March 29, 1973.

      Douglas W. Graham, Chicago, Ill., for defendant-appellant.

      Merrill Shepard, Donald Page Moore, Kael B. Kennedy, Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   SPRECHER, Circuit Judge.

Defendant Quinn Hogan appeals from a jury verdict giving the plaintiffs a $20,000 judgment against him for conspiracy to defraud. We reverse.

Plaintiff Federal Savings and Loan Insurance Corporation, a federal agency (FSLIC), became the owner of the property, assets and causes of action of Service Savings and Loan Association, an IIliois savings and loan institution in Summit, Illinois, in September, 1965, as a result of an agreement under which plaintiff enabled Service Savings to pay its depositors and creditors in full. Thereafter, on February 3, 1967, plaintiff FSLIC filed a complaint in the Northern District of Illinois against various officers and directors of Service Savings, along with others, charging the defendants with a civil conspiracy to mismanage and defraud Service Savings. Hogan was not named in this complaint. On July 17, 1969, FSLIC filed its second amended complaint, again naming various officers and directors of Service Savings as defendants, and this time also including Hogan as a defendant. The second amended complaint alleged a conspiracy to defraud Service Savings in conjunction with loans to three properties.

The first of these properties was Vernon Hills, Inc., or the Vernon Hills Country Club. Hogan was the president of Vernon Hills. Service Savings loaned Vernon Hills $700,000 in November, 1960. The loan was refinanced and increased to $850,000 in November, 1961. Service Savings’ security for the loan was a first mortgage on the Vernon Hills Country Club property.

Vernon Hills filed a bankruptcy petition in December, 1962. In June, 1963, Service Savings discovered that the legal description of the property included in its mortgage on Vernon Hills included only twelve holes of the eighteen hole golf course supposedly covered by the mortgage. Service sought reformation of the mortgage to include the whole eighteen holes on the ground of mutual mistake of fact arising from a scrivener’s error. This petition was later amended to include allegations of fraud and deceit. The FSLIC filed an answer to Service Savings’ reformation petition, alleging that it owned the property sought to be included in the reformation as assignee of the prior owner, Hillside Savings and Loan Association. The Special Master who heard the petitions found that no mutual mistake of fact had been proved, that fraud by the debtor, Vernon Hills, or any of its agents had not been proved, and that the proof was insufficient that the parties intended to include the additional property within that covered by the mortgage. Reformation was therefore denied. The Special Master’s findings were approved by both the District Court and this Court. In re Vernon Hills, Inc., 348 F.2d 4 (7th Cir. 1965).

Unsuccessful in its efforts to achieve title to a complete eighteen hole course in the bankruptcy court, Service Savings, through its assignee FSLIC, purchased the remaining property in May, 1966 for $120,000. It then filed suit, although not until 1969 was Hogan added as a defendant, alleging a conspiracy to defraud Service Savings and claiming as its damages on the Vernon Hills transaction the $120,000 paid for the remainder of the golf course.

Count I of the FSLIC’s complaint names as defendants, in addition to Hogan, William and Edward Szarabajka, president and executive vice president of Service Savings respectively; Joseph Nowak, attorney for Service Savings; Edward Kowalko and Joseph Racina, members of the board of directors of Service Savings; Vernon Sherman, a real estate investor and developer and a member of the board of directors of another defendant, the Virginia Corporation; Louis Sherman, identified in the complaint only as an attorney and father of Vernon Sherman; Jerome Morris, an attorney and the president and sole owner of defendant Virginia Corporation; John Parrish, a mortgage broker; the Virginia Corporation, a corporation engaged in the lending business; and Kenneth Russ and Harry Prince, each engaged in the business of lending money. These defendants were alleged to have conspired to defraud and mismanage Service Savings in a multitude of ways, but the specific acts charged to be in furtherance of the conspiracy may be generally summarized as follows: (1) causing Vernon Hills to pay large sums of money as bribes to defendants William Szarabajka and Nowak in order to obtain a loan from Service Savings; (2) concealing from Service Savings the fact that defendant Vernon Sherman was insolvent and unemployed; (3) causing a co-conspirator to prepare and certify appraisals which would attribute a fraudulent and excessive value to the Vernon Hills security property as well as another security property known as River-woods; (4) causing fraudulent Mulhern appraisals to be placed in the files of Service Savings in order to persuade the plaintiff and examining authorities that the Vernon Hills and Riverwoods loans were made on adequate security and not because of bribes; (5) causing the defendant Vernon Sherman to pay large sums of money as bribes to Nowak and the two Szarabajkas in order to obtain the Riverwoods loan; (6) causing the diversion of more than $150,000 in Vernon Hills, Riverwoods, and Ramlin Rose (another real estate venture) loan proceeds in order to pay the costs of inducing certain money brokers to deposit enough money in Service Savings to fund these loans. Additional allegations detailed the alleged fraud and bribery in connection with the Riverwoods and Ramlin Rose loans.

The 35-page complaint charges Hogan by name with agreeing with others to make a cash bribe in exchange for the Vernon Hills loan, introducing Vernon Sherman to those who could procure the Riverwoods loan for him, agreeing with others to help cause Service Savings to make the Riverwoods loan, and accepting a new car and cash from Riverwoods proceeds in return for help in arranging the Riverwoods loan.

Prior to trial defendants William and Edward Szarabajka and John Parrish defaulted through failure to answer the charges against them. In addition, the district judge instructed the jury that the evidence regarding a conspiracy in the Vernon Hills transaction was to be considered only against Hogan and Nowak, and that no evidence had been presented tying any of the other defendants to this alleged conspiracy. On February 8, 1971, the jury returned a verdict absolving Nowak of any liability with regard to the Vernon Hills transaction but holding Hogan liable for $20,000 on this transaction, and absolving Hogan of any liability with regard to the Riverwoods loan but holding Nowak, Vernon Sherman and Jerome Morris liable in the sum of $150,000 on this transaction. Additional verdicts were returned finding liability in favor of the plaintiff and against certain defendants, not including Hogan, on Count II of the complaint. The district judge denied Hogan’s post-trial motions for relief based on collateral estoppel in consequence of the prior decision denying reformation of the mortgage and absence of any proof on the issue of damage.

We have concluded that Hogan was entitled to assert his claim of collateral estoppel although not pleaded as an affirmative defense and that, in the alternative, if the fraud issue in the earlier case differed in any respect from that asserted in the trial in this case then plaintiff failed to prove any damage.

Plaintiff FSLIC argues that'the trial court’s ruling denying Hogan’s estoppel claim was correct on several grounds. It argues that the claim is barred by Hogan’s failure to comply with Fed.R. Civ.P. Rule 8(c), which requires that defenses such as estoppel be pleaded affirmatively. FSLIC also argues that collateral estoppel is not applicable here because the fraud issues in the two cases were different. Other defenses, such as lack of mutuality, are also raised.

Fed.R.Civ.P. Rule 8(e) requires that a party responding to a preceding pleading “set forth affirmatively estoppel . . . and any other matter constituting an avoidance or affirmative defense.” It is undisputed that Hogan did not comply with this rule nor properly seek to amend his pleadings during the trial when it became apparent that he desired to offer the earlier case in his defense. The courts have, however, relaxed the pleading requirement in the interests of justice in various instances, such as where the facts underlying the claim of res judicata have been pleaded by the plaintiff in his complaint, Sylk v. United States, 331 F.Supp. 661 (E.D.Pa. 1971), and where the plaintiff’s own evidence discloses the facts or proof, Bradford Audio Corp. v. Pious, 392 F.2d 67, 73 (2nd Cir. 1968), 2A Moore, Federal Practice ¶ 8.27 [3] at 1853-54 (2d ed. 1972). Furthermore, Rule 15(b), Fed.R.Civ.P., specifically provides that

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues.”

The issue decided by the bankruptcy referee, and affirmed by both the district court and the Seventh Circuit, in the earlier Vernon Hills case was whether the mistake in the land description which was part of Service Savings mortgage on the Vernon Hills Country Club was the result of fraud on the part of Vernon Hills or any of its agents. But as plaintiff FSLIC itself states, the issue raised by the pleadings “concerning Hogan is whether he participated in a fraud in inducing by bribery and other means the granting of the loans secured by the mortgage.” (Plaintiff’s brief at 23; emphasis in original.) Thus, to the extent that the proof at trial was limited to proof on this issue there was neither any need, nor would it have been appropriate, for Hogan to raise the defense of collateral estoppel pursuant to the earlier case. To the extent, however, that Hogan’s liability in this case rests upon his participation in the preparation of a fraudulent mortgage, the prior judgment, being inconsistent with that holding, is relevant and collateral estoppel is an appropriate defense. Furthermore, the fact that the issue of fraud in the mortgage was raised by the plaintiff during the course of the trial, and not in the pleadings, precludes plaintiff from asserting Fed.R.Civ.P. Rule 8(c) as a bar to Hogan’s estoppel claim, because the issue was necessarily then tried with the express consent of the plaintiff. Fed.R.Civ.P. Rule 15(b); Bradford Audio Corp. v. Pious, supra, 392 F.2d at 73-74; 3 Moore, Federal Practice ¶ 15.13 [2] at 987-88 (2d ed. 1972).

Neither can the lack of mutuality bar Hogan’s estoppel claim. Hogan was not a party to the reformation petition, except to the extent that he was in privity with the corporate debtor as president of Vernon Hills. The claim in the earlier case seeking reformation on the ground of fraud in the mortgage by Vernon Hills or its agents was asserted by Service Savings, and FSLIC, the plaintiff in this action, sues only as the assignee of Service Savings. But “the trend in the federal courts is away from the rigid requirements of mutuality. . . ” IB Moore, Federal Practice ¶ 0.412 at 74 (1972 Supp.). As the Supreme Court noted in repudiating the doctrine of mutuality in certain patent litigation (where the doctrine had previously been asserted to have special validity), in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 324, 91 S.Ct. 1434, 1440, 28 L.Ed.2d 788 (1971):

“Many state and federal courts rejected the mutuality requirement, especially where the prior judgment was
invoked defensively in a second action against a plaintiff bringing suit on an issue he litigated and lost as plaintiff in a prior action. The trend has been apparent in federal-question cases.” (Footnotes omitted.)

In that case the Court also quoted approvingly Judge Friendly’s citation in Zdanok v. Glidden Co., 327 F.2d 944, 954 (2nd Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964), of Bentham’s statement of over a century ago that the concept of mutuality of estoppel was “destitute of any semblance of reason, and ... ‘a maxim which one would suppose to have found its way from the gaming-table to the bench’. . . .” Blonder-Tongue, supra, 402 U.S. at 322-323, 91 S.Ct. at 1439. We hold, in line with the many other courts which have reached the same conclusion, that, at least when used “defensively,” mutuality of estoppel should not be required. See Zdanok v. Glidden Co., supra, 327 F.2d at 954-956; Bruszewski v. United States, 181 F.2d 419 (3rd Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950); Bernhard v. Bank of America, 19 Cal.2d 807, 811-813, 122 P.2d 892, 894-895 (1942). See generally, cases and articles cited in Blonder-Tongue, supra, 402 U.S. at 322-327, 91 S.Ct. 1434.

Inasmuch as Hogan’s claim of collateral estoppel was not barred by Rule 8(c) or lack of mutuality, the issue is whether the fraud question decided by the earlier case is identical to at least one issue in this case. As stated above, we agree with the plaintiff that the pleadings in this ease did raise a different question, namely, whether Hogan participated in a conspiracy to defraud Service Savings by means of bribery. Our difficulty with accepting this difference as conclusive on the issue before us arises from the following facts: (1) plaintiff argued the defective mortgage to the jury as at least part of the basis for holding Hogan liable for fraud; (2) the trial court’s instructions clearly contemplate liability based on an allegedly fraudulent mortgage; (3) the jury’s verdict is inconsistent with finding that Hogan’s liability was based on a bribery conspiracy; and (4) if the basis of the judgment against Hogan is that he obtained a loan because of bribes, and that judgment is not based on fraud in the misdescription of a mortgage, then the jury was given no basis upon which to assess damage.

Although plaintiff argues to this court that the basis for Hogan’s liability was not fraud in a mortgage description, during closing argument to the jury plaintiff’s attorney alluded repeatedly to the defective deed and the twelve-hole golf course. The district court’s instructions to the jury also clearly contemplated liability based upon a fraudulent mortgage. In his description of Count I, the trial judge stated that the complaint charged the defendants with a conspiracy to defraud Service Savings, in part, “by making false and fraudulent pretenses, representations and promises to it, . . . ” He also instructed the jury that the measure of damages in the Vernon Hills transaction “is the amount which the plaintiff paid on May 31, 1966, to purchase six holes of the Vernon Hills golf course, with interest at the rate of five per cent, from May 31, 1966.” Neither of these instructions is consistent with any theory except fraud through the defective land description.

The jury, as might be expected following the instructions, reached a verdict inconsistent with a theory of conspiracy to obtain loan funds through bribery. While holding Hogan liable for $20,000, it found the person actually alleged to have taken the bribes, Service Savings’ attorney Nowak, not liable for any amount. If the jury was basing its finding of liability against Hogan on a theory of bribery conspiracy, it almost certainly would have also found liability in the person alleged to have taken the bribe and to have handled all negotiations between Hogan and Service Savings. This conclusion is supported by the fact that the jury failed to find Hogan liable on the plaintiff’s bribery theory with regard to the other transactions, in none of which could Hogan have been liable on any other theory.

We conclude that Hogan’s claim of estoppel should have been allowed inasmuch as plaintiff tried its case to the jury at least in part based on fraud in the mortgage, the theory of damages was based entirely on the defective mortgage, and the jury almost certainly followed these instructions.

Even if we should be mistaken in our belief that estoppel was appropriate here, however, we would have to reverse this judgment on the basis of the fact that the only evidence of damage was the cost of acquiring the land not covered by the defective mortgage. Plaintiff’s argument that estoppel is not appropriate in this case because the allegedly fraudulent mortgage is not in is> sue is inconsistent with measuring damages on the basis of the defective land description. No other evidence on the issue of damages having been presented, the jury was without any proper instruction on damage.

Reversed.

      . All references, unless otherwise indicated, refer to the second amended complaint, filed July 17, 1969.

      . Hogan, appearing pro se in a complicated, multi-party case in which the other defendants were represented by accomplished counsel, was obviously at a disadvantage in his attempt to present evidence. (There is in fact very little evidence in the record either offered by or about Hogan, despite the fact that the record on appeal includes 27 volumes of depositions, 6 volumes of exhibits and 6000 pages of transcript.) Nevertheless, Hogan did ask for a directed verdict on the ground of collateral estoppel and attached a copy of the Seventh Circuit opinion in the earlier Vernon Hills case to his petition. He also sought post-trial relief on this ground, at that time attaching additional exhibits.

      . We must also be mindful of the Supreme Court’s repeated warning that “[t]he Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Foman v. Davis, 371 U.S. 178, 181-182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Fed.R.Civ.P. Rule 1 itself provides that the federal rules are to be construed “to secure the just, speedy, and inexpensive determination of every action.”

      . See Currie, “Mutuality of Collateral Estoppel : Limits of the Bernhard Doctrine,” 9 Stan.L.Rev. 281 (1957).

      . In a memorandum decision on the defendant’s post-trial motions, the district court held that the Seventh Circuit opinion in the earlier Vernon Hills case showed that the petition before the special master was limited to the issue of mistake and that the issue of fraud was not decided. Federal Savings and Loan Ins. Corp. v. Szarabajka, 330 F.Supp. 1202, 1206 (N.D.Ill.1971). We do not agree. The Court of Appeals opinion discusses the issue of fraud fully, Concluding that the issue ultimately turned on determinations of credibility of witnesses made by the trier of fact. 348 F.2d at 8-9.

      . We note that showing the cost of acquiring the land, by itself, without evidence of the price obtained on resale, would not in any event be sufficient proof of damage.


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    William C. LANDSTROM, d/b/a Landstrom Gravel Co., Plaintiff-Appellee, v. CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 65 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Defendant-Appellant.
    No. 334, Docket 72-1906.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 15, 1973.
    Decided March 30, 1973.

      Peter P. Paravati, Utica, N. Y., for defendant-appellant.
    James L. Burke, Elmira, N. Y., for plaintiff-appellee.
    Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

This appeal is by a local union held liable for $60,000 compensatory damages under § 303 of the Labor Management Relations Act of 1947, 29 U.S.C. § 187, for unfair labor practices as defined in § 8(b) (4) (ii) (B) of the Act, 29 U.S.C. § 158(b) (4) (ii) (B). The appellee, a' non-union gravel and ready-mix concrete contractor in Ithaca, New York, alleged that he lost jobs as a result of appellant’s threats to shut down major area contractors if they subcontracted gravel or concrete work to appellee. The questions raised by the appeal relate to (1) sufficiency of the evidence of a violation of § 8(b) (4) (ii) (B); (2) sufficiency of the evidence concerning the charge pertaining to, and excessiveness of, damages; and (3) the admission of evidence on matters not set forth in appellee’s answers to interrogatories.

We resolve the questions of liability in appellee’s favor but reverse and remand for a new trial on the issue of damages.

Appellee’s business is a small one, on the outskirts of Ithaca, where he has a gravel pit, a transit mix concrete plant, three concrete mixers (one standby), about five dump trucks, and eight regular employees. After trying unsuccess-, fully in 1967 to organize the plant, the appellant union picketed it for two weeks in the spring of 1969. Apparently the picketing was stopped after both the union and appellee had filed charges with the NLRB. These charges were later dropped by mutual agreement before May 23, 1969. After that date, for the most part, the course of conduct on which this suit was brought ensued.

Taking the evidence in the light most favorable to the party prevailing before the jury, it appears that appellee had started to supply sand, gravel, or in one case ready-mix concrete to a number of contractors in the period 1969-1971 when he was told by the contractors or their representatives to stop making delivery. There was testimony from those coerced as follows:

(1) John Card, assistant superintendent for Dyer Fitts Construction Company in charge of the Cornell Student Housing Project, testified that he stopped appellee from making deliveries to his site because the appellant’s business agent “told me I better not use Landstrom’s trucks delivering on that job . . . that he might shut the job down, our part of the work down.”

(2) James Cartwright, executive secretary of the Cortland-Ithaca Building Exchange, a contractors’ group, testified that he had several meetings with Mr. Michaels, the business agent of the appellant, who told him that the union “would quite possibly have to picket” the job sites of members of the Exchange who dealt with Landstrom. Acting on this information, Cartwright advised the Exchange’s membership “they should anticipate some type of work stoppage” if they utilized Landstrom material or service. One of the contractors to whom Cartwright said he told this was Mr. McGuire of the firm of Stewart and Bennett.

(3) Mr. McGuire, whose employer was the prime contractor on the Spencer-Van Etten School project, corroborated Cartwright, saying that he recalled being informed by Cartwright that “there was a possibility that the job could have trouble, pickets and so forth,” if Landstrom was used. As a result of Cartwright’s statement, although Landstrom was low bidder, he did not get the 6-7,000 yard concrete contract for the school.

(4) Donald H. Brown, general superintendent of Streeter Associates, another contractor, testified that he had a conversation with Michaels before the Inlet Park job, in the course of which Michaels told him, “You must realize we don’t have an agreement with Landstrom and if you use him you would be violating your contract with us.” As a result of that conversation, according to Brown, Streeter did not order gravel from Landstrom that would have otherwise been ordered. Brown also implied that because of the “groundwork [that] had been laid” in discussion with Michaels about the Inlet Park job, Landstrom did not get the contract to supply gravel on the Unex Press job, Brown also testified, however, that another supplier — Paully Mancini & Son — did haul gravel that was bought at the Landstrom pit to the Unex Press job.

(5) Elwood Marshall, plant foreman of a Landstrom sand supplier, RumseyIthaca Company, testified that Michaels “came to us and told us not to load any of the Landstrom trucks,” and that “if we loaded trucks, he was going to shut the place down.” As a result of Michaels’ intervention with Rumsey-Ithaca, Landstrom had to find another, more expensive, supplier of sand.

(6) Rhaeto Pfister, president of Lynch Excavating Trucking Corporation, who had the excavating contract at the Ithaca College dormitories, testified that he stopped deliveries by Landstrom after “[t]he Teamsters informed us that if Bill Landstrom continued to deliver gravel that . . . I am not sure if he said picketing, or he would pull his men off, there would be a strike. Something to the effect that we would have a shutdown.” He also testified as to a similar threat by Michaels in connection with the excavating contract at Cornell Student Complex at Cornell University and as to his “other jobs,” including jobs at Tompkins Hospital and BOCES School. Pfister’s testimony was subsequently corroborated by the testimony of his then excavation superintendent, William J. Mobbs.

(7) John H. Boniface, Assistant Vice President of A. Frederick & Sons, contractors on the First' National Bank job at Ithaca, testified that he had employed Landstrom on that job but then had a call from Michaels. The substance of Michaels’ message was that “if [Boniface] continued, . . . using the non-union equipment, [Michaels] would put pickets on that job.” Boniface, however, used Landstrom anyway, without further consequences.

(8) Peter Giacobbi of Giacobbi Excavating and Grading Contractors Incorporated said he conferred with Michaels who told him Landstrom was “not union at all” and that thus he could not use Landstrom on the Northeast School Job, one involving some 8,373 cubic yards of gravel.

(9) William Schlobohna, plumbing superintendent of J & B Plumbing & Heating, testified that he had had to stop using Landstrom for hauling a small amount of gravel for a water main ditch in downtown Ithaca when Michaels told him that Landstrom’s gravel was “nonunion” and that Michaels “would shut down the job if I continued to use it.”

The principal line of defense to all of this evidence was that there was a “subcontractor’s clause” in the contracts between the union and the general contractors which required that subcontractors pay their employees the same as the general contractor paid its employees. By using Landstrom, the union argued, a general contractor was violating that clause. Thus Michaels, when asked whether he had ever threatened to shut down any of the contractors for using Landstrom, testified that he had merely “told them I was going to go to the grievance procedure,” by which he explained that he meant “I contacted my legal attorney, I find out what I can do legally, outside of giving him the seventy-two hour notice or three day notice and withdrawing my men”’ In essence, however, the jury disbelieved Michaels’ testimony that he did not tell Card, Pfister, Mobbs, Boniface, Marshall, or Schlobohna that he was going to picket their jobs or shut them down. While there is no indication that Landstrom was a subcontractor, as opposed to being a supplier, even if he were, the clause could only be enforced through the courts, NLRB v. Local 445, 473 F.2d 249 at 252 (2d Cir., 1973), since the clause was clearly “secondary.” See Orange Belt Painters District Council No. 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534, 537-538 (1964). Here there was a jury issue under § 8(b)(4)(ii)(B) in that the jury rationally could have found that appellant threatened or coerced a number of general contractors and others with the object of forcing them “to cease using, selling, ... or otherwise dealing in the products of any other producer, . . or to cease doing business with any other person . . . .” There was evidence from which the jury could have found the appellee’s conduct was “unmistakably and flagrantly secondary” and caused a severe disruption of Landstrom’s business relationships with contractors not involved in the primary labor dispute. NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 304-305, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). See Note, Secondary Boycotts: The New Scope and Application of the “Cease Doing Business” Requirement of Section 8(b)(4) (B), 71 Colum.L.Rev. 1077, 1087 (1971); 12 B.C.Ind. & Comm.L.Rev. 1255 (1971). Thus, appellant’s contention that the evidence was insufficient to support the jury’s finding of a § 8(b) (4) (ii) (B) violation must be rejected.

Appellant makes a somewhat confused subsidiary argument in reference to the Cornell Student Housing and Rumsey-Ithaca job which also applies to the statement made by Michaels to Cartwright of the Building Exchange and repeated by Cartwright to McGuire so as to deprive appellee of the Spencer-Van Etten School contract. As we understand it, appellant relies on the proviso to § 8(b) (4) (ii) (B) and Sailor’s Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950), approved in Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961), and argues that since the alleged threats relating to those three projects occurred during the pendency of a primary dispute between Landstrom and the union, the union could properly picket (and implicitly threaten to picket) Landstrom wherever he was working until the primary dispute was ended in the spring of 1969. The jury could well have found, however, that the threats that occurred in the spring of 1969 went beyond a threat of picketing in conformity with Moore Dry Dock standards, for Michaels’ words were ominous and threatening and included an explicit or implied threat to shut the neutral contractor down if he continued to deal with Landstrom. The Moore Dry Dock rules are only evidentiary aids to the finder of fact and can be overcome by other evidence of illegal secondary purpose. NLRB v. Northern California District Council of Hod Carriers, 389 F. 2d 721, 725 (9th Cir. 1968). But more important, the issue was not raised below, the court’s charge did not deal with it, and no objection was taken to any failure to charge on this question. We would add that as we read the record, the most appellant might have been entitled to in any event was a charge in respect only to the three jobs mentioned above. Coneededly such a charge might have affected the damages substantially, but having permitted the case to be submitted otherwise, appellant cannot now be heard to complain.

Appellant’s final argument on liability is that as to the A. Frederick job, by leaving the gravel in different piles Landstrom was doing on-site work. Hence the argument is this Was work performed by a subcontractor, not a supplier, and subject to the subcontractor clause of the contractor’s labor contracts and the construction industry proviso to § 8(e), 29 U.S.C. § 158(e). But the work Landstrom performed on this particular job is no different from the delivery of concrete by mixing and pouring it at the job site, which we held not to be subcontracting in NLRB v. Teamsters Local 294, 342 F.2d 18, 21-22 (2d Cir. 1965).

Relative to damages, the only evidence consisted of Landstrom’s uncontroverted testimony that his profit (the excess of selling price over cost) on the sale of gravel picked up at his pit was 25 cents per yard, on the sale of gravel delivered by his trucks to a work site approximately 75 cents per yard, and with regard to concrete at the Spencer-Van Etten school job (the only one involving the sale of concrete) $8.95 per yard. Briefly stated, there was evidence from which the jury could find that, multiplying the numbers of yards of gravel lost on the various jobs by the “profits” above stated, together with a “lost profit” for 5400 yards of concrete at $8.95 per yard or $48,330, the total damage on this basis was $74,625.25.

Appellant argues, however, that as a matter of law the evidence on damages was insufficient because appellee had the burden of proof of damages, Jodice v. Calabrese, 80 LRRM 2681 (S.D.N.Y., June 6, 1970), was free to and did use his employees and materials on other jobs, and made no showing of a general loss of profits. H. L. Robertson & Associates, Inc. v. Plumbers Local 519, 74 LRRM 2689 (S.D.Fla., Dec. 9, 1969) , aff’d, 429 F.2d 520 (5th Cir. 1970) (per curiam). It is now clear that, irrespective of state law, only compensatory damages are recoverable 303 actions. Teamsters Local 20 v. Morton, 377 U.S. 252, 260-261, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). It is equally clear that damages in a § 303 action need not be proven to a certainty, but only to an approximation inferable reasonably and justly. Flame Coal Co. v. UMW, 303 F.2d 39 (6th Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 186, 9 L.Ed.2d 125 (1962); UMW v. Patton, 211 F.2d 742 (4th Cir.), cert. denied, 348 U.S. 824, 75 S.Ct. 38, 99 L.Ed. 649 (1954). See also Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 567-568, 51 S.Ct. 248, 75 L.Ed. 544 (1931) (loss of business from Sherman Act violation). But here, with one minor exception, appellee produced no evidence of out of pocket expense as in Gulf Coast Building & Supply Co. v. Electrical Workers Local 480, 428 F.2d 121 (5th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970), or Burns Brothers Plumbers, Inc. v. Groves Ventures Co., 412 F.2d 202 (6th Cir. 1969). There was no evidence produced that appellee did not or could not have employed his material elsewhere and used his trucks and men in connection with other projects not interfered with by appellant — no evidence that his men and equipment were idled by appellant’s activity. The most that was shown is a lost gross profit, but not a loss of net income. The proof of damage here thus falls far short of that adduced by the general contractor in Abbott v. Pipefitters Local 142, 429 F.2d 786, 789-790 (5th Cir. 1970) (proof of average profit over three year period and less profit on particular job, coupled with proof that losses were not attributable to factors other than picketing). See also Sheet Metal Workers Local 223 v. Atlas Sheet Metal Co., 384 F.2d 101 (5th Cir. 1967); Teamsters Local 984 v. Humko Co., 287 F.2d 231 (6th Cir.), cert. denied, 366 U.S. 962, 81 S.Ct. 1922, 6 L.Ed.2d 1254 (1961). While there is ample proof that as a result of appellant’s unlawful activity appellee sustained lost profits on some gravel that he could have sold at the pit and some that he could have delivered, there is no proof that the same gravel — surely the most fungible and widely used of minerals — was not sold elsewhere or in any event delivered elsewhere in the ordinary course of business by the use of Landstrom’s men and equipment. Thus, appellee did not sustain his burden of proving actual damage.

Since we must remand in respect to alleged losses of profits in any event, it is unnecessary to determine whether the court’s response to a jury question in respect to Landstrom’s claim for damages should have been framed in substantially the same terms as Landstrom’s attorney’s summation. We do hold, however, that appellant’s belated objections to evidence relating to liability and damages on the Spencer-Van Etten, Morris Chain and Unex Press jobs on the ground that they were not specifically mentioned in appellee’s answers to interrogatories are unavailing. Reference was made in the interrogatory answers to claimed damages of $62,500 in respect to Stewart and Bennett, the Spencer-Van Etten contractors, and in connection with the Unex Press project there was a general answer of claimed damages of $25,000 on additional jobs; appellant cannot now claim, having failed to press for further specification before trial, that he was surprised by this evidence. Landstrom’s deposition could have been, but was not taken. The Morris Chain project of which appellant now complains was not material since no claim for damages in respect to it was made.

Judgment affirmed as to liability, reversed and remanded for new trial on damages only, costs to neither party.

      . Section 8 provides in pertinent part:
      (b) It shall be an unfair labor practice for a labor organization or its agents'—
      (4) . . . (ii) to threaten, coerce, or restrain any person . . . where . an object thereof is' — •
      (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing[.]

      . Appellee originally also sued Michaels and Lawrence Small, Secretary-Treasurer of the appellant. These suits were dismissed by consent prior to trial.

      . On the validity of such clauses, see Truck Drivers Local 413 v. NLRB, 118 U.S.App.D.C. 149, 334 F.2d 539, cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964).

      . Section 8(b) (4) (ii) (B) makes an explicit exception with respect to primary disputes. See note 1 supra. See generally United Steelworkers v. NLRB, 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964); Typographical Union No. 37 v. NLRB, 131 U.S.App.D.C. 1, 401 F.2d 952 (1968); NLRB v. Northern California District Council of Hod Carriers, 389 F.2d 721 (9th Cir. 1968).

      . The pertinent portion of the charge as to appellant’s defenses read as follows:
      The defendant Union, on the other hand, denies that its officers many [sic] any threats to anyone as testified to by the various witnesses produced by the plaintiff. The defendant contends that on various occasions its president advised contractors with whom the Union had .agreements that it would resort to the lawful procedure set forth in those agreements to enforce the Union’s rights under them. The Union concedes that in the course of a dispute with the plaintiff in the spring of 1969 it posted pickets at its place of business. They deny threatening to picket or strike on any other or in connection with anyone else.
      You will recall that there is evidence that various charges and counter-charges were filed with the National Labor Relations Board as a result of which the pickets were withdrawn and the matter was resolved in some manner.
      The defendant further denies that its actions taken in connection with the plaintiff had any object or purpose or intent to require or force any of the contractors or the Rumsey-Ithaca Corporation to cease doing business with the plaintiff.
      Finally, the defendant denies that the plaintiff suffered any injury to his business and property as a proximate result of any unfair or unlawful labor practice. The defendant further maintains that it was only seeking to enforce its rights under three contracts which were introduced into evidence ....
      Obviously, this did not suffice to place the Moore Dry Dock issue before the jury.

      . (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, ti-ansporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible [sic] and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work ....

      . Our understanding of what happened on the damage and other issues in this case below is hampered by a transcript that contains numerous uncorrectod errors, followed by briefs and appendices that are most unhelpful (and as regards the briefs in violation of Fed.R.App.P. 28, in numerous respects). To the best of our understanding, it appears that the trial court’s charge as to Landstrom’s claims was somewhat different from the testimony adduced because in connection with the BOCES School, appellant’s counsel in summation and the court spoke of twenty-seven hundred yards of gravel used there, as to which Landstrom would have delivered only one-half, making a loss of $1,-012.50. The testimony of Mr. Pfister at pages 150 et seq. of the transcript, however, was that the total yardage on the project was twenty-two thousand seven hundred yards of which Landstrom would have delivered at least one-half. On this basis the loss sustained would have been $8,512.50. This discrepancy in the charge of $7,500 in favor of appellant was not objected to by appellee and may have been due to a mistake in transcribing the testimony rather than counsel’s computations.

      . For mason sand Landstrom had to purchase at a higher cost — $222.50.


author: KNOCH, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Waverly THOMPSON, Defendant-Appellant.
    No. 72-1138.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 30, 1972.
    Decided March 8, 1973.
    Rehearing En Banc Denied April 9, 1973.
    Jerome Rotenberg, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck and Terry Gordon, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before KNOCH, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.
   KNOCH, Senior Circuit Judge.

Defendant-Appellant, Waverly Thompson, has taken this appeal from his conviction in a jury trial on an indictment which charged, in one count, that he and three co-defendants had conspired, in violation of Title 18 U.S.C. § 371, to transport forged securities in interstate commerce and, in seven other counts, that one co-defendant, Dayo Nagel, had committed substantive violations, aided and abetted by this defendant and co-defendants George Wright and Ionia Coleman, in violation of Title 18 U.S.C. §§ 2 and 2314. Defendant was sentenced to serve five years on each count, to run concurrently.

The conspiracy alleged included a program entailing theft of eight blank checks of the Apex Smelting Company by Ionia Coleman, an employee of Apex, who was to give these cheeks to her brother, George Wright, who, in turn, would give them to defendant, Waverly Thompson. These checks were to be forged and falsely completed to appear to be cheeks issued by Apex. George Wright and defendant would cause the checks to be sent to Dayo Nagel, in North Dakota, who would negotiate them. These checks would return to Chicago from Bismarck, North Dakota, in interstate commerce. Dayo Nagel was to divide the proceeds with the other defendants. A part of the alleged conspiracy was concealment of the purpose of and the acts done in furtherance thereof. Co-defendants George Wright and Ionia Coleman pleaded guilty to all counts and codefendant Dayo Nagel pleaded nolo contendere to Count One. All three testified at the trial of this defendant.

Mrs. Coleman testified that she told her brother George Wright about the lax security at Apex and the ease of acquiring Apex checks and that she said she could cover thefts at the time she reconciled the Apex bank statements. On December 12, 1970, a Saturday, she did in fact steal about eight blank checks with copies of authorized signatures and stickers for the envelopes. Her brother told her that defendant had said the name on the checks would be Nagel Grain and Seed Company.

George Wright testified that defendant spoke of having an outlet and asked him whether he could acquire checks, whereupon George Wright told defendant about his sister and it was agreed that defendant’s source “in the north” would get one-half of the proceeds with one-fourth going to Mrs. Coleman and the last quarter split between defendant and Mr. Wright.

Dayo Nagel testified that he had a conversation in Chicago late in November or early in December 1970, in the course of which defendant said he “had some things going” and could probably assist Mr. Nagel who needed between $30,000 and $35,000 for his feed business in North Dakota. On or about December 10, 1970, Mr. Nagel received a telephone call from defendant who spoke about a check and thought he might have something to send Mr. Nagel.

The following Sunday, evidently December 13, 1970, defendant again telephoned Mr. Nagel, told him to return $10,000 of the proceeds of a $20,000 check, being sent him. Mr. Nagel received an Apex check for $20,000 payable to his company on December 16, 1970, which he deposited in his company’s account at the Dakota National Bank in Bismarck, North Dakota.

This check was apparently the check to which Mr. Wright referred when he testified that he received a blank Apex check, together with a canceled Apex check and stickers from his sister which he took with him when he visited defendant, with whom he agreed to make out the check for $20,000. On instructions of defendant, Mr. Wright said he typed the check as payable to “Nagel’s Grain and Feed Company in Bismarck, North Dakota,” and forged the signature. The two men drove to a post office and Mr. Wright mailed the check.' Also at defendant’s request, Mr. Wright drove to North Dakota in an automobile rented by defendant to pick up $10,000.

The same day, December 18, 1970, Mr. Nagel received telephoned instructions from defendant to deliver $10,000 in cash to defendant's messenger. He made that delivery. He also mailed a check for $2,500 directly to defendant which came back canceled, bearing endorsement in defendant’s name.

Defendant met Mr. Wright at the latter’s home in Chicago and indicated dissatisfaction with the $1,300 he had received as his share. When, a few days later, Mr. Wright brought defendant the seven remaining blank Apex checks, already filled out and forged, defendant said other arrangements had been made and he would call Mr. Wright when the funds were received. However, no more money came to Mr. Wright.

Mr. Nagel received and deposited another Apex check payable to Nagel Grain and Feed Company in the amount of $25,000 on December 22, 1970. In a telephone conversation on December 28, 1970, defendant asked him to take only one-third of the proceeds of these checks which in future would be handled by them alone.

Accordingly Mr. Nagel withdrew $17,000 from his account, $16,700 of which he delivered to defendant in Chicago, in return receiving five more Apex checks in amounts of $16,000 to $25,000. He deposited a $25,000 check on December 30, 1970, an $18,000 check on January 4, 1971 and three checks totaling $60,639 on January 5, 1971, in another bank, Farmers and Merchants Bank of Sheyenne, North Dakota.

Meanwhile Mrs. Coleman’s job had changed and she was no longer in a position to handle the checks returned from the bank. She told her brother early in January 1971 and he told defendant who said that nothing could now be done about that.

On January 11, 1971, Mr. Nagel was arrested on a State charge of intent to defraud the Dakota National Bank of Bismarck. When Mr. Nagel was released on bond, he came to Chicago where he met with defendant and Mr. Wright who testified to a conversation wherein Mr. Nagel said he delivered between $27,000 and $29,000 which he wanted back to deposit in his own account. Mr. Wright had denied all knowledge of this money. Mr. Nagel also testified that in this conversation Mr. Wright had denied receiving his share of the $17,000.

Defendant contends that the Court failed fully to instruct the jury on the essential elements of the conspiracy charged in the indictment. Defendant sees one such vital element as knowledge relating to the interstate character of the securities. The instruction with which defendant finds fault read:

Count 1 of the indictment No. 71 CR 509 charges the crime of conspiracy to commit the offense of transporting into interstate commerce falsely made and forged securities, knowing the securities to have been falsely made and forged.
To convict the defendant Waverly Thompson of this offense, the government must prove beyond a reasonable doubt the existence of a conspiracy to commit the offense of transporting into interstate commerce falsely made and forged securities, knowing the securities to have been falsely made and forged.

Defendant’s interpretation of this instruction strikes us as somewhat strained but we have considered it with great care. Defendant argues that this instruction allowed a conviction on the finding that defendant knew only that the securities were falsely made and forged. Although no objection was stated at the time, defendant asserts a right to raise this point on appeal on the ground that the alleged error is so fundamental, touching the Trial Court’s responsibility for instructing the jury upon the essential elements of the offense on which defendant was being tried. Defendant cites Screws v. United States, 1945, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 and other cases to support his raising objection to the instruction at this late date.

In urging that we consider knowledge of interstate transportation to be an essential ingredient of the offense, defendant cites a number of Second Circuit decisions including United States v. Giuliano, 1965, 348 F.2d 217, 221; United States v. Vilhotti, 1971, 452 F.2d 1186, 1189, 1190 (where the Court drew a distinction between the substantive offense for which knowledge of interstate commerce need not be charged and conspiracy to commit the offense.) The Court quotes Judge Learned Hand in United States v. Crimmins, 2 Cir., 1941, 123 F.2d 271, 273, that one may drive past a traffic light of whose existence he is ignorant, but not conspire to drive past a light unless one knows it is there. We do not find this line of reasoning particularly apt with respect to the statutes here involved.

Defendant also cites United States v. Bollenbach, 1945, 147 F.2d 199, 201, 2 Cir., rvsd. 1946, 326 U.S. 607, 609, 66 S. Ct. 402, 404, 90 L.Ed. 350. The erroneous charge in that case read:

. . . possession of stolen property in another state than that in which it was stolen shortly after the theft raises a presumption that the possessor was the thief and transported stolen properly in interstate commerce. . .

We are not here dealing with presumptions.

The Second Circuit position is again stated in the recent case of United States v. Fields, 1972, 466 F.2d 119, 121, which defendant has brought to our attention as additional authority.

The Ninth Circuit, however, holds to the contrary. In United States v. Roselli, 1970, 432 F.2d 879, 890-891, cert. den. 1971, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828, the Court expressly held that knowing use of interstate facilities was not an essential element of either the substantive offense or the conspiracy to violate § 2314. The Ninth Circuit found nothing in the legislative history indicating a purpose to limit the statute to violators who specifically intended to utilize interstate facilities and felt that the natural import of the statute’s wording was to the contrary, that § 2314 was aimed at the evils of theft, fraud and counterfeiting and that suppression of movement of the fruits of these crimes was the means not so much of regulating interstate commerce as of suppressing the crimes within a constitutional exercise of federal power.

We find extremely persuasive the reasoning of the Ninth Circuit (432 F.2d at page 892) that proof of knowledge of the federal jurisdictional element is not required for conviction of the offense. As an example, the Court uses the first paragraph of § 2314, which requires as a jurisdictional element of the offense that the value of the securities exceed $5,000, and points out that it would be no defense that the accused mistakenly thought the securities were worth only $2,000.

This Court affirmed the convictions of violating § 1951 (the Hobbs Act) where it was contended that the evidence was insufficient in that it failed to show defendant’s intention or even knowledge that interstate commerce would be affected by the conspiracy. United States v. Battaglia, 7 Cir., 1968, 394 F.2d 304, 312, vacated and remanded on other grounds, sub nom. Giordano v. United States, 1969, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (ultimately affirmed again 432 F.2d 1115, cert. den. 401 U.S. 924, 91 S.Ct. 868, 27 L.Ed.2d 828) where Judge Cummings cited with approval this Court’s earlier decision in United States v. Pranno, 1967, 385 F.2d 387, cert. den. 390 U.S. 944, 88 S.Ct. 1028, 19 L.Ed.2d 1132, that it was necessary only to prove that defendants conspired to commit extortion and that the natural effect of carrying out their threat, whether they were conscious of it or not, would affect commerce.

We affirmed the conviction in United States v. Cerone, 1971, 452 F.2d 274, cert. den. 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240, in the face of a similar challenge respecting Title 18 U.S.C. § 1952, use of interstate facilities to further unlawful gambling, on the ground that ample proof had been adduced of defendant’s knowledge that interstate facilities would be used. In Cerone, we expressly reserved the decision whether to adopt the Ninth Circuit view. We need not make that decision in this case either. We fully agree with the government that use of interstate facilities under the particular facts of this case was so vital a factor in the defendants’ scheme that if the jury did not believe defendant was aware of that fact, the jury could not possibly have found him guilty. Even assuming that defendant’s interpretation of the instruction is correct, it could not have led the jury into believing that it could convict this defendant, in the circumstances of this case, without deciding that he was well aware of the necessary use of interstate facilities.

Defendant sees prejudicial results from the Trial Judge’s instruction to weigh with great care the testimony of accomplices, wherein he told the jury that George Wright, Ionia Coleman and Dayo Nagel were accomplices; thus, defendant contends, the Court virtually directed a verdict of guilty instead of allowing the jury to decide whether defendant was an aider and abettor of those three as charged in the indictment.

We agree that the better description of the three witnesses would have been as “alleged accomplices,” but, as in United States v. Fellabaum, 7 Cir., 1969, 408 F.2d 220, 227, cert. den. sub nom. Pyne v. United States, 396 U.S. 818, 90 S.Ct. 55, 24 L.Ed.2d 69 and United States v. Pritchard, 7 Cir., 1972, 458 F.2d 1036, 1040, cert. den. 407 U.S. 911, 92 S.Ct. 2434, 32 L.Ed.2d 685 we find this instruction harmless error in the circumstances of this case. The jury cannot have failed to discern that the purpose of the instruction was to alert it to the need for caution in weighing the testimony, all to the benefit of the defendant.

As the government notes, this was not a weak case. In addition to the testimony of the three named witnesses, there was a stipulation that defendant had deposited in his own account a check drawn on Dakota National Bank, signed, “Nagel Grain and Seed Company, Dayo D. Nagel,” and that calls were placed between October 9, 1970 and February 3, 1971, to telephones registered to Dayo Nagel and the Bismarck Motor Hotel from a telephone registered to defendant. The various canceled checks and their endorsements were put in evidence. A contract for rental of an automobile signed December 17, 1970, imprinted with a credit card number registered to defendant, showed mileage which also served to substantiate some of the testimony of Messrs. Nagel and Wright.

In United States v. Balodimas, 7 Cir., 1949, 177 F.2d 485, 487, on which defendant relies, the alleged accomplices were neither co-defendants nor unindicted co-conspirators. The judgment was reversed because this Court found “not justified by the record” the Trial Judge’s instruction to the jury that the witnesses had openly admitted being violators and taking part in the commission of the crime.

Defendant sees as error the admission of statements which he characterizes as “post-conspiracy declarations of other co-defendants.” Both George Wright and Dayo Nagel testified to a conversation which one placed late in January 1971 and the other early in February 1971. Mr. Nagel had been arrested, as indicated, on a State charge which he described as “with intent to defraud the Dakota National Bank of Bismarck” which apparently grew out of an insufficiency of funds in the Apex account to cover the forged Apex checks. He had come to Chicago in an attempt to secure funds to exonerate himself on the State charge after defendant had promised to help him. We cannot agree that Mr. Nagel’s arrest on the State charge terminated the conspiracy charged in the federal indictment.

Mr. Wright testified, over objection of defendant, that at the conversation in question, Mr. Nagel explained that if he could recover the $27,000 to $29,000 he had previously delivered he could put it back into his account, and Mr. Wright had denied all knowledge of that sum. Mr. Nagel himself testified, also over objection, that George Wright said he had not received his share of the $17,000. As indicated, there had been earlier testimony that $10,000 had been delivered to Mr. Wright in Bismarck. Mr. Nagel had replied that he was not interested in that, but that he wanted the money back. Thus each of these witnesses testified to the fact of his own statement, as well as to the statement of the other, and both were present in court and available for cross-examination. These statements were thus mere repetition of earlier testimony that Mr. Nagel gave Mr. Wright $10,000 and defendant $16,700. We fail to see any prejudicial effect. The statements, in our opinion, concerned events occurring clearly within the course of the conspiracy.

In defendant’s view, his sentence was unduly harsh. He compares it with the lenience shown his co-defendants who were all granted probation for three years, with Counts 2 to 8 of the indictment being dismissed as to Dayo Nagel. He notes that George Wright had a record of two prior convictions for burglary. Defendant sees only one possible explanation: that he has been penalized for exercising his Constitutional right to trial by jury.

The record discloses that defendant was formerly a policeman in Chicago. The Trial Judge specifically indicated that defendant seemed to have secured most of the money from this operation. The testimony shows that defendant was the principal director of the actions taken. It was he who established the outlet for the checks. He supplied the name and address of the payee. He showed George Wright how to make out the checks. He directed him to go to North Dakota, made the arrangements for the car and issued the telephone instructions to Mr. Nagel in North Dakota. He did secure most of the spoils and did so at the expense of his fellow conspirators contrary to their original agreement.

Defendant was convicted of violations of Title 18 U.S.C. §§ 371 and 2314. The maximum imprisonment under § 371 is five years and under § 2314, ten years. A sentence of five years on each count to run concurrently is well within the limits of the statute.

A show of lenience to those who exhibit contrition by admitting guilt does not carry a corollary that the Judge indulges a policy of penalizing those who elect to stand trial. United States v. Lehman, 7 Cir., 1972, 468 F.2d 93, 110.

The Judgment of the District Court is affirmed.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. The INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 520 et al., Defendants-Appellees.
    No. 72-1524.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 26, 1973.
    Decided April 18, 1973.

      Henry A. Schwarz, U. S. Atty., East St. Louis, Ill., David L. Norman, Asst. Atty. Gen., Frank Petramalo, Jr., Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.
    Harold Gruenberg, St. Louis, Mo., for defendants-appellees.
    Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

This appeal constitutes another chapter in the attempt to implement equal employment opportunities in the highway construction industry in Madison and St. Clair Counties, Illinois.

In United States v. United Brotherhood of Carpenters and Joiners of America, Local 169, 457 F.2d 210 (7th Cir. 1972), we held that the carpenters’ union, one of the six principal craft unions involved in highway construction (teamsters, laborers, carpenters, cement masons, ironworkers and operating engineers) had engaged in past discrimination; that courts have the power and duty to eliminate the vestiges of past discrimination; that the carpenters’ union was bound to comply with a State-of-Illinois-promulgated plan (Ogilvie Plan) intended to implement employment rights guaranteed by Title VII of the Civil Rights Act of 1964; that part of the carpenters’ union’s past discrimination stemmed from a “jump-up” referral system which resulted in few blacks being referred out for jobs; and that the district court should fashion appropriate relief, considering “in view of any further evidence he may wish to hear, the requirement of improvements in the hiring hall referral system, possibly on a first-in, first-out basis” 457 F.2d at 221.

In Southern Illinois Builders Association v. Ogilvie, 471 F.2d 680 (7th Cir. 1972), we held that the Ogilvie Plan was constitutional; that the three unions attacking the plan in that case (operating engineers, ironworkers and cement masons) had engaged in discrimination in the highway construction industry in Madison and St. Clair Counties; that those unions had entered consent decrees which compelled them to cooperate with the Ogilvie Plan; and that the obligation to take affirmative action in regard to equal opportunity employment “imports more than the negative obligation not to discriminate.”

The present phase of the problem arises as a result of the district court’s refusal to modify the consent decree reIating to operating engineers and the dissolution of the decree by the court on April 3, 1972.

This cause was instituted against the operating engineers by the Attorney General on behalf of the United States on January 17, 1969, seeking relief for alleged violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and for interfering with the implementation of Presidential Executive Order 11246, which forbids racial discrimination in employment opportunities. Thereafter, on May 13, 1969, the parties settled the case by entering into a consent decree which was approved by the district court. Under the terms of the decree, a regular referral list on which applicants were assigned permanent seniority numbers, based on the length of service under the collective bargaining system, was compiled. The applicant with the lowest permanent number was given preference for job opportunities over other members. The decree also provided that the operating engineers shall “cooperate with any . . . government agency in the establishment and operation of any apprenticeship, skill improvement, or on-the-job. training programs . and . . . shall exercise all efforts to see that such programs are operated in a nondiscriminatory manner.” The Ogilvie Plan, which provided a program for the recruitment, placement and training of minority group members in the highway construction industry, was promulgated on June 3, 1970.

The operating engineers’ consent decree also provided that “on or after April 1, 1971, defendant may move for the dissolution of this decree and, unless plaintiff shows good cause otherwise, the decree shall be dissolved at that time." On May 18, 1971, the operating engineers moved to dissolve the consent decree. On June 4, 1971, the government moved to modify or supplement the decree on the ground that the referral system provided for in the decree perpetuated past discrimination and praying for “a referral system based on a first in, first out method of referral, whereby applicants register and are referred out in a rotating order as work becomes available, or some other referral system which does not perpetuate past discriminatory practices.”

An evidentiary hearing with respect to the two motions was held on November 22, 1971. The evidence showed that in 1968 the operating engineers had 1124 members in construction work and none were black. At the time of the hearing the union membership had increased to about 2000 members of whom 90 were black. However, the seniority roster used for work referral purposes listed equipment operators in chronological order based on their length of experience under the bargaining agreement. The list showed the first black operator as No. 1192. The majority of blacks were concentrated in the 1700 through 2000 number range.

The district court found as a result of the evidentiary hearing that “the union entered into a ‘gentlemen’s agreement’ whereby it would provide employment opportunities to 20% in the aggregate of referrals to highway construction to be taken from minority applicants.” Union records kept during a period (April 1-June 30, 1971) when the “gentlemen’s agreement" was in effect showed that (1) 8% of union referrals were of black members, resulting in jobs 77% of the time; (2) 92% of union referrals were of white members, resulting in jobs over 99% of the time; (3) the average length of jobs was favorable to blacks (10.31 days) as opposed to whites (9.06 days) but of 327 referrals of jobs expected to last all summer 304 went to white and 23 to black applicants.

The district court concluded in its order of April 3, 1972 that “[t]he ‘gentlemen’s agreement’ by which the union agreed to be bound provides definite affirmative action to correct the alleged evils which were the basis for the action being filed initially.”

It is clear from the record that past discrimination by the operating engineers would be perpetuated by the “regular” referral system specified in the original consent decree. While the union may be in utter good faith in maintaining the so-called “gentlemen’s agree, ment,” it is too casual and indefinite a way to assure the affirmative action required to eliminate past discrimination. In United States v. International Brotherhood of Electrical Workers, Local No. 38, 428 F.2d 144, 151 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970), Judge Edwards said:

“As we have indicated, after this suit was filed by the Attorney General, but before trial, a new administration was elected to office in Local 38. The District Judge found that the new officers favor voluntary compliance with the Civil Rights Act of 1964 and have taken steps to bring past discriminatory practices to án end. These facts, however, do not in our opinion warrant the District Court’s refusal to retain jurisdiction of this case or its refusal of affirmative relief. The record of compliance is very brief — particularly as compared to the long record of discrimination — and even that record has been written under the impact of this litigation. . . . Assuming, as the District Judge plainly did, and as we do, that the new leadership is in utter good faith, it has no mean task ahead in eliminating ingrained discriminatory practices of past decades. In many respects a more specific court order, plus retention of jurisdiction, might serve to support the stated objectives of the new administration of Local 38. And, in any event, such relief is authorized by the Act and called for in this record.”

We conclude that the dissolution order of April 3, 1972 should be vacated, and that the consent decree entered on May 13, 1969 should be reinstated, except that the court shall determine in what manner paragraph 4 thereof shall be modified to incorporate a plan of referral which will dissipate the effects of past discrimination. The district court should consider, in view of any further evidence it may wish to hear, whether this objective can only be achieved through some first-in, first-out or other type of referral basis or whether it can be satisfied by formal incorporation in the reinstated consent decree of the terms of the “gentlemen’s agreement” or some modification thereof.

Judgment vacated and remanded for further proceedings.

      . In 1970, black persons constituted 22.4% of the population of St. Clair County and 69.2% of the population of East St. Louis, the. principal metropolitan area in St. Clair County.

      . The fact that the Ogilvie Plan became effective after the consent decree was originally entered, and the experience thereunder, including the “supplementary list” for referrals within East St. Louis, which was superseded by the “gentlemen’s agreement,” convince us that the referral provisions of the original decree must be reexamined by the district court in the light of that experience in order to eliminate past discrimination by affirmative action.


author: WISDOM, Circuit Judge:

text:
    Marsha Lee WALLIN, as Administratrix of the Estate of Carl R. Wallin, Deceased, Plaintiff-Appellant, v. Allen Ernest FULLER and Nationwide Mutual Insurance Company, Defendants-Appellees.
    No. 72-1132.
    United States Court of Appeals, Fifth Circuit.
    April 20, 1973.

      Jack Crenshaw, Maultsby Waller, Montgomery, Ala., for plaintiff-appellant.
    Richard Ball, Montgomery, Ala., for def endants-appellees.
    Before RIVES, WISDOM and RONEY, Circuit Judges.
   WISDOM, Circuit Judge:

This case presents the question whether a trial court should instruct a jury on a theory of liability not mentioned in the pretrial order but supported by evidence introduced at the trial without objection. The district court declined so to instruct the jury. We reverse and remand for a new trial.

Carl Wallin was killed on August 16, 1970, when his Volkswagen, which he was driving, collided with a Pontiac driven by Allen Fuller on a two-lane highway near Lowndesboro, Alabama. Wallin held a policy of insurance with Nationwide Mutual Insurance Company, which contained a standard uninsured motorist clause. Fuller was an uninsured motorist within the meaning of this clause. Marsha Lee Wallin, widow of Carl Wallin, brought suit in. federal district court seeking a declaratory judgment against Nationwide under the policy, alleging that Fuller’s negligence had caused the collision.

On September 20, 1971, the district court held a pretrial hearing and entered an order specifying the issues agreed upon by the plaintiff, Mrs. Wallin, and defendant, Nationwide. The plaintiff’s theory of recovery, as recited in the pretrial order, was that Fuller negligently drove onto his left side of the highway, thus causing the collision with Wallin’s ear. The defendant denied that Fuller had been negligent. Further, the defendant contended that Wallin had been contributorily negligent in pulling out onto his left-hand side of the highway to pass another car when there was insufficient room to pass.

Most of the plaintiff’s case at the trial was devoted to showing that the collision had occurred in Wallin’s right-hand lane, and that Fuller therefore had been on the wrong side of the road. Mrs. Wallin, the plaintiff, identified photographs which she had taken showing that the left side had been torn off Wallin’s Volkswagen. The plaintiff also submitted the testimony of two investigating officers, who stated that the point of impact was on Wallin’s right side of the road.

The defense offered the deposition of George Mayes, who had been riding in Fuller’s car at the time of the accident, and called Fuller himself to the stand. Both Mayes and Fuller testified that Wallin had pulled out to pass, and that the cars had collided while Wallin was still in the left lane and Fuller was in his right lane.

The testimony of both Mayes and Fuller revealed a possibility that, even if Wallin had been contributorily negligent, Fuller might have been guilty of subsequent negligence or wanton conduct. Under Alabama law a showing of subsequent negligence or wantonness defeats a defense of contributory negligence. Counsel for the defendant made no objection to the admission of any of this testimony at the trial. Mayes, the passenger, testified at his deposition that Fuller did not slow down when he first became aware that Wallin was trying to pass; that he finally shouted at Fuller to slam on his brakes; and that Fuller then applied his brakes and skidded into Wallin. The defense took the deposition of Mayes on September 8, 1971, before the pretrial hearing. The plaintiff’s attorney was present at this deposition, but made no mention of the issues of subsequent negligence and wanton conduct either at the pretrial hearing or when the deposition was introduced into evidence at the trial.

Fuller, called as a witness by the defense, gave testimony on cross-examination by the plaintiff’s attorney that tended to corroborate Mayes’s version of the events. On recross, asked by the plaintiff’s attorney whether the accident would not have happened if he had slowed down the least little bit, Fuller replied: “I guess not.” Counsel for the defendant made no objection to any of this examination by the plaintiff’s lawyer.

Neither attorney drew the court’s attention to the fact that this testimony might show subsequent negligence or wanton conduct, or to the fact that the pretrial order precluded these issues, until after both sides had rested. The defendant then submitted requested written charges to the court. The plaintiff’s attorney objected to one of these charges on the ground that it failed to include the issues of subsequent negligence and wanton conduct, and requested leave to amend the pleadings to include these issues. The trial court denied leave to amend, applying the standard of Rule 16 of the Federal Rules of Civil Procedure that, where the issues have been narrowed by a pretrial order, amendment will be permitted only when necessary to prevent “manifest injustice.” The court proceeded to submit the case to the jury without instructions as to the legal effect of subsequent negligence or wanton conduct. The jury found for the defendant. The court then denied the plaintiff’s motion for a new trial, and the plaintiff brought this appeal.

The pretrial conference serves the purposes of expediting litigation and eliminating surprise at the trial. Rule 16 of the Federal Rules of Civil Procedure establishes that the pre-trial order ordinarily governs the course of the trial. Under the Rule 16 “manifest injustice” standard, the question whether to permit amendment of the pretrial order in the course of the trial is generally a matter within the discretion of the trial judge, and an appellate court will intervene only if the trial judge has acted arbitrarily. See Ely v. Reading Co., 3 Cir. 1970, 424 F.2d 758; McKey v. Fairbairn, 1965, 120 U.S.App.D.C. 250, 345 F.2d 739; Case v. Abrams, 10 Cir. 1965, 352 F.2d 193.

Unbending adherence to the strictures of Rule 16 would, however, frustrate another broad policy of the Federal Rules favoring liberality of amendment. This policy is principally embodied in Rule 15, which deals with amendments to the pleadings. It is unlikely that the pretrial order under Rule 16 was intended to make the pleadings, and therefore Rule 15, obsolete. See Commentary, The Pre-Trial Order, 4 Fed.Rules Serv. 16.3, at 906 (1941) ; Note, Federal Pre-Trial Practice: A Study of Modifications and Sanctions, 51 Geo.L.J. 309, 312 (1963). Even though the parties have the advantage of discovery before the pretrial conference, events not anticipated at the pretrial stage may often occur at the trial. See Clark, To an Understanding Use of Pre-Trial, 29 F.R.D. 454, 459 (1961); Clark v. United States, 1952, D.Or., 13 F.R.D. 342, 345-346. And attorneys would be reluctant to enter agreements at the pretrial conference if later amendments were strictly forbidden.

Courts have therefore widely recognized that Rule 16 must be read in light of Rule 15, and that in some circumstances the policy of Rule 15 should moderate the strictures of Rule 16. Bucky v. Sebo, 2 Cir., 1953, 208 F.2d 304, 305; Brooks v. Wootton, 2 Cir. 1966, 355 F.2d 177; Dering v. Williams, 9 Cir. 1967, 378 F.2d 417; Blackwell v. Regal Cab Co., 1963, 114 U.S.App.D.C. 397, 316 F.2d 398; Meadow Gold Products Co. v. Wright, 1960, 108 U.S.App.D.C. 33, 278 F.2d 867; see Rosden v. Leuthold, 1960, 107 U.S.App.D.C. 89, 274 F.2d 747; 3 J. Moore, Moore’s Federal Practice ¶ 15.13[1], at 982 (1972); 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1491, at 455-56 (1971); Christenson, The Pre-Trial Order, 29 F.R.D. 362, 375 (1961).

At a minimum the accommodation of Rule 16 to Rule 15 should mean that the more liberal standard of Rule 15 should apply when one of the parties seeks amendment to conform the pleadings to the issues actually raised by the evidence introduced at the trial. Monod v. Futura, Inc., 10 Cir. 1969, 415 F.2d 1170, 1173-1174; McDowall v. Orr Felt & Blanket Co., 6 Cir. 1944, 146 F.2d 136, 137; Mayfield v. First Nat’l Bank, 6 Cir. 1943, 137 F.2d 1013, 1016-1017. Rule 15(b) provides that when issues outside the pleadings are tried by express or implied consent of the parties, “they shall be treated in all respects as if they had been raised in the pleadings” (Emphasis added.) Amendment is thus not merely discretionary but mandatory in such a case. 3 J. Moore, ¶ 15.13 [2] at 996.

The trial court erred in applying Rule 16 rather than Rule 15(b). Under the standards of Rule 15(b) the defendant impliedly consented to the trial of issues outside the pretrial order, and the pleadings should therefore have been amended. A substantial quantity of evidence tending to establish subsequent negligence or wanton conduct was brought before the jury, through the deposition of Mayes and the testimony of Fuller, without objection by defense counsel. Indeed, both Mayes and Fuller were defense witnesses, and Fuller was himself a defendant. Cf. Vogrin v. Hedstrom, 8 Cir. 1955, 220 F.2d 863, cert. denied, 1955, 350 U.S. 845, 76 S.Ct. 86, 100 L.Ed. 753. Having deposed Mayes well in advance of the trial, defense counsel cannot complain of having been unaware that the evidence might tend to establish subsequent negligence and wantonness. In these circumstances the failure of the defense to seek to limit the evidence during the trial in accordance with the pretrial order establishes consent to the trial of these issues. See Pan-American Casualty Co. v. Reed, 5 Cir. 1957, 240 F.2d 336; 3 J. Moore, ¶ 15.13 [2] at 994; 6 C. Wright & A. Miller, § 1493 at 463-65.

The possibility of prejudice to the opposing party may of course be reason to find a lack of consent to amendment under Rule 15(b). See 6 C. Wright & A. Miller, § 1493 at 468. Any danger of prejudice to the defendant in this case could have been averted by the trial court. All witnesses to the accident had testified, as had the investigating officers. It would not have been impractical for the court to have reopened the trial, recalled the witnesses, and granted a short continuance if necessary to enable the defendant to prepare and present a defense. See Meadow Gold Products Co. v. Wright, 1960, 108 U.S.App.D.C. 33, 278 F.2d 867; Brooks v. Wootton, 2 Cir. 1966, 355 F.2d 177; Central Distributors, Inc. v. M.E.T. Inc., 5 Cir. 1968, 403 F.2d 943.

The defendant, Nationwide Mutual, argues that the testimony of Mayes and Fuller was relevant to the issues of negligence and contributory negligence, and that therefore the admission of this evidence without objection cannot establish consent to the trial of any other issues. It is true that part of this testimony tended to rebut the plaintiff’s theory that the collision occurred on Wallin’s right side of the road, and tended to show that Wallin might have been contributorily negligent in pulling out to pass. But the testimony as to Fuller’s failure to apply his brakes, and the conversation between Mayes and Fuller, was not relevant to the plaintiff's theory of recovery, which was founded solely on the theory that Fuller was on the wrong side of the road. Nor did it establish or rebut the contention that Wallin was contributorily negligent. This evidence was much more strongly relevant to the theories of subsequent negligence and wanton conduct, and this should have been apparent to defense counsel.

Nationwide also points out that the trial court instructed the jury to consider whether Wallin created an immediate hazard, and told the jury that a finding of impact in Wallin’s right lane would not itself show negligence. In sum, Nationwide contends that the jury was instructed to consider fully in light of all the evidence whose negligence was the proximate cause of the accident, and that this in effect substituted for an instruction on subsequent negligence and wantonness. We cannot agree that these instructions were an adequate substitute for full instructions on subsequent negligence and wantonness. Even if the jury had found Wallin’s negligence to be a proximate cause of the accident, a showing of subsequent negligence on the part of Fuller might still have entitled the plaintiff to recovery. See W. Prosser, Handbook of the Law of Torts § 66, at 427-28 (4th ed. 1971). Nor, in view of the testimony of Mayes and Fuller, can we agree with Nationwide’s contention that there was insufficient evidence of subsequent negligence to present a jury question.

Certainly the plaintiff’s attorney should have raised these issues at the pretrial conference. He attended the deposition of Mayes, and was thus well aware before the pretrial conference that there was some evidence of subsequent negligence and wanton conduct. Where a party is aware of an issue before a pretrial conference, his failure to raise it there may in some circumstances be grounds for denying later amendment. See McKey v. Fairbairn, 1965, 120 U.S.App.D.C. 250, 345 F.2d 739; Marble v. Batten & Co., 1964, D.D.C., 36 F.R.D. 693.

But the failure of the plaintiff’s counsel in this case to raise these issues before or during the trial is offset by the failure of the defendant’s attorney to attempt to exclude any of the evidence. We find no reason to conclude that the plaintiff’s attorney was acting in bad faith by trying to smuggle in issues for the purpose of surprising the defense at the trial. See McDowall v. Orr Felt & Blanket Co., 6 Cir. 1944, 146 F.2d 136; Burton v. Weyerhaeuser Timber Co., 1941 D.Or., 4 Fed.Rules Serv. 16.32. Case 2. Moreover, we are reluctant to penalize the plaintiff for the errors of her attorney. See Link v. Wabash R. R. Co., 1962, 370 U.S. 626, 646-648, 82 S.Ct. 1386, 8 L.Ed.2d 734 (Black J., dissenting); Ferrell v. Trailmobile, Inc., 5 Cir. 1955, 223 F.2d 697; Clark, 29 F.R.D. at 456-457; Note, 51 Geo.L.J. at 341-45.

We therefore hold that the district court erred in applying the standards of Rule 16 rather than Rule 15(b), and that under Rule 15(b) the plaintiff was entitled to amendment. The judgment of the district court is reversed and the case is remanded for a new trial.

      . See, e. g., Birmingham Ry., Light & Power Co. v. Jung, Ala.S.Ct.1909, 161 Ala. 461, 49 So. 434.

      . At his deposition, Mayes testified in part on direct examination by defendant’s attorney:
      “Q No, what did Fuller do when he saw the Volkswagen there?
      “A You mean what he did right then?
      “Q Yeah, what did Fuller do from the time that you saw that Volkswagen?
      “A What he did looked like he wasn’t never going to hit on his brakes or nothing.
      “Q Who?
      “A I told him, I said, “Slam on your brakes. Do something.” I say, “Don’t you see the man over in our lane?” He hit his brakes and we skidded right on into him.
      ^ sj;
      On cross-examination by the plaintiff’s attorney:
      “Q All right. Now, when that Volkswagen pulled out onto the Fuller side of the road Fuller didn’t even see it, did he? At least he didn’t act like he saw it, did he?
      “A He did’t act like he saw it. He say “What’s the man trying to do?” X say, “You see what he’s trying to do, he’s trying to go around.” I say, Don’t you see him?”
      “Q And you are the one told him to put on his brakes, aren’t you?
      “A You say I the one told him to put on his brakes?
      “Q Yes.
      “A Well, I tell you like this—
      “Q (Interrupting) Fuller didn’t even put on his brakes until you told him to, did he?
      “A Till I told him to?
      “Q Yes.
      “A Well, he was going to slam on his brakes, that’s what he say.
      “Q He said he was going to but he still hadn’t done it until you told him to, had he?
      “A Well, I told him to hit his brakes, yes.
      “Q When you told him to hit his brakes that’s when he hit his brakes?
      “A That’s when he hit his brakes.
      “Q He didn’t hit his brakes until you told him to, did he?
      “A But he seen the car.
      “Q He seen the car but he didn’t hit his brakes until you told him to?
      “A That’s right.
      * * * * *
      On redirect:
      “Q Just a couple of questions, Mr. Mayes. On the question about when you first saw the Volkswagen I understood you to say that the first thing that happened was that Mayes said, “Look at that fellow, what’s he think lie’s doing”, or something like that, is that right?
      “A No, I said this.
      “Q You said that?
      “A I said that and Fuller said, “What he think he’s doing?” Well, he acted like he didn’t want to slam on his brakes, you know, could see him all the time.
      “Q And you said slam on the brakes?
      “A Yeah, I said, “Slam on your brakes. What you going to do, run into him? Thats when he slammed on his brakes.
      * * sjs * %

      . On cross-examination Fuller testified in part as follows:
      Q Did you see him when he first started to pull out?
      A Yes, sir.
      Q All right. Did you slow down when you saw him first start to pull out?
      A No, sir.
      Q You did not. Is Mayes correct when he said you kept driving until he said what you going to do, drive into him?
      A That’s right.
      Q That’s right. You just kept going 60 miles an hour in the rain, didn’t you?
      A Yes, sir.
      Q You didn’t slow up a bit?
      A No, sir.
      Q You didn’t give him time to get in behind that other car, did you?
      A No, sir.
      Q He tried to get in there behind that other car, didn’t he?
      A Yes, he did.
      Q You kept going right straight on into him until Mayes told you what you going to do, run on into him, and that is when you slammed on your brakes, isn’t it?
      A That’s right.
      sit

      . Rule 16. Pre-Trial Procedure; Formulating Issues
      In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider
      (1) The simplification of the issues;
      (2) The necessity or desirability of amendments to the pleadings;
      (3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
      (4) The limitation of the number of expert witnesses;
      (5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;
      (6) Such other matters as may aid in the disposition of the action. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions.

      . Rule 15. Amended and Supplemental Pleadings
      (a )¡ Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
      (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
      * * * * *
      In addition to Rule 15, Rule 54(c) states that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Rule 1 requires that the rules construed to secure the “just” determination of every action.