author: PER CURIAM.

text:
    Arnie KING, Plaintiff, Appellee, v. Joseph HIGGINS et al., Defendants, Appellants.
    No. 74-1049.
    United States Court of Appeals, First Circuit.
    Argued April 3, 1974.
    Decided April 24, 1974.
    Dennis J. LaCroix, Deputy Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div. were on brief, for appellants.
    Edward E. Berkin, Roxbury, Mass., with whom Geraldine S. Hines, Roxbury, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

This appeal challenges the district court decision ruling invalid the classification hearing provided appellee, an inmate of Massachusetts Correctional Institution at Concord, 370 F.Supp. 1023. The decision below was a dual one, the first part of the decision dealing with the claim that insufficient procedures were afforded in a disciplinary hearing at which the appellee was found to have committed infractions warranting imposition of a fifteen day period of isolation. The procedures in that hearing were found inadequate as a matter of law. The appellants do not attack that ruling. The second prong of the decision dealt with the challenge to the action of the classification board at a hearing held one day after the invalid disciplinary hearing. The board based reclassification, at least in part, on the disciplinary findings; the district court ruled that this procedure was also defective.

We are urged by appellee to affirm the decision below on broad constitutional grounds. We decline the invitation, noting that new regulations governing classification hearings are being developed. It is sufficient ground for relief in this case that the concededly invalid disciplinary hearing, held on the previous day, was to some uncertain extent taken into account in appellee’s reclassification. We think that both fairness and common sense require a new classification hearing. >

On this narrow basis the order of the district court is affirmed.

      . The appellants also challenge the denial of summary judgment by the district court in a damage claim based on the same facts. As this matter has been referred to a magistrate and factual findings have not yet been made, it is not a final determination and is not appealable, 28 U.S.C. § 1291. This part of the appeal is dismissed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    In the Matter of Marcel FREUDMANN, Bankrupt-Appellant. In re Joseph BLANKSTEIN, Trustee-Appellee.
    No. 753, Docket 73-2578.
    United States Court of Appeals, Second Circuit.
    Argued March 28, 1974.
    Decided March 28, 1974.
    Samuel B. Ohlbaum, New York City, for bankrupt-appellant.
    A. Thomas Levin, Garden City, New York (Jaspan & Kaplan, Garden City, New York on the brief), for trustee-ap-pellee.
    Before KAUFMAN, Chief Judge, and SMITH and ANDERSON, Circuit Judges.
   PER CURIAM:

Although the decision below was affirmed in open court, we are of the view that it is appropriate for us to memorialize that disposition in a written opinion.

Marcel Freudmann appeals from Judge Gurfein’s denial of a petition for review of an order denying Freudmann a discharge in bankruptcy entered by Bankruptcy Judge Herzog. The testimony presented before the bankruptcy court established that for at least one year preceding the filing of an involuntary petition in bankruptcy on May 28, 1970, Freudmann, a diamond merchant, engaged in a calculated scheme to purchase diamonds on credit and immediately to sell them, for cash, at prices below cost. In effect, Freudmann was “kiting” diamonds by using the proceeds of his cash sales to meet notes as they fell due. As a result of this consistent pattern of transactions, Freudmann incurred debts of $107,315, from May 1, 1969, to April, 1970. Freudmann did not deny these activities; indeed, in his testimony before the bankruptcy court, Freudmann admitted the essential facts of this “Ponzi-like” scheme, as the bankruptcy judge characterized it, but disclaimed any fraudulent intent.

After several hearings, Bankruptcy Judge Herzog found that the pattern of Freudmann’s behavior evidenced actual intent to defraud the creditors “at the end of the line” and, accordingly, denied Freudmann his discharge. 11 U. S.C. § 32(c)(4). Subsequently, Judge Gurfein, in a well-reasoned opinion reported at 362 F.Supp. 429 (S.D.N.Y. 1973), found that the evidence .supported the bankruptcy judge’s finding and denied Freudmann’s petition for review. After studying the record of proceedings in both the bankruptcy court and the district court, we agree that the clear pattern of purposeful conduct amply supported a finding of actual intent to defraud. Once the evidence established “reasonable grounds” to believe that Freudmann committed acts to hinder, delay, or defraud his creditors, the burden of proving that he had not committed such acts shifted to Freudmann. 11 U.S.C. § 32(e). We do not believe that the courts below erred in finding that Freudmann’s mere denials of fraudulent intent fell short of sustaining his burden. Accordingly, we affirm.

      . Section 14(c)(4) of the Bankruptcy Act, 11 U.S.C. § 32(c) (4), provides:
      (c) the court shall grant the discharge unless satisfied that the bankrupt has . . . (4) at any time subsequent to the first day of the twelve months immediately preceding the filing of the petition in bankruptcy, transferred, removed, destroyed, or concealed, or permitted to be removed, destroyed, or concealed, any of his property, with intent to hinder, delay, or defraud his creditors.


author: STEPHENSON, Circuit Judge.

text:
    Arvid HALVORSEN, Special Administrator of the Estate of Bjorgulv Underdal, Deceased, Appellee, v. Dennis D. DUNLAP and Frank Parker, d/b/a Marv’s Conoco, and Continental Oil Company, Appellants.
    No. 73-1123.
    Submitted Sept. 11, 1973.
    United States Court of Appeals, Eighth Circuit.
    Decided  April 29, 1974.

      Ronald Clabaugh, Bangs, McCullen, Butler, Foye and Simmons, Rapid City, S. D., for appellants.
    Kelton S. Lynn, Whiting, Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, S. D., for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.

       During oral argument of this cause, counsel advised us that the case of Anderson v. Bale, S.D., 216 N.W.2d 152, dealing with an issue material to the cause before us, was then pending before the South Dakota Supreme Court. We therefore deferred ruling herein pending the outcome of that decision. The Anderson case was handed down March 19, 1974, and is discussed infra.

   STEPHENSON, Circuit Judge.

The principal issue on this appeal involves an interpretation of the term “pecuniary injury” in the South Dakota wrongful death statute. South Dakota Comp.Laws Ann. § 21-5-7 (1969).

This diversity wrongful death action was instituted in the United States District Court for the District of South Dakota by Arvid Halvorsen, Special Administrator of the estate of Bjourgulv Underdal, for the benefit of Olav and Kristie Underdal, the surviving parents of the deceased. Halvorsen sought damages resulting from an automobile accident on January 11, 1972, when a wrecking truck operated by defendant appellant Dunlap, while in the scope of his employment for and on behalf of defendant appellant Parker, d/b/a Marv’s Con-oco, collided with an automobile in which the deceased was a passenger. At the time of the accident, the decedent was 27 years old and a student of the South Dakota School of Mines. The action was originally brought against Dunlap Parker and Continental Oil Company. However, the trial court entered summary judgment in favor of defendant Continental Oil.

At the trial, both Dunlap and Parker admitted liability, and a jury verdict in the amount of $35,000 was returned on the issue of damages. Judgment thereupon was entered November 6, 1972. Appellants primarily urge that the trial court erred in instructing the jury that, in. determining the extent of the parents’ pecuniary loss, they could consider the deprivation of the child’s “advice, comfort, assistance and protection * * It is argued that these are not proper elements under the South Dakota statute which limits a wrongful death recovery to an amount proportionate to the “pecuniary injury” suffered by the beneficiaries as a result of the death. S.D.C.L.Ann. § 21-5-7 (1969). Appellants also contend that testimony of decedent’s plans to construct tourist cabins on his parents’ land as evidence of pecuniary loss was speculative and conjectural and therefore improperly admitted into evidence; that damages awarded for pecuniary loss must be reduced to present value; and that damages awarded by the jury were excessive.

The South Dakota wrongful death statute was originally enacted in 1909 and provided that the beneficiaries could recover an amount proportionate to their “pecuniary injury” resulting from the decedent’s death. Early decisions evinced an intention by the South Dakota Supreme Court that this statute should be construed liberally. In Whal-ey v. Vidal, 27 S.D. 627, 132 N.W. 242, 248 (1911), it was held that the decedent’s care and influence, as well as his intellectual and moral instruction, can be compensable losses. “Pecuniary injury” was also held to include the “loss of society, comfort, and care suffered by the plaintiff in the death of the decedent.” Rowe v. Richards, 32 S.D. 66, 142 N.W. 664, 666 (1913).

Decisions of the South Dakota Supreme Court subsequent to the Whaley and Rowe cases interpreted the 1909 enactment more narrowly. In Tufty v. Sioux Transit Co., 69 S.D. 368, 10 N.W. 2d 767, 769 (1943), it was stated that there could be no allowance for loss of society or companionship of a deceased child. Similarly, in Hodkinson v. Parker, 70 S.D. 272, 16 N.W.2d 924 (1944), the court found reversible error where the trial judge had instructed the jury that they could consider the loss of decedent’s “future advice” as a compensable pecuniary injury. Accord, McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485 (1946).

In 1947, the South Dakota legislature amended the wrongful death statute by deleting the word “pecuniary” and allowing the beneficiaries to recover for “all injury” resulting from the decedent’s death. The amended statute thus accorded the beneficiaries a greater measure of damages. They received compensation ..not only for loss of support, society and companionship, but also for mental anguish and bereavement. Lanning v. Schulte, 82 S.D. 528, 149 N.W.2d 765 (1967); Simons v. Kidd, 73 S.D. 306, 42 N.W.2d 307 (1950).

The wrongful death statute was amended to its present form in 1967 when the South Dakota legislature reinstated the “pecuniary injury” measure of damages.

The main thrust of appellants’ argument is that the interpretation of the present statute must be governed by the judicial interpretation of the pre-1947 statute which did not permit compensation for loss of “advice, comfort, assistance and protection.” We disagree. Based upon the recent judicial interpretation of the South Dakota statute and similar statutes from neighboring jurisdictions as well, we conclude that the trial judge did not commit error by instructing the jury to consider these matters.

The phrase “pecuniary injury”, in its common and acceptable interpretation, imports a financial or monetary loss. While it is clear that sorrow or mental suffering are not “pecuniary” in nature, there has been substantial controversy concerning whether loss of society, comfort and companionship should be compensable under this standard. California has long recognized that “pecuniary” loss necessarily includes deprivation of the decedent’s “comfort, society and protection.” Holder v. Key System, 88 Cal.App.2d 925, 200 P.2d 98 (1948); Zeller v. Reid, 38 Cal.App.2d 622, 101 P.2d 730 (1940). The liberal California rule did not attain any degree of acceptance until Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), set forth the policy reasons for adopting such a rule, and thus initiated the modern trend of granting a more expansive interpretation to the phrase “pecuniary” injury. In Wycko, the Michigan Supreme Court abrogated the “child-labor” measure of pecuniary loss which allowed parental recovery for an amount equal to the child’s earning during minority less the cost of rearing that child. It held that the parents could be compensated for their loss of the child’s “mutual society and protection” and “companionship.” A number of jurisdictions have adopted the Wycko principles and have broadened their interpretation of “pecuniary” injury to include the loss of the society, comfort and companionship of a deceased minor child. Wardlow v. City of Keokuk, 190 N.W.2d 439 (Iowa 1971); Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355 (1961) (loss of advice, comfort, assistance and protection of child); Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973); Lockhart v. Besel, 71 Wash.2d 112, 426 P.2d 605 (1967). In logical recognition of the fact that these elements of “pecuniary loss do not automatically cease to exist when the child reaches majority, courts have allowed this same measure of damages to apply when a parent sues to recover for the death of an adult child. Fluor Corp. v. Sykes, 3 Ariz.App. 211, 413 P.2d 270 (1966); Currie v. Fiting, 375 Mich. 440, 134 N.W.2d 611 (1965); McCorkell v. City of Northfield, 272 Minn. 24, 136 N.W.2d 840 (1965) (guardian allowed to recover); Sauke v. Bird, 267 Minn. 129, 125 N.W.2d 421 (1963); W. Prosser, Law of Torts § 127 at 905 (4th ed. 1971). tf

The instruction given by the trial judge in this case was promulgated in 1968 by the South Dakota State Bar Committee on Pattern Jury Instructions. In its commentary on the instruction allowing recovery for loss of “advice, comfort, assistance and protection” the committee relied on Lanning v. Schulte, 82 S.D. 528, 149 N.W.2d 765 (1967), a decision based on the wrongful death statute prior to the 1967 amendment. The Lanning case held that a $500 recovery for the death of a five-year-old boy was “so shockingly low that it cannot be permitted to stand.” Id at 768. The committee stated: .

While it is true that [Lanning] was under a nonpecuniary statute, nonetheless it indicates the thinking of our Court that a child’s life is worth more to his parents than the mere value of the services he would have rendered less the cost of rearing the child. While the majority of jurisdictions still adhere to a rather strict pecuniary rule, the modern trend of judicial thinking on the question had condemned that rule as harsh and unrealistic in the modern world. (Pattern Jury Instruction No. 31.02).

A wrongful death statute is remedial in nature and it must be construed liberally in light of present social and economic conditions. Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355, 359 (1961); accord Anderson v. Lale, supra, 216 N.W.2d 152 p. 155 (S.D. filed March 19, 1974). The modern trend toward a more liberal interpretation of “pecuniary injury” recognizes this principle and is an attempt to effectuate the underlying purposes of these statutes. Although the Anderson case dealt with the death of a minor child, we are persuaded that the same standards and rationale apply under circumstances where, as in the present case, the parents are seeking a recovery for the death of their adult child. Currie v. Fiting, supra, 375 Mich. 440, 134 N.W. 2d 611 (1965); Sauke v. Bird, supra, 267 Minn. 129, 125 N.W.2d 421 (1963).

We give great weight to the determination of local law by the trial court. Luke v. American Family Mutual Insurance Co., 476 F.2d 1015, 1019 n. 6 (C.A.8 1972), aff’d, en banc, 476 F.2d 1023; accord, Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 491 F.2d 192 (C.A.8, filed Jan. 15, 1974). We therefore hold that the trial judge did not err by instructing the jury to consider the loss of advice, comfort, assistance and protection as elements of the parents’ recovery for “pecuniary injury.”

Although the court in the Anderson case found the inclusion of the term “comfort” to be objectionable, see note 3, supra, as in Anderson, we find such usage at most to be harmless error.

Appellants next contend that the trial court erred in allowing decedent’s brother, Olaf Underdal, to testify concerning decedent’s plans to return to Norway and build tourist cabins on his parents’ land. Appellants allege that this testimony was inadmissible since it was premised upon speculation and conjecture, and thus should not have been considered by the jury in assessing damages.

Underdal testified that his brother had long planned to return to his native country upon the completion of his education in the United States, and to develop his parents’ farm into a resort; that this had been started by restoring existing cabins; that the total cost of constructing the resort would have been $20,000 if performed by the decedent, but would have cost $60,000 if performed by contractors; that the annual gross rental from the resort would have been approximately $10,000 to $14,000; that the net income the parents could have expected to receive upon completion of the resort was $5,000 to $7,000 per year; and that because of the father’s failing health it was necessary to develop the farm for non-farm use.

In order for this evidence to be considered in assessing damages, South Dakota law requires that the beneficiaries show that they could “reasonably expect” to receive such benefits. McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485, 492 (1946); Tufty v. Sioux Transit Co., 69 S.D. 368, 10 N.W.2d 767, 769 (1943). This court has previously recognized that South Dakota has adopted a “liberal rule” in this area and that “any facts or circumstances tending to increase or reduce the pecuniary loss may properly be considered in determining the probable loss to the beneficiaries * * Minnehaha County v. Kelley, 150 F.2d 356, 362 (C.A.8 1945). See Tufty, supra; Stratton v. Sioux Falls Traction System, 55 S.D. 464, 226 N.W. 644 (1929).

Our review of the record convinces us that decedent’s parents could “reasonably1 expect” the benefits referred to and that the trial court did not abuse its discretion in allowing the testimony. The record discloses that the decedent was “closer” to his parents than the other three brothers; that the decedent planned to return to Norway to seek employment; that the parents’ farm was situated in an environment properly suited for hunting, fishing and other activities which are indigenous to a resort area; and that the resort was beyond its planning stage inasmuch as decedent had already constructed one cabin and renovated other buildings in that area. The jury was entitled to consider the evidence that decedent would likely have constructed another nine cabins to complete the endeavor he had undertaken.

Appellants next contend that damages for pecuniary injury must be reduced to present value. There is no decisional law in South Dakota which would require the trial judge to give an instruction to this effect. We hold that the trial judge did not abuse his discretion in refusing appellant’s proposed instruction on this issue.

Finally, upon this record, we cannot say that a judgment of $35,000 is excessive. See Scoville v. Missouri Pacific, 458 F.2d 639, 647-648 (C.A.8 1972).

Affirmed.

      . § 21-5-7. Damages proportionate to pecuniary injury to beneficiaries. — In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.

      . Id.

      . In Anderson v. Lale, supra, 216 N.W.2d. 152 (S.D. filed March 19, 1974), a divided court (per Doyle, J., one J. concurring, one J. concurring in result only, two JJ. dissenting) held “that in a wrongful death action wherein, the decedent was a minor, it is proper for the court to instruct the jury that loss of companionship and society, which may be expressed by, but is not limited to, the words ‘advice’, ‘assistance’ and ‘protection’ are proper elements of damage for them to consider in reaching their verdict.”
      The court noted, however, that the word “comfort”, used in the challenged instruction in the Anderson case (and herein) “may connote alleviation of mental distress.” The South Dakota court therefore found the use of the word “comfort” objectionable for the reason that “since if an award for mental distress of the parents is not permitted confusion may arise.” The use of “comfort” in the instruction given in Anderson was nevertheless held to be harmless error. Anderson v. Lale, supra, 216 N.W.2d 152 at p. 159 (S.D. filed March 19, 1974). In this connection it should be noted that both the South Dakota Supreme Court and the district court in the instant case cautioned the jury that it must not award any sum for the sorrow, mental distress and grief the parents may have suffered by reason of the death of their child.

      . But see, Anderson v. Lale, supra, 216 N.W.2d 152 at 158, 159 (S.D. filed March 19, 1974). Although we are concerned herein with the elements of “advice”, “comfort”, “assistance” and “protection,” those decisions construing elements of “loss of society and companionship”, etc., are sufficiently analogous to lend support to our disposition of the matter before us.

      . This aspect of the Wycko case was overruled in Breckon v. Franklin Fuel Co., 383 Mich. 251, 174 N.W.2d 836 (1970). However, after the Michigan legislature in 1971 amended its wrongful death statute to allow recovery for loss of society and companionship, the Breekon case was overruled and the Wyeko principles reinstated. Smith v. City of Detroit, 388 Mich. 637, 202 N.W.2d 300 (1972).

      . See note 5, supra.

      . See, Johnson, Wrongful Death and Intellectual Dishonesty, 16 S.D.L.Rev. 36, 42 (1971).

      . Appellants rely on cases which, hold that the decedent’s intention to change business or resume an abandoned vocation is inadmissible. Boston & Albany R.R. Co. v. O’Reilly, 158 U.S. 334, 336, 15 S.Ct. 830, 39 L.Ed. 1006 (1895); Annot. 23 A.L.R.3d 1189 (1969). This reliance is misplaced. The construction of the planned resort was to be merely a temporary avocational pursuit by decedent and would have been by no means a change in occupation.


author: MULLIGAN, Circuit Judge:

text:
    REA EXPRESS, INC., Petitioner, v. Peter J. BRENNAN, Secretary of Labor and the Occupational Safety and Health Review Commission, Respondents.
    No. 706, Docket 73-1468.
    United States Court of Appeals, Second Circuit.
    Argued March 22, 1974.
    Decided April 18, 1974.

      Peter G. Wolfe, New York City, for petitioner.
    Stanton R. Koppel, Atty., Dept, of Justice, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., Stephen F. Eliperin, Atty., on the brief), for respondents.
    Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

The employer, REA Express, Inc. (REA), brings this petition to review a final order of the Occupational Safety and Health Review Commission (Commission) , holding the employer liable for a serious violation of the general duty clause of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. § 654(a) (1). Petition denied.

REA is an interstate carrier which operates a shipping terminal in Long Island City, New York, known as the PXT terminal, the largest facility of its type in the United States covering an area of four or five city blocks. On Saturday, July 31, 1971, the feeder for a conveyor belt failed to operate because of an electrical short circuit in the underground cables. REA’s Service Center Manager, Michael Worden, called Frank Traugott, President of FEC, Inc., a licensed electrical contractor which had previously worked for REA in emergency situations. Traugott responded to the call although he had no prior experience in high voltage repairs. After an initial inspection, Traugott advised REA that the problem was probably coming from Consolidated Edison’s outside equipment. Later that afternoon, Traugott returned at Worden’s request to give advice to Michael Coy, REA’s maintenance supervisor, who was working in the circuit breaker room with another REA employee when Traugott arrived. There was water on the concrete floor of the room which Worden attempted to soak up with sawdust, but the floor remained damp. Coy directed an REA employee, Soccio, to cut three cables while the switch was out. However, Coy then pushed the circuit switch back in, which reenergized the cables. Traugott, believing that the wires held only 600 volts instead of the 15,000 volts which was their actual potential, proceeded to test for voltage. In the course of this procedure, a blinding flash occurred which electrocuted Coy, who was standing on the damp concrete floor four or five feet from the cut live wires. Traugott, standing on a wooden platform about two feet from the wires, was knocked unconscious and burned on his hands and arms.

On August 3, 1971, compliance officers of the Department of Labor made an investigation of the accident at the PXT terminal. On August 11, 1971, REA received a citation which charged: “Place of employment furnished to employees by employer not free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” The citation required abatement by August 30, 1971, and assessed a penalty of $900. On August 26, 1971, REA filed a notice of intent to contest the citation and the imposition of the fine. After a three-day hearing in November, 1971, the administrative judge issued a 19-page decision, including findings of fact and conclusions of law, holding that REA had violated the general duty clause of the Act, and increasing the proposed penalty for the 'violation from $900 to $1000. The Commission affirmed this decision without opinion on March 28, 1973. This petition for review followed. Since there is substantial evidence on the record to support the Commission’s conclusion that the Act was violated, the petition is denied. 29 U.S.C. § 660(a).

REA argues that since the circuit room was off limits to its employees generally, it could not be considered a “place of employment.” However, the statute requires the employer to furnish “each employee” a place of employment free from recognized hazards. It is apparent from the findings that REA furnished Coy and three other employees the circuit breaker power room as a place to work on the date of the fatal accident. It was in the basement of the terminal where REA operated its business and Coy, as the maintenance supervisor of PXT, had a key to gain access to it. The fact that it was not open to all employees, but only certain authorized personnel, does not in our view render it immune from the coverage of the statute. The general duty clause specifies recognized hazards causing or likely to cause death or serious physical harm. The high voltage circuit room here obviously presented such a hazard and it was so recognized by REA, which usually kept it locked and unavailable to its employees. To exclude it from the coverage of the statute would exonerate the employer from providing occupational protection and safety in the most hazardous areas of its plant, those areas where employees need greatest protection. We refuse to so interpret the statute.

REA also contends that the Act does not make the employer an insurer of the safety of the places of work he furnishes; it suggests that the employee must exercise reasonable care for his own safety and urges that the ultimate risk creation and the responsibility here was that of the independent contractor, Mr. Traugott. This argumentation might well be relevant if this were a common law action brought against REA seeking a damage recovery for the death of Coy or the injuries of Trau-gott. However, that is not the issue here. The question before us involves the liability of the employer under the Act for the asserted failure to afford each of his employees a safe place to work. This question is wholly separate and apart from the employer’s liability for damages in a personal injury action. The statute may well be violated even though no accident or injury occurs. All of the cases cited by appellant on this appeal relate to tort liability; none of them involves the interpretation of the Act, and therefore we find them in-apposite.

While the legislative history of the Act does, in part, refer to the general duty clause as a restatement of the employer’s common law duty, it has already been noted that this is misleading. See Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988, 1003 n. 66 (1973). This court has observed that the Act has been called the most revolutionary piece of labor legislation since the National Labor Relations Act. It is remedial and preventative in nature. See Brennan v. Occupational Safety & Health Review Comm’n, (Gerosa, Incorporated), 491 F.2d 1340, 1343 (2d Cir. 1974). In view of the clear purpose of the statute to set new standards of industrial safety, we cannot accept the proposition that common law defenses such as assumption of the risk or contributory negligence will exculpate the employer who is charged with violating the Act. Nor are we persuaded that because he summoned an independent contractor for advice, his statutory obligation to provide his employees with a safe place to work is somehow excused. At the same time, we do not consider that the Act imposes an absolute liability upon the employer. The congressional declaration of purpose and policy, 29 U.S.C. § 651(b), states that the Act is designed “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions .” (emphasis added). It may well be that some hazards are unpreventable, particularly if an employee's conduct is willfully reckless or so unusual that the employer could not reasonably prevent the existence of the hazard which his behavior creates. See National Realty & Constr. Co. v. Occupational Safety & Health Review Comm’n, 489 F.2d 1257 (D.C. Cir. 1973). This is not such a case.

The circuit room here contained electrical equipment possessing 15,000 volts. The hazard of death or serious injury was obviously recognized since the room was kept locked and was off bounds to employees generally, except the service center manager, and, on the day in question, was also made available to maintenance employees. When the short circuit interfered with the operation of the facility, REA supervisory personnel permitted untrained employees to attempt repairs in this basement room on a wet concrete floor, the day after a three-inch rainfall, without boots, insulated shoes, rubber gloves or rubber mats. These employees were not electricians, and even the independent contractor-electrician had no previous experience in making high voltage repairs. There was no evidence that they had ever been instructed or qualified to handle or repair equipment which had such a potential for mortal injury. This then was not a case of idiosyncratic or unexpected employee behavior. The plant had lost electric power and the repairs were attempted with the full knowledge of REA supervisory personnel in a setting which presented maximum peril and was devoid of rudimentary safety equipment.

The REA contention that it was denied due process because of the lack of specificity of the citation and the complaint is unpersuasive. The citation did state that the place of employment furnished was not free from recognized hazards, which in vacuo would hardly be informative. However, it issued after a visit to the plant by compliance officers who interviewed Worden and another REA supervisory official, Handler, as well as Traugott, with respect to the fatal accident. The investigators specifically asked about protective equipment. REA obviously was aware of the precise place of employment, the hazard and the nature of the violation. In any event, the complaint which followed was fully specific. Paragraph VI charged:

On July 31, 1971, respondent REA Express Company violated the provisions of section 5(a)(1) of the Act by failing to furnish its employees working in the basement of its aforesaid Sunnyside Terminal warehouse with employment and a place of employment which was free from recognized hazards that are causing or are likely to cause death or serious physical harm. Respondent REA Express Company permitted its employees to work in close proximity to, and to handle and test live high voltage equipment without using insulated tools and mechanical devices, insulated wearing apparel and other protective safety equipment and devices; permitted unqualified and untrained employees to work in close proximity to, and to handle and test live high voltage equipment, used improper devices to handle and test live high voltage equipment, and failed to follow proper and established methods and procedures in working with high voltage equipment.

The charge provided fair notice of the Secretary’s position and complied with the dictates of due process. See National Realty & Constr. Co. v. Occupational Safety & Health Review Comm’n, supra, 489 F.2d at 1264.

The argument that the penalty assessed here ($1000) is a flagrant violation of the Act is unpersuasive. The administrative judge in his decision expressly considered the size of the employer’s business as well as the gravity of the violation. We do not deem the fine excessive and, in any event, it does not constitute an abuse of discretion. See Nadiak v. CAB, 305 F.2d 588, 593 (5th Cir. 1962), cert. denied, 372 U.S. 913, 83 S.Ct. 729, 9 L.Ed.2d 722 (1963).

Petition denied.

      . The general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1), provides that each employer:
      shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees ....

      . 29 U.S.C. § 666(i) provides:
      The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Reinaldo OLIVARES-VEGA, Appellant.
    No. 772, Docket 73-2532.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 15, 1974.
    Decided April 3, 1974.

      Sheila Ginsberg, New York City (William J. Gallagher, The Legal Aid Society, E. Thomas Boyle, New York City, of counsel), for appellant.
    Joan S. O'Brien, Asst. U. S. Atty. (Edward John Boyd, V, Acting U. S. Atty. Dist. E.D.N.Y., L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appel-lee.
    Before FEINBERG and OAKES, Circuit Judges, and TYLER, District Judge.

       United States District Judge for the Southern District of New York, sitting by designation.

   OAKES, Circuit Judge:

This appeal, from a conviction after a jury trial for illegal importation of cocaine, 21 U.S.C. § 952(a), and possession with intent to distribute that drug, 21 U.S.C. § 841(a)(1), raises three questions: whether the Miranda warnings given appellant were sufficient to permit a post-arrest statement made by him to agents of the Federal Drug Enforcement Administration (FDEA) to go into evidence; whether there was sufficient proof that the substance imported and possessed by appellant was cocaine; and whether an instruction to the jury that “conscious avoidance” of knowledge was the full equivalent of knowledge was proper. Appellant had been apprehended as an international arrival from Chile at John F. Kennedy International Airport by FDEA agents; his suitcases contained 16 glassine envelopes filled with 13 pounds of a white powder substance. After conviction, he was sentenced on the two counts to concurrent terms of five years’ imprisonment (pursuant to 18 U.S.C. § 4208(a)(2)) and 10 years’ special parole. It is unnecessary to state the facts in detail except as they bear upon the issues presented here.

The Miranda argument is not a new one in this court. The warnings were read to appellant in Spanish from a form, now happily no longer in use, which, the appellant argues — not without some justification — could have misled him in that it failed to alert him of his rights in the event he was indigent to have an attorney prior to and during the agent’s questioning. Appellant would have us hold this warning insufficient by following Seventh, Ninth, Tenth and possibly Fifth Circuit decisions on this point. At least six state courts have also found such warnings to be insufficient.

Opposing appellant’s position are decisions of this circuit, one of the most pertinent being Massimo v. United States, 463 F.2d 1171, 1174 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S. Ct. 920, 34 L.Ed.2d 700 (1973), as well as decisions of the Eighth Circuit, probably the Fifth Circuit, and at least five state courts. We are, of course, bound by the decisions of this circuit unless they cah be distinguished from the facts of this case — in terms of the warning itself.

In Massimo v. United States, supra, this court held proper a warning which said that the defendant had the right to talk with a lawyer before questioning, to have a lawyer present during questioning, and that “We have no way of furnishing you a lawyer but one will be appointed for you, if and when you go to court.” 463 F.2d at 1173. The court, id., accepted the reasoning of the Fifth Circuit in United States v. Lacy, 446 F.2d 511, 513 (1971), that it is immaterial that an accused is told an attorney will be appointed later if he has first been informed that he has a right to counsel before answering any questions. In United States v. Carneglia, 468 F.2d 1084, 1090 (2d Cir. 1972), this court upheld a warning that advised the defendant “if he could not afford an attorney, why one would be appointed for him if and when he went to court.” This warning followed the statement that “he had the right to speak to an attorney before being questioned.” In United States v. Lamia, 429 F.2d 373, 375-376 (2d Cir.), cert. denied, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970), the appellant had been advised of his right to have counsel present during questioning and this court upheld the sufficiency of the warning “if he was not able to afford an attorney, an attorney would be appointed by the court.”

Although the law among the circuits and numerous state courts is contradictory on this question, the Supreme Court, with only one Justice dissenting, recently declined to accept review of a case presenting this question. Wright v. North Carolina, cert. denied, 94 S.Ct. 1452 (1974) (Douglas, J., dissented with opinion from denial). The law in this circuit is, in any event, well settled and, absent en banc consideration, controls the disposition of this question against appellant.

There is no substance to appellant’s second point on appeal- — -that there was no proof that the white powder found in appellant’s luggage was cocaine. Government counsel in opening stated there was a stipulation that if a chemist were called he would testify that the substance was in fact 12.7 pounds of cocaine with a purity of 15 per cent. Defense counsel in opening said he was not disputing that a laboratory analysis would show that the white powder was cocaine. In his summation, he referred again to this stipulation: “We stipulated — agreed with the Government — that if a chemist were called he would testify he has made an examination of the substance and found it to be a narcotic drug.” The charge of the court referred, without objection, to the stipulation “that the white substance taken from the suitcase is cocaine.” While better practice would be to adduce the stipulation itself, the comments in the record here amount to doing so for all practical purposes. See United States v. Rodriguez, 241 F.2d 463 (7th Cir. 1957); 9 J. Wigmore, Evidence § 2594 (3d ed. 1940).

The trial court’s “conscious avoidance” charge. is said to be erroneous because it allegedly relieved the jury of the obligation of affirmatively finding knowledge. Almost exactly the same charge given at the trial of another case involving narcotics was considered before this panel on the same day and immediately prior to this one. United States v. Joly, 493 F.2d 672, 674-676 (2d Cir. 1974). In Joly, as here, it was argued that an inference of knowledge that naroctics were being transported is not possible where a number of equally supportable possibilities as to the contents of a container exist (jewelry, watches, gold, etc.). Joly upheld the charge on the basis that “the legitimacy of the basic inference of knowledge [from possession] does not automatically disappear because other evidence arguably points the opposite way.” Id. at 676. Here appellant was a longtime airline employee; the suitcases seemed unusually heavy to him by his own admission; he testified he was propositioned twice by Galardo, a fellow worker to take the suitcases to a hotel in New York; and according to his own story he was to receive $300 for delivering the suitcases to an unknown party in New York. These facts justify the charge as given by the trial court and sustained in United States v. Joly, supra.

Judgment affirmed.

      . STATEMENT OF RIGHTS
      Before we ask you any questions, it is my duty to advise you of your rights.
      You have the right to remain silent.
      Anything you say can be used against you in court, or other proceedings.
      You have the right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning.
      You may have an attorney appointed by the U.S. Commissioner or the court to represent you if you cannot afford or otherwise obtain one.
      If you decide to answer questions now with or without a lawyer, you still have the right to stop the questioning at any time, or to stop the questioning for the purpose of consulting a lawyer.
      HOWEVER—
      You may waive the right to advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire.

      . Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972).

      . United States v. Garcia, 431 F.2d 134 (9th Cir. 1970). But see United States v. Noa, 443 F.2d 144 (9th Cir. 1971).

      . Coyote v. United States, 380 F.2d 305 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967).

      . Fendley v. United States, 384 F.2d 923 (5th Cir. 1970). But see case cited note 8 infra.

      . Square v. State, 283 Ala. 548, 219 So.2d 377 (1969); Moore v. State, 251 Ark. 436, 472 S.W.2d 940 (1971); State v. Grierson, 95 Idaho 155, 540 P.2d 1204 (1972) (dictum); State v. Carpenter, 211 Kan. 234, 505 P.2d 753 (1972); Scharr v. State, 499 P.2d 450 (Okl.Cr.App.1972); State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969).

      . Klingler v. United States, 409 F.2d 299 (8th Cir. 1969).

      . United States v. Lacy, 446 F.2d 511 (5th Cir. 1971). Lacy contained no citation to Fendley v. United States, supra, a decision that it appears to have overruled sub silen-tio.

      . People v. Williams, 131 Ill.App. 149, 264 N.E.2d 901 (1970); Jones v. State, 253 Ind. 235, 252 N.E.2d 572 (1969); People v. Campbell, 26 Mich.App. 196, 182 N.W.2d 4 (1970), cert. denied, 401 U.S. 945, 91 S.Ct. 960, 28 L.Ed.2d 228 (1971); Evans v. State, 275 So.2d 83 (Miss.1973); People v. Swift, 32 App.Div.2d 183, 300 N.Y.S.2d 639 (1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 510 (1970).

      . If you find that the defendant did not learn what the substance was, but that the only reason he did not learn it was because he deliberately chose not to learn for the very purpose of being able to assert his ignorance if he was discovered with the substance in his possession, then you may find that he had the full equivalent of knowledge because his self-imposed ignorance cannot protect him from criminal responsibility. If however, you find that the defendant believed that what was in the suitcase was not cocaine or any other narcotic drug, then you must acquit the defendant on both counts.

      . The pertinent portion of the charge is as follows:
      In other words, you may find the defendant acted knowingly if you find that either he actually knew he had cocaine or that he deliberately closed his eyes to what he had every reason to believe was the fact. United States v. Joly, at 674.

      . Joly also disposes of the Government’s argument, made here as there in connection with the charge, that decisions affirmed from the bench may be used as precedents binding upon subsequent panels of the court. We follow Joly and treat them as of no such effect.


text:
    ERIE LACKAWANNA RAILWAY CO., Plaintiff-Appellee, v. Robert D. TIMPANY (formerly John E. Farrell) solely as Trustee of the property of the Central Railroad Co. of New Jersey, Defendant-Appellant.
    No. 571, Docket 73-2336.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 25, 1974.
    Decided April 9, 1974.

      Timothy A. Hanan, New York City (Macklin, Hanan & McKernan, New York City, on the brief), for plaintiff-appellee.
    Louis P. Sheinbaum, New York City (Bigham Englar Jones & Houston, New York City, on the brief), for defendant-appellant.
    Before KAUFMAN, Chief Judge, and FEINBERG and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court, Southern District of New York, entered on June 8, 1973, following an opinion of the Hon., Robert L. Carter, United States District Judge, dated May 30, 1973, which found the appellant Robert D. Timpany, as Trustee of the property of the Central Railroad Co. of New Jersey (Central), solely responsible for damage in the amount of $34,000 plus interest and costs, to a hoist owned by the appel-lee Erie Lackawanna Railway Co. (Erie).

I

The facts in this case are not in dispute. In July, 1968, Central owned and operated a drawbridge, located at the entrance to Newark Bay, between Eliza-bethport and Bayonne, New Jersey, running in a general east-west direction. The drawbridge is a lift bridge, the spans of which can be vertically raised and lowered by a bridge tender, who is employed by Central. The westerly passage for vessels has an opening of 216 feet, with a vertical clearance (between the bottom of the lift span and the water) of 35 feet at mean high water when the lift span is completely lowered and in a closed position. When fully opened, the vertical clearance in the western passage is 135 feet. Pursuant to Federal Regulation, ' the western span is equipped with a red light in the middle of the span facing the direction of oncoming traffic, which remains lit until the span is completely raised, at which point it turns off and a green light shows.

Shortly after 3 a. m. on the morning of July 10, 1968, the tugboat NAZARETH, owned by plaintiff appellee Erie and piloted by Captain Joseph Stuchala, was proceeding from Hoboken, New Jersey to Newark Bay. The NAZARETH was towing a floating hoist secured to her port side and a barge and a scow secured to her starboard side. The towed vessels, the property of Erie, were all unmanned. The NAZARETH had a crew consisting of the Captain, a mate, two deckhands and an engineer. The hoist had a single boom which extended 80 feet in the air when in a raised position, with its base located about 75 feet from the bow of the floating hoist. The flotilla was 110 feet in length and 100 feet in width. The towed vessels were each lighted at their outside corners; the tug had a number of lights, including one on its mast, but there was no light at the end of the boom.

At about 3:25 a. m. the NAZARETH and her tow were rounding Bergen Point, proceeding toward the bridge. There was little wind, the water was calm and visibility was good. Captain Stuchala was alone at the wheel of his tug, navigating the flotilla, and the four other members of his crew were below in the galley. When he was about a half-mile away from the bridge, he gave the usual three-blast signal indicating that he wished the span over the western passage to be opened. The flotilla was proceeding at half speed to permit the Captain to line up his 100 foot wide flotilla to negotiate the 216 foot western passage. On hearing the tug signal, the bridge tender, who had been lowering the western span, stopped that operation and proceeded to raise it to a height of 75 feet. As the tug passed under the bridge, the top of the boom of the hoist hit the bridge, resulting in the $34,000 damages claimed by Erie.

On trial, Captain Stuchala testified that he had passed under the bridge between 200 and 400 times prior to the date in question, and on almost every occasion the span had raised. However, he testified that on only about 40% of these passages would the bridge be fully opened with the green light going on. He further admitted that he saw the bridge being opened but then stop opening when the flotilla was about a half-mile away. It took about fifteen min.utes from the time the tug signalled until the collision occurred. It takes two and a half minutes to fully open the bridge from a totally closed position. The Captain testified that he could have stopped the flotilla within a distance of 100 feet; that he did not see any green light on the bridge; that he knew the span was only partially open; that he did not know how high the boom was in its raised position and that he could not see the end of the boom from the wheelhouse. He was' occupied with positioning the flotilla in the center of the draw since “you have got to be right in the center or else you will have problems, I think.” No member of the crew was called on deck to assist the Captain or to act as a lookout. The bridge tender stated that he did not see the raised boom until shortly before the collision, and that he attempted to raise the span higher but without success.

Judge Carter found on these facts that Central was solely responsible for the collision.

II

Erie argues that this court is bound by the finding below that Central was solely responsible for the collision unless we conclude that the finding was clearly erroneous. However, a finding of negligence or lack of negligence by a district court is not subject to the clearly erroneous rule. Dinnerstein v. United States, 486 F.2d 34, 37-38 (2d Cir. 1973); Director General of India Supply Mission v. S.S. Maru, 459 F.2d 1370, 1373 n. 3 (2d Cir. 1972), cert. denied, 409 U.S. 1115, 93 S.Ct. 898, 34 L.Ed.2d 699 (1973); In re Marine Sulphur Queen, 460 F.2d 89, 97 (2d Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 326, 34 L. Ed.2d 246 (1972); Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 813 (2d Cir. 1971).

The findings of fact are not disputed by the appellant here; there is no question of the veracity of witnesses. Rather, the appellant contests the finding of negligence, which involves “the formulation and then the application of a standard of conduct to evidentiary facts found to be established.” Romero v. Garcia & Diaz, Inc., 286 F.2d 347, 355 (2d Cir.), cert. denied, 365 U.S. 869, 81 S.Ct. 905, 5 L.Ed.2d 860 (1961). The. evaluation of a claim of negligence is a task which we can certainly undertake where the findings of fact of a district court are not disputed on appeal. 3 This court has held, however, that the district court’s determination that a party is liable by reason of negligence “will ordinarily stand unless the lower court manifests an incorrect conception of the applicable law.” Cleary v. United States Lines Co., 411 F.2d 1009, 1010 (2d Cir. 1969) (per curiam). In our view, we are presented with that situation here.

Ill

The general rule is that navigation rights take priority over the rights of surface traffic. A bridge obstructs navigation and therefore has a duty to clear the channel for navigation when necessary, to employ persons for this purpose, to maintain indicator lights and to give warning signals when a bridge cannot be opened in time or cannot be opened at all. Clement v. Metropolitan West Side El. Ry., 123 F. 271, 273 (7th Cir. 1903). In Clement, the court outlined the rights of a vessel:

A vessel, having given proper signal to open the bridge and prudently proceeding under slow speed, has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage. She is not bound to heave to until the bridge has been swung or raised and locked, and to critically examine the situation before proceeding . . . but may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, and may so proceed until such time as it appears by proper warning, or in rea sonable view of the situation, that the bridge will not be opened when it becomes the duty of the vessel, if possible, to stop, and, if necessary, to go astern.

Id. (citations omitted; emphasis added). On the facts of this case, we believe the district judge correctly found that the bridge was liable for failure to fulfill its duty to avoid accident resulting from its obstruction of the lanes of navigation. See Great Lakes Towing Co. v. Masaba S.S. Co., 237 F. 577 (6th Cir. 1916); Department of Highways v. McWilliams Dredging Co., 85 F.Supp. 714 (W.D.La.1949); M & M Dredging & Constr. Co. v. Miami Bridge Co., 39 F.Supp. 311 (S.D.Fla.1941).

Our concern here, however, is whether or not, “in reasonable view of the situation,” the tug should have continued ahead or taken evasive action. On the record before us, we conclude that the NAZARETH also failed in its duty to avoid collision, and that Erie therefore was also guilty of negligence. Southern Transp. Co. v. City of New York, 98 F.Supp. 967 (S.D.N.Y.1950), aff’d, 190 F.2d 1023 (2d Cir. 1951) (per curiam,).

Captain Stuchala was aware that the drawbridge did not usually open to provide maximum clearance and he knew particularly that the span was not raised completely on this occasion as the flotilla approached. Although he was aware of the fact that he was towing a hoist with an elongated boom, he could not tell how high the boom extended. Nonetheless, he proceeded ahead on the assumption that he had sufficient clearance. He did not stop his vessel to assess the situation, although he did admit that this could have been easily accomplished. He made no effort to have the bridge raised to its fullest height of 135 feet, which would have eliminated any chance of collision. The record clearly indicates that he was fully concentrating his attention on placing the flotilla, almost as wide as it was long, in the middle of the passage in order to avoid lateral obstructions. Under all of these circumstances, we think it was unreasonable for the vessel not to have taken some minimal steps to avoid possible accident.

Any doubt about this is removed by the failure of the tug to have any lookout posted. The Captain, who, as noted, admitted that he coüld not see the tip of the boom from the wheelhouse, was alone in the wheelhouse navigating the flotilla, and his four crew members were in the galley. This failure to post a lookout constituted an admitted statutory violation. In Circle Line Sightseeing Yachts, Inc. v. City of New York, 283 F.2d 811 (2d Cir. 1960), cert. denied, 365 U.S. 879, 81 S.Ct. 1030, 6 L.Ed.2d 191 (1961), this court, in a similar case of collision between a vessel without a lookout and a bridge, invoked the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148, (1873), which places the burden upon the vessel to establish that such a failure did not cause and could not have caused the accident. This statutory violation issue was not raised below, but we see no point in remanding on the question because the record before us makes it evident that there is no possibility that the vessel might establish that the absence of a lookout could not have caused the collision. Erie argues that a lookout would not have been able to judge the clearance because it was dark and the end of the boom to be observed was high in the air, and that a lookout would therefore have been superfluous. This misses the point. While the lookout might not have been able to make the judgment that the clearance was insufficient, he most certainly would have at least recognized the danger of proceeding ahead and alerted the Captain to the admittedly unrecognized peril. In Circle Line, where the vessel made the same argument that it was difficult to see the opening, Judge Clark pointedly observed that “this seems to increase rather than decrease the importance of an independent lookout.” Id. 283 F.2d at 815.

Circle Line makes it further clear that the person in charge of navigation cannot act as a lookout “because his work in managing the ship prevents his giving undivided attention to possible obstructions or dangers.” Id. 283 F.2d at 814-815. In that case, the captain was navigating the vessel and a mate was present in the pilothouse but was not “looking.” Here, the Captain was the only person above decks and his view of the end of the boom was blocked. In view of all the other circumstances which we have listed, the additional failure to post a lookout makes the finding of negligence on the part of Erie inescapable.

The district court found the case before us to be on all fours with Pennsylvania R.R. v. S.S. Marie Leonhardt, 202 F.Supp. 368 (E.D.Pa.1962), aff’d, 320 F.2d 262 (3d Cir. 1963). We cannot agree. In that case the vessel which collided with a bridge was exonerated from any liability because the bridge had previously instructed the vessel by telephone to come ahead. There was no unambiguous invitation here. There was no communication between the two except the whistle blast. The bridge was only partially open but’ the Captain, knowing that this was its usual response, nonetheless proceeded blindly ahead in the darkness of the night with an unlighted raised boom in tow.

We think that this case is closer to The No. 9, 258 F. 693 (D.Del.1919), in which, under similar factual circumstances, a mast of a towed barge collided with a partially opened bridge. The captain knew that the bridge did not always fully open due to mechanical difficulties. The court held that prudent navigation and reasonable care would dictate that the captain anticipate the probable failure of the draw to open. While there was no mechanical failure present here, the tug’s captain did know that the bridge did not customarily open to its full height. We think that the dictates of reasonable and prudent seamanship commanded evasive action here.

Of course, as we have indicated, the bridge tender was equally negligent in not making the timely observation which could have avoided the accident. Since both parties were at fault, damages should be equally divided between them. Diesel Tanker F. A. Verdon, Inc. v. Stakeboat No. 2, 340 F.2d 465 (2d Cir. 1965); N. M. Paterson & Sons, Ltd. v. City of Chicago, 324 F.2d 254 (7th Cir. 1963); Great Lakes Towing Co. v. Masaba S.S. Co., supra, 237 F. at 580-581; G. Gilmore & C. Black, The Law of Admiralty § 7-17 (1957). The judgment is therefore modified in accordance with this opinion. The Hygrade No. 12 v. The Talisman, 153 F.2d 52 (2d Cir. 1946).

      . 33 C.F.R. § 68.15-20 provides as follows:
      (a) Lift span lights. The vertical lift span of every vertical lift bridge shall be lighted so that the center of the navigable channel under the span will be marked by a range of two green lights when the vertical lift span is open for navigation and by one red light on each side for all other positions of the lift span. The green lights shall each show through a horizontal arc- of 360°; they shall be securely mounted just below the outermost edge of the bridge span structure so as to be visible from an approaching vessel. Each red light shall show through a horizontal arc of 180°, and shall be securely mounted just below the outermost edge of the lift span to show 90° on either side of the line parallel to the axis of the channel so that only one such light will be visible from an approaching vessel.

      . Appellee urges that the real issue here is one of causation not negligence, and that a finding of causation is subject to the dearly erroneous rule. United States v. Ebinger, 386 F.2d 557 (2d Cir. 1967). Ebinger is not in point. There the question was whether or not welding performed by the defendant was in fact the physical cause of a fire. Here, there was no dispute about causation in fact; the term is not even employed in the opinion below. The determination challenged here deals not with the factual cause of the accident but rather with the breach of a legal duty. It is a legal conclusion on admitted facts, and therefore it is not subject to the clearly erroneous rule.

      . 33 U.S.C. § 221 provides as follows:
      Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.


author: DURFEE, Senior Judge.

text:
    Charley Joseph HOLLOWAY, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 73-1693.
    United States Court of Appeals, Tenth Circuit.
    April 24, 1974.
    Rehearing Denied May 21, 1974.

      D. Craig Lewis of Pendleton, Sabían, Guthery & Lewis, P. C., Denver, Colo., for defendant-appellant.
    Robert D. McDonald, Asst. U. S. Atty. (Richard A. Pyle, U. S. Atty., with him on the brief), for plaintiff-appellee.
    Before HILL, Circuit Judge, DURFEE, Senior Judge, and DOYLE, Circuit Judge.

      Honorable James R. Durfee, Senior Judge, United States Court of Claims, sitting by designation.

   DURFEE, Senior Judge.

Appellant, Charley Joseph Holloway, was convicted after a jury trial in the United States District Court for the Eastern District of Oklahoma of violation of 26 U.S.C. §§ 5601(a)(1), 5601(a)(4), 5601(a)(7), and 5686(a), relating to the illegal possession and operation of distilling apparatus. Holloway appeals contending that he was entitled to suppression of allegedly incriminatory statements made by him after his arrest to special agents of the Treasury Department; he also challenges the sufficiency of the evidence upon which his conviction rests.

The facts are as follows:

On March 14, 1973, appellant was arrested by special agents of the Bureau of Alcohol, Tobacco and Firearms in the vicinity of an illegal, operating still located near Boley, Oklahoma, approximately three-quarters of a mile from appellant’s residence. No one else was seen in the area of the still at that time. One of the agents read to Holloway a statement of his constitutional rights, as prescribed by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Holloway indicated that he understood his rights, and when asked if he wanted to make any statement concerning the still at that time he indicated that he did not.

Two of the agents transported appellant to Okemah, Oklahoma to place him in the county jail there while they returned to the site of the still to conduct an inventory and to destroy the still. Although the county jailer was instructed by one of the agents to permit Holo-way to make a phone call if he wished, Holloway did not request to call an attorney while in the county jail. After destruction of the still, which took approximately two hours, the agents returned to Okemah and again took custody of Holloway. They drove appellant to the Federal jail in Muskogee, Oklahoma, with a stopover in Henryetta, Oklahoma. It was during that automobile trip that Holloway made the inculpatory statements in issue, approximately three to four hours after his arrest and advisement of rights.

Prior to trial Holloway filed a motion for suppression of the statements at issue herein. A hearing was held on that motion on April 27, 1973, and the trial court entered an order on that date denying the motion. The agents subsequently testified at trial as to statements made by Holloway which constitute or amount to a confession on his part that the still belonged to him, that he was operating it, and that he had set up the mash and had previously run off some whiskey. Holloway testified that he “just went along with the general conversation” and responded to the questions of the agents, but he denied that he made any statements to the agents to the effect that the still belonged to him or that he had gone to the still site for the purpose of running any whiskey.

Appellant acknowledges that the Miranda warnings were read to him when he was arrested, and he testified that he understood what his rights were. He contends, however, that the trial court erred in admitting testimony as to the conversation between himself and the agents because the Government failed to sustain its “heavy burden” of proving that appellant made a voluntary, knowing and intelligent waiver of his rights.

Miranda recognized that the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to retained or appointed counsel are waivable. 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707 (1966). Once it has been determined that the warnings required by Miranda have been administered, the particular facts and circumstances of the case must be examined to determine whether the accused has voluntarily, knowingly and intelligently waived effectuation of his rights. See e. g., United States v. Tafoya, 459 F.2d 424 (10th Cir. 1972); United States v. Speaks, 453 F.2d 966 (1st Cir. 1972); Klingler v. United States, 409 F.2d 299 (8th Cir. 1969), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). It is our conclusion, based upon the facts and circumstances in the record before us, that appellant “voluntarily, knowingly and intelligently” waived his privilege against self-incrimination and his right to the presence of counsel.

Statements made by Holloway were made in the context of what he termed “general conversation” and what the agents termed “normal conversation.” Appellant’s willingness to discuss the still and its operation is evidenced by his own testimony, in which he related particular segments of the conversation between himself and the agents. At the hearing on the motion to suppress statements allegedly made by him, appellant testified as follows:

Q. What was the nature of the conversation on the trip back to Muskogee ?
A. Well, the conversation between Okemah and Henryetta was based mostly on the amount of whiskey run and whatnot. When Agent Tilley and I were sitting in the rear of the car, he was sitting on the left side and I was on the right side, and when we drove along Interstate 40 I asked Mr. Tilley, I said, ‘Well, buddy, how much did you run?”
He said, “Well, Charley, I run approximately five and shut her down.”
I said, “What did you do with the whiskey?”
He said, “I tasted it, it was good whiskey. I would have jarred it up for you and I couldn’t find your jars and I poured it out.”
I said, “That’s a shame.”

Holloway also testified at the hearing on the motion to suppress about his conversation with Agent Day:

A. There wasn’t any conversation based on mash between Okemah and Henryetta. Now, after Mr. Day let Agent Tilley and Agent King out of the car in Henryetta he and I proceeded up Interstate 40 to Checotah. Somewhere between Henryetta and Checotah Mr. Day asked me, “Charley, how many gallons of whiskey did you run down there ?”
I said, “Well, James, I haven’t run the first gallon.”
I said, “Your agent sitting back there with me said he run approximately five.”
Then he said, “Approximately how long have you had that still setting there?
I said, “From all the evidence, that still has been there about three and a half months.”
Then he asked me, “Weren’t you a little sceptical about having a still that close to a dump ground ?”
Then I said, “Did you look the terrain over?”
And he said, “Yeah. So far as I was concerned that is the safest place in the world to have a still.”
I said, “I wouldn’t be afraid to sit there and run whiskey and watch people dump trash over there in that dump ground.”

Any statements of an incriminatory nature made by appellant were properly admitted into evidence because appellant deliberately and voluntarily chose to discuss with the agents matters concerning the still and its operation, after having been fully advised of his rights. Appellant argues that he claimed the right to remain silent at the arrest site by indicating his desire not to make any statements to the agents, thereby rendering any subsequent interrogation by the agents constitutionally improper. It is true, generally, that when in the absence of counsel an accused indicates that he desires to remain silent, all interrogation must cease. Miranda v. State of Arizona, supra, 384 U. S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723 (1966). However, any prior claim of the Fifth Amendment privilege which was made at the arrest site was subsequently waived by appellant’s inquiries to the agents concerning the still and its operation and by his willingness to discuss these matters freely and openly. This is not the situation where officials persisted in impermissible “interrogation” after an accused invoked his constitutional rights. Indeed, the admissions made by appellant were not the consequence of a formal and controlled interrogation in its classic sense. The agents did ask Holloway questions, but Holloway’s own testimony indicates that he initiated the discussion about the still and its operation with Agent Tilley by inquiring how much whiskey the agents had run, and what they had done with it. Furthermore, one of the agents testified that appellant wanted to know who had “snitched him off,” that is, who had told on him. When an accused, having been fully advised of his rights, actively seeks to speak with officials about matters under criminal investigation, statements made which amount to a confession are not excludible as having been received in violation of the accused’s constitutional rights. See United States v. Tafoya, 459 F.2d 424, 427 (10th Cir. 1972).

Statements made by appellant to the agents were not “the product of compulsion, subtle or otherwise.” Miranda v. State of Arizona, supra, 384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723 (1966). Appellant makes no claim of compulsion in the sense of physical abuse, threats, harassment, hunger, lack of sleep or mental deficiency, or lengthy interrogation. There is no showing that the agents tricked or cajoled appellant into making admissions, nor did they employ any techniques of persuasion or inducement. There is no evidence that the agents pressed an interrogation upon the accused against his wishes. At no time did appellant refuse to respond to the questions of the agents, nor did he indicate in any way that he wished to invoke his privilege of remaining silent by terminating the conversation. The record clearly supports the conclusion that appellant waived his privilege against self-incrimination, and that he did so voluntarily, knowingly and intelligently.

The fact that counsel was not present at the time Holloway made statements amounting to a confession does not ipso facto render those statements inadmissible. See Butterwood v. United States, 365 F.2d 380, 383 (10th Cir. 1966). Indeed, the Miranda decision recognizes that the Sixth Amendment right to the presence of counsel is waivable, provided that the waiver is made “voluntarily, knowingly and intelligently.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707 (1966). This court has refused to read Miranda as holding that “ ‘an express declination of the right to counsel is an absolute from which, and only from which, a valid waiver can flow’.” Bond v. United States, 397 F.2d 162, 165 (10th Cir. 1968). The facts and circumstances here establish that appellant made a voluntary and knowing waiver of his Sixth Amendment right to the presence of counsel during his conversation with the agents about the still and its operation.

There is a dispute between the parties as to what Holloway actually said during the course of his conversation with the agents, and as to whether or not he made any admissions or inculpatory statements at all. The testimony of the agents and of appellant was contradictory in this regard. The trial judge allowed these factual issues to go to the jury for consideration, and the jury chose to believe the testimony of the agents. Inherent in the verdict is the jury finding that appellant made statements which constitute a confession, and that he made them freely and voluntarily. We accept these findings.

Finally, appellant contends that the evidence was insufficient to sustain a guilty verdict. Viewing the evidence in a light most favorable to the Government, as we must, United States v. Me-eham, 422 F.2d 838 (10th Cir. 1970), we believe that there is ample evidence to support appellant’s conviction on each of the four counts in the indictment.

Affirmed.

      . Quoting Sullins v. United States, 389 F.2d 985, 989 (10th Cir. 1968), opinion of Judge Lewis concurring and dissenting.


author: PER CURIAM: MANSFIELD, Circuit Judge

text:
    Miriam WINTERS, on behalf of herself and all other persons similarly situated, Petitioner, v. Hon. Anthony J. TRAVIA, United States District Judge, Respondent. Miriam WINTERS, on behalf of herself and all other persons similarly situated, Petitioner, v. Alan D. MILLER, M. D., Individually and as Commissioner of Mental Hygiene of the State of New York, et al., Respondents.
    No. 883, Docket 74-1163.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 13, 1974.
    Decided April 1, 1974.

      Jonathan A. Weiss, New York City (Bruce J. Ennis, New York Civil Liberties Union, New York City, on the brief), for petitioner.
    Joel H. Sachs, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, of counsel), for respondents Miller and O’Neill.
    Before ANDERSON, MANSFIELD and OAKES, Circuit Judges.
   PER CURIAM:

This petition for a writ of mandamus or prohibition, 28 U.S.C. § 1651(a), was brought by the plaintiff in a civil rights action to recover damages allegedly sustained as a result of forced medication administered her in 1968 in violation of her first amendment right to freedom of religion. The trial court, in an oral ruling from the bench on January 11, 1974, later confirmed in an order signed January 22, 1974, ordered a physical and mental examination of plaintiff to take place at Brooklyn State Hospital and stayed all further proceedings until the results of the test. She likewise objects to this examination on religious grounds, and points out that her “physical condition is not and has never been involved in this case.” Beyond this, on oral argument before us plaintiff’s counsel was willing to and did represent and agree that the only present mental problem of plaintiff allegedly caused by the 1968 forced medication is “an unpleasant memory,” this memory going to show the severity of the past suffering. Thus plaintiff is willing to abandon any claim that any present or anticipated physical or mental disability or condition was caused by the 1968 treatment on which her case is based. Under these circumstances we do not see what purpose could be served by a Rule 35 examination which under its own terms may be ordered only “[w]hen the mental or physical condition . . . of a party ... is in controversy. . . . ” Moreover, while the underlying constitutionality of Rule 35 is not in question, as it was in Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941) (5-4 decision), and Schlagenhauf v. Holder, 379 U.S. 104, 114, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), and while Rule 35 is not limited in application to actions for personal injuries, Beach v. Beach, 72 U.S.App.D.C. 318, 114 F.2d 479 (1940); but cf. Wadlow v. Humberd, 27 F.Supp. 210 (W.D.Mo.1939), the required showing of “good cause” for the examination and that the condition of the party be “in controversy” are not mere formalities. Schlagenhauf v. Holder, 379 U.S. at 118, 85 S.Ct. 234, 13 L.Ed.2d 152. This case is like Coca-Cola Bottling Co. v. Torres, 255 F.2d 149, 153 (1st Cir. 1958), where, in a suit for damages for injuries sustained by drinking from a bottle containing the proverbial putrefied mouse, the court upheld denial of a physical examination on the basis that the plaintiff was not seeking damages for any present suffering but only for past physical injury and emotional disturbance, the remembrance of the bad taste going only toward showing the severity of that plaintiff’s past suffering. Mandamus lies here to correct an abuse of discretion in ordering the examination, Schlagenhauf v. Holder, 379 U.S. at 110, 85 S.Ct. 234, 13 L.Ed.2d 152, under the “special” circumstances of this case.

It is true that petitioner here sought a protective order against the taking of her deposition because of the mental anguish it would allegedly cause. This does not, however, by itself place her mental condition in controversy; whether the court will grant or deny the protective order (seeking primarily to have her deposition taken by written, interrogatories) has not yet been determined and is not, therefore, a consideration presently before this court.

Petitioner also argues that the case should be transferred to a district judge other than the one who dismissed her claim in the first instance. Even though Rule 34 of the General Rules of the United States District Courts for the Southern and Eastern Districts of New York provides for conduct of proceedings by the original judge if the proceedings do not require the trial of an issue of fact, we are reluctant to read it as per se disqualifying the judge in eases where there is an issue of fact to be tried, and we are reluctant to exercise our undoubted power for transfer except under the most compelling circumstances. See Meetings & Expositions, Inc. v. Tandy Corp., (2d Cir. 1974), 490 F.2d 714, 715; Taylor v. United States, 487 F.2d 307 (2d Cir. 1973). Here the judge was requested to transfer the case to an another judge and, petitioner’s counsel’s affidavit alleges, the judge granted the motion for a physical and mental examination without “bothering” to read the arguments and authorities in a brief submitted apparently the day before the hearing. If this indeed took place, and without reason or justification, such judicial conduct is the very kind of thing that calls to mind Farrer Herschell’s well-known retort at the Bar when Sir George Jessel attempted to cut him short in argument: “Important as it was that people should get justice, it was even more important that they should be made to feel and see that they were getting it.” 2 J. Atlay, Victorian Chancellors 460 (1908). On remand, doubtless, the district judge will give very serious consideration to whether transfer would not serve the appearance of justice and thereby help assure its existence.

Petition for mandamus granted and cause remanded for proceedings consistent herewith.

MANSFIELD, Circuit Judge

(concurring and dissenting):

I concur in the denial of transfer of this ■ case to another district judge. However, I would go further and hold that there was no abuse of discretion or usurpation of power on the part of the district court warranting issuance of the extraordinary remedy of mandamus at all. On the contrary his order granting an examination of petitioner pursuant to Rule 35, F.R.Civ.P., was supported by a showing of good cause and well within his discretionary powers. Petitioners’ “constitutional” claim to be relieved of such an examination, is nothing more than a smokescreen which has the effect of obstructing justice and denying respondents the fair trial to which they are entitled under the Federal Rules of Civil Procedure.

Petitioner’s complaint alleges that the medication wrongfully forced upon her by respondents has “caused me great emotional stress and anguish, pain and suffering, indignity and humiliation,” and “caused me to become physically ill,” for all of which she seeks $50,000 damages. In an affidavit sworn to as recently as November 27, 1973, she further states under oath that “the pain inflicted on me by the doctors in the hospital caused me a great deal of mental anguish . . . also this case had made me undergo a great deal of suffering.” These allegations are denied by the respondents. Thus plaintiff’s mental and physical condition is clearly in controversy.

Petitioner having thus put her mental and physical health squarely in controversy, it seems to me to be elementary that “good cause” exists within the meaning of Rule 35, F.R.Civ.P., for the conduct of a physical and mental examination of petitioner for the purpose of determining whether she has suffered any of the physical and mental injuries alleged and, if so, whether they are attributable to the alleged forced medication or to some other causes. As the Supreme Court said in the celebrated case of Schlagenhauf v. Holder, 379 U.S. 104, 119, 85 S.Ct. 234, 243:

“A plaintiff in a negligence action who asserts mental or physical injury, cf. Sibbach v. Wilson & Co., swpra, places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. This is not only true as to a plaintiff, but applies equally to a defendant who asserts his mental or physical condition as a defense to a claim, such as, for example, where insanity is asserted as a defense to a divorce action. See Richardson v. Richardson, 124 Colo. 240, 236 P.2d 121. See also Roberts v. Roberts, 198 Md. 299, 82 A.2d 120; Discovery as to Mental Condition Before Trial, 18 J.Am.Jud.Soc. 47 (1934).”

I find it rather extraordinary that the court does not adhere to the foregoing elementary principle, much less that it grants the extraordinary relief of mandamus. It is the petitioner not the respondents, who initiated this lawsuit and who seeks damages. While it may offend her religious principles as a Christian Scientist to submit to physical or mental examination, to deny the examination would violate respondents’ right to a fair trial. Under such circumstances petitioner, by seeking relief, waives the right she might otherwise have had to refuse an examination, whether or not that right be labelled “constitutional” because it stems from her religious beliefs. She must abide by basic principles of justice as articulated in the Federal Rules of Civil Procedure.

The holdings of Schlagenhauf v. Holder, supra, and Coca-Cola Bottling Co. v. Torres, 255 F.2d 149 (1st Cir. 1958), are not to the contrary and are perfectly consistent with the requirement that petitioner submit to examination in the present. case. In Schlagenhauf a Rule 35 examination was denied on the ground that Schlagenhauf had “not affirmatively put into issue his own mental or physical condition.” After stating (see supra) that an examination would be mandated in the case of a plaintiff who claimed mental or physical injury, the court continued as follows:

“Here, however, Schlagenhauf did not assert his mental or physical condition either in support of or in defense of a claim. His condition was sought to be placed in issue by other parties. Thus, under the principles discussed above, Rule 35 required that these parties make an affirmative showing that petitioner’s mental or physical condition was in controversy and that there was good cause for the examinations requested. This, the record plainly shows, they failed to do.”

In Coca-Cola Bottling Co., after a non-jury trial the court of appeals properly refused to disturb the trial judge’s exercise of his broad discretion in denying a Rule 35 examination as lacking a sufficient showing of good cause where the plaintiff had affirmatively asserted that he had fully recovered from his injuries and was not claiming any damage for his present physical condition. Here, on the other hand, plaintiff is claiming mental and physical injuries as a result of the medication and the court has interfered — in my view without warrant ■ — with the trial judge’s exercise of his broad discretion.

It is true that upon oral argument petitioner’s counsel indicated that she might be willing to withdraw her claim for present physical and mental injury (except for the “unpleasant memory” of her earlier enforced medication). However, he advised that he would first have to consult with his client and obtain authority from her before waiving any such claim. Since the argument no such waiver has been furnished and, as far as the record is concerned, petitioner is still claiming both present and past mental and physical suffering.

Even assuming that such a waiver of present physical or mental suffering were forthcoming it would not justify our interference with the district judge’s exercise of his discretion to order an examination pursuant to Rule 35. ****If petitioner continued to assert a claim for past mental and physical injury, which presumably would cover the period up to the day before the waiver, a physical and mental examination, far from being useless or meaningless, might shed light on the validity of her claim and the nature and extent of any injuries sustained by her in the past. We have frequently, in other contexts, admitted into evidence expert medical opinion, based on the results of a recent examination, for the purpose of determining past mental and physical condition. Examination by a psychiatrist, for instance, might reveal that petitioner’s mental condition had pre-dated her enforced medication and that the treatment served to alleviate rather than aggravate that condition.

For the foregoing reasons the trial judge’s order granting a physical and mental examination of the plaintiff was well within his broad discretion and, in my view, this court’s interference with his exercise of that discretion represents an unwarranted and mischievous use of mandamus power.

      . Plaintiff complained as a practicing Christian Scientist who was given medication consisting primarily of tranquilizers while an involuntary patient at Bellevue Hospital Center and Central Islip State Hospital. Her complaint was held to state a cause of action in Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971). See generally Dubnoff v. Goldstein, 385 F.2d 717 (2d Cir. 1967).

      . Consequently, our grant of this petition is conditioned on that being the case.

      . As a Christian Scientist plaintiff had registered her objection to the initial physical examination given her at Bellevue Hospital, as the now reversed judgment dismissing the complaint in the first instance discloses, 306 F.Supp. 1158, 1160 (E.D.N.Y.1969). Were she forced now to undergo a physical and mental examination to prove her claim, the court would be requiring of her some of the same treatment which was the reason for her suit in the first instance.

      . The Assistant Attorney General asserts that although respondent’s motion papers and accompanying memorandum were served on December 14, 1973, petitioner did not serve her reply until January 11, 1974, the day of oral argument, which is confirmed by the court file, and that Judge Travia, after hearing argument, informed the parties that on the basis of his own thorough independent research he was satisfied that the motion should be granted. Apparently, however, no record of the oral argument or the court’s comments in. reference thereto was made for reasons unbeknownst to us.

      . The examinations of petitioner conducted during the period of her alleged involuntary hospitalization in 1968, while relevant, are hardly sufficient, standing alone, to . determine whether she has suffered any mental or physical injuries during the past first years as a result of that hospitalization.

      . Evidence of subsequent condition is relevant circumstantial evidence of a condition at a prior time. J. Wigmore §§ 190, 225 (3d ed. 1940). For instance, earlier mental condition may be evidenced by proof of mental condition at a later time, Hoisington v. United States, 127 F.2d 476 (2d Cir. 1942); Hart v. United States, 76 U.S.App.D.C. 193, 130 F.2d 456 (1942); In re Ring’s Estate, 237 Iowa 953, 22 N.W.2.d 777; and evidence of present physical condition is relevant in determining physical condition at an earlier time. American Auto Rim Lock Corp. v. Cleveland Welding Co., 27 F.Supp. 559 (S.D.N.Y.1939); Bankers Trust Co. v. Higgins, 65 F.Supp. 836 (S.D.N.Y.1946).