author: BIGGS, Circuit Judge.

text:
    Ondrey E. GASPAR, a minor by Frank S. Gaspar et al. v. M. Rafik KASSM, Appellant, v. Dennis L. SMETZER, Third-Party-Defendant.
    No. 73-1711.
    United States Court of Appeals, Third Circuit.
    Submitted on briefs Jan. 25,1974.
    Decided March 19,1974.
    L. Carter Anderson, Rawle & Henderson, Philadelphia, Pa., for appellant.
    Alan D. Williams, Jr., Williams & Glantz, Doylestown, Pa., Harry A. Kitey, Allentown, Pa., and Richard I. Moore, Durben & Moore, Morrisville, Pa., for appellees.
    Before BIGGS, GIBBONS and GARTH, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

This is a diversity action seeking damages for bodily injury resulting from an automobile accident occurring in Pennsylvania on the afternoon of May 29, 1967. The defendant Kassm was operating his automobile and collided with a motor vehicle operated by Smetzer, who had as his passenger, On-drey E. Gaspar, who was seriously injured. The complaint alleges that Kassm was negligent and that the collision was the result of his negligence. Smetzer was brought upon the record as a third party defendant by Kassm. At the time of the accident Kassm was employed as a teacher of accounting at Lafayette College; at the time of the trial he was supposed to be functioning on the faculty of Rensselaer Polytechnic Institute, at Troy, New York. There was a substantial verdict in favor of the plaintiffs against Kassm and the jury exonerated Smetzer.

At some date not specified by the record but prior to Christmas 1972, the present cause of action appeared in the district court’s “pool” preparatory to trial listing. Kassm was notified of the trial date. He, however, scheduled a holiday visit to Damascus, Syria, intending to return and take up his teaching at Rensselaer Institute on January 22, 1973. By a letter dated January 8, 1973 the court scheduled the case for trial on February 14, 1973. This allowed three weeks for preparation for trial after Kassm’s scheduled return on January 22. Soon after January 22, counsel attempted to contact Kassm at his home in New York State and at Rensselaer Institute and was advised that Kassm had not returned on schedule due to illness. In fact the first word as to Kassm’s illness was received by the Rensselaer Institute, which informed Kassm’s counsel, and in some way counsel received the impression that at that time Kassm was suffering from a back injury and so wrote to Judge Newcomer requesting a postponement on February 2, 1973. Opposing counsel were informed also of the alleged unavailability of Kassm. On February 6, however, the trial judge stated by letter to Kassm’s counsel, “The case will, of course, proceed as scheduled.” On February 9, Kassm’s counsel filed a formal motion for continuance. Supporting the motion was a telegram from Kassm’s wife to the Rensselaer Polytechnic Institute stating that Kassm was seriously ill. A formal supplemental motion for continuance was filed on February 12. Annexed to this motion was a letter from Mrs. Kassm, dated February 4, confirming that Kassm was ill and that his return to normal activities would be delayed for three to six months. On February 13 the court denied these motions.

On February 14, 1973, the day set for trial, counsel renewed his motion for continuance and submitted a cable from Mrs. Kassm stating that' Kassm “got nurves [sic] breakdown.” The court in the absence of the jury called counsel to side bar and the following discussion took place.

“Mr. Anderson [counsel for Kassm]: If the Court please, on behalf of the defendant and third-party plaintiff, I have previously, on February 9, filed a motion for continuance and I supplemented that in writing to your Honor on the 10th.

“By way of a further supplement I will hand the Court at this time a copy of a telegram that I received and which I mentioned to your Honor by telephone. I would appreciate it if that could be incorporated as Exhibit E to my Motion for Continuance as evidence of the illness and disability of my client and his absence from the country.

“The Court: Very well. That will be done.

“Mr. Anderson: Do I understand that my motion is denied, your Hon- or?

“The Court: Yes, Mr. Anderson, your motion is denied and we have entered an order to that effect. Have you not received it as yet?

“Mr. Anderson: No, sir, I have not.

“The Court: Well, that was done yesterday or the day before and the motion was denied.

“Mr. Anderson: My motion as renewed at this time is also denied?

“The Court: Yes, your motion as renewed is further denied.

“Mr. Anderson: Thank you.

“The Court: Let me say, Mr. Anderson, in speaking to that motion and that ruling, the reason simply is that this case is an aged case and really has been on the dockets much too long as it is now. Your client was on long advance notice as to the date of trial of this case.

“Mr. Anderson: That is true, sir.

“The Court: And we only received notice of his inability to be present several days ago, as you well know, with a dearth of information bearing on the subject, which it seemed to the Court was not really appropriate for a matter of this consequence.

“In other words, if he couldn’t be here for some legitimate reason it seemed to me he should have enough interest in the ease that he would have given us at least some reason why he couldn’t be here.

“Furthermore, his contacts in the States failed to furnish you or the Court with any reason. I am not in any sense criticizing counsel, but I am addressing this to the conduct of your client, and for this reason, plus the fact that the Court understands that there is a record from an arbitration or from a deposition, I believe, which was used in connection with an arbitration proceeding in Bucks County which sets forth the position of your client in this matter, and the Court therefore is of the impression that this case should proceed as scheduled.

“If it could not proceed today, incidentally, we are scheduled up throughout the balance of this spring into the summer and would not be able to hear this case until sometime after the summer.

“Is that correct, Mr. Reese?

“Mr. Reese: We couldn’t hear it before June 26, your Honor.

“The Court: June 26.

“Mr. Reese: Twenty-seventh.

“Mr. Anderson: Just for the record, your Honor, may I state, as I have advised you by phone and counsel, that my client is in Damascus, Syria, which is his native country.

“He went there just before Christmas intending to return to this country on January 22nd and he knew of the scheduling of this case before he went, and I' understand that he became ill while over there and I have confirmed that he has not returned to this country and is not returning to his employment, which he was supposed to resume on January 22nd at Rensselaer Polytechnic Institute, where he is on the faculty.

“I would also point out, as I have mentioned, that the deposition that you allude to was taken in another proceeding and it was a deposition taken by adverse counsel of Mr. Kassm. Therefore, presumably, he was only answering the questions that he was asked and he was not being questioned by his own attorney, and that attorney, by the way, was not me, it was personal counsel that he had there. His insurance company was not involved in that proceeding and had no knowledge of it.

“However, I understand your Hon- or’s ruling and am prepared to proceed except for the absence of my client.

“The Court: Very well.

“Mr. Anderson: We do have a problem regarding the use of the deposition. Mr. Moore [counsel for Smetzer] has objected to its use, and maybe this is not the appropriate time to consider that question, but since it relates to the subject that we are discussing I would bring it to your attention at this point.

“The Court: Very well. I think that it is perhaps appropriate that we consider it at this point. Mr. Moore, what is your objection to the use of it?

“Mr. Moore: Yes, sir. If I might address myself to the problem, it seems that the questioning involved with Mr. Kassm at the time, of course, was done by no counsel present in this proceeding, in which he was a plaintiff in the Bucks County action. This gives the original defendant the opportunity of a voice, so to speak, of testifying when but for that he would not be able to testify today.

“I can understand Mr. Anderson’s position requesting his continuance. I take no position one way or the other as if it made any difference, but with respect to the deposition testimony itself, your Honor, I have no opportunity, not having conducted the deposition, having no counsel present at that deposition, really to rely on any effective cross examination either at the time or certainly now. I am totally precluded from cross-examining this witness, and in effect we have testimony read to the jury without the ability not only to see the deponent but the ability of counsel to cross-examine him, and I would object strenuously, your Honor, to that deposition.

“The Court: Very well. I understand your objection. Under the circumstances, however, I will have to overrule the objection.

“I do think in fairness that the defendant should be permitted to inform the jury the reason why his client isn’t here, consistent with the very limited information which counsel has furnished to the Court.

“Mr. Anderson: I will advise the jury, then, that I understand — that my client is out of the country, he is ill, and he is unable to be present in this courtroom.

“The Court: Very well.

“Mr. Anderson: Thank you, sir.

“Mr. Williams: Your Honor, I have no objection if Mr. Anderson will amend that to ‘It is my understanding that my client is out of the country aiyl is ill and unable to attend.’

“None of us has any proof at all of this illness, sir.

“Mr. Anderson: I submit that I have evidence and it is of record.

“The Court: Very well. In that event I believe it is appropriate for the Court to instruct the jury, and I will say that it is the Court’s understanding. I think that may solve both problems.

“Mr. Anderson: Thank you.

“The Court: Thank you. Would you bring the jury in.”

We note from the foregoing that the Judge’s courtroom deputy indicated that perhaps the case could be tried on June 27th by Judge Newcomer, and it is notable that opposing counsel did not argue against a continuance but took no position. The trial proceeded over the objections of Kassm’s counsel and verdict and judgment in excess of $50,000 against Kassm and in favor of the plaintiff and a verdict and judgment in favor of Smetzer followed.

Counsel subsequently received a written report from Kassm’s physician, Dr. Mohammad Nazir Bitar. This document dated February 15, 1973, as translated into English by an interpreter in Damascus on February 17, 1973, was placed in the record with an accompanying affidavit by counsel filed March 16, 1973. The report was addressed to Mrs. Kassm and in part reads as follows:

“Upon examining your husband Mr. Rafik Kassm, and after conducting the necessary laboratory analysis I found that he is suffering from a state of nervous breakdown.
“I propose that he should resort to complete rest, and you keep him away from everything which may disturb him or provok [sic.] his nerves. I also recommend the use of the medicines and prescribed to him with all care and discipline for a period not less than Six weeks. Should you notice any sudden negative changes, please do not hesitate to contact me by telephone or in person.
“I sincerely hope that Mr. Kassm shall be able to return to his ordinary and normal life within the next few months. Please do not hesitate to inform me if you need any help.”

After the trial, a motion for a new trial was denied by the district court with an opinion, 60 F.R.D. 22 (1973), and the appeal at bar followed.

An examination of the complaint, as we have indicated, shows that Kassm was charged with negligent driving and failure to observe the laws of Pennsylvania in respect to the operation of motor vehicles. These allegations were denied in Kassm’s answer and as third party plaintiff he alleged negligence on the part of the third party defendant Smetzer, the other driver in the accident.

We think Kassm’s case was gravely prejudiced by the fact that he was not present. Particularly, Gaspar and his witnesses testified that the accident was caused by Kassm’s negligence in allowing his car to cross the road and strike Smetzer’s car at or near a narrow bridge. One of Gaspar’s witnesses, Chasar, the Chief of Police of the Pennsylvania township where the accident occurred, testified over objection that Kassm made damaging oral admissions at the scene of the accident, and these statements were not convincingly rebutted by the deposition taken in the Bucks County arbitration proceedings which was read to the jury in the case at bar. The defense asserted by Kassm to these admissions is not clear nor is the ground of the deposition’s admission. However, in the view we take of the case it is not necessary to decide these difficult evi-dentiary questions. As we have said, Kassm’s entire defense on the issue of liability consisted of reading to the jury the deposition taken in the Bucks County proceedings and the persuasiveness of this evidence was obviously lessened by the apparent language difficulties and the fact that Kassm was questioned solely by opposing counsel.

The complaint in the case at bar was filed May 29, 1969. The trial commenced on February 14, 1973. There was indeed delay. An examination of the record indicates that little, if any, 6f it was caused by the defendant, albeit it may be stated that he did not press for trial. We are aware, of course, of the crowded dockets of the United States District Court for the Eastern District of Pennsylvania and the heavy burdens placed upon the distinguished and hardworking judges of that court in their efforts to keep their dockets current, but nonetheless we are of the view that in this case the learned trial judged abused his discretion. The request for continuance made by Kassm was his first and only request for delay and his counsel acted diligently to inform the court and his opposing counsel of his request for delay. Moreover, we can perceive no affirmative evidence supporting the assertion of the plaintiffs that the request was not made in good faith. It must be conceded that the statement that the letters of Mrs. Kassm that her husband was suffering from a “nervous” condition is a vague diagnosis.' A better diagnosis and prognosis should have been obtained from a Damascene doctor, but both we and the court below can take judicial notice of the fact that communications between Philadelphia and Damascus in the year 1973 were neither prompt nor easy.

Moreover, we can see no pressing necessity for haste albeit we are aware of the annoyance caused to a trial judge when his carefully arranged trial calendar is disarranged, but we cannot let this obscure the fact that we deem the grounds upon which the distinguished district judge acted were insufficient. We do not consider the motion for continuance to be deficient on its face. It is customary to grant a continuance on the ground of illness of a party. We conclude that Kassm’s testimony was necessary for the defense of his case, that the granting of a continuance would not have unduly prejudiced the other parties, and that the continuance motion was not motivated by procrastination, bad planning or bad faith on the part of Kassm or his counsel. It is the law that where none of the foregoing appear, the denial of a continuance for illness is abuse of discretion. Cornwell v. Cornwell, 73 App.D.C. 233, 118 F.2d 396 (1941); Harrah v. Morgenthau, 67 App.D.C. 119, 89 F.2d 863 (D.C.Cir., 1937), and Davis v. Operation Amigo, Inc., 378 F.2d 101 (10 Cir. 1967). Such is the case now before the court. Cf. Lehman v. United States, 313 F.Supp. 249 (E.D.Pa.1970).

Upon consideration of this record, we are constrained to reverse the judgment of the district court and will order a new trial.

      . The appellant’s brief states that “Prior to the commencement of the present action, Kassm was deposed in an earlier ease which he brought against Smetzer in the State Courts of Bucks County to recover for his injuries in the same accident. In that case he was represented and opposed by different counsel than those engaged in the present action. He was questioned at the deposition by opposing counsel but not by his own; the deposition was a discovery proceeding, and clearly was not taken for the purpose of preserving Kassm’s testimony for use at trial in lieu of his personal attendance.” Brief of appellant at 3. This statement seemingly is not disputed.
      The pretrial statement filed by the plaintiff states: “Stipulate between counsel to use the depositions of M. Rakif Kassm taken in the case of Kassm vs. Smetzer, No. 3936, May, 1967, Common Pleas, Bucks County, Pennsylvania, taken on 1/16/68.”
      Judge Newcomer states in his opinion in the case at bar, D.C., 60 F.R.D. 22 (1973), the following: “In lieu of the defendant’s testimony, defense counsel read to the jury a transcript of the defendant’s deposition taken in a prior action involving the same accident. That action was an arbitration proceeding in Bucks County, in which Kassm was the plaintiff and Dennis L. Smetzer was the defendant. In the Bucks County arbitration, Mr. Kassm was represented by personal counsel, rather than counsel for his insurer who represented him in this action.”
      Whatever this deposition was it was essentially the sole evidence presented by Kassm’s counsel at his trial on the issue of liability.
      There are other statements concerning a deposition in arbitration proceedings taken from Kassm. We are not informed as to the outcome of this proceeding but no assertion of res adjudieata or estoppel was made in the district court. In view of the disposition that we make of this case, viz., a remand and ordering of a new trial, we think it unnecessary to explore these matters further in this opinion.

      . As to references to the deposition, see again note 1, supra.

      . It does not appear from the record when Kassm became available in the United States after his illness.

      . The precise date of the deposition does not appear from the record.

      . The statement of Dr. Mohammad Nazir Bi-tar that Kassm was suffering from a nervous breakdown would not be deemed by internists in the United States to be sufficient, but we can take judicial notice, as could the court below, that the state of medicine in the Near East is not on a par with standards in the United States. However, since Dr. Bitar’s statement was received after the decision of the learned district judge not to postpone the trial, we do not take it into consideration in rendering our decision.

      . The plaintiffs also rely upon Rule 7(b) of the Local Rules of Civil Procedure of the United States District Court for the Eastern District of Pennsylvania, which provides: “Except for witnesses called on rebuttal or surrebuttal, a witness neither (1) named in any pre-trial memorandum or supplements thereto of any party, nor (2) authorized by the court in order to prevent manifest injustice, may not testify at the trial if timely objection is made by opposing counsel.” This issue was not raised by the plaintiffs upon Kassm’s motion for a new trial and therefore should not be available here. Assuming arguendo that this rule applies to parties to litigation, a proposition for which the plaintiffs cite no authority, it does not follow that Kassm’s counsel would not have given notice of Kassm’s intention to testify if he had been available. Further, Kassm’s counsel apprised the parties of such an intention in his motion for continuance filed February 9 wherein he stated that the case could not be defended adequately without Kassm being present to testify and assist counsel.
      It is notable that in the plaintiff’s pretrial memorandum, filed August 4, 1971 (Paper #14), no mention is made of Gaspar as a witness.


source: Caselaw Access Project

author: CHOY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Orville HEIMFORTH, Defendant-Appellant.
    No. 73-2241.
    United States Court of Appeals, Ninth Circuit.
    April 5, 1974.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1615.
    Frank T. Vecchione (argued), Fed. Public Defenders, San Diego, Cal., Ralph N. George, Torrance, Cal., for defendant-appellant.
    James W. Meyers (argued), Asst. U. S. Atty., Stephen G. Nelson, Catherine A. Chandler, Asst. U. S. Attys., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before MERRILL, KOELSCH and CHOY, Circuit Judges.
   CHOY, Circuit Judge:

Heimforth was convicted on four counts of illegally importing marijuana and possession of contraband with intent to distribute. The sole basis for his appeal is that certain quantities of marijuana, which the district court allowed at trial, were seized pursuant to an illegal search. We vacate and remand.

The facts are not in dispute. On March 14, 1972 border agents discovered 388 pounds of marijuana concealed in a truck. The driver told the agents that he had been hired to drive to a particular location in National City, California. Federal and state police then used this intelligence to set up a scheme to apprehend the driver’s employers. The truck was driven to the National City location followed by the police agents. Shortly thereafter, a car pulled up, and a Wayne Tennison exited. Tennison then drove the truck to the King-A-Roo warehouse and parked it in the warehouse driveway. The agents approached and found Tennison still behind the wheel with Heimforth standing at the side working on the engine.

Heimforth and Tennison were immediately arrested and given the Miranda warning. Heimforth was briefly questioned and again advised of his constitutional rights. During this interrogation, he stated that he was president of King-A-Roo Furnishings. When asked if he had “any objections” to the police entering the warehouse and “looking around,” Heimforth replied no, “there should be nothing in there.” Large amounts of marijuana were discovered hidden in various parts of the warehouse. It is the introduction of this contraband of which the appellant complains.

Appellant contends that the search was invalid, arguing his consent was not voluntary. When appellant consented to the search, he had already been arrested, and it is conceded that he was not advised of his right to withhold his consent to the search. In Schneckloth v. Busta-monte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court, reversing an earlier decision of this court, 448 F.2d 699 (9th Cir. 1971), held that a search can be uncoerced though a suspect does not know he has the right to decline to permit the search; rather, “voluntariness is a question of fact to be determined from all the circumstances” of which the knowledge of the right to refuse consent is but one. Schneckloth v. Bustamonte, 412 U.S. at 248-249, 93 S.Ct. 2041. The defendant there, however, had not been arrested prior to the search, and the Court specifically declined to decide if a suspect must be informed of his right not to consent in such circumstances. See Schneckloth v. Bustamonte, 412 U.S. at 240-241 n. 29 and 247 n. 36, 93 S.Ct. 2041.

We have recently decided the very point reserved in Schneckloth. In United States v. Rothman, 492 F.2d 1260 (9th Cir., Nov. 27, 1973), a panel of this court, observing that we have never differentiated between pre-arrest and post-arrest consent, held that “arrest is but one factor, albeit a critical one, in determining whether or not . . . consent was voluntary.” 492 F.2d at 1264 n. 1.

This result is consistent with the rationale of Schneckloth. The Court there emphasized that the exclusionary rule, prohibiting the introduction of illegally procured evidence, is not designed to preserve a fair trial but to inhibit illicit police practices. In contrast, where knowing and intelligent waiver has been required — and thus where knowledge of a right was necessary for waiver— there has been a danger that without the requirement, unjust convictions might result. An unknowledgeable waiver of counsel, for example, may well mean the imprisonment of an innocent person. When Fourth Amendment rights are waived without awareness of the right to refuse waiver, there is no danger of that yielding untruthful information. See Schneckloth v. Bustamonte, 412 U.S. at 235-246, 93 S.Ct. 2041. That is so even if the suspect has been arrested. And as long as the waiver must be voluntary, the prophylactic purpose of the exclusionary rule is served since searches, coerced in fact, thereby become useless means of attaining evidence. Id.

Thus we hold, in accord with Rothman, that the Supreme Court’s “totality of circumstances” test applies to all consent searches regardless of whether the consenting party is in police custody when the consent is requested. In considering the factual issue of voluntariness, an important factor, however, remains whether there has been an arrest prior to the consent.

[A] court must be aware of the “vulnerable subjective state” of the defendant as well as the possibility of “subtly coercive police questions,” Schneckloth v. Bustamonte, supra, 412 U.S. at 229, 93 S.Ct. at 2049, and the inherently coercive nature of custodial interrogation.

United States v. Rothman, 492 F.2d at 1265. Other factors that should be taken into account, as relevant in this case, include the sophistication of the accused, cf. Schneckloth v. Bustamonte, 412 U.S. at 226-227, 93 S.Ct. 2041, and whether the Miranda warning was tendered. See United States v. Noa, 443 F.2d 144, 147 (9th Cir. 1971).

Although we find that the failure to give a “Fourth Amendment warning” does not by itself vitiate the. search, we are nonetheless compelled to vacate the judgment and remand the case to the district court for the limited purpose of its making a specific finding on the legality of the search. That court simply found the search was legal without making specific findings directed to that issue. There were other plausible justifications for the search, and we cannot, with certainty, determine if the trial court relied on the voluntary consent of the appellant or some other ground to uphold the search. Moreover, since Schneekloth, the issue of voluntariness has become a delicate one. The only means of insuring that trial courts undertake the weighing process necessitated by its “totality of circumstances” test is to require explicit findings on the consent issue. While the Federal Rules of Criminal Procedure do not require, and we do not now hold, that findings be made on every suppression motion, trial courts ought to make factual findings when the issue before them is of such delicacy. See United States v. Sicilia, 457 F.2d 787, 788 (7th Cir. 1972), cert. denied, 414 U.S. 865, 94 S.Ct. 123, 38 L.Ed.2d 117 (1973).

Vacated and remanded.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See, e. g., United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (right to counsel at lineup) ; Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (right to counsel at interrogation) ; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (right to counsel at trial).


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Leda Mae SYMONS et al., Plaintiffs-Appellees, v. MUELLER COMPANY, Defendant-Appellant.
    No. 73-1425.
    United States Cburt of Appeals, Tenth Circuit.
    Submitted Jan. 7, 1974.
    Decided Jan. 22, 1974.
    Rehearing Denied Feb. 28,1974.

      Jerry M. Ward, of Hampton & Ward, Great Bend, Kan., for defendant-appellant.
    Gilbert G. Lundstrom, of Woods, Ait-ken, Smith, Greer, Overcash & Spangler, Lincoln, Neb. (Patrick F. Kelly, of Render, Kamas & Kelly, Wichita, Kan., on the brief), for plaintiffs-appellees.
    Before HILL, BARRETT and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

This is an action growing out of a fire and explosion resulting from a gas leakage which occurred at the home of George A. Schields on March 22, 1969.

The action was first filed in state court against Mueller Company and the Liberal Gas Company, but following a dismissal as to Liberal Gas Company, the action was removed to the United States District Court for Lie District of Kansas where it was tried xo a jury on December 27, 1971, and verdicts covering all of the damages suffered were returned in favor of the plaintiffs. Subsequently, motions for new trial and for judgment notwithstanding .the verdicts were filed and were overruled by the trial court.

Defendant-appellant Mueller Company is the manufacturer of a service valve which is designed to connect the gas main to the service lines running to the home or other outlet of the user. Some time prior to the incident in question the gas company had replaced a gas main on the street adjacent to the plaintiff’s home. In the course of installing the new main, six or seven service valve tees manufactured by Mueller Company were installed. According to the testimony of the Liberal Gas Company the service valve tees were tested at the time of installation, and at that time they held the required pressure. Subsequently, about a year after the installation, October 1968, a routine inspection was conducted and no leaking gas was detected. This was approximately six months prior to the date of the explosion. Following the explosion a further inspection was made and the presence of natural gas was detected. Subsequent to this it was found that the service valve tee was leaking at the point where it connects with the service line to the plaintiff’s home. On examination it was discovered that the service valve tee, the equipment in question here, had a damaged thread at the end where the service line connection was made.

The plaintiffs’ theory, supported by expert testimony, was that the threads had been damaged in the course of manufacture. Plaintiffs’ expert testified that a torn second thread, a deformed first thread and a burred thread, all of which occurred during the manufacture, resulted in the joint connection failing to tighten properly under normal torque pressure and, as a consequence, gas was able to leak from this joint. Plaintiffs’ further theory was that the gas which leaked moved laterally underground through loose dirt to the plaintiff’s house, that the ingredient which produced the odor dissipated and that the concentrations of gas produced the explosion.

The defendant’s testimony was that the defect in the service tee valve, if any, was caused by faulty installation. In fact, defendant’s testimony was that the condition of the threads would not prevent the tightening of the tee valve. Another theory of Mueller is that it had a right to anticipate that the gas company in installing the valve would notice any defect which was present and reject the valve or install it so that it would not leak gas.

The principal issue in the case is whether the trial court erred in submitting to the jury the theory of strict liability, it being the defendant-appellant Mueller’s contention that Kansas law required the cause to be tried on a negligence basis. Mueller contends that the court erred in refusing to grant its motion for a directed verdict and for judgment notwithstanding the verdict. First, because of the lack of evidence to support plaintiffs’ theory that the explosion was caused by gas leaking from the service valve tee. Second, that the trial court erred in failing to determine that the acts or omissions of the gas company were the sole cause of the plaintiffs’ injuries and damages since the gas company had installed the valve and maintained and inspected it, and thus, if the valve caused the damage, responsibility for its failure was on the gas company and not Mueller. Third, appellant contends that Kansas has not adopted the strict liability doctrine upon which the case was tried and it was therefore error to submit the cause to the jury on this theory. It is also contended that the giving of a covenant not to sue Liberal Gas Company and Hartford Accident and Indemnity Company, its insurer, constituted a release of a joint tort-feasor which resulted in the release of Mueller. Still another contention of Mueller is that the court erred in allowing counsel for plaintiffs to mention the pending action for indemnity by Mueller against Liberal Gas.

The court instructed the jury that plaintiffs were relying on the theory of liability known as implied warranty or strict liability, which theory arises by operation of law and as a result of public policy which seeks to protect the buying public from inherently injurious or dangerous products which are defective. The court continued that the basis for this doctrine was that the manufacturer undertakes special responsibility toward members of the public who may be injured by the product. The court further stated that Mueller Company could be held liable only if the jury found from a preponderance of the evidence that 1) it was engaged in the manufacture of the service valve tee; 2) it was in a defective condition when it left control of Mueller Company; 3) the service valve tee was expected to reach and did reach the Liberal Gas Company in the condition in which it was sold; 4) the particular service valve tee was defective and was unreasonably dangerous to the plaintiffs on their property; 5) the service valve tee was the proximate cause of the explosion which • produced the damages. The jury was also told that the fact that the Liberal Gas Company may have contributed to the cause of the explosion was not to be considered by the jury. If the defect in the service valve tee was also a proximate cause of the explosion and the subsequent injuries, the court explained that there could be more than one proximate cause. Mueller challenges the submission of this theory to the jury and contends, as we have explained above, that the submission was not justifiable under the law of Kansas.

I.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence at trial was insufficient, whereby a motion for dismissal or directed verdict should have been granted. It is true that there was not evidence presented to establish that the main or the service line was leaking prior to the date of the explosion, but this does not constitute a deficiency in the proof. There was testimony that the service valve tee was leaking at the time of its inspection. Although the inspection was 60 days after the explosion, there is nevertheless a natural inference that since there was a gas explosion obviously caused from leakage, and since the leak at the service valve tee is the only leak which could account for the explosion, that this was the cause. Such deduction is logical and thus sufficient.

The question whether the service valve tee was defective when it was released by defendant-appellant is a more difficult question, but here again there was expert testimony that the defective threads caused the leak. The trial court had had some concern about this question prior to the presentation of the expert testimony of the witness Young. However, judging from the court’s order denying the post-trial motions, it would appear that it had no doubt concerning the adequacy of the evidence to support the judgment. We refer to the following comments:

. .. Resolution of defendant’s liability in this case required the jury to determine basically three issues: (1) whether the explosion was caused by a leak in the gas line; (2) whether a defect in the service tee was the cause of the gas leak; and (3) whether the service tee was defective when it left defendant’s plant. None of these complex, technical issues was wholly susceptible of direct proof. Consequently, both sides were forced to place primary reliance on the testimony of expert witnesses. Plaintiffs’ experts established that the service tee was defective when it left defendant’s plant, that the defect caused a leakage of gas, and that the leak caused the explosion. Defendant’s experts, true to form, disputed nearly all the testimony of plaintiffs’ experts. This being the case, a directed verdict or a judgment notwithstanding the verdict would clearly be erroneous

II.

APPELLANT’S MOTION FOR JUDGMENT N.O.V.

Little remains to be said on the judge's denial of appellant’s motion for judgment n. o. v., which asserts that there was insubstantial evidence upon which a jury could have based a verdict for the plaintiffs, and that the verdict was founded on speculation and conjecture rather than upon reasonable and permissible inferences from basic facts.

Judgment n. o. v. (or directed verdict) under Rule 50, F.R.C.P. is appropriate in very limited circumstances. Such a motion calls for a decision withdrawing a case from jury consideration, or overruling a jury determination already made. Such an action is appropriate only when “ . . . the evidence and all the inferences to be drawn therefrom are so patent that minds of reasonable men could not differ as to the conclusions to be drawn therefrom.” Taylor v. National Trailer Convoy, Inc., 433 F.2d 569, 571 (10th Cir. 1970) and cases cited. All such evidence and inferences evaluated in this regard must be construed in the light most favorable to the party against whom the motion is directed. Wilkins v. Hogan, 425 F.2d 1022, 1024 (10th Cir. 1970). A scintilla of evidence is insufficient, of course, to justify submission of a case to the jury. Nevertheless, a directed verdict or judgment n. o. v. may not be granted unless the evidence points but one way and is susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made. Swearngin v. Sears Roebuck & Co., 376 F.2d 637, 639 (10th Cir. 1967).

III.

APPELLANT’S THEORY OF SUPERSEDING FAULT

It is impossible for us to conclude, in accordance with appellant’s assertion, that the failure of the gas company to remedy the defect at the time of installation superseded as a matter of law the liability of the Mueller Company. As the trial court ruled, the fact that the gas company may have been at fault did not excuse the defendant-appellant here. The instruction of the court was that if the defect was a manufacturer’s defect, it did not matter that the gas company was also at fault in failing to detect the defect when installing the gas line. The mere fact that two tort-feasors were both at fault does not serve to relieve one or the other. The Restatement of Torts Second § 402A, comment p states that the question is essentially one of whether responsibility for discovery and prevention of the dangerous defect is shifted to the intermediate party who is to make the changes. The section also declares that there will be some situations and some defects in which the responsibility will be shifted.

Subsection q says that where there is no change in the component part itself, but it is merely incorporated in something larger, the strict liability carries through (from the manufacturer) to the ultimate user or consumer. Because, however, of the dearth of judicial authority on the subject, the A.L.I. refrains from expressing an opinion. It declares that this is its expectation. Yet this is the rational conclusion where the part is merely attached as in the case at bar.

IV.

WHETHER IT IS CONSISTENT WITH KANSAS LAW TO APPLY RESTATEMENT OF TORTS SECOND § 402A

The Kansas cases have not had occasion to apply the doctrine of strict liability to products such as that at bar even though it is a product which, under plaintiffs’ doctrine, is defective and arguably unreasonably dangerous to the user or consumer. It has, however, applied what amounts to strict liability in cases, for example, involving sales of food. See Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P.2d 930 (1938); Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P.2d 633 (1957); also to defective hair preparation, Graham v. Bottenfields, Inc., 176 Kan. 68, 269 P.2d 413 (1954). This court has heretofore held that strict liability under Kansas law applies to products such as gloves and tires. See Ray v. J. C. Penney Co., 274 F.2d 519 (10th Cir. 1954); B. F. Goodrich v. Hammond, 269 F.2d 501 (10th Cir. 1959). The Kansas Supreme Court has not repudiated this court’s decisions projecting the Kansas law to defective products other than food and products which post a particular hazard to the person due to their proximity.

The fact that the Supreme Court of Kansas has not designated this type of action strict liability but refers to it as breach of warranty does not, in our view, furnish a basis for a distinction. The Kansas court has thus treated warranty in the same manner as strict liability. It is, however, a tort since privity is held to be unnecessary.

As was said by this court in B. F. Goodrich v. Hammond, supra, the implied warranty is imposed by the law on the basis of public policy.

From the evidences presented we are unable to conclude that Kansas would not follow the substance of § 402A, comment q, under these circumstances. Defendant-appellant cites no cases which would tend to indicate that Kansas does not recognize the doctrine of strict liability under circumstances similar to those at bar. Most of the space in the defendant’s brief does not grapple with this. It is devoted to efforts on its part to prosecute the gas company to show that it was the sole culprit. These efforts fall short of exonerating appellant.

We have on numerous occasions recognized that the federal district judge sitting within the particular state whose law is in question is presumed to be correct. Stephens Industries, Inc. v. Haskins and Sells, 438 F.2d 357 (10th Cir. 1971); Nevin v. Hoffman, 431 F.2d 43 (10th Cir. 1970). Cf. Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956); MacGregor v. State Mutual Life Assur. Co., 315 U.S. 280, 62 S.Ct. 607, 86 L.Ed. 846 (1942).

Kansas law on the subject was carefully considered by the trial court in reaching its conclusion that the Kansas Supreme Court would follow strict liability theory in the present circumstances.

The trial court also correctly determined and instructed on the cause issue. The trial court’s charge to the jury clearly expounded that proof of proximate cause was essential under § 402A. The court’s charge also said that if there existed concurrent clauses, both parties contributing to the injury would be concurrently responsible. The court also said that if the conduct of one of the defendants was the sole proximate cause this individual alone would be liable. These statements were in accord with § 402A of Restatement of Torts Second.

V.

THE QUESTIONS PERTAINING TO THE LOAN RECEIPTS

Plaintiff, Leda Mae Symons, entered into an arrangement called a loan receipt and agreement. She received the sum of $85,000 from Liberal Gas Company. In connection with this, on the same day, September 14, 1970, she gave to Liberal a covenant not to sue and received for this the sum of $5,000. George Schields executed similar agreements with Liberal on September 11, 1970 and received $9,354.59 in connection with the loan receipt and agreement and $1,000 for giving Liberal a covenant not to sue. Mueller sought a court construction of all these agreements, contending that they constituted a release of Liberal and, therefore, the release of Mueller as well. However, the trial court refused to give such a ruling. This refusal was part of the denial of the motion for summary judgment of Mueller. The refusal of the trial court to construe the agreement is and was understandable, for if Mueller had prevailed on the merits it would have rendered the instant question moot and it would have rendered moot also the question of whether Mueller was entitled to credit for the amounts that Liberal paid the plaintiffs. The deferring of this decision is also understandable because of the issue as to whether the parties were in fact joint tortfeasors- — a question dependent on the facts.

At present there is pending in United States District Court in Kansas the third-party action instituted by Mueller. It would seem, therefore, that there is no longer any reason for postponing the construction of this loan receipt and agreement. Mueller is entitled to know, for example, whether the agreements constitute a release and whether the entire amounts paid were in truth loans or were given in exchange for the covenants not to sue. Cf. Cullen v. A., T., & S. F. R. Co., 211 Kan. 368, 507 P.2d 253 (Kan. 1973).

In view of the questions which surround the execution of these agreements, we are of the opinion that the trial court should determine these issues before proceeding with the third-party action. It should, of course, be done without delay in fairness to the plaintiffs-appellees in this case.

Rather than simply affirming the judgments, we deem it necessary to give the trial court authority to treat the matter we now discuss. The cause will, therefore, be remanded to the trial court so as to authorize that court to rule on the questions raised by the loan receipts and agreements together with the covenants not to sue.

A final appellant contention is that the trial court erred in refusing to grant a mistrial after counsel for plaintiff in closing argument improperly referred to defendant’s pending indemnity action against Liberal Gas Co. From a review of the record, we conclude that counsel’s arguments, although perhaps improper, did not constitute reversible error. They were made in response to defendant’s counsel’s comments to the jury that the plaintiffs “have sued the wrong party” and should “proceed against the proper defendant, the Liberal Gas Co.” In this context, the trial judge was acting within the proper scope of his discretion in considering the closing remarks of counsel for plaintiff as not being prejudicial.

The judgments are affirmed, but for the reasons stated the cause is remanded to the trial court for further proceedings.

      . Absent pinpoint state law, as here, the district judge sitting as a state trial judge in a diversity case properly looks to all evidences. Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945) ; Cottonwood Mall Shopping Center v. Utah Power and Light Co., 440 F.2d 36 (10th Cir. 1971).

      . This is evidenced by the court’s remarks in commenting on the instructions to the jury pertaining to strict liability or implied warranty :
      THE COURT: The Court, responding to the objections by the defendants’ counsel to the Court’s instructions, or the failure to give requested instructions, I think the record probably reflects, from the reporter’s notation of the Court’s remarks concerning previous Motions made in the case or discussions by counsel and the Court as to what the Court’s opinion is, but to state it, restate it briefly, the Court be-Heves that the Doctrine of Implied Warranty or strict Liability is a viable and existing legal doctrine in Kansas, and that the facts in this case fit within that Doctrine. That while the Kansas Supreme Court may not have specifically in this case had a factual situation like this before it the Court believes that they would and will eventually consider such a case and certainly the statutory Sections as given in this Court’s instructions, I believe 11 and 12, encompass and go further specifically in Statutory language than the Supreme Court at the present time does. But, in the light of all existing law the cases in Kansas by our Supreme Court by our Statutory law and by the general, by the best authorities on the law in the country generally, the Court thinks that this is a logical and basic case where the doctrine of Strict LiabUity should be applied. And in that regard I would overrule the objections of the defendant.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    The ALABAMA GREAT SOUTHERN RAILROAD COMPANY, Appellant, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellee.
    No. 73-1569.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 15, 1974.
    Decided March 12, 1974.
    Rehearing Denied April 10, 1974.

      Doris J. Banta, St. Louis, Mo., for appellant.
    John C. Shepherd, St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

This is an action by The Alabama Great Southern Railroad Company (AGS) against the Chicago & Northwestern Railway Company (Northwestern) seeking to recover sums which it paid to settle a claim asserted against it by one of its employees, for which AGS asserted Northwestern was obliged to indemnify it. Diversity of citizenship and the jurisdictional amount under 28 U.S.C. § 1332 were asserted and established. After trial to a jury and a verdict for the defendant, the plaintiff filed alternative motions for a judgment n. o. v. or for a new trial, which motions were denied by Judge H. Kenneth Wangelin of the United States District Court for the Eastern District of Missouri. The plaintiff appeals from the judgment entered pursuant to the jury verdict and from the order denying the motions for a judgment n. o. v. or a new trial. The judgment and order are affirmed.

FACTS

AGS and Northwestern are both engaged in the railroad business as interstate carriers of freight, pursuant to authority from the Interstate Commerce Commission. AGS is owned by the Southern Railway Company and is a part of the Southern Railroad System.

Early on March 10, 1969, a train operated by the plaintiff made a switching stop near Dragon, Mississippi, while on a normal run from New Orleans, Louisiana. While attempting to reboard the train during switching operations, Murray Loy, an employee of the plaintiff and road foreman for this particular train, was struck by a protruding piece of metal on one of the cars, was thrown to the ground under the wheels of the train, and suffered serious and permanent injuries.

Inspection of the car showed a defect consisting of a torn and bent portion of a side rail which extended out from the side of the car near the grab iron which Loy was attempting to grab to enable him to mount the car. The particular car in question, a piggyback or trailer car numbered TTX 600118, had suffered damage to the side sill in a derailment on November 28, 1968, while in the possession of the defendant. Northwestern had partially repaired the defect by cutting away a portion of the side sill, leaving a stub which was later found to be bent down, causing the protruding safety defect. Northwestern returned the car to service on December 5, 1968. The car was in and out of the custody of Northwestern, being interchanged with several other railroads, until January 30, 1969, when Northwestern last had custody of it. The car was used by several other railroads until March 8, 1969, when it came into the custody of AGS.

Northwestern, AGS, and every other principal railroad in the United States are members of the Association of American Railroads (AAR), and subscribe to the AAR Code of Interchange Rules. This code requires that a thorough inspection be made on each interchange of cars between railroads to determine if the equipment is safe for operation and that no defects in safety appliances exist. The facts show that AGS had the New Orleans Terminal, another constituent part of the Southern Railroad System, conduct its interchange inspections on trains out of New Orleans. On March 8, 1969, the New Orleans Terminal, AGS’s agent in this regard, had inspected this train and either had not discovered the defect in question or had not considered it to be sufficiently dangerous to warrant removing the car from service.

Loy brought an action for $500,000 against the AGS and the Southern Railway System under the provisions of the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (FELA). AGS made demand on Northwestern to assume responsibility for the accident and to defend the action. After Northwestern’s refusal, AGS settled Loy’s claim for $100,000, and demanded that Northwestern reimburse AGS for the settlement plus its expenses. On Northwestern’s refusal, AGS brought the instant action.

PROCEEDINGS BELOW

At trial, AGS claimed that it was entitled to indemnity from Northwestern in the amount which it paid to Loy in settlement of his claim plus its expenses in the matter. Its claim for indemnity was based on charges that the defective condition of the car was caused by the active negligence of Northwestern which had created the hazardous condition and permitted the railroad car to be placed in active railroad service in such damaged and defective condition, thereby exposing AGS to liability to its employee for his injuries under FELA, caused by its passive negligence in failing to have discovered such defective condition. Its theory of recovery was based on the principle of law codified in § 95 of the Restatement of Restitution (1937). That section reads as follows:

Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.

The principle embodied in this section allows one joint tortfeasor to recover indemnity against another if the claimant was guilty only of passive negligence such as a negligent failure to discover a dangerous condition created by the active negligence of the other joint tort-feasor.

It is now settled that a railroad’s right to recover indemnity or contribution from a third party for liability incurred under FELA depends entirely on state law. See, e. g., Grunenthal v. Long Island R.R. Co., 388 F.2d 480, 482 (2d Cir. 1968); Ratigan v. New York Cent. R.R. Co., 291 F.2d 548, 553 (2d Cir.), cert. denied, New York Cent. R.R. Co. v. Interstate Commodities, Inc., 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed.2d 89 (1961); Chicago, Rock Island & Pac. R.R. Co. v. Chicago & Northwestern Ry. Co., 280 F.2d 110, 114 (8th Cir. 1960), cert. denied, 364 U.S. 931, 81 S.Ct. 378, 5 L.Ed.2d 364 (1961); Chicago Great W. Ry. Co. v. Casura, 234 F.2d 441, 449 (8th Cir. 1956); Waylander-Peterson Co. v. Great N. Ry. Co., 201 F.2d 408 (8th Cir. 1953); Brenham v. Southern Pac. Co., 328 F.Supp. 119, 123 (W.D.La. 1971); Annotation, Right of Railroad, Charged with Liability for Injury to or Death of Employee under Federal Employers’ Liability Act, to Claim Indemnity or Contribution From Other Tortfeasor, 19 A.L.R.3d 928, 931 (1968). The principle of law found in § 95 of the Restatement of Restitution (1937) has been recoghized in Mississippi, the state Whose law would apply because it was the situs of the accident. Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So.2d 549 (Miss.1970); Bush v. City of Laurel, 215 So.2d 256 (Miss.1968). See McPhee v. Oliver Tyrone Corp., 353 F.Supp. 601, 605-606 (N.D.Miss.1972).

Many facts germane to plaintiff’s theory were in dispute. Most relevant were whether Northwestern actually caused the defective condition or so weakened the side sill by improper and incomplete repair such that later damage resulted, and whether AGS knew by inspection or should have known of the defective condition such that it acquiesced in the continuation of the condition. Evidence was received from both parties as to these and other facts. AGS filed a motion for a directed verdict at the close of all the evidence, which was overruled. Counsel for plaintiff objected to one of the proposed jury instructions, which objection was overruled, and then submitted a supplemental instruction, which was given by the court. After the jury was duly charged with these instructions, a verdict was returned for the defendant and judgment entered accordingly. Plaintiff thereafter filed a motion for judgment n. o. v. in accordance with its motion for a directed verdict, or, in the alternative, for a new trial. After oral argument on these motions, Judge Wangelin denied the same in an order filed August 3, 1973.

DIRECTED VERDICT

AGS appeals from the order of August 3, 1973, denying the motion for judgment n. o. v., which motion claimed the evidence in the case established defendant’s liability as a matter of law. In reviewing questions relating to the sufficiency of the evidence, both the federal courts and the courts of Mississippi follow the “substantial evidence” test, which requires appellate courts to take that view of the evidence which tends to support the jury’s verdict and to give the party having the verdict the benefit of every favorable inference reasonably justified by the evidence. Duncan v. St. Louis-San Francisco Ry. Co., 480 F.2d 79, 83 (8th Cir. 1973); Meyer v. Bankers Dispatch Corp., 471 F.2d 1290, 1292 (8th Cir. 1973); Marshall v. Humble Oil & Ref. Co., 459 F.2d 355, 359 (8th Cir. 1972). Accord, Hubbard v. Morris, 275 So.2d 858, 860 (Miss.1973); Ramage v. Kelly, 253 Miss. 582, 176 So.2d 324, 325 (1965).

As mentioned previously, Mississippi recognizes the principle of law that one who is liable because of his passive negligence in failing to discover a defect may recover indemnity from one who created the dangerous condition, thereby being actively negligent. See Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So.2d 549 (Miss.1970); Bush v. City of Laurel, 215 So.2d 256 (Miss. 1968). However, where the injury resulted from the concurring negligence of two parties, such that both were guilty of equal degrees of negligence, no right of contribution or indemnity will lie. Id.

In the instant case, the jury was presented with conflicting evidence as to the degree of negligence of the parties. Viewing the evidence in the light most favorable to Northwestern, for whom the verdict was returned and judgment was entered, there was substantial evidence upon which the jury could find that the negligence of AGS constituted active negligence so as to bar its claim for indemnity from Northwestern under the law of Mississippi. In such a situation, it was not error for the trial judge to deny AGS’s motion for a directed verdict or judgment n. o. v., for a verdict is properly directed or a judgment n. o. v. granted only when the evidence is such that there can be but one reasonable conclusion as to the verdict. Meitz v. Garrison, 413 F.2d 895, 896 (8th Cir. 1969); Compton v. United States, 377 F.2d 408, 411-412 (8th Cir. 1967). See American Fire & Cas. Co. v. Stewart-Sneed-Hewes, Inc., 478 F.2d 227 (5th Cir. 1973); Trawick v. Manhatten Life Ins. Co., 447 F.2d 1293 (5th Cir. 1971).

JURY INSTRUCTIONS

On appeal, AGS alleges that four separate portions of the instructions submitted to the jury constituted error so as to require a reversal of the judgment and the granting of a new trial. A review of the record clearly shows that as to three of these allegations of error, timely and specific objections were not made before the jury retired. Rule 51 of the Federal Rules of Civil Procedure reads in part as follows:

No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

A failure to object to a jury charge in a timely and specific manner results in a waiver of such objections on appeal. Id.; Klapmeier v. Telecheck International, Inc., 482 F.2d 247, 255 (8th Cir. 1973); Fulton v. Rock Island & Pac. R.R. Co., 481 F.2d 326, 338-339 (8th Cir. 1973); Cone v. Beneficial Std. Life Ins. Co., 388 F.2d 456, 460 (8th Cir. 1968). AGS has waived its exceptions to the jury instructions which were not the subject of timely and specific objections at trial.

Objection was made by AGS to that part of the charge defining “active negligence,” which read as follows:

Such negligence is “active negligence” if it is conduct by omission or commission which occurs or participates in some way to bring about injury.

AGS advocates on appeal that this instruction was erroneous on the grounds that such definition caused the jury to erroneously believe that mere passive negligence on the part of the plaintiff which would contribute or concur to cause the injury of Murray Loy would defeat the plaintiff’s right of indemnity. AGS claims this instruction was contrary to the law of indemnity and therefore constituted reversible error.

On reviewing a trial court’s instructions to the jury, to determiné whether or not they correctly set forth the applicable law, this court is bound to read and consider the charge as a whole. Bennett v. First Nat’l Bank, 443 F.2d 518, 521 (8th Cir. 1971); Jiffy Markets, Inc. v. Vogel, 340 F.2d 495, 500 (8th Cir. 1965). See Fulton v. Chicago, Rock Island & Pac. R.R. Co., 481 F.2d 326, 339 (8th Cir. 1973). After his objection to the above instruction was overruled, counsel for AGS submitted a supplemental instruction on the definition of “active negligence,” which was given to the jury immediately subsequent to the above definition. This supplemental instruction read as follows:

Negligence is active if it creates a danger which results in injury. Negligence is passive if it merely permits the danger to exist.

Thus, this instruction as well as the one above must be considered to determine if the jury was correctly charged with the applicable law or to ascertain if they were confused or misled.

The law of Mississippi must be closely analyzed to determine the nature and extent of the law of indemnity and whether these instructions operated to emasculate any right of AGS to indemnity under that law. Mississippi follows the general rule that joint tortfeasors in pari delicto, where each are guilty of acts or omissions which could have proximately caused the underlying injury, are not entitled to indemnity from each other. Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So.2d 549, 551 (Miss.1970); Bush v. City of Laurel, 215 So.2d 256, 260 (Miss.1968). See Smith Petroleum Serv., Inc. v. Monsanto Chem. Co., 420 F.2d 1103, 1111 (5th Cir. 1970); McPhee v. Oliver Tyrone Corp., 353 F.Supp. 601, 605 (N.D .Miss.1972). However, Mississippi does recognize a right to indemnity when the parties are not in pari delicto, as when one party does an act or creates a dangerous condition, exposing the other to liability for his passive negligence in failing to discover such condition.

The rule is clearly set out in St. Louis & San Francisco Railway v. United States, 187 F.2d 925 (5th Cir. 1951): “[I]n Mississippi, as generally elsewhere, a right of indemnity * * * arises in favor of one not actively at fault against an active wrongdoer.” 187 F.2d at 927. Bush, supra, 215 So. 2d at 260.

The Mississippi court later succinctly set out the general rule governing implied indemnity for tort liability in Home Insurance, supra.

The general rule governing implied indemnity for tort liability is that a joint tort feasor, whose liability is secondary as opposed to primary, or is based upon imputed or passive negligence, as opposed to active negligence, or is negative negligence as opposed to positive negligence, may be entitled, upon an equitable consideration, to shift his responsibility to another joint tort feasor. However, where the fault of each is equal in grade and similar in charter, the doctrine of implied indemnity is not available since no one should be permitted to base a cause of action on his own wrong. Thus, the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case. * * * Two critical prerequisites are generally necessary for the invocation of non-eontractual implied indemnity in Mississippi: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and (2) it must appear that the claimant did not actively or affirmatively participate in the wrong. 230 So.2d at 551 (citations omitted).

The first of these two prerequisites was established in this case. The damages which AGS paid to Murray Loy and which it seeks to shift to Northwestern were imposed as a result of its legal ob-litigation to Loy under the provisions of FELA. AGS’s right to recover indemnity under Mississippi law therefore was based on the determination of whether it actively or affirmatively participated in the wrong bringing about Loy’s injury. See McPhee, supra, 353 F.Supp. at 606. It was the province of the jury as the factfinder to determine such question. See Home Insurance, supra, 230 So.2d at 551.

Two theories were submitted to the jury which would have allowed them to find AGS’s negligence to be active, thereby barring indemnity. The first of these theories allowed the jury to find active negligence on the part of AGS if they found that AGS had inspected the railroad car, had discovered the dangerous condition which was likely to cause injury to its employees, and had failed to remedy this dangerous condition or warn its employees of its existence, thereby acquiescing in the use of the car in that condition. The second theory-allowed the jury to find active negligence on the part of AGS if they found that AGS had inspected the railroad car but had failed to discover the damaged condition which was open and obvious and which was a dangerous condition which was likely to cause injury to its employees. Under both theories, the jury was required to find that the active negligence of AGS “directly caused or directly contributed to cause” the injuries of Murray Loy in order to bar indemnity.

The complained of instruction was objected to on the ground that it allowed the jury to find that mere passive negligence, such as its failure to discover the dangerous condition, which concurred or participated “in some way” to bring about the injury, was active negligence so as to bar its claim for indemnity. AGS claims this was not a correct statement of the law.

Taken in context, and considering the charge as a whole, we think the instruction was not reversible error. While we do not consider these instructions to be the epitome of clarity or preciseness, they properly announced the applicable law. If the jury found that AGS had discovered the dangerous condition, its failure to remedy the defect or warn its employees of its existence could be considered to be active negligence under the law of indemnity. See Kennedy v. Pennsylvania R. R. Co., 282 F.2d 705, 710 (3d Cir. 1960). Under the general law of indemnity, active negligence may also be based on a failure to discover an open and obvious condition if there was a duty to inspect. AGS had a duty to inspect its trains for safety defects under the provisions of the AAR Code of Interchange Rules and under the provisions of FELA. See Shenker v. Baltimore & Ohio R. R. Co., 374 U.S. 1, 8-10, 83 S.Ct. 1667, 10 L.Ed. 2d 709 (1963). A failure to properly inspect such that it failed to discover a dangerous condition which was open and obvious and which was likely to cause injury to AGS’s employees could be considered to be an act of active negligence under the law and the facts of this case. Although no Mississippi cases on point are to be found, a failure to properly inspect railroad cars for safety defects was held to bar an action for indemnity in Chicago, Rock Island & Pac. R. R. Co. v. Chicago & Northwestern Ry. Co., 280 F.2d 110 (8th Cir. 1960), cert. denied, 364 U.S. 931, 81 S.Ct. 378, 5 L.Ed. 2d 364 (1961). This court there held that under the law of indemnity as applied in Iowa such a failure to properly inspect after the railroad car had come into the control of the plaintiff was negligence of a degree at least equal to the defendant’s negligence in breaching its duty to deliver its cars in a reasonably safe condition. See id. at 117. The court reasoned that the proximate cause .of the injury was the defective car itself, with the negligence of both railroads contributing thereto. This court distinguished earlier cases in the circuit where the complaining railroad had no control over the object causing injury such that it had the duty to inspect and make it safe. Id. at 118. Compare Chicago Great W. Ry. Co. v. Casura, 234 F.2d 441 (8th Cir. 1956); Waylander-Peterson Co. v. Great N. Ry. Co., 201 F.2d 408 (8th Cir. 1953).

An analogous case in Mississippi dealt with a failure of an affirmative duty to inspect. In Home Insurance, supra, an electric company was held to be actively negligent for failing to discover by inspection that its electric lines had become dangerously lower than required in safety regulations, and for failing to remedy the defect after knowledge of the dangerous circumstances was made known to it or “by the exercise of the highest degree of care required should have been known by [it].” 230 So.2d at 552. The dangerous condition had been caused by the active negligence of the defendant, who had filled in the land below the lines with dirt, creating the dangerously low clearance. Defendant’s employee was later electrocuted when the crane which he was operating came into contact with the lowered lines. Although the chancellor (factfinder) in that case found that the electric company was charged with knowledge of the danger, the evidence was disputed that it had actual knowledge, and the Mississippi Supreme Court affirmed the finding of active negligence on the basis of either actual or constructive knowledge of the danger. Id. at 554. The reason for this holding was because “manifestly the duty required of the company in respect to the maintenance of its electric wires is an active duty. * * * To hold otherwise would be either to deny the duty of inspection, or else to say that the periods thereof could be so far apart as to be of little practical value.” Id., quoting Mississippi Power Co. v. Thomas, 162 Miss. 734, 739, 140 So. 227, 228 (1932). Because both parties were guilty of active negligence, the electric company was denied indemnity. The Mississippi court thus adopted a rule that indemnity will be denied when the claimant has failed in an affirmative duty to inspect, thereby being actively negligent. In the instant case, the jury could have found that AGS’s failure to discover the defective condition, which was open and obvious and likely to cause injury to its employees, when it had an affirmative duty to inspect under the AAR Code of Interchange Rules and the provisions of FELA, was active negligence of a degree equal to Northwestern’s negligence in delivering the car in an unsafe condition, such that it directly contributed to Loy’s injury.

The specific instruction to which AGS objected did not venture from the law. Although no Mississippi cases defining active and passive negligence in these terms are to be found, the law of indemnity as applied in other jurisdictions establishes that active negligence may be an act of omission as well as an act of commission when one is under an affirmative duty to act. See Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 240 (2d Cir. 1967); Schipper v. Lockheed Aircraft Corp., 278 F.Supp. 743, 745 (S.D.N.Y.1968); Degen v. Bayman, 86 S.D. 598, 200 N.W.2d 134, 137 (1972). As mentioned previously, an omission of an affirmative duty to inspect was held to be active negligence in Home Insurance, supra. The “in some way” part of the definition did not add to the scope of active negligence in light of the requirement that the jury had to find that any active negligence of AGS directly caused or directly contributed to cause Murray Loy’s injuries.

In any event, immediately subsequent to this instruction, the trial court gave the additional instruction requested by AGS’s counsel. Such instruction clearly limited for the jury the scope of active negligence. This instruction required the jury to find AGS’s negligence to be passive if it “merely permit [ted] the danger to exist.” It did not require the jury to find AGS’s negligence to be passive if the jury believed AGS had an affirmative duty to properly inspect and failed in this duty; such negligence could be found to be active under these instructions and under the law of indemnity. Thus, the two instructions defining active negligence were not so inconsistent so as to require reversal and remand for a new trial.

The judgment and order denying the motions for a judgment n. o. v. or a new trial are affirmed.


author: LUMBARD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Jerrold Howard GOTTLIEB, Defendant-Appellant.
    No. 531, Docket 73-2349.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 17, 1973.
    Decided March 18, 1974

      John D. Gordan, III, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the Southern District of New York, and George E. Wilson, Asst. U. S. Atty., on the brief), for appellee.
    Joan Goldberg, New York City (Rabin-owitz, Boudin & Standard, New York City, on the brief), for defendant-appellant.
    Before LUMBARD, FRIENDLY and OAKES, Circuit Judges.
   LUMBARD, Circuit Judge:

Jerrold Gottlieb appeals from a judgment of conviction entered July 25, 1973 after a seven-day trial before Judge Griesa and a jury in the Southern District of New York. Gottlieb was convicted on all three counts of an indictment which charged him with making a false statement that he was a member of the United States Army National Guard, 18 U.S.C. §§ 1001, 2, with making a false certificate bearing upon his classification under the Military Selective Service Act, 50 U.S.C.App. § 462(a) and 18 U.S.C. § 2, and with conspiring with Harry Coogan, not named as a codefend-ant, to make fraudulent misrepresentations regarding his military status, 18 U.S.C. § 371. Gottlieb was sentenced to concurrent terms of two years imprisonment on each count with a fine of $5,000 on the conspiracy count and concurrent fines of $10,000 on the other two counts. Execution of the prison sentence was suspended and the defendant was placed on two years probation.

In arguing that his conviction should be reversed, Gottlieb maintains that certain highly prejudicial and irrelevant testimony was improperly admitted into evidence, that as a matter of law there was insufficient evidence to support his conviction, that the government failed to comply with the Jencks Act, 18 U.S.C. § 3500, thereby seriously weakening his defense, and that numerous instances of egregious prosecutorial misconduct occurred during the trial. Additionally, he asserts that the trial judge made several errors highly prejudicial to the defense, by unduly limiting the information the government was required to provide in its bill of particulars and in discovery, and in the instructions to the jury regarding the possible motives behind Coogan’s testimony and the requisite degree of knowledge Gottlieb had to have to be found guilty. We affirm.

The undisputed evidence adduced at trial established that on August 27, 1964, the appellant, then attending Michigan State University, first registered for Selective Service with his local draft board in Mt. Vernon, New York. He was classified 2-S (deferment for undergraduates in college) and maintained this classification throughout his four years at Michigan State. The government presented evidence that in his fourth year, Gottlieb, aware that his 2-S status would terminate upon graduation in June 1968, sought to enlist in a National Guard unit. At the time, however, the Vietnam War was raging and waiting lists for the Guard were swollen. Thus, when Gottlieb applied on December 17, 1967, to the 242nd Signal Battalion headquartered in Hempstead, New York, his name- was placed on a waiting list. The invariable practice was for Major Garofolo, who maintained the list, personally to speak with each applicant at the time he applied. Gottlieb did not deny that this had occurred in his case. The Major would inform the applicant of the expected waiting period and that the applicant would have to reapply every 30 days to preserve his position on. the waiting list. If the applicant did not reapply, Major Garofolo would wait an additional 30 days and then send an elimination letter by certified mail.

All applicants were also made aware that the enlistment process would involve several return visits to the armory. Among other things, the applicant was told that he would have to undergo a physical and mental examination and an interview with the unit commander prior to enlistment. Each applicant also had explained to him that, once enlisted, he would have a six-year commitment which would include a call to from five to nine months of active duty for basic training purposes within 120 days of enlistment as well as attendance at drills and summer camp.

Gottlieb admitted going to battalion headquarters in December 1967 and speaking with Major Garofolo. Although unable to recall the details of their meeting, he did not dispute the Major’s account of the application procedure and practice. He did deny, however, receiving an elimination letter, even though the 242nd Battalion’s enlistment register indicated that he had been eliminated in early March 1968 and it was Major Garofolo’s practice to send such letters upon elimination of an applicant.

In June 1968, with Gottlieb’s 2-S deferment coming to an end, his local board sent him a Current Information Questionnaire (SSS Form 127) preparatory to a review of his file at the board’s July meeting. The form was returned by Gottlieb on July 1. He indicated on it that on June 16, 1968, two weeks before his deferment was to have expired, he had enlisted in Company C of the 242nd Signal Battalion of the New York National Guard. He gave his service number as NG 22039037 and on an attached note wrote that he would be coming to New York for all Guard meetings. The board also received a DD Form 44 (Record of Military Status of the Registrant). The form, dated June 25, 1968, certified that Gottlieb had, in fact, enlisted for six years and would be ordered to active duty for training within 90 days. The form was purportedly signed by the commanding officer of the unit, 2d Lieutenant Myron Wittlin, although it was later established at trial that Wittlin’s signature had been forged. Upon receiving the response to the questionnaire and the DD Form 44, the local board reclassified the appellant 1-D (Member of Reserves) and informed him that he would remain so classified as long as he was a member of the unit. Gottlieb never again communicated with his local board.

Much of the testimony at trial focused on Gottlieb’s alleged enlistment on June 16, 1968. It was undisputed that Dan Molinoff, Gottlieb’s brother-in-law and son of Dr. David Molinoff, had brought the appellant to the Huntington Station Armory on Long Island to meet with Harry Coogan, a long time friend of Dr. Molinoff. Coogan was a full-time unit administrator in the New York National Guard. According to Coogan, who testified at trial for the government, Gott-lieb explained to him that his deferment was running out and then asked if there was a slot for him in the Guard. Coogan responded that there was at least a year’s wait, but that he could arrange to have appellant’s classification changed by “a piece of paper to the draft board.” In the presence of Gottlieb and Dan Molinoff, Coogan filled out a DD Form 44, obtaining the necessary information from Gottlieb’s Selective Service card, and explained to the appellant that the form was just a means of changing his classification, that he was not actually in the National Guard, and that he would not have to report again. Indeed, the evidence at trial was undisputed that no personnel file was ever prepared for Gottlieb, that he never signed any papers, and that he was never given a drill schedule or a uniform. His service number was a complete fabrication.

The defense, however, contradicted Coogan’s version of the June meeting. Gottlieb testified that Molinoff had contacted Coogan on his behalf to arrange to enlist. At the Huntington Station Armory, Coogan led them into an office where Gottlieb filled out an enlistment form and was given an orientation statement. The appellant admitted supplying Coogan with certain information but denied that a DD Form 44 had been prepared in his presence or that he knew such a form would be sent to his local board. Gottlieb also admitted that he had not been sworn in, had,not been advised of his service number, and had not been informed which unit he was in, although he testified this information was later relayed to him by Coogan so that he could fill out the Current Information Questionnaire from his local board. He conceded having expressed some uncertainty to Molinoff later in the day as to whether he was actually in the National Guard. Nevertheless, at trial, he maintained that when he filled out the Current Information Questionnaire and returned it on July 1 he believed he was in the Guard.

In the years following Gottlieb’s purported enlistment in the 242nd Signal Battalion, he never was given a physical, attended a meeting, or received a communication from the unit. Despite this, at no time prior to 1971 did he address any inquiry to the unit, his local board, or other appropriate authorities. Gott-lieb did testify that on several occasions he had his brother-in-law check with Coogan for him. This was not on a regular basis, however, and neither Coogan nor the unit were advised of his several changes of address while he was attending graduate school in the Washington, D. C. area.

Only in early 1971, after he became aware that Coogan was under investigation by the F.B.I., did Gottlieb, at the urging of his attorney, write two letters requesting a clarification of his draft status, to which he apparently received no response. He did not follow up on these letters. On April 13, 1971, Coogan was indicted by a federal grand jury in the Eastern District of New York on eight counts involving the furnishing of fraudulent certificates to the Selective Service System. He pled guilty to four counts and was sentenced June 13, 1973.

Over strenuous objection, the goverment attempted to show on Coogan’s direct examination that these illegal activities engaged in by Coogan on behalf of those seeking to avoid the draft must have been known to Gottlieb and supported the government’s assertion that he knew his own enlistment was fraudulent. Specifically, testimony was adduced that in 1963, Dan Molinoff, who had introduced the appellant to Coogan, had also arranged to have a long time friend of his meet with Coogan, who was then stationed at Lido Beach, New York. As testified to by Coogan, this meeting progressed in much the same manner as did the encounter with Gott-lieb five years later. Molinoff’s friend, Robert Cohen, was seeking to enlist in the National Guard since his 2-S deferment was about to expire. In the presence of Cohen and Molinoff, Coogan prepared a fraudulent DD Form 44, told Cohen it was a fraud and sent the form to his local board. Cohen furnished Coogan with the information necessary to complete the form and had no further contacts with him.

After Coogan’s direct testimony regarding his dealings with Cohen, the defense requested the disclosure of F.B.I. interviews with Coogan regarding these activities. After some delay by the government, the relevant materials requested were finally produced.

I.

The most forceful argument by the appellant is that the trial judge should not have permitted the testimony by Coogan regarding the episode with Molinoff and Robert Cohen in 1963 on the ground that absent any showing of knowledge by Gottlieb, this testimony was irrelevant to the falsity of Gottlieb’s alleged enlistment in 1968.

We agree that the trial judge should have sustained the defendant’s objections to the admission of Coogan’s testimony regarding Cohen on the ground that it was of questionable relevance, especially since the government could not produce any evidence that Gottlieb knew about the Cohen incident. Nonetheless, after a review of the trial transcript, we conclude that the admission of this evidence was not reversible error.

“Ordinarily a ruling on the relevancy of evidence depends upon the exercise of the sound discretion of the trial judge and will not be disturbed upon appeal except for grave abuse.” Hardy v. United States, 118 U.S.App.D.C. 253, 335 F.2d 288 (1964). While Judge Griesa should have excluded testimony as to the dealings between Coogan, Cohen, and Molinoff in 1963, viewed in the light of all the evidence, we do not believe this testimony so prejudiced Gottlieb’s defense as to require reversal. During the course of the trial, Coogan’s testimony that Molinoff had accompanied Cohen to the 1963 meeting was severely discredited. F.B.I. interviews with Coogan introduced in evidence strongly suggested that Cohen had, in fact, gone unaccompanied to see Coogan. Other documentary evidence cast further doubt on Coogan’s testimony. Thus, although he had asserted to the F.B.I. that Cohen’s DD Form 44 had been prepared in September 1963, the form, in fact, was dated July 29, 1963. A letter sent by Cohen from Germany in July 1963 strongly suggested that he had been out of the country at the time the form had been prepared. These inconsistencies were all brought out in the course of cross-examination of Coogan, the last witness to take the stand before the jury retired to deliberate the verdict. Not only was this evidence, severely damaging to Coogan’s credibility, the last the jury heard, but defense counsel further emphasized the weaknesses in Coogan’s account of the alleged meeting with Cohen and Molinoff in her summation, also noting that the meeting should have no influence on the jury’s determination regarding Gottlieb’s knowledge in 1968. Under the circumstances, it is highly unlikely that the jury gave much, if any, credence to Coogan’s account of the events of 1963. In any event, there was more than enough other evidence pertaining to the events of 1967 to 1971 on which the jury would have had little difficulty in resting its verdict. Accordingly, the admission of testimony of the 1963 meeting, considered in the context of the entire trial, was not so prejudicial as to require reversal.

II.

The appellant maintains, however, that the evidence presented at trial was insufficient for the jury to conclude that he was guilty. In support of his claim, he lays great emphasis on the rather fruitless efforts by the prosecution to establish Gottlieb’s knowledge of what was happening from Dan Molinoff’s alleged prior dealings with Coogan in 1963 on behalf of Robert Cohen. Since Coogan’s testimony was severely undermined by inconsistencies and lapses in memory, Gottlieb asserts that it could not have been a sound basis for the jury’s verdict. In addition, he points to several other weak spots in the government’s case, such as the attempt to establish that only persons with a “signal” background were admitted into the 242nd Signal Battalion, when, in fact, this was not so.

There is no merit to this argument. As we have noted, more than enough evidence was presented at trial, apart from the 1963 Cohen matter, for the jury to find beyond a reasonable doubt that Gott-lieb was guilty. The evidence disclosed that in December 1967, Gottlieb had gone to the Hempstead armory, had put his name on the waiting list and had been personally interviewed by Major Garofolo, who informed him not only that he would have to report for regular meetings, summer camp, and an immediate five to nine-month basic training course, were he admitted into the 242nd Battalion, but that he would have to undergo physical and mental examinations, speak with the commanding officer and return at least three or four more times before the enlistment process would be completed. Moreover, Major Garofolo was hardly sanguine about Gottlieb’s chances, making clear that there was more than a year’s wait and that to remain on the waiting list the appellant would have to reapply every thirty days. Against this background and Gottlieb’s subsequent failure to reapply after thirty days, there was a basis for the jury to credit the testimony of Coogan that at the meeting in June 1968, with Gott-lieb’s deferment on the verge of expiration, it was agreed that Coogan would submit a fraudulent DD Form 44 to the appellant’s local draft board to prevent his conscription and that this procedure was fully explained to Gottlieb, who cooperated in the filing of this false statement and his own false claim that he was in a Guard unit.

Moreover, added support for this interpretation of the meeting in June could have been found by the jury in the subsequent behavior of Gottlieb. Although he received no communications from his unit at any time, was given no physical examination, received no uniform, and was not called for basic training, Gottlieb made no sustained attempt directly to contact the appropriate authorities to ascertain his status. Even after he knew that Coogan was being investigated for completing fraudulent forms and sending them to local boards, he made only the most perfunctory attempt to determine whether his own enlistment had been proper. When he received no response to two letters, he failed to pursue the matter further. In sum, there was overwhelming evidence of Gottlieb’s guilt.

III.

The appellant claims that his defense was severely prejudiced by the failure of the government to produce in a timely manner statements made by Coogan to the F.B.I. regarding his activities on behalf of Robert Cohen, in violation of 18 U.S.C. § 3500, the Jencks Act.

It is true that the government was tardy in making those materials available. Only after continued requests and demands by defense counsel were the materials provided and this at a time well into the trial. While not excusing this misconduct on the part of the government, we do not believe that the delay prejudiced the defense of the charges. The prosecutor’s initial statements that no Jencks material existed were made in the good faith belief that this was in fact the case, based on responses to inquiries that had been made of other governmental bodies. Nor does it appear that there was a purposeful effort on the part of these other bodies to deny Gottlieb statements relevant to his defense. Rather, the delay in the production of these materials was a result of what Judge Griesa found to be “understandable confusion” arising from the material’s being used in other investigations in the Eastern District of New York. Moreover, this initial confusion was soon overcome. The material sought was made available to the defense on Friday, May 18. On May 21, when trial resumed, however, appellant moved for a mistrial, asserting that Coo-gan’s statements about Cohen had not been furnished until after Coogan had finished testifying. The prosecutor responded that Coogan would be available for cross-examination again, Coogan having already been cross-examined once, before the Jencks material was made available to the defense. But apparently in an effort to preserve Gott-lieb’s mistrial claim, his counsel indicated that the defense would not call Coo-gan. Instead the government called Coogan again and after direct examination, the defense did cross-examine him, and use was made of the materials it had acquired on May 18 to point out flaws in Coogan’s testimony regarding his dealings with Robert Cohen and Dan Molinoff.

While the appellant now maintains that much of the impact that might have been made on the jury by confronting Coogan with these materials was lost because it did not come when he was originally on the stand, we do not agree. Here, the government’s principal witness was severely discredited at the very conclusion of the trial. Under the cireum-stances, we can see no significant prejudice to the defense because of its inability to cross-examine Coogan regarding the Jencks material when he first testified.

Nor does our decision in United States v. Aaron, 457 F.2d 865 (2d Cir. 1972), support the appellant’s claim. In that case, the United States Attorney knew of the existence and contents of an earlier report by the witness, an F.B.I. agent, to his agency even before the witness was called to the stand. The prosecutor allowed the defense counsel to begin his cross-examination of the witness without revealing the existence of this material. That such material existed was revealed eventually by the witness during his cross-examination and came as a complete surprise to defense counsel in front of the jury. Contrary to the thrust of defense counsel’s cross-examination, this material established that the witness had previously made a report consistent with his direct testimony. In contrast, while Coogan’s statements were made available later than they should have been, they were actually used quite effectively by the defense to discredit him.

IV.

Gottlieb’s other arguments may be disposed of summarily. His assertion that the court erred in refusing to order compliance with all of his very broad demands for discovery and a bill of particulars is without merit. The government was not required to disclose its evidence in ádvance of trial. United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973); United States v. Crisona, 271 F.Supp. 150 (S.D.N.Y.1967), aff’d, 416 F.2d 107 (2d Cir. 1960), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970). It was sufficient that Gottlieb was apprised that the theory of the government’s case would be that he fraudulently misrepresented himself as a member of the National Guard to avoid being drafted and that this was done in conspiracy with Harry Coogan. More than adequate discovery was allowed by Judge Griesa.

The appellant’s claim that the prosecutor’s remarks were so prejudicial as to deprive him of a fair trial is also without substance. The few comments by the prosecutor that portions of Gottlieb’s testimony had been fabricated had ample support in the record and there is no basis to claim reversible error simply because the language was blunt and to the point.

Gottlieb further argues that the trial judge should have instructed the jury specifically about Coogan’s possible motive to lie because of criminal charges then pending against him. In its opening, the government conceded that Coogan might have a motive to lie. His motive for testifying was alluded to during direct examination and focused on again during cross-examination by defense counsel. It was commented upon in the defense’s summation. The trial judge, too, took note of Coogan’s possible motive to falsify his testimony in his charge to the jury. Under the circumstances, the jury received adequate instruction regarding the possible motives Coogan might have had to testify falsely.

The appellant’s final argument is that the trial judge improperly instructed the jury that they could convict Gottlieb if they found that he had knowingly stated falsely that he was a member of the National Guard or if “the defendant made the statement that he was in the National Guard when he didn’t know whether or not he was in the Guard.” We do not agree.

Gottlieb does not seriously or convincingly dispute that a false statement regarding his membership in the Guard made with reckless disregard of its truth or falsity would support his conviction. But he claims that the instruction just quoted may have suggested to the jury that something less than reckless disregard would be adequate. Having reviewed in its entirety Judge Griesa’s instructions concerning the state of mind of the defendant necessary for the jury to find him guilty, we are fully satisfied that the jury understood that the defendant had to have acted either with actual knowledge, or, as the judge expressly stated in his instructions to the jury, had to have “wilfully blinded himself” to the truth or falsity of his claim that he was a member of the National Guard.

Affirmed.