Petition for Writ of Certiorari — Broderick & Bascom Rope Co. v. Mangan

Supreme Court brief1966

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hee? 605 TS i<y

Office-Supreme

PILED *

9 JAN 13

BUPREME COURT. u. 2 1968

Linen

Jupreme Court of the United States

Octoser Tznx, 1965.

10. 9 0 3

BRODERICK Ap BASCOM ROPE COMPANY, a Con-

PORATION,

Petitioner,

vs.

EUGENE MANGAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

Atvis G. Hussarp and

Reese Hvussarp,

} One North La Salle Street,

Chicago, Illinois 60602,

7 Attorneys for Petitioner.

’

INDEX.

* —

PAGE

Opinions Below enn 1

nne oe rey De 2

Questions Presented...........----s2-seeeeceeseeees 2

T 0d!!! ARADUS PO, Peres ee 4

Eg r = 01 1

r NIL OA AO SO Re TOS a

Reasons for Granting the Writ............ ae tore 16

., ĩ˙ och cee ).. !. 35

Appendix A—Opinion Below....... Tere eet ey 37

Appendix B—Judgment Below q 48

Allen v. U. S. (1896), 164 U. S. 492 at 501... 3, 7, 33, 34, 35

Bowers v. J. E. Rose Mfg. Co. (1945, 9th Cir.), 149 F.

e... Noo 18

Bryntesen v. Carroll Const. Co. (1963), 27 III. 2d 566. 27

Campbell v. Blue (1955), Fla. 80 So. 2nd 316. 24

Christensen v. Pittston Stevedoring Corp. (1954), 131

N. V. S. 546; 283 App. Div. 1088.................. 28

Erie R. Co. v. Tompkins, 304 U. S. 664 3

Houfburg v. Kansas City Stock Yards Co. of Maine

(1955) (Mo. Supreme), 283 S. W. 2d 539.......... 30

— —

—

Johannsen v. Peter Woboril, Inc. (1952), 260 Wis. 341,

, œu-K. = 29

Legler v. Douglas (1960), 26 III. App. (2) 365, 167

ß ⅛ ˙———T—T—T—T—TX—W—w—wwww esas 26

Majestic v. Louisville & N. R. Co. 1945), 6 Cir. 147 F.

—— ̃ ß, ĩͤ . ]³˖'... 7˙⏑§⏑«˙—«˙—,ÜdQ ceetadea 29

Mokrzycki v. Olson Rug Co. (1960), 28 III. App. 2d 117,

125-126-127, 170 N. E. 2d 635. 3, 6, 26, 28, 43, 44

Morris v. Wm. J. Duggan Co. (1942), D. C. Mass., 3

FD —ꝛe ꝛ .. 25

National Enameling Company v. Fagan (1904), 115 III

—7 ⁵̃²˙ wi... EE Tor eee eee 31

O’Brien v. Chicago City Ry. Co. (1922), 305 Ill. 244... 28

Orthopedic Equipment Co. v. Eutsler (1960), 276 Fed.

PPP ony 5 wsimsiuat diane awd cated 1 34

Rylander v. Chicago Short Line Ry. Co. (1959), 17 III

c a 28

Schlagenhauf v. Holder (1964), 379 U. S. 104 at 112,

Cubes ides m y 16, 24

Schuett v. Hargems (1962), 173 Neb. 663, 114 N. W. 2d

. ch ov weebevecevas . 19

Simler v. Connor (1963), 372 U. S. 221lll ... 16

Sjoberg v. Jos. T. Ryerson (1956), 8 Ill. App. (2) 414,

r ¶ . 26

Snyder v. St. Paul Mereuf Indem. Co. (1945, Tex. Civ.

A c . 19

gle v. Davis (1940), 4 Cir. III. F. 2d 925. wide

Thos. French & Sons Ltd. v.. Carleton Venetian Blind

Co. (1940, D. C. N. T.), 1 F. R. D. 178............ 25

iii

Thompson v. Allen (1956), 240 F. 2d 2668. 34

Thurber Corporation v. Fairchild Motor Corporation

(1959), 5 Cir., 269 F. 2d 81. FF 30

U. S. v. Furlong, 194 F. 2d 1 at page 3. . 3 34

United States v. General Motors (1945), 323 U. S. 373 16

West v. American Telephone & Telegraph 1940), 311

——.. ᷣ ͤ ͤ —»m18.u..... owen aks 32

Woods v. Horton (1948, 5 Cir.), 171 F. 2d 544. 19

Sratures. °

U. S. C. 1958 Ed., page 5137, Title 28, Rule 11. +

U. S. C. 1958 Ed., page 5160, Title 28, Rule 36......... 4

U.S. C. 1958 Ed., page 5220, Title 28 Form 25...... 2. 5, 24

U. S. C. 1958 Ed., page 5046, Title 28, Sec. 1652....... 6

—

Supreme Court of the United States

Octoper Term, 1965.

een

BRODERICK anp BASCOM ROPE COMPANY, a Cor-

PORATION,

me | N

vs.

EUGENE MANGAN, er

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF. APPEALS FOR THE

SEVENTH CIRCUIT. 7 |

Petitioner Broderick and Bascom Rope Company, a

Corporation prays that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for

the Seventh Circuit.

OPINIONS BELOW. +5

The opinion of the Court of Appeals is reported in

351 F. 2d 24. It is printed in the Appendix A, infra. The

judgment of the Court of Appeals is in Appendix B, «fra.

x6 2

JURISDICTION.

The judgment of the Court of Appeals was entered

July 27, 1965. Petitioner’s timely petition for rehearing

was denied October 18, 1965. The rice cee he tale Court

is invoked under 28 U. S. C. See. 1254 (1).

QUESTIONS PRESENTED.

7 ; ee

Was Rule 36 of the Rules of Givil Procedure intended to

be used to create liability where there is none?

1A. Did the District Court upon the trial have dis-

cretion to allow petitioner’s answer to respondent’s inter-

rogatory under Rule 33 stand as an answer to respondent’s

request under Rule 36 for an admission that a 6 x 7 cable

had been delivered upon an order for a 6 x 37 cable?

18. Where petitioner under oath in answers under

Rule 33 had twice stated that 6 x 37 cable was the cable

delivered, giving the day and place of delivery, the position .

and name of the employee who made delivery?) = ~~

10. Where the requested admission was not relevant

upon the filing and only became relevant when respondent

upon the trial changed his charge from negligent manufac-

‘ture and sale of a defective cable to a charge of erroneous

delivery of a6 x 7 cable upon un order for a 6 x 37?

Where respondent and his counsel knew before

i complaint the cable which broke was 6 x 7, that

the case would be an alleged delivery of 6 x 7 cable upon

an order for 6 x 37, and withheld the actual charge unti!

after the trial began in violation of Rule 111

* Where the request designated no period within

which answer was to be served as required by Rule 36 and

| auc e ee |

IF. Where petitioner | had moved for an extension of

time in which to answer the request for admissions and the

court had taken the motion under advisement and the -

motion remained pending?

II. a

The Court of Appeals in this case, in which jurisdiction

is grounded on diversity of citizenship, refused to follow

the ruling’ in Mokreycki v. Olson Rug Co. (1960), 28 III.

App. 2d 117, 170 N. E. 2d 635, of an Illinois appellate court.

As we shall demonstrate under Reasons For Issuance of

The Writ,“ there is not an Illinois decision—not even an

Illinois dietum —eontrary to that decision. The question is

whethey in refusing to follow the rule of law announced by

the state court, tile Court of Appeals failed to apply the

state law within the requirement of section 1652, Title 28,

U. 8. C. 1958, page 5046, and this court’s decision in Hrie

oe Chins ee Boe: OO

i I 40

After the jury had reported a disagreement, the trial

judge gave an instruction patterned after the instruction in

Allen v. U. S. (1896), 164 U. S. 492 at 501. The Court of

Appeals rejected the holding of Allen v. U. 8. and other

federal cases ee Allen v. U. 8.

In a diversity case, isn’t the question of the compulsion

of the jury a question of federal law? Wasn’t the Court of

Appeals in error in rejecting Allen v. U. f. and fhe, ether

en tine, with that desisiont ~

STATUTES INVOLVED.

* S. C. 1958 Ed., page 5137, Title 28, Rule 11:

“Rule 11. Signing of Pleadings.

Every pleading of a party represented by an attor-

ney shall be signed by at least one attorney of record

in his individual name, whose addregs shall be stated.

A party who is not represented by an attorney shall

sign his pleading and state his address. Except when

otherwise specifically provided by rule or statute,

pleadings need not be verified or accompanied by affi-

davit. The rule in equity that the averments of an

answer under oath must be overcome by the testimony

of two witnesses or of one witness sustained by cor-

roborating circumstances is abolished. The signature

of an attorney constitutes a certificate by him that he

has read the pleading; that to the best of his knowl-

edge, information, and belief there is good ground to

support it; and that it is not interposed for delay. If

a pleading is not signed or is signed with intent to

defeat the purpose of this rule, it may be stricken as

sham and fal the action may proceed as though

the pleading not been served. For a wilful viola-

tion of this rule an attorney may be subjected to

appropriate disciplinary action. Similar action may

be taken if scandalous or indecent matter is inserted.

U. S. C. 1958 Ed., page 5160, Title 28, Rule 3

Rule 36. Admission of Facts and o Genuineness

gs of Documents.

(a) Request for Admissions. After commencement

of an action a party may serve upon any other party

a written request for the admission by the latter of

the genuineness of any relevant documents described

in and exhibited with the request or of the truth of any

relevant matters of fact set forth in the request. If a

plaintiff desires to serve a request within 10 days after

commencement of the action leave of court, granted

with or * notice, must be obtained. Copies of

)

5 8

the documents shall be served with the request unless

copies have already been furnished. Each of the mat-

ters of which an admission is requested shall be

deemed admitted unless, within a period designated i in

the request, not less than 10 days after service thereof

or within such shorter or longer time as the court may

allow on motion and neice, the party to whom the

request is directed servés upon the party requesting

the admission either (1) a sworn statement denying

specifically the matters of which an admission is

requested or setting forth in detail the reasons why .

he cannot truthfully admit or deny those matters or

(2) written dbjeetions on the ground that some or all

of the requested admissions are privileged or irrele-

vant or that the request is otherwise improper in whole

or in part, together with a notice of hearing the objec-

tions at the earliest practicable time. If written objec-

tions to a part of the request are e, the remainder

of the request shall be answe within the period

designated in the request. A denial shall fairly meet

the substance of the requested admission, and when

good faith requires that a party deny only a part or

a qualification of a matter of which an admission is

requested, he shall specify so much of it as is true ae

deny only the remainder. —

U. S. C. 1958 Ed., page 5220, Title 28, Form 25:

orm 25.— Request for admission under Rule 36.

Plaintiff A. B. requests defendant C. D. within

days after service of this request to make the follow-

ing admissions for, the purpose of this action only

and subject to all pertinent objections to a

which may be interposed at the trial:

1. That each of the following documents, exhibited

with this request, is genuine.

(Here list the documents and describe pos den

ment.) 2

2. That each of the following Nee cone is true. i

(Here m the statements.) ; a :

Signed: obese op oes aie mnie bib e Ri 1

Address: j 797* web we w bla me biag 4

Attorney for Plaintiff.

. 6

U. S. C. 1958 Ed., page 5046, Title 28, Sec. 1652:

Inc. 1652. State Laws as Rules of Decision.

The laws of the several states, except where the

Constitution or treaties of the United States or Acts

of Congress otherwise require or provide, shall be

regarded as rules of decision in civil actions in the

_ courts of the United States, in cases where they apply.

(June 25, 1948, ch. 646, 62 Stat. 944.)

STATEMENT OF OASE.

Respondent sued petitioner for injuries suffered Decem-

ber 1, 1960, when a wire cable broke permitting a concrete

panel to fall and injure respondent.» Jurisdiction in the

District Court was based on diversity of citizenship. Res-

pondent is a citizen of Illinois. a Petitioner i is a citizen of

Missouri (Res. A. 2). The jury returned a verdict for

petitioner. The judge denied respondent’s e mo-

tion. The Court of Appeals reversed.

The Court of Appeals held the trial bp, erred in the

following : .

(1) The trial ‘ules had allowed petitioner’s answer

to an interrogatory under Rule 33 of the Rules of Civil

Procedure to stand as an answer to a request for an

mission under Rule 36. .

(2) In keeping with the holding in Molrozycki v. Olson

Rug Company (1960), 28 III. App. 2d 117, 170 N. E. 635,

petitioner had been permitted to show before the jury that

the witnesses who testified for respondent were employed

by Wm. E. Schweitzer & Co., respondent’s employer, and

that Wm. E. Schweitzer & Co. would share any recovery

to the faff extent of all sums paid to or for respondent under

Illinois Workmen’s Compensation Act. The Court of Ap-

peals disagreed with the decision.

Mary Mangan, respondent’s wife, a plaintiff (Res. A. 2) had

as complaint Snel me bea 21).

(3) The judge had erred in giving to the jury after

———— ———

a instruction in Allen v. L. S., 164 U. S. 492 at 501.

: FAOTS.

We shall designate respondent’s appendix in the Court

of Appeals by (Res. A. ). Ws shall refer to poeti -

tioner’s appendix attached to petitioner’s brief in the Court

of Appeals by (Pet. A. ).

On Monday, November 14, 1960, sixteen days before the

accident, respondent’s employee Hi red a coil of

wire rope to Wm. E. Schweitzer & . at O Hare Airport

(Res. A. 489-490). Wm. E. Schweitzer & Co.’s man Arthur

Johnson, who had placed the order, receipted for

50 Ft. of 6 x 37 Yellow Strand Reg. F. C.“ (Pet. A.

13, Plf. Ex. 9B: Res. A. 130-131).

One could tell yellow strand because it is yellow (Res. A.

494). 0

There is no evidence that this cable delivered Monday,

November 14, 1960, sixteen days before the accident, was

„„.. ee ee

cable.

What was done with the cable after Johnson reeéipted

for it is purely a matter of speculation.

There is no evidenee connecting the cord which broke

with. petitioner. The evidence. is unmistakably lear ‘that

the cable which broke was not hetitioner's cable.

William Olsen, vice president of Schweitzer & Co., in

charge of construction (Res. A. 225-226) in November, 1960

marked ¥’ 6 x 37 cable as shown in petitioner’s catalogue

(Res. A. 229-231). (The 2” denotes the i ok the

cable. The 6“ tells the number of str The “37” ;

indicates the number of wires twisted into each strand.) He

gave the catalogue to Arthur Johnson, the timekeeper for

Schweitzer Co. (Res. A. 230-231). He directed Arthur

Johnson to order from petitioner 50 feet of }?’ 6 x 37 Yellow

Strand Reg. F. C. (Res. A. 244). Arthur Johnson placed

the order pursuant to Olsen’s direction (Res. A. 237).

On Friday, November 11, 1960 the order for 50 feet 1“

6x 37 Yellow Strand, Reg. F. C. was received by the peti-

tioner (Pet. A. 11, Def. Ex. 4, Res. A. 517-518). Petitioner

was to deliver the wire rope to O’Hare Airport Building 9.

The order was numbered ‘2596’. The order is dated

11-11-60 (Pet. A.11). The delivery ticket is dated Novem-

ber 14, 1960 (Pet. A. 13). On the delivery ticket for 50

feet 1 6 x 37 Yellow Strand Reg. F. C. (Pet. A. 13) the

W. E. S. Co.“ means Wm. E. Schweitzer Co. The F. 8’?

indicates the account. The ‘‘Precast’’ and A. J.“ are in

the handwriting of Arthur Johnson (Res. A. 130-131). The

cable was coiled, it was not wrapped (Res. A. 494).

On November 14, 1960, petitioner sent an invoice covering

50 ft. 1“ 6 x 37 Reg. F. C. Yellow Strand. The invoice

bears the identifying number, 23986, placed on the order

(Pif. Ex. 9A, Pet. A. 11). Petitioner produced its record

of sales (Res. A. 548-9). It shows the date, the order

number, and description of the cable:

Date Order f

s * * * 2

11-14 2596

- Description: 27 6 x 37 Yellow, Strand Reg. F. O. (Pet. A17).

No witness other than Hines, who made delivery, claims

to have seen the cable after it left petitioner’s warehouse

on Monday, November 14, 1960, sixteen ata before the

‘accident.

Fior four or five weeks (Res. A. 175) 8 as an

. ol P E. Schweitzer & Co., general contrac-

tor, with four co-employees (Res. A. 86) had been install-

ing precast concrete panels in building No. 9 at O’Hare

Field, Chicago (Res. A. 175). A panel weighed about 3,000

pounds (Res. A. 247). They would wrap a cable around a

panel, and fasten the cable in a hook suspended from a

crane. The crane “lifted, the panel, The workers, by

means of a rope, guided it into place (Res. A: 98-101).

They installed twenty-four to twenty-six panels a day

(Res. A. 285).

After each installation, the cable was inspected to de-

termine whether a change of cable was necessary. (Res.

A. 237). When a cable was no longer fit for use it was

replaced (Res. A. 174).

New cables were delivered to the job site either to the

ironworkers’ shanty or to the field shanty (Res. A. 585).

When a change’ of rope was determined: ‘respondent or his

co-worker, Mr. Deacy, would go and fetch one from the iron-

workers’ shanty (Res. A. 179). Respondent testified :

Q. And is it a ‘fact that they were replaced as

frequently as every third or fourth panel?

A. It depends, if the rope was Nele, it wouid᷑ not

be replaced (Res. A. 174). :

Mr. Deacy, ‘a co-employee, stated that the cable might

be used to lift six to seven or maybe’ eight panels before it

was replaced (Res. A. 284, 285).

On the morning of Dec. 1, 1960, they had installed about

three panels. (Res. A. 180). About 9:30 A. M., respondent

went to the ironworkers’ shanty to pick up a cable. He

brought a cable he found hanging on a nail inthe shanty.

He and co-employee, Frank Deacy, wrapped the wire cable

around a panel. They put clamps on it: They signaled

the erane operator. While the panel was being lifted into

place,\the wire cable it ee

—" (Res. A. 102 to 104).

‘Respondent testified :

| ty When you went to get the rope, where did you

A. It was in the shanty. * (Res. A. 176.)

0. Where do you keep the rope in the shanty?

„A. Kept on nails in the sang pt (Res. A. 177.)

When asked what was the greatest number of ropes that

he saw in the shanty respondent testified:

„ don’t remember how many; I would sax.

‘The Court: One, two, three.

2 1 „The Witness: Jt depends on the order that they

came in. They would order only so many at one time,

probably, Your Honor.

“Q. Well, what i is the maximum number you would :

say?

Sh. Probably there would be two or three. (Res.

A. 177.) (Emphasis by us.)

On pretrial deposition respondent testified :

9. Did you ever see these cables delivered up to

„ ftttis shanty?

„A. Yes, 1 have seen them being delivered in

“Q. Was the cable which you went to get before

pee et aoe just before this accident, one of those

: with the cables that you had pre-

“A. Yes, ũ was one of the group that was brought

there. (Res. A. 195.) (Emphasis by us.)

0 Do you know how long that cable had been

in the shanty, the one you went to pick up?

“A, I don’t know. He brought in several. cables,

and this was the last one. (Res. A. 0. (Emphasis

by u.) . .

e Tinh, Gn eee oh ebenen er tn

project for Wm. E. Sehweitzer Co., went to the scene of

the accident at about 10:30 on the day of its occurrence

(Res. A.305-309).. The day following, he counted the strands

and the number of wires in each stründ making up the

broken cable. He determined that the cable was 6 x 7

wire rope (Res. A. 307).

William Pischke testified:

. . the first place you saw the wire was at

the . shanty!

N A. No, sir.

Then I misunderstood yout

44 At the scene of the aceident. (Res. A. 312.)

2. Did you not see this wire cord before the

accident? -

„A. That is correct, sir??,’ (Res. A. 322.)

After petitioner’s proofs were closed, William e

was recalled. He testified: ‘

In the interval between November 3, 1960 and De-

cember 1, 1960, cable was delivered sto the job site,

505), to the shanty or the field shanty.’’ (Res. A.

He saw cable in the ironworkers’ shanty. He was

not able to tell who manufactured it by looking at

it (Res. A. 586).

A piece of cable 50 foot length delivered November

3, was used (Res. A. 586).

Q. Directing your attention to a period of about

ten days before the cecurrenct, did = have occasion

to be in that shanty? :

A. Tes, sir.

°Q. Would you tell us how made new cables you

had in there? N

A. One. a 8

Q. How was that cable kept?

A. It was in a coil (Res. A. 587).

Q. Were -you there when it came in?

A. No, sir, I was not.

Q. Do you know whether or not you had ‘any new

cable other than the one which you .

prior to the occurrence?

A. No, sir (Res. A. 588). mages

„After the occurrence he had occasion to examine the

qttarter-inch wires on the; concourse job (Res. A. 589).

He did not find any 6 x : 37 one-quarter inch wire on

that job (Res. A. 590). ;

Walter Lempke, the on Soe Ses 8 foreman for Schiveit-

zer, had charge of seeing that there was a supply of cable

for installing panels. At the time of the trial he was

still employed by;Schweitzer (Res. A. 311). He was not ©

called as a witness (Res. A. II-IV). *

Arthur Johnson, who ordered the wire rope from peti-

tioner and who receipted for 50 ft. 1“ 6 x 37 Yellow Strand

Reg. F, O.“ (Pet. A. 13) on behalf of Schweitzer, was not

called as a witness (Res. A. II-IV).

, 7

The Cable Which Broke Was Not Produced,

On February 19, 1961, Richard Borchardt took the broken

cable to Kawin Laboratories and had it tested (Res. A.

378-379).

Russell J. Dixon, on behalf of petitioner; examined the

broken cable about the middle of J une, 1962 in the offices

of Mr. Borchardt, the investigator (Res. A. 527). There)

were four pieces which totaled 39 feet in length (Res. KA.

528-529). He testified that by examining the broken cable, \

he could tell that it was not made by petitioner (Res. ü

A. 541), He had a photographer make photographs of

the broken cable. Three eee are in 8 ~

Appendix (Pet. A. 14-16). . N

Mr. Borchardt, the investigator, testified:

After the cable had been examined by Mr. Dickson -

it remained in his office.

oy It was disposed of by the,cleaning woman, Maris

; Weiss, who cleans their office; eight: past es ste

— : n 4

Marie Weiss testified. that in cleaning the offices’ of

in Boyer, employer of Mr. Borchardt, she saw some wire

table and put it in the elevator with papers (Res.

2 403). The cable which she removed was about four 7

feet long. The wire was old, something like a black wire

(Hes, A. 406-407). .

THE CHARGE THAT PETITIONER HAD NEGLIGENTLY

SUPPLIED A CABLE DIFFERENT THAN THAT ORDERED -

WAS WITHHELD UNTIL AFTER THE CASE WAS ON .

TRIAL. *

Respondent s complaint filed June 20, / 1961 — ——

“negligence in the manufacture, failure td test, sale of a

defective cable, failure to warn thaf cable was unfit, and

breach of warranty (Pet. A. 2-3). An amended complaint,

filed September 22, 1961, repeated the charges without

change, except the breach of warranty was omitted (Res.

A. 3-4). Neither alleged are of a cable different than

that ordered.

After the jury had been sworn to — the case, in his

opening statement, respondent’s counsel first disclosed

that his case against petitioner was based upon an alleged

delivery of a 6 x 7 cable upon an order fot a 6 x 37 cable

(Res. A. 65-66, Res. A. 67).

On March 2, 1964 respondent Ades his nt at

the close of proofs so as to charge petitioner had negli-

gently supplied a cable different than that ordered (Res.

A. 25). i 85 my

INTERROGATORIES AND REQUESTS FOR ADMISSIONS. -

On August 23, 1962, respondent filed a request for 14

(5) The wire ope sent Wm. E. Schweitzer & 00.

was composed of six strands with seven wires in n each,

or 6 by 7 wire rope.“ (Res. A. 11.) a

” admissions. the rc the one material:

Sets 14

<The request did not specify the period in which answer

was to be made (Res. A. 10-12).

On September 4, 1962, petitioner filed a motion:

“to be relieved from answering plaintiff’s requests

for admissions of facts Nos. 11, 12, 13, and 14 and for

_an extension of time to answer the balance of admis-

Be 755 objected to for the following reasons: (Res.

12. 1

On September 10, 1962 1 brought up its motion

of September 4. Upon being told the requests were filed

August 23, 1962, the court said:

„Jou appreciate, do you not, Counsel, that this

case is on the call tomorrow morning? While we might

not reach it for trial tomorrow morning, why do you

delay? You file these papers so often at the last mo-

ment. You have got to give counsel a chance to—.’’

(Res. A. 665-666.)

Referring to the objections to requests for admissions

and for an extension of time, the court said:

„J will take both. these motions and let you know.“

(Res. A. 666.) ö

Later that same day, e 10, 1962, the Court

ordered:

„Objections of Defendant to Plaintiff’s request for

admissions of fact sustained. Cause held on trial

call until October 15, 1962, at 10 A. M.“ (Res. A.

15.) 5

Petitioner’s motion for an extension of time to answer the

balance of the requested admissions was left pending.

On September 10, 1962, the Court gave petitioner leave

to answer respondent’s interrogatories under Rule 33 (Res.

A. 667).

Petitioner’s answers then filed September 10, 1962,

covered minutely respondent’s request #5 for an admission

under Rule 36. It stated that the product delivered was

one-quarter inch 6 x 37 yellow strand wire rope (Res.

A. 14). N ;

It stated an order sheet was filled out and a copy of

same has been furnished respondent. (Note: The order

sheet is Def. Ex. 4 (Pet. A. 11).) ee

It also stated a delivery sheet was filled out and a copy

. of same has been furnished respondent (Res. A. 14-15).

(Note: This delivery sheet is Pif. Ex. 9B (Pet. A. 13).)

These answers were verified by Russell J. Dickson, dis-

trict manager of petitioner (Pet. A. 10). my

Later, respondent served other interrogatories again

covering the delivery by petitioner of wire rope covered

by respondent’s requests of August 23, 1962.

On August 8, 1963, in a sworn answer to an interroga-

tory, petitioner again stated: ,

„Charles Hines delivered 50 feet of 1“ 6 x 37 yellow

strand wire rope to Wm. E. Schweitzer Company at

O’Hare Field on November 14, 1960’’ (Res. A. 16-

In allowing petitioner’s answer under Rule 33 to stand

as an answer to request #5 the District Judge said the

case should be tried on the merits, not on a technicality

(Res. A. 418).

* ee

r * ee *

a 16

_ REASONS FOR GRANTING THE WRIT.

PRELIMINARY.

Though the Court of Appeals remanded the case for a

new trial, this Court should take jurisdiction because this

application for certiorari involves issues fundamental to

the further conduct of the case. 4

In United States v. General Motors (1945), 323 U. S. 378

the. question was as to the admissibility of items of dam-

ages in a condemnation suit. The Court of Appeals reversed

and remanded for a new trial. This court said, page 377:

We think we should review the ruling inasmuch as it

is fundamental to the further conduct of the case.“

In Simler v. Conner (1963), 372 U. S. 221, the Court of

Appeals had reversed and remanded for a trial before the

court without a jury. This court allowed certiorari, re-

. versed and remanded for a trial before the court and a jury.

F ie

Rule 36 of the Rules of Civil Procedure is applied con-

stantly in the District Courts. Uniform construction is of

paramount importance. Rule 36 has not been but should

be ¢onstrued by this court. =

What was said in Schlagenhauf v. Holder (1964), 379

U. S. 104 at 112 is applicable:

in this instance the issue concerns » Se con-

. struction and application of the Federal Rules of Civil

Procedure. It is thus appropriate for us (this Court)

to determine on the merits the issues 3 and to

formulate the necessary guidelines in this area.“

EEE EO ⁵ͤ MM. - ! Ä

5 '

Om August 23, 1962 respondent requested 14 admissions

under Rule 36. The following number 5 only is in question.

(5) The wire rope sent Wm. E, Schweitzer & Co.

was composed of six strands with seven wires in each,

or 6 7 wire rope. (Res. A. 11.)

On September 10, 1962 petitioner filed answers to inter-

eee under Rule 33 W the above number 5 in

minute detail: ‘

Interrogatory 4:

State whether or not the defendant sold a piece of wire

rope 4 inch in diameter to the plaintiff’s employer Schweitz-

er Construction Company in November, 1960 and if so, state

(a) Who received the order and how its placed, either

by writing or telephone; (b) Who filled the order; (e) Who

delivered the product; (d) The description of the product

delivered.

Answer: Ves; (a) The defendant received the order on

the telephone; (b) Warehouse personnel of the defendant;

(e) The defendant delivered it; (d) 4 inch 6 x 37 yellow

strand wire rope.

Interrogatory 5: —

If the answer to the prior question is in the affirmative,

state whether or not there was an order sheet filled out and

if so who has possession of it at present,

Answer: Yes and a copy of same has been furnished the

eee: (Note? The order sheet is Def. Ex. 4 (Pet. A. ae)

State n or ‘aad the defendant had a delivery sheet

or any other memoranda indicating delivery of a piece of

wire rope in November, 1960 to ‘Schweitzer & Company em-

ployees at O’Hare Field.

Answer: Yes and a copy of same has been furnished the

plaintiff (Res. A. 14-15). (Note: This delivery sheet is Plf.

Ex. 9B (Pet. A. 13).) .

These answers were verified by Russell J. Dickson, dis-

trict manager of petitioner (Pet. A. 10).

Respondent afterwards served other interrogatories un-

der Rule 33 and petitioner on August 8, 1963 filed a sworn

answer again covering request #5:

2. State whether or not Charles Hines was employed in

any capacity by the defendant and if so state:

(a) what his capacity was for a six-month period oeior

to the date of the incident alleged in plaintiff’s

complaint ; .

(b) whether he had anything to do with the 7 of

any wire rope to the employer of the plaintiff and

if so, the times and dates of said deliveries, where

the deliverjes were made, to whom he made de-

liveries an@ where he placed the product delivered.

Answer: Les.

(a) Sales Trainee.

(b) Les. Charles Hines delivered 50 feet of 4“ 6 x 37

yellow strand wire rope to Wm. E. Schweitzer

Company at O’Hare Field on November 14, 1960

(Res. A. 16-17).

The holding of the 7th Circuit that the trial judge had no

discretion is in. Arreconeilable conflict with decisions of the

9th and 5th Circuits.

In Bowers v. J. E. Rose Mfg. Co. (1945, 9th Cir,), 149 F.

2d 612, 614-615 the request became mislaid and mixed with

other papers. The mistake was not discovered until motion

for summary judgment, when answer was made in response

to the motion. The district court struck the answer. In re-

versing the judgment the Court of Appeals held, page 615,

that since said answers sufficiently denied the —

admissions, the Court was in error.

„We thigk it was an abuse of the Court’s enn

so to strike the answers.“

In Woods v. Horton (1948, 5 Cir.), 171 F. 2d 544, the de-

fendant filed an unverified denial. The trial judge held the

unverified denial effective. The Court of Appeals #eversed.

It held that since the failure to verify the denial was be-

cause of a misunderstanding and defendant in good faith

asserted as defense, the defendant should be given a reason-

able time to make a proper answer.

The rule expressly provides that the court may 2

the time for answer. It does not exact that application to

be made within the time specified in the request.

In Schuett v. Hargems (1962), 173 Neb. 663, 114 N. W. 2d

508, 510 under a statute identical to Rule 36 the trial court

overruled a motion for summary judgment for failure to

answer and allowed defendant ten days to answer. This

was assigned as error in the * — Court. The Supreme

Court said, 8

Here an application for additional time was made

after the time limited by plaintiff had expired. The

court upon proper showing so set to extend the time.

This was clearly within the court’s discretion.’’ Page

510.

In Snyder v. St. Paul Mercury Indem. Co. (1945, Tex.

Civ. App.), 191 S. W. 2d 107, plaintiff’s attorney made a

request for admissions on May 30, 1942 under.a similar

statute. In January, 1945, when the case came on for trial,

defendant’s attorney filed a sworn motion to quash the

request, The Court denied the motion but allowed defend-

ant’s attorney leave to answer. The Court stated that under

the terms of the rule the trial judge could extend the time.

5 * — 15 5 dviav oh

DOL to Sa SLRS Riri REE LIER Nol LAE RRR SONS SERA SN

— teen Ra RR at

e e ee

trial had begun.

The withholding of the 1 that petitioner had sup-

plied a cable different than that ordered until after the case

was on trial was sufficient ground for the Distriet judge

to allow petitioner's answer under Rule 33 to stand as an

answer to respondent’s request #5 for an admission under

Rule 36.

on December 2, 1960, the day following the accident,

William Psykes, superintendent of Schweitzer examined the

broken cable, counted the wires and determined it was 6 x 7

cable (Res. A. 307).

On February 19, 1961, Richard Borehardt, whose em-

ployer was hired on the day of the occurrence to investigate

the accident (Res. A. 372) delivered the broken cord to a

metallurgist to have it tested (Res. A. 378). Borchardt re-

ceived the rope back after several weeks (Res. A. 379).

M. F. Surls, metallurgist, made.a report. He tested the

chemical composition, the tensile strength of the rope, and

the individual wires (Res. A. 439).

He counted the number of strands and the number of

wires. It consisted of six strands; each strand was made

up of seven wires (Res. A. 443). ©

He made a comparison of the breaking strength of 6 x 37

yellow strand and the breaking strength of the 6 x 7 (Res.

A. 462).

Respondent's complaint was . ee filed June 21,

1960. No charge was made that petitioner had erroneously

sent } inch 6x7 cable upon an order for } inch 6 x 37 Tellow

Strand.

The Complaint charged:

5. That“ * the defendant knew or * * * should

have known of the purpose for which the steel cable

was to be used and it was the duty of the

—

era

a a * 9 9 . oe rr

2¹

defendant to supply and manufacture a steel cable

* * * that would be suited for the purpose intended, and

the defendant did* * * so * * * negligently manufacture

the said steel cable * * * so that the samé was caused

to and did * * break and it was * unfit for the

purpose for which it was intended. Emi

6. That * * * defendant was * * * guilty of one

or more of the following wrongful acts:

a. Carelessly and negligently manufactured

a certain steel cable or rope and as a direct and

proximate result thereof the plaintiff was injured ;

b. Carelessly and negligently failed to test the

said rope or cable to determine its suitability for

the purposes intended, and as a direct and proxi-

mate result thereof the plaintiff was injured; -

c. Carelessly and negligently sold and pro-

vided a cable which was defective in character;

d. Carelessly and negligently failed to warn the

plaintiff that the said cable or rope was unfit for

the purpose for which it was intended; (Res.

A. 2-3).

Respondent filed on September 22, 1961 ‘an amended —

complaint. He repeated without change the above charges

(Res. A. 3-4).

He made no mention of delivery of a cable different than

that ordered. ;

On March 2, 1964 just before the court instructed the

jury, respondent substituted for the above paragraphs

5 and 6 the following:

; 5. That the defendant carelessly and negligently

- fulfilled an order so that a cable of inferior strength

was supplied and the said cable broke while being

used for the purpose for which it was intended, and

as a direct and proximate result thereof, the plaintiff,

Eugene Mangan, sustained injuries. :

6. That at the time and place aforesaid the de-

fendant was then and there guilty of one or more

of the following wrongful acts 1 87 u

2. Carelessly and negligently supplied a cable

different than that ordered; 4

b. Carelessly and negligently sold a cable un-

fit for the purpose for which it had been ordered;

o. Carelessly and negligently failed to warn

the plaintiff, Eugene Mangan, that the said cable

was unfit for the purpose for which it was in-

tended. (Res. A. 25).

On February 24, 1964 in his opening statement to the

jury, respondent 's counsel for the first time, disclosed that

his case was based upon a delivery of a 6 x 7 cable upon

an order for a 6 x 37 and upon that alone. He stated:

This order was placed with Broderick and Bascom

to deliver to the Schweitzer job one-quarter inch 6 x

37. The order was placed November 11, 1960.

„They had a man by the name of Charles Hines

deliver this particular material on November

14, 1960.

‘The material that was delivéred was one-quarter

inch cable, but it was not 6 x 37 (Res. A. 66).

After the occurrence it was found that the cable

which had been delivered was not the cable which*had

deen ordered, but on the contrary, it was quarter

inch, 6 x 7 cable.

„0 „„ „„ „„In other

words, it was what is known as a tiller cable in the

catalogue of Broderick and Bascom, and of course, was

G to handle the load of the panel.“ (Res. A.

Hence, the charges of negligent manufacture, negligent

failure to test, negligent sale of a defective cable and neg-

ligent failure to warn were inserted in the complaint in vio-

lation of Rule 11.

Rule 11 provides:

„The signature of an attorney constitutes a certi-

ficate by him that he has read the pleading and to

the best of his knowledge, information and belief,

there is good ground to support it.“

—

The opening statement of respondent's attorney shows

that a charge of misdelivery was the only basis he had

for a claim. (Res. A. 65-66, 67).

Hence, the request for admission #5 that W had

delivered 6 x 7 rope upon an order for 6 x 37 first became

relevant after the case was on trial. On thie ground alone

the District Court in its discretion could properly give peti-

tioner leave to answer the request at that point.

The rules were promulgated*for the purpose of having

cases tried upon their merits not upon a hypertechnical

rule. Rule 36 gives the District judge power to extend the

time for filing. It does not require that application be

made within the time specified in the request. According

to the rule, the District judge could extend the time after

time for filing had lapsed.

The complaint and amended complaint were filed by

counsel knowing that he had no ground to support the

charges. When he changed the charge from negligent manu-

facture and delivery of a defective cord to a charge of

misdelivery of a 6 x 7 cord upon an order for 6 x 37 cord,

the court could allow petitioner to answer aes #5.

Up to that point, #5 was not relevant.

No Period Was Designated.

Respondent’s request for admissions nowhere designated

the time within which the admissions were to be made (Res.

A. 10-11). The rule specifies that the other party may

answer ‘‘within a period designated in the request, not

less than 10 days after service thereof or within such

shorter or longer time as the court may allow’’. The rule

further provides that if objections to any part of the re-

quest are made, the remainder of the request shall be

answered within the period designated in the request.’

eee “ee

—

}

i : Petitioner objected to part of the request. There was no

0 period designated in the request.” Under the wording of

Hi the rule, the time didn’t run.

The statutory form in keeping with Rule 36 provides

for a specification of the period within which the admis-

sions are to be made.

U. S. C. 1958 Ed., page 5220, Title 28, Form 25:

„Form 25.— Request for admission under Rule 36:

„Plaintiff A. B. requests defendant C. D. within

days after service of this request to make the

following ad missions

In Schlagenhauf v. Holder (1964), 379 U. S. 104 at 121

while considering Rule 35 the court aptly said:

„The Federal Rules of Civil Procedure should be

liberally construed, but they should not be expanded

by disregarding plainly expressed limitations.“ wage

121.

There was no compliance with Rule 36’s requirements

that the time in which to answer be stated.

There was no compliance with the requirement that the

matter be ‘relevant.’

Request #5 became ‘‘relevant”’ after respondent changed

his charge from negligent manufacture and sale of defective

cable to delivery of 6 x 7 cable upon an order for 6 x 37.

In Campbell v. Blue (1955), Fla. 80 So. 2nd 316, the court

construed a Florida Statute identical to Rule 36.

On February 26 plaintiff filed request for admissions but

failed to state any time in which the defendant was to

answer. Twenty-two days later defendant filed objections.

On May 13 defendant filed an affidavit in &nswer to the

request for admissions. The trial court rendered summary

judgment for the plaintiff.

＋ỹ7ꝛ7ꝛ; ˙ m ea Fr rr

Reversing the judgment,the Supreme Court held P. 317:

In the absence of any fixed time for answer there

was no obligation on defendant to answer. The penal -

ties of the Rule may not be visited on defendant for

plaintiff 's failure to specify a time within which admis-

sions were required to be filed.“ (P. 317.)

In Morris v. Wm. J. Duggan Co. (1942), D. 0. Mass., 3

FRD 39 plaintiff in his request designated no time. The 7

court held that under Rule 36 a party requesting admis-

sions was required to designate the time for answer. The

court said that if the plaintiff should amend his request

in this regard and designate the time within which the ad-

missions were required, then defendant could either deny

under oath or set forth in detail thé reasons he could not

truthfully admit or deny the matte

In Thos. French & Sons Lid. v. Carleton Venetian Blind

Co, (1940, D. C. N. V.), 1 F. R. D. 178, plaintiff moved to

dismiss defendant’s request for admissions of fact on two

grounds: (1) no time was specified for answer; (2) they

should be limited to.matter within the party’s knowledge.

The court held that it had power to fix a time and ordered

that plaintiff be given 10 days from the date of the hearing.

If the provisions of Rule 36 and of the statutory form for

fixing a period are to be eliminated, it should be by decision

of this court.

If a slip or oversight of counsel under Rule 36 requires W

imposition of liability where otherwise there is none, then

there should be literal compliance with the wording of sel

rule.

II. :

Jurisdiction in the District Court was based on diversity

of citizenship. The District Court was bound to apply

Illinois law.

William E. Schweitzer & Co., respondent’s employer, was

not covered by insurance (Res. A. 423). Under Illinois

law Schweitzer has a substantial interest as an unnamed

plaintiff. It was paying and was bound to pay workmans

compensation, Sjoberg v. Jos. T. Ryerson (1956), 8 III. App.

(2) 414, 132 N. E. (2) 56; Legler v. Douglas (1960), 26 III.

App. (2) 365, 167 N. E. (2) 813.

Respondent’s witnesses in the District Court were either

regular employees of Wm. E. Schweitzer & Co. or had been

employed by Schweitzer & Co. in the matter about which

they testified. The District Judge in his ruling that peti-

tioner had a right to show the interest of the. witnesses by

showing that they were or had been employees of Wm. E.

Schweitzer & Co., and that Wm. E. Schweitzer & Co. would

recover all of the money which it had been or in the future

would be required to pay either for medical or workmen’s

compensation followed Mokraycki v. Olson Rug Co. (1960),

28 Ill. App. 2d 117, 170 N. E. 2d 635 (Res. A. 368, 371).

In Mokrzycki v. Olson Rug Co. (1960), 28 Ill. App. 2d

117, 170 N. E. 2d 635, plaintiff sought to recover for injuries

suffered in the course of his employment by Globe Roofing

Products Company. On cross-examination plaintiff’s wit-

ness Pearl, Globe’s plant superintendent, was asked over

plaintiff’s objection if he or his company had any financial

interest in the outcome of the litigation. He was also asked

whether his company stood to recover thousands of dollars

paid in workmen's compensation. The court at pages

125-126, 170 (N. E. (2) 639) said:

„Several other jurisdictions have been confronted with

the same or ee situations, and they have gen-

erally allowed the interest of an employer, not a party

to the suit, to be introduced to show possible bias or

prejudice of a witness in his employ.’’

The court then cites cases from other jurisdictions and

says: | l

We agree with this view.“

The court then stated that the employer's interest is sub-

stantial and affects the credibility of the witness. While

acknowledging the fear that the jury might take this into

account in computing damages, that.this possibility could

not operate to extinguish the right of a party to establish

possible motive, bias or prejudice on the part of a witness.

The court then cites the Illinois Evidence Act which pro-

vides that the interest of a witness may be shown for the

purpose of affecting his credibility. It then says that under

the Illinois Workmen’s Compensation Act the amount of

compensation paid or to be paid by an employer to an

injured person must be repaid by the employee from any

recovery froin the negligent third party. :

Referring to the above Appellate Court decision the Caurt

of Appeals says:

We believe that Olson is so inconsistent with several

opinions, of the Supreme Court of Illinois that that

decision does not reflect the law of that state. Compare,

Bryntesen v. Carroll Const. Co., 27 ill. 2d 566, 190 N. E.

2d 315; Rylander v. Chicago Short Line Ry. Co., 17

III. 2d 618, 622-628, 161 N. E. 2d 812; O’Brien v. Chi-

cago City Ry. Co., 305 III. 244, 262-263, 137 N. E. 214,

27 A. L. R. 479.0“

There is not a word in the cases cited by the Court of

Appeals that supports the above assertion.

In Bryntesen v. Carroll Const. Co. (1963), 27 III. 2d 566,

a suit for injuries, defendant sought to show in SO TAPE

of damages that plaintiff had recovered $8,000 of w 8

i Iss

—

0 ‘ °

compensation payments. Court held such evidence had been

properly excluded. No employees of a party which would

share in the recovery were offered as witnesses. There is

not a word in the opinion contrary to Mokrzycki v. Olson

Rug Co., 28 III. App. 2d 117, 170 N. E. (2) 635.

In Rylander v. Chicago Short Line Ry. Co. (1959), 17 III.

2d 618, plaintiff recovered for injury caused by negligence

of defendant in placing for loading at the plant of plain-

tiff’s employer a defective tank car. No employee of a

party entitled to share in the recovery was a witness.

There is not a word in the opinion contrary to Mokrzyckt

v. Olson Rug Co., 28 III. App. 2d 117, 170 N. E. (2) 635.

In O’Brien v. Chicago City Ry. Cs, der. 305 Ill. 244,

plaintiff was injured by defendant’s car being operated

at a dangerous speed. The case was decided on the plead-

ings. There is nothing in it.contrary to Mokrzycki v. Olson

Rug Co., 28 III. App. 2d 117, 125-126, 170 N. E. (2) 635.

The following cases cited by the Illinois. Appellate Court

in Mokrzycki v. Olson Rug Co. (1960), 28 Ill: App. 2d 117,

170 N. E. 635, sustain its ruling:

In Christensen v. Pittston. Stevedoring Corp. (1954), 131

N. Y. S. 546; 283 App. Div. 1088 plaintiff, an employee of

William Spenser & Sons, was injured in the course of his

employment. Plaintiff recovered a judgment for $70,000

for his injuries against Pittston Stevedoring Corp. |

Upon the trial, plaintiff brought in other employees of

William Spenser and Sons Corp. who testified to the occur-

rence. On cross-examiration of the foreman of plaintiff's

employer, defendant offered to prove that plaintiff’s em-

ployer was self-insured and that in consequenge thereof

was interested in the outcome of the litigation.

The court exeluded this evidence of the witness em-

ployer’s interest in the case. The judgment was reversed |

for this error.

In Johannsen v. Peter Woboril, Inc. (1952), 260 Wis.

341, 51 N. W. 2d 53, plaintiff was injured while an employee

of Bucyrus Erie Co. Plaintiff received workmen’s com-

pensation from Bucyrus Erie Co. Bucyrus Erie Co. was

self-insured.

Employees of plaintiff’s employer festified as to the oc-

currence. It was assigned for error in the Supreme Court

of Wisconsin that the court had denied defendant’s coun-

sel the right to bring to the attention of the jury that

plaintiff’s employer had an interest in the suit to recover

the workman’s compensation paid plaintiff as affecting

the credibility of its employees who en as wit⸗

nesses.

Held that this ruling was reversible error.

In Majestic v. Louisville & V. R. Co. (1945), 6 Cir. 147

F. 2d 621, Majestic, an employee of United States in the

course of his employment was injured in a collision with

defendant’s locomotive. Witnesses for plaintiff who were

employees of the United, States were asked on cross-exami-

nation whether or not plaintiff was receiving Federal Em-

ployees Compensation and whether the United States would

be entitled to recover the sums paid.

Holding that defendant had a right to show that the wit-

nesses’ employer was paying the plaintiff compénsation, the

court said, P. 627: 7

(18, 19) Accordingly, facts tending to show in-

terest, bias or motive on the part of a witness may be

elicited on cross-examination although such examina-

tion may necessarily disclose that the injured person

or the defendant is protected by insurance.“ (P. 627.)

“In Springle v. Davis (1940), 4 Cir. 11¹ F. 2d 925, plaintiff,

a highway workman, was injured in the course of his

employment when struck by defendant’ 5 automobile on ithe

highway.

———

30 —

Phiintzſt recéived Workmen's Compensation. —

Employees of the State Highway Department testified

on behalf of plaintiff upon the trial. The defendant sought

to show the interest of the State Highway 1 to

recover the compensation paid plaintiff.

‘Holding that defendant was entitled to show that the

employer of plaintiff’s witnesses had an interest to recover

workmen’s compensation, the court said:

„Under this rule, the fact that a witness is employed

by a party to the suit is regarded as a relevant cir-

cumstance. Thus it appears that the interest of the

Highway Department in this suit, derived from the

payment of compensation was a fact which was admis-

sible for one purpose but inadmissible for another.’’

(P. 931.) 7

In Thurber Corporation v. Fairchild Motor Corporation

(1959), 5 Cir., 269 F. 2d 841, witness for defendant was a

consultant of Borg-Warner. Another witness for defend-

ant was in the employ of Borg-Warner. Borg-Warner had

contracted to indemnify defendant.

The court refused to permit the defendant to show the

agreement under which the witnesses’ employer was in-

terested in the result of the case. For this ruling the judg-

ment was reversed. *

The Court said, Page 845: ‘

„Under this rule the fact that a witness is em-

ployed by a party to the suit is regarded as relevant

circumstance to be considered by the jury as showing

bias or interest, and a fortiori where the witness is

an ‘employee of a party who has an interest in the

recovery, his employment may be shown for the same

reason. *

In Houfburg v. Kansas City Stock Yards Co. of Maine

(1955) (Mo. Supreme), 283 S. W. 2d 539, plaintiff, an

= employee of Producers Commission Association, recovered

31 0

a $50,000 judgment against Kansas City Stockyards for

injuries suffered in the course of his employment. The

judgment was reversed. Dr. Ingham had testified of plain-

tiff’s injuries, pain and resulting ‘disability. Defendant

had offered to show (1) Ingham had made five reports to

Travelers Insurance Co.; (2) Dr. Ingham had been paid by

Travelers Insurance Co.; (3) that Dr. Ingham knew that if

plaintiff recovered, Travelers Insurance Co. would recover

the money it had paid for workmen’s compensation. The

trial court excluded this evidence. Holding that this evi-

dence should be admitted on the retrial, the court said,

page 548: e. ©

It may be conceded that the fact of payment by an

insurer of workmen’s compensation benefits and the

consequent pro tanto subrogation of the insurer is

ordinarily irrelevant in a suit of this nature and should

be excluded. * * However, this rule does not apply

where it becomes necessary to make such disclosure

in order that the jury may properly evaluate the testi-

mony of a witness.’’

Molrozycki v. Olson Rug Company (1960), 28 III. App. 2d

117, 170 N. E. 635,.is the law in Illinois.

National Enameling Company v. Fagan (1904), 115 III.

App. 590. Vandeveer, an attorney, testified he took down

a statement made by plaintiff and a witness for plaintiff.

On cross examination over objection Vandeveer stated that

in taking the statement his firm was acting for Traveler’s

Insurance Co. Holding * ruling proper the court said,

(page 293):

» stand to prove a material fact, and it was perfectly

proper that on cross-examination such witness should

be required to disclose the fact that he was interested

and in what manner.

‘* Appellant had put an interested witness on the |

In West v. American Telephone d Telegraph (1940), 311

U. S. 223, the 6th Circuit had declined to follow an Ohio

Appellate Court decision since it believed the Ohio Supreme

Court would hold otherwise. The statement by Mr. Justice

Stone is applicable here (pp. 236-237) :

But the obvious purpose of § 34 of the Judiciary Act

is to avoid the maintenance within a state of two diver-

gent or conflicting systems of law, one to be applied in

the state courts, the other to be availed of in the

federal courts, only in case of diversity of citizenship.

That object would be thwarted if the federal courts

were free to choose their own rules of decision when-

ever the highest court of the state has not spoken.

A state is not without law save as its highest court

has declared it. There are many rules of decision com-

monly accepted and acted upon by the bar and inferior

courts which are nevertheless laws of the state although

the highest court of the state has never passed upon

them. In those circumstances a federal court is not

free to reject the state rule merely because it has not

received the sanction of the highest state court, even

though it thinks the rule is unsound in principle or

that another is preferable. State law is to be applied

in the federal as well as the state courts and it is the

duty of the former in every case to ascertain from all

the available data what the state law is and apply it

rather than to prescribe a différent rule, however

superior it may appear from the viewpoint of ‘general

law’ and however much the state rule may have

departed from prior decisions of the federal courts.’’.

The decision of the Court of Appeals makes two diver-

gent and conflicting rules within the State of Illinois. It

> was the duty of the Court of Appeals to follow the Appel-

late Court decision ‘

;

bs *

III.

After the jury reported a disagreement, the judge gave

an instruction patterned after the instruction in Allen v.

U. S. (1896), 164 U. S. 492 at 501 (Res. A. 660-663). The

Court of Appeals rejected the holding in Allen v. U. S. and

the other federal cases following Allen v. U. S. It held that

giving the instruction containing the following language

was error: —

„However, I'II say this, if much the greater number

of you are in favor of a verdiet either for the plaintiff

or for the defendant, each dissenting juror ought to

consider whether his appraisal of the evidence, of the

weight of the evidence, is a correct one, since it makes

no effective impression upon the minds of so many

equally intelligent fellow jurors, who bear the same

responsibility, who serve under the sanction of the

same oath and who have heard the same evidenee, with

the same attention and with equal desire to arrive at

the truth.“ (Res. A. 662-663).

The Court of Appeals held that the District judge

should have told each juror being in the majority to

re-examine his appraisal of the evidence in the light of the

fact that a minority of their number disagreed. His failure

to do this was error.

This holding creates a conflict among the Circuits. It

affects the proper relations of the court to the jury. The

language which the 7th Circuit says was error is substan-

tially the same as was approved in this court in Allen v.

U. S., 164 U. S. 492 at 501. The instruction there given

includes the following: ated

„that, if much the larger namber were for con-

viction, a dissenting juror should consider whether his

doubt was a reasonable one which made no impression

upon the minds of so many men, equally honest, equally

intelligent with himself. If, upon the other hand, the

j 34

majority was for acquittal, the minority ought to ask

themselves whether they might not reasonably doubt

the correctness of a judgment which was not concurred

in by the majority.

The instruction was approved by the Fourth Circuit in

Orthopedic Equipment Co. v. Eutsler (1960), 276 Fed. 2nd

455. That instruction is substantially identical to the in-

struction given by the District Judge. It contains spe-

cifically, the language :

P. 462-463 ‘‘. . . If much of the larger number are

of one opinion, a dissenting juror should consider

whether his disagreement is a reasonable one which

makes no impression upon the minds of so many jurors

equally honest, equally intelligent with himself. If,

upon the other hand, the majority is the other way, the

minority ought to ask themselves whether they might

not reasonably doubt the correctness of a judgment

which is not concurred in by the majority.“ 2

In Thompson v. Allen (1956), 240 F. 2d 266, the Tenth

Circuit had the same question before it. It was argued

that the instruction overemphasized the duty of tlfe

minority to re-examine their thinking because of the fact

they were in the minority and did not equally emphasize

the duty of the majority to give . consideration to

the views of the minority. y |

The Court at Page 269 cited Allen v. V. S., 164 b. 8.

492 and affirmed the judgment.

The same question was before the 7th Circuit in 1952,

U. S. v. Furlong, 194 F. 2d 1 at. page 3. The instruction

there approved contained the language which the Court of

Appeals in this case has condemned. Thére was a part of

the instruction in this latter case that was not taken from

Allen v. U. 8. which the court disapproved.

The decision of the 7th Circuit on the jury question

creates iet among the Circuits. It is desirable to have

uniformity in the several Circuits in the relation of the

judge to the jury.

If the ruling in Allen v. U. S. is to be changed it should

be by decision of this court.

CONCLUSION.

» This court should grant certiorari and construe Rule 36

and eliminate the conflict between the Circuits. It is essen-

tia] that the rule should be properly applied for the admin-

istration of justice.

This court should also construe Rule 11 in its relation

to Rule 36 as to an attorney omitting from his complaint

the sole charge on which he expects to rely on the trial.

This court should take jurisdiction to prevent a conflict

of the law in Illinois in personal injury cases where the

plaintiff has collected workman’s compensation and seeks

to use employees of his employer as witnesses. :

The holding of the Court of Appeals contrary to this

court’s decision in Allen v. U. S. and the decisions of the

other Circuits and the prior decision of the 7th Cireuit

can only create N SO, to the relation of the court

to the jury. eee

We respectfully submit that a writ of certiorari should

be granted.

Respectfully submitted,

Atvix G. Hupsarp and

Reese Hun ee

One Vortl La Salle Street,

i * ois 60602 «

. Attorneys for Petitioner.

APPENDIX A.

In roe Untrep States Court or ArrRALS.

For the Seventh Circuit.

SEpremBerR TERM, 1964—Apru. Session, 1965

No. 14738

EuGENE Manaan, f Appeal front” the

Plaintiff-Appellant, United States Dis.

v. : trict Court for the

Northern District

BnopRRIOR , * Rog of Illinois, East-

YOMPANY, Divisi

Defendant-Appellee. | wan St cue

July 27, 1965

Before Hastine, Chief Judge, Durry, Circuit Judge,

and Mxnenn, District Judge.

Mercer, District Judge. Plaintiff, Eugene Mangan, filed

his suit against the defendant for damages for personal

injury. He prosecutes this appeal to review a judgment

entered by the court below upon a verdict rendered by a

jury finding the issues for the defendant. The action

of the trial judge in refusing to permit plaintiff to read

certain requests for admissions to the jury and other al-

legations of trial error are ‘asserted as the ‘basis for

plaintiff’s contention that the judgment should be xc.

at Geek Toe oe 8

new trial. 792 a ATES * iv

On and prior to December 1, 1960, plaintiff was an em-

ployee of Schweitzer & Company which was then engaged

in the construction of a concourse building at O’Hare

Field. For some five weeks prior to the occurrence which

gave rise to this suit the crew of which plaintiff was a

part had been engaged in the installation of precast

concrete panels used in the construction of the walls of

the building. The panels, which weighed from 3000 to

3500 pounds each, were lifted by a crane to the second

floor of the building where they were fitted into bays

in the building wall. Each bay held four panels, Limited

clearance within the bays required that a sling method

be used.to install the number 4 panel in each bay, although

other means were used to lift the first 3 panels into place.

A- sling was fashioned from wire rope, or cable, wrapped

around the concrete panel and wood softeners used to

guard the panel from damage by the cable. In each such

operation, the sling was rigged securely around a panel

and the hook on the crane was fastened on the outside

of the wire sling thus formed. The panel would then be

lifted into the air in a vertical position to a height of about

4 or 5 feet. At that point, the ground men on the proj-

ect attached a manila guide line to the cable which men

working on the second floor manipulated as the panel

was raised to guide the panel into place.

Schweitzer used one-quarter inch cable as slings on the

number 4 panels. Each cable could be used for approxi-

mately 6 to 8 times before it was worn to such extent

that replacement was necessary. At the start of the proj-

ect one-quarter inch 6 x 19 cable was used for the sling.’

1 Wire rope, or is designated in the trade by the diameter

of the cable and a n designation of the number of strands.

in the eable and the number of wires in each strand. Thus 6 x 19

cable is cable having six strands with nineteen wires in each strand.

Other eable strengths are 1 designated in this opinion

without specific description thereo

... Git wloe eckis of the ent iki: -

About the middle of November, 1960, Schweitzer’s super-

visory employees decided to order some one-quarter incl.

6 x 37 cable — oe felt its greater flexibility would

give more ease ing and better wearing quality.

The job superintendent directed Schweitzer’s timekeeper

to order some 6 x 37 cable from the defendant. That order

was placed by phone to defendant’s warehouse on Novem-

ber 14, 1960, for 50 feet of 6 x 37 cable. A sales trainee

at defendant’s warehouse obtained a coil of cable from

the warehouse and delivered it to the little shed” at the

concourse project. Schweitzer’s timekeeper receipted for

the delivery. / i

On December 1, 1960, the job superintendent sent the

plaintiff to the iron worker’s shanty where cable was

stored to obtain some cable to replace the one being used for

the sling. Plaintiff testified that he found a coil of new cable

hanging in the shanty and that it was the only cable that

was in the shanty which had not been used. The cable was

then made into a sling around a number 4 panel in the

manner above described, and the.crane operator lifted the

panel to a height of about five feet to the proper position for

attachment of the guide lines. While plaintiff and another

employee were tying the ends of the guide line to the

sling, the cable broke and the panel fell striking the plain-

tiff and injuring him seriously and permanently.

Plaintiff’s foreman arrived at the scene before plaintiff

was removed to the hospital and saw the sling cable lying

on the ground broken. , Thereafter, he and Schweitzer’s

job supervisor examined the cable and upon counting the

strands discovered that it was 6 x 7 cable. Schweitzer’s

supervisory employees testified that no one-quarter inch

6 x 7 cable had ever been ordered by them for the O’Hare

is identical in appearance. The only way to

distinguish one-quarter

Sisk 6 & ED calle frten one Qaerte Snes § & T oes & Se ae aw

of the strands apart and count the number of wires therein.

—

project, and tik i no be of such composition was ever

used on the project. Subsequent laboratory tests of the

broken cable showed it to be one-quarter inch in diameter

and consisting of six strands, with each strand made up of

seven wires wound around a hemp center. The test re-

vealed that the breaking strength of the cable was about

2330 pounds.

Schweitzer’s job superintendent testified that he was

familiar with the cable stored in the ironworker’s shanty ;

that 50 feet of 6 x 19 quarter-inch cable had been received

from another supplier on November 3, 1960, and that all

such cable had been used prior to December 1, 1960;

that for a period of some 10 days prior to December 1

there was only one piece of new and unused cable in the

shanty ; and that the cable was in a coil the way it had been

received, and that the coil was 50 feet in length. He fur-

ther testified that he had examined all cable on the con-

course job on December 2, 1960, and that he could find

no 6 x 37 cable oh the job, either new or used. ;

Plaintiff’s complaint charged that his injury came as a

proximate result of defendant’s negligence, among other

things, in supplying a cable of inferior strength and dif-

ferent from the one that had been ordered, in selling a

cable which was unfit for the purpose for which it was

ordered, and in failing to warn plaintiff that the cable

was unfit for the purpose for which it was intended.

5 We turn first to the alleged error in the court's refusal

to permit plaintiff’s requests for admissions to be read

to the jury. On August 23, 1962, plaintiff filed 14 requests

for admissions of fact which, so far as here pertinent, re-

quested admissions that Schweitzer had ordered 6 x 37

wire rope from defendant, that wire rope was delivered

by the defendant to Schweitzer pursuant to that order

prior to December 1, 1960, and that, the wire rope sent

Wm. E. Schweitzer and Co. was composed of 6 strands

—

* 41

with seven wires in each, or 6 x 7 wire rope“. The re-

quests above summarized were requests numbered 1 and

4. The request above quoted was request number 5.

Thereafter on September 4, 1962, defendant filed a motion

praying that it be relieved from answering plaintiff’s

requests numbered 11, 12, 13 and 14, and that an order

be entered extending the time within which defendant

could answer the balance of the requests for admissions.

On Septem r 10, 1962, defendant moved for a hearing

on its objections to requests numbered 11 to 14. Judge

tions to those requests. Defendant did not seek or obtain

a ruling on that portion of its motion requesting an ex-

tension of time to answer the balance of the admissions,

and defendant did not, in fact, at any time deny or other-

wise answer plaintiff’s requests numbered 1 through 10.

That was the situation prevailing at the time when the

cause went to trial. N

At the outset of the trial, plaintiff sought to read his

requests numbered 1 through 10 to the jury. Upon the

representation of defendant’s counsel that objections to

all requests filed by the plaintiff had -been sustained, the

court asked plaintiff to pass the matter of the admissions

until the record could be checked. During the course

of the trial, several other discu’sions between court and

counsel were had relative to use of those requests. Ulti-

mately, the trial judge indicated his opinion that defend -

ant 's failure to respond to the requests would be tanta-

mount to admission of the facts therein stated, but that

plaintiff had abandoned his requests by his subsequent

filing of interrogatories addressed to the same subject

matter. 7 4 8

That ruling was error. A party's failure to file a veil

fied response to requests for admissions under Rule 36

admits: the truth of all matters therein stated, Water

„ ——

Hammer Arrester Corp. v. Tower, 7 Cir., 171 F. 2d 877,

879, Adventures in Good Eating v. Best Places to Eat, 7

Cir., 131 F. 2d 809, O’Campo v. Hardesty, 9 Cir., 262 F. 2d

621, and unanswered requests are not abandoned by the

subsequent filing of interrogatories addressed to the same

subject. Woods v. Robb, 5 Cir., 171 F. 2d 539. Where no

response is made to requests for admissions, the party

making the requests is entitled to rely thereupon and no

further proof is required to be made of the facts thus

admitted. Water Hammer Arrester Corp. v. Tower, supra.

That error alone would require reversal of this judg-

ment. Plaintiff advised the court below that his trial

preparation was made on the theory that these unan-

swered requests would stand admitted. The exclusion of

those facts from evidence may well have made the differ-

ence between a verdict for the plaintiff and the verdict

rendered. ‘

There is absolutely no merit to defendant’s contention

that the request was deficient because it did not fix a

time within which defendant’s response thereto was re-

quired. Defendant did not object to the sufficiency of the

requests in the trial court. It cannot now object to the

form of the request. Rule 36 places the burden upon a

party to whom requests are directed to take some affirma-

tive action, either by response to the requests or by ob-

jecting thereto if any ground he has. Water Hammer

Arrester Corp. v. Tower, supra. Having done nothing

as to requests 1 to 10, inclusive, defendant must bear the

congequences of their standing admitted. 14

Reversal of the judgment is also required because evi-

dence of workmen’s compensation benefits was injected

into the case. Immediately prior to the commencement

of the trial, the trial judge expressed his general view

that such evidence would not be admitted, though he re-

served his final ruling thereon. He told defense counsel

to refrain from such inquiry until a ruling was made by

the court. Notwithstanding that admonition, defendant’s

counsel sought to ask Schweitzer’s office manager if com-

pensation had been paid to plaintiff and if Schweitzer

would recover substantial sums if plaintiff was success- .

ful in this suit. Objections to those questions were sus-

tained, and defendant’s offer of proof was denied. Sub-

sequently, in his examination of one of the treating physi-

cians, counsel asked the physician who had paid plaintiff’s

bill and elicited the answer that the insurance company

had done so. The question and answer were stricken.

Though the court chastised counsel for his deliberate dis-

obedience to the court’s prior admonition, plaintiff’s mo-

tion for a mistrial was denied.

Later, in the trial, but yet prior to the court’s ruling

on admissibility, counsel for defendant posed similar ques-

tions to the witness Borchardt. Ultimately, in apparent

reliance npon Mokrzycki v. Olson Rug Co., 28 III. App. 2d

117, 170 N. E. 2d 635 the court allowed Borchardt to be

cross-examined relative to the workmen’s compensation

situation and allowed defendant to show through Bor-

chardt that a workmen’s compensation claim against

Schweitzer was then pending before the Illinois Industrial

Commission. The court below reasoned that such cross-

examination was proper to show the possible prejudice and

bias of the witness as an employee of Schweitzer.

This court, among others, has stated that testimony of

that nature is highly prejudicial to a plaintiff’s case E. g.,

Eichel v. New Fork C. R. Co., 375 U. S. 253, 84 S. Ct. 316,

11 L. Ed. 2d 307; Tipton v. Socony Mobil Co., 375 U. S. 34,

84 S. Ct. 1, 11 L. Ed. 2d 4; Goldman v. Checker Cab Co.,

7 Cir., 325 F. 2d 853, 856; Bryntesen v. Carroll Const. Co.,

22 III. 2d 63, 174 N. E. 2d 172; O’Brien v. Chicago City Ry.

Co., 305 III. 244, 262, 137 N. E. 214, 27 A. L. R. 479;

Burnett v. Hernandez, 9 Cir., 263 F. 2d 212. Cf., Ting v.

Grimm, 7 Cir., 300 F. 2d 658, 660. Unless such evidenee

has some legitimate purpose other than to advise the

zury that a plaintiff has been partly paid for his injury,

a strict exclusionary rule should be applied.

In the case). the conduct of defendant’s cotinsel in his

cross-examination of Schweitzer’s office’ manager, the

doctor and Borchardt in defiance of the court’s admoni-

tion was an act not te be condoned. The-motive for such

questioning could not have been entirely an attempt to

show possilife bias of the witnesses. The doctor was not

, a Schweitzer employee. He could have no possible in-

terest in the case. Borchardt was not a Schweitzer ein-

ployee as we shall rept show This, even if the judge

was correct in his ultimate ruling that evidence of

the receipt ‘of workmen’s compensation might be adduced

to show the possible bias of witnesses, we are still faced

here with gross error. Counsel’s willingness to inject

that evidence into the case at any cost is sufficient to earn

him a new trial for plaintiff. ,

The cross-exangnation of Borchardt which the court

permitted must be reviewed in a different light. In the

Olson case, the plaintiff, an employee of Globe; was in-

jured while unloading a boxcar which he alleged Olson

had negligently loaded. The court held that cross-ex- |

amination of Globe’s plant superintendent ‘relative to

Globe’s interest in plaintiff’s suit because of workmen’s

compensation benefits paid to plaintiff was permissible

for the limited purpose of showing the possible bias of

the Globe employee as a witness. Mokrzycki v. Olson

Rug Co., 28 Tl. App- 2d 117, 125-127, 170 N. E. 2d 635.

We believe that “Olson is so inconsistent with several

opinions of the Supreme Court of Minois that that deci-

sion does not reflect the law Of that state. Compare, Bryn-

stesen v. Carroll Const. Co., 27 III. 2d 566, 190 NE 2d 315;

Rylander v. Chicago Short Line Ry. Co., 17 IIl. 2d 618,

612.628, 161 NE-2d 812; O’Brien v. Chicago City Ry. Co.,

305: Ill. 244, 262-263, 137 NE 214, 27 A. L. R. 479.

The rationale of Olson is that every employee witness

is suspect if his employer may possibly have a lienable

interest in any recovery by a fellow employee against a

third-party tort-feasor. To us that is sheer folly. Though

we cannot always discern the motives of men, we cannot

conclude that every salaried employee is likely to testify

falsely to enhance the chances of his employer’s claim

for money. Any slight value which such evidence might

have in discrediting a witness is far outweighed by the

likelihood: that such evidence will be misused by a jury.

Tipton v. Socony Mobile Oil Co., 375 U. S. 34, 84 S. Ct.

1, 11. L. Ed. 2d 4; Eichel v. New York C. R. Co., 375 U. 8.

253, 84 S. Ot. 316; Burnett v. Hernandez, 9 Cir., 263 F. 2d

212. Indeed, we can conceive of few instances in which

the value of such evidence would merit the effort of its

producement if the evidence did not at the same time

advise the jury that the plaintiff had already collected

some money for his injury. As one court pointed out the

‘‘smell’’ of insurance or workmen’s compensation must

bé presumed to affect a jury adversely to a plaintiff’s

cause. Burnett v. Hernandez, 9 Cir., 263 F. 2d 212, 214.

Though we can conceive of instances in which the com-

pensation factor might have the effect of discrediting a

witness, we think that the use of such evidence should

be limited to instances in which possible bias is revealed

by some act or factor more profound than the mere fact

of employment by a particular employer.

We are, therefore, constrained to disagree with the Olsoe

opinion. *

In any event, the cross-examination of Borchardt 79 7

tive to Schweitzer's compensation was error irrespeetive

of the status of Olson as authority. Borchardt was not

a Schweitzer employee. He was employed by Martin

Boyer Company, an investigator employed by Schweitzer

to process its workmen’s compensation claims. There is

nothing to indicate that the salary of Borchardt or the

fees of Boyer were in any way affected by the Schweitzer

lien claim. Borchardt was permitted to testify that plain-

tiff had a suit pending against Schweitzer before the

Illinois Industrial Commission. The jury may. well have

implied from that testimony that plaintiff was alleging

that Schweitzer had been negligent and that, therefore,

plaintiff could not recover from defendant.? The testi-

mony had no possible tendency to discredit the witness.

Its only tendency was to prejudice plaintiff’s rights.

Though it is not likely to reeur on a new trial of this

case, we think one other aspect of this appeal shouldbe

— Briefly mentioned. After the jury had deliberated for

some six hours, the jurors were permitted to separate

and to go to their homes for the night. Shortly after

they met on the following morning, the court gave the

jury an additional charge which tended, among other

things, to tell each of the jurors being in the minority

on the panel to re-examine his appraisal of the evidence

in the light of the fact that a majority of their, number,

who were equally intelligent people disagreed. We think

2 That hypothesis is contrary to the established rule of law that

the negligence of an employer is not imputable to his employee in

a suit against a third person. Giguere v. United States Steel Corp.,

7 Cir., 262 F. 2d 189; Rylander v. Chicago Short Line Ry. Co.,

17 III. 2d 618, 161 N. E. 2d 812.

a The court téid the jury, in part:

Now, I don’t know how this jury stands as between those who

may be at this moment in favor of the plaintiff or in favor of the

defendant, and I don’t want to know. :

: „However, III say this, if much the greater number of you are

in favor of a verdict either for the plaintiff or for the defendant,

each dissenting juror ought to consider whether his appraisal of

thé evidence, of the weight of the evidence, is a correct cne, since

J it makes no effective impression upon the minds of so many equally

an pe

47 .

it error to so charge a jury unless a like admonition,

equally specific, is likewise addressed to those jurors hold-

ing a majority view of the evidence.“

Finally, the conduct of. defendant’s counsel in cross-

examining a witness upon an exhibit ‘which was not in

evidence and which was never offered in evidence was

such a deliberate misuse of the judicial process that it

must not be repeated upon a retrial of this suit.

We have considered and rejected all of the defendant’s ,

arguments for affirmance which are not specifically men-

tioned herein.

For the reasons above stated, the judgment is reversed .

and the cause is remanded to the court below for a new

trial. i

REVERSED AND REMANDED.

intelligent fellow jurors, who bear the same responsibility, who

serve under the sanction of the same oath and who have heard the

same evidence, with the same attention and with equal desire to

arrive at the truth.

4A similar instruction has been held to be improper. E. g.,

Acunto v. Equitable Life Assur. Soc., 270 App. Div. 386, 60 N. Y.

S. 2d 101, Lennox v. White, 133 W. Va. 1, W. Va., 54 S. E. 2d 8

and Mead v. City of Richland Center, 237 Wis. 537, 297 N. W. 419.

APPENDIX B.

JUDGMENT BLOW.

Unirep States Court or Appeals

For the Seventh Circuit.

Chicago, Illinois 60610.

Tuesday, July 27, 1965.

Before .

Hon. John S. Hastings, Chief Judge,

Hon., F. Ryan Duffy, Circuit Judge,

Hon. Fredrick O. Mercer, District Judge.

Eucenz Mangan, Appeal from the United

: States District Court

_— 5 for the Northern Dis-

BRoDERICK AND Bascom Rope trict of Illinois, East-

ComPany. — ern Division.

This cause came on to be heard on the transcript’ of

the record from the United States District Court for the

Northern District of Illinois, Eastern Division, and was

argued by counsel. :

On consideration whereof, it is ordered and adjudged

by this court that the judgment of the said District Court

in this cause appealed from be, and the same is hereby,

Reversed, with costs, and that this cause be, and the same

is hereby remanded to the said District Court for a new

trial in-accordance with the opinion of this court filed

this day.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.