*1 379 appellant suspension the close predicate revocation will conviction, It should fine renewed his to dismiss. and, a after a license granted. supra 426, have been provided section $100, as 5.9 note Reversed. agent, broker provides an that The Act
n “or other “knowingly or person” who wilfully” or fraudulent a “false makes appli- an with reference statement” pur- insurance or for
cation for life obtaining pose fee commission a guilty company is a insurance from life
(cid:127)only of misdemeanor.10 a Congress has clear that It Marguerite James A. CASPER and
n conferred Superintendent upon cer Casper, Appellants, functions. He acts tain administrative v. particular and enumerated condit COMPANY, corpora- BARBER ROSS a given power has ions.11 He not been tion, Sanford, Inc., and Warfield & Congress regulations. promulgate has corporation, Appellees. a not him to act to make authorized so No. 15520. knowingly a felonious even false answer Congress question a not Appeals United States Court of charge is made material.12 “Where the District of Columbia Circuit. legislative crime, clear it must have Argued 15, 1960. June may short, “Before In one basis.”13 19, Decided Jan. 1961. appear punished, his case is must statute; are no plainly within the Rehearing Petition for Denied 14 constructive offenses.” 14, Feb. 1961. say Superintend not We do may other informa not seek “such
ent may proper required
tion” as
performance of administrative func Congress hold has
tion. We not
grounded perjury upon indictment
knowingly question false answer No.
7, supra, has it nor authorized re Superintendent
quired to do so.15 George, 1913, 228 U.S. States 13. United 1960, 147, 81 5 S.Ct. 712; 415, 14, 412, 22, L.Ed. 57 S.Ct. L.Ed.2d States, 1947, 83 U.S. United Shelton (1951) Compare D.C.Code § 35^28 32, App.D.C. F.2d 241. dealing applicant brolcer’s Resnick, 1936, 299 States 14. United providing any license, 210, 207, 81 L.Ed. 57 S.Ct. any provision U.S. sec- who violates “of this 1926, States, Fasulo v. United added) (emphasis conviction tion” L.Ed. U.S. $100. fined to exceed shall be (Supp. VIII, 35-426 § D.C.Code 15. Cf. (1951). 35-719 § 10. D.C.Code testimony Deputy 1960). Agency Insurance v. Jor 11. Cf. Atlantic licensing Superintendent U.S.App.D.C. 184, 187, dan, of crime that conviction clear made F.2d issuance of license. bar does States, 1908, v. United 12. Williamson L.Ed. 278. *2 Joseph Washington, Bulman, D. C., Sidney
D. M. with whom Messrs. Washing- McGuire, Goldstein and Leo N. ton, C., appel- D. the brief for Washing- Kennahan, lants. Mr. John E. ton, C., appearance D. also entered an appellants. for Miller, Judge, dis- Chief Wilbur K. Roberson, Washington, part. Mr. Frank F. sented in C., Arness, D. with whom Mr. P. John Rockville, Md., brief, was on the appellee Company. Barber & Ross Washington, Jackson, Mr. Thomas S. C., D. with whom M. Messrs. Robert Gray, Jackson, John W. A. Steven Winkelman, Friedman, and Maurice Washington, C., brief, D. were on the appellee Sanford, Warfield & Inc. Before Chief Miller, V/ilbur K. Judge, and Bazelon Cir- Danaher, Judges. cuit DANAHER, Judge. Circuit Casper, James A. hereinafter referred appellant, to as inspector was an elevator employed by Columbia, the District of injured May 2, who was 1956 while riding ascending top slowly of a freight previously elevator. He had repairs ordered to be made on three premises elevators located in the appellee, Company (here- Barber & Ross Company). Repairs were performed by appellee, Warfield & San- ford, (herein Inc. Company). Casper appellees. sued both The trial judge directed a appellee, verdict for Company, & Barber Ross at the close plaintiffs’ case. Warfield & San- ford, Inc. filed its motion for directed verdict the close of thereon was reserved. awarding damages returned a verdict and his wife1 appellee, Casper’s damages juries, 1. Since Mrs. claim we shall hereinafter refer appellant. loss of consortium must stand or fall Casper’s personal claim based on in- assigned power- territory, inspecting verdict Sanford, After Warfield Inc. timely every months. driven four its elevators filed about Warfield Inc. injured elevator on which he n. o. v. (cid:127)which motions for *3 power-driven awas as to judge granted,2 elevator a new trial. for and Casper personally “rou- law Mr. made of had errors latter asserted motion inspections tine” or four three cognizable some consideration properly the in year period or not times four a of motion, did over a such the of a years injury. No five date his before the of new trial. rule on for the motion inspection & A Barber “routine” of the by Elevator appeal the was cross taken min- Ross 30 elevator some 20 to entailed made Company, appellant has and inspection utes con- of of his time. an Such the failure claim of of error because examining in equipment sisted of the the for motion the rule on the to hatchway shaft, lower level of the the trial.3 doors, cables, equip- switches and related to Appellant presents questions ment, normally pro- after which he Judge (1) the District whether or “overhead,” penthouse, ceed to the the setting verdicts the in aside erred inspection conduct of the further Company enter- and Elevator the machinery Every and controls. “rou- ing judgment surveys. inspection tine” included such directing the (2) verdict for and in a a To execute his function when on Building Company. inspection, Casper routine Mr. mounted years the Casper, at old Mr. about top elevator, the the then called of and long experi- injury, had time of the had manage- upon by supplied the installation, repair, mainte- in the ence building operate ment the the car. of Begin- nance and service of elevators. necessary He on testified to ride employed by ning 1923, and in thereafter top only of the elevator since from that Houghton, elevator com- Otis and other vantage point equipment in could all the training panies, culmin- his service and really elevator shaft examined. “It’s becoming in in an elevator ated his you cables, place the look can at it’s inspector of District for Columbia. you get only place can a constructive your capacity equip- in included the His duties and full view of doors and the top making inspections ment periodic of the shaft itself.” When of all on of inspection of the elevator in the of a routine types course power elevators. The inspection, customarily arranged phases, process one for included two signals operator, control, “routine,” between himself and the own go usually by up”; “check-up,” a call such as “Let’s to ascertain whether other a it”; required repairs bit”; had accom- “Hold “Take it down been a little plished. "Hold it.” in sole He worked day November, 2. The order reads: Court 24th Judgment “Adjudged Defendant Un- and Ordered “Order the mo- defendant, 50 Motion a Directed tion der Rule Warfield & San- Inc., ford, for a directed Verdict verdict in its having hereby come on for further be and “This cause favor herein the same is upon granted, hearing the motion of defend- and the verdicts Sanford, Inc., plaintiffs, ant, favor for a di- of the Warfield herein James Casper Marguerite Casper, at conclusion A. and verdict rected are case, having hereby aside; plaintiffs’ judg- motion said vacated and set hereby granted the close of all and it ment be is renewed to the having defendant, reserved decision Warfield & and the Court Inc.” upon 50(b) motion under Rule said Co. Rules Civil [28 Procedure the Federal having U.S.C.A.], U.S. Court S.Ct. heard argument said motion L.Ed. cf. Johnson v. both before New verdict; having York, Co., H. & H. R. and the Court N. and after 54 note for directed concluded L.Ed. granted, should be verdict is discovering of a Upon course other elevators in the Com- premises. pany’s They inspection work out routine that some required, equipment some 30 45 minutes lunch. is to have elevator or the report, inspector prepare had two beers but Stout must Returning, to none. in the directed the three went after letter will be which a building prescribing certain elevator the second There Mr. the period, floor. owner guard Casper pushed up propped complete indicated within to gate. building repairs. Thereupon owner elevator until was sent down repairs its roof required ad- was flush floor. with the second cause the justment ele- Mr. then walked onto elevator to be effected. When *4 inspector’s noti- roof. vator been From the to office has roof of the elevator opening grille the fied that work has been a the indicated the work was again done, inspector Casper the distance the visits of about 10 feet. once Mr. premises up,” top the was examine about 5'5" to “check to tall. on With him compliance Stout, of extent and the the elevator the nature of was Mr. who was repair about 5'9" with the tall. Thus order. the distance be- penthouse tween Mr. Stout’s head and the penthouse reach the in the shaft To grille was some four feet inches three injury occurred, Casper where the Mr. comparably, and top Casper’s from the previous on each occasion had come to head penthouse, the floor to of the it was the second floor Com- of the about four and one-half Madi- feet. Mr. pany, top had then on the climbed gan remained on the second There floor. elevator, and directed was run- whoever nothing was overhead to obstruct Mr. ning up, it, stop it “to take take the car Casper’s grille plain vision. The was in up, stop it, up, point it till I reached a sight. Casper Either Mr. Stout Mr. safe, that was convenient me and and stop could rope have the reached the give down, prob- directions to either —on car as it ascended. ably.” personally He had a made such Casper Mr. testified that he made inspection “routine” on March suggestions as to how he and Stout were Casper Mr. thus was familiar with get up through aperture. to and particular penthouse elevator. The floor Madigan Neither Mr. nor Stout Mr. had machinery where the was located was up Casper ever been on the elevator. Mr. heavy grille. constructed of metal There had never measured the overhead clear- opening grille was an in the metal about although my job ance “It’s to measure previous 22" x 30". On each of his rou- it; yes, sir.” inspections Casper, standing tine Mr. on you you “If had measured it top elevator, through of the had have known what clearance there was opening up that inspection to his waist to make top between the of the car and the over- grille. above the grille head when the car came to its operated The rope elevator was stop, you a automatic Probably.” wouldn’t ? A. grasped by which could a on top of the rope elevator. If the were Casper Mr. had in mind that pulled up, the car could be sent down. brought point, elevator would be a rope pulled down, If the were the car perhaps top a foot from the up. could rope be sent If the grating, after car would be “centered,” stop. the car would “inching up, time, eased a little bit at a May 2, 1956, up,” Casper Casper, On as Mr. done Mr. himself had Mr. nothing Stout, employee occasions, on other but said Elevator Com- repairman’s possibility. pany, helper, and a about such Mr. Stout Mr. Madigan, spent morning Casper simply together had no conversation about Casper plan inspecting any procedure.4 Mr. such while was two They put aperture, top could have ladder hut that would have meant lot on Madigan, the elevator thus for Stout and Cas- have climbed to the of work Mr. on requests was submitted for instructions itself elevator roof The particularly points, top various but Casper stood As Mr. solid. theory respect Company’s to the Elevator mechanic’s see where he could risk had assumed the whether not know helper didHe was. injury. He had asserted defense car. helper was or not Company’s operating in the Elevator answer helper were if the knew upward pretrial. below, been relied from the elevator case, throughout pressed changed only re- issue as the was course could “telling requested prayer start was denied. him to of someone’s sult upward speed After a substantial stop.” had returned The elevator’s varying very appellant, Elevator slow, from verdict estimates second, Company timely feet entitled per filed one-half to 35 or its foot Judgment per “Motion Non Obstante minute. alternative, or, Veredicto in the any Thus without formulation of grounds Among new trial.” stated particular procedure, Mr. latter, top positions took their Stout *5 law, asserted trial court’s as error of the gave no instruc- car. Mr. the jury doc- instruct failure to the management car. tions as the to assumption trine of of risk. placed the Mr. himself Stout aperture, grasped rope and the started Apparently judge as trial the watching kept aperture the the car. He granted for sumed that if he the motion slowly as the ascended. elevator judgment unnecessary v., be o. when the testified that trial rule the motion for new grille eight his was six or inches above and that the latter motion had “ it,’ out, ‘Stop ‘Hold head he cried out The of the case.5 That is not so. ** expression The it’ some Supreme pointed has the Court out that upward how- elevator continued to move notwithstanding the motion for dropped ever. He roof of then to the verdict and trial the motion for a new *** the elevator [himself] “to make peculiar have and “The different offices. * * * possibly as small as [he] party rule contemplates that either could.” He had clear recollection judge’s the action trial' is entitled stopped actually as- when the elevator motions, decision on both if both are cending. presented.”6 Again, generally, Such state of “the courts so administer should Company’s evidence when the Elevator accomplish all is the rule as to that close motion at for directed verdict ** permissible under its terms. appellant’s denied. The case was Building Company’s motion was similar prayers alternate or motions “If granted. then here, presented, as hold that we are rule on the trial Company’s for motion judgment. his Whatever motion directed verdict was renewed at on thereon he should also rule all close of new indi- reserving said, decision, “under cating grounds of decision.” 50(b).” Rule The Elevator Montgomery said, per “putting up Ward & Co. and the ladder tak- page 251, supra at ing note 311 U.S. it down.” page at Eighth Cir 5. Such was the view of the page 253, Id., at 61 S.Ct. cuit in Duncan v. Moore, page § Federal Practice Co., 1940, 853. About 1951). (2d Johnson New Cf. ed. 50.12 York, also had some doubt time this court Co., 1952, Pessagno point. & H. R. g., N. H. See, Eu e. L.Ed. 77. App.D.C. 141, Co., 1940, Inv. clid F.2d latterly applied safety. [Citing care so have his own We trial Moore case the the rule.8 And risk of cases] In the where the dan- ger judge granted motions, and we was or must have both been known approved pointed injured practice. employee, We there im- may be out shall that if n.o.v. material that it have for- entered, gotten properly found to have been at a moment.” critical case is no remand the need to arising so, apart Even from cases case, our new trial. instant In between master and servant have we disagreement own after extended con recognize “contributory continued to assuredly emphasizes sideration negligence and assumed risk” are majority’s jury questions were view that necessarily synonymous. We said have appellant raised as and between the important difference between negli Company,9 Elevator gence as to may “easily discerned, two since negligence, contributory but depends entirely upon the former conduct assumption as to the risk. issue and the latter involves a mental state nulli failure to the latter willingness.” Had the here verdict, fied the in fairness to both been instructed first to determine wheth- sides, a must ordered as trial Company’s er the Elevator Mr. Stout “just under the circumstances.”10 duty appellant owed a to the under the exclusively Typically, no means so, circumstances shown if then jurisdiction, have the defense of as- appellant decided whether or not the sumption willingly play in of risk has come into assumed risk of his own- *6 possible harm, very master and cases. said' servant As we different result might Fitzpatrick in produced.13 Fowler11: v. have been We can say granted that the failure to have plain import “The of the common Company’s requested Elevator in- assumption law doctrine of risk of struction was not vital. employee is that if the knew of the dangerous condition, Company could have Elevator after by exception known of it the exercise took of rea- to the omission of care, assumption sonable held to he be instruction toas its of
have
risk
risk
majority
assumed the
incident to
defense. The
has con-
danger,
presumed
such
cluded
ing
that the trial
erred
fail-
in
dangers
see and
understand
that a
requested.
instruct
as
prudent
Although
see and under-
would
the claim
pre-
of error was
might
stand,
protect
sented in
which he
him-
trial,
the motion for a new
exercising
by
self
trial
upon it,
court
reasonable
did not rule
did
nor
Capital
1955,
8.
Co.,
Moore v.
Transit
28
96
U.S.C. §
U.S.App.D.C. 335,
57,
226 F.2d
certiorari
1948,
U.S.App.D.C. 229,
231,
83
168 F.
denied, 1956,
966,
434,
350
76
U.S.
S.Ct.
172, 174; Fidelity Storage
2d
Co. v.
839;
100 L.Ed.
Jackson
cf.
v. Wilson
Hopkins,
1915,
App.D.C. 230, 236;
44
Trucking
1957,
Corp.,
U.S.App.D.C.
100
Burgan
Dreyfuss, 1958,
cf.
v.
104 U.S.
212,
106, 108,
214,
243 F.2d
where no
App.D.C. 280,
16. Had our concern involved
in
claim
its motion for
lee’s
new trial
contrary
the verdict was
to the
Allegheny
in
the trial would
conditioned as
error for
It was technical
County
But,
said,
case.
as I have
rule on the
fail to
judgment
majority’s reversal of
trial,
Supreme Court said
new
makes remand
n. o. v.
Co. v.
essential.
195,
are should rule trial judgment. Whatever motion for on- rule thereon he should also trial, indi
the motion for a new cating grounds decision. of his [*] [*] *" Mary G. ROEBLING, Appellant, then, considering problem, Our Douglas Secretary DILLON, C. angle of this case Warfield & Sanford (substituted Treasury Reconstruc- whether we should has been to determine Corporation), Appellee. tion Finance hear remand the District Court to No. 15689. upon the motion for a rule new say Appeals “that course whether we should United Court of States District of Columbia Circuit. circumstances, would, in be neither practical.”1 de- fair nor Our choice Argued Oct. entirely pended affirmed whether we Decided Feb. As or reversed the o. v. judgment, I think would affirm that I disregard judge’s we failing pass technical error in motion for new trial. grant In the District Court’s view of v., n. o. unthinkable
that the motion trial would
have been denied had it been on.
But, originally if the District Court granted judg- motion for ment n. o. v. but also the motion for *8 necessary
new it would have been specify for its order the new trial being granted only in the event appellate
an reversal of the v.; grant unconditional o. because the of a trial would have vacated that Mary-
judgment. Allegheny County v. Casualty Co., Cir.,
land denied,
certiorari 981, L.Ed. 1154.
Therefore, if the n. o. being affirmed, I think
be, act it would be idle and useless to remand the case inevitably trial, which motion for a new page page 255, 61 S.Ct. at & Co. 311 U.S. at