352 F.2d 425
SCHULTZ & LINDSAY CONSTRUCTION COMPANY and Industrial Builders, Inc., Appellants,v.Bruce ERICKSON, for Himself and as Trustee for the North Dakota Workmen's Compensation Bureau, Appellee.
No. 17957.
United States Court of Appeals Eighth Circuit.
November 2, 1965.

COPYRIGHT MATERIAL OMITTED Mart R. Vogel, of Wattam, Vogel, Vogel, Bright & Peterson, Fargo, N. D., for appellant. Schultz & Lindsay Construction Co.
O. C. Adamson, II, of Meagher, Geer, Markham, & Anderson, Minneapolis, Minn., made argument for appellant, Industrial Builders, Inc., and filed brief with F. J. Smith, of Fleck, Smith, Mather & Strutz, Bismarck, N. D.
Kelton S. Lynn, of Whiting, Lynn, Freiberg & Shultz, Rapid City, S. D., made argument for appellee and filed brief with William S. Murray, of Cox, Pearce, Engebretson, Murray & Anderson, Bismarck, N. D.
Before MATTHES, RIDGE and GIBSON, Circuit Judges.
MATTHES, Circuit Judge.

1
In this personal injury action the defendants below have appealed from the judgment, entered on a jury verdict, awarding plaintiff $95,000. Diversity of citizenship and the requisite amount in controversy establish jurisdiction.

2
The trial commenced on October 5, 1964, and the jury's verdict was returned on October 16, 1964. The record before us consists of 854 printed pages, in addition to which there are numerous exhibits. Notwithstanding this, there is remarkable unanimity among the parties as to the material facts.

3
Emmons County, North Dakota, employed Staven Engineering Company (Staven) to design and draw plans for a bridge across Big Beaver Creek, and to supervise its construction. Plaintiff, a graduate civil engineer, was an employee of Staven and was the project "inspector and engineer". The accident, out of which this litigation arose, occurred on October 1, 1962. At that time plaintiff was 23 years of age.

4
Schultz & Lindsay Construction Company (Schultz & Lindsay) was the general contractor hired by Emmons County for the construction of roads and bridges. Industrial Builders, Inc., (Industrial) was the subcontractor of Schultz & Lindsay for the construction of the bridge across Big Beaver Creek.1

5
A brief description of the bridge will aid comprehension of the issues before us. Its deck extends in a north-south direction and rests upon a north abutment, a north pier, a south pier, and a south abutment. The deck is supported by two large sectioned beams (the east interior beam and the west interior beam), each of which is 300 feet in length from abutment to abutment. Each beam is made up of five structural steel girders of the "I" beam form. The five girders are of unequal length; they are 36 inches in height and weigh 194 pounds per foot of length. Under the plans, the girders were to be held together, as they were being erected, by "erection bolts", i. e., the ends of the girders were to be bolted together by a metal plate and four bolts. This was to provide a temporary splice. The temporary splice was necessary to enable the camber (curve) of the beam to be adjusted after all of the girders in each beam were in place, but before they were permanently fastened together. The plans then contemplated that the steel girders would be permanently fastened together, end to end, by a "welded" splice, i. e., the end of each girder would be welded to the end of the next girder.

6
The accident happened during the course of the erection of the steel beams. Appellee, who was supervising the erection and the splicing of the girders, was sitting on the portion of the east beam which had been erected when the temporary splice, joining the first two girders of the east beam, gave way. The girders and plaintiff fell to the ground. Plaintiff received serious and permanent injuries, reflected by the size of the judgment.

7
Appellee sued Schultz & Lindsay and Industrial. In his complaint, he alleged, in general terms, that both appellants were negligent in the construction of the bridge. However, appellee tried the case on the theory that Industrial, the subcontractor, was negligent in the erection of the steel girders, and that Schultz & Lindsay, the general contractor, was vicariously liable under the "inherent danger" doctrine.

8
Staven, Schultz & Lindsay, and Industrial were contributing employers to the North Dakota Workmen's Compensation fund. Appellee, as an employee of Staven, was paid compensation. Appellants contended below, and assert here, that they were statutory employers of appellee and, as such, were immune from liability for damages in this action. From this premise, appellants argue that the court erred in not granting their motion to dismiss, on the ground that appellee's action was barred by the North Dakota Workmen's Compensation Act. Two sections of that Act require consideration.

9
Section 65-01-08 of the North Dakota Century Code provides that, where an employer has secured the payment of compensation to his employees by contributing to the North Dakota Workmen's Compensation fund the employee shall have no right of action against the contributing employer, "but shall look solely to the fund for compensation". In order to correctly interpret and apply this provision, the word "employee" must be defined. Section 65-01-02, subd. 5(c) of the North Dakota Century Code provides:

10
"Persons employed by subcontractor, or by an independent contractor operating under an agreement with the general contractor, for the purpose of this chapter shall be deemed to be employees of the general contractor who shall be liable and responsible for the payments of premium for the coverage of these employees until the subcontractor or independent contractor has secured the necessary coverage and paid the premium therefor."

11
Statutes like 65-01-02 have been adopted in nearly all of the states. They are referred to as "statutory-employer" or "contractor-under" statutes. See Larson, The Law of Compensation, Vol. 2, § 72.31, p. 175. As Larson points out, such statutes provide that the general, or principal, contractor shall be liable for compensation to the employee of an uninsured subcontractor, doing work which is part of the business, trade or occupation of the principal contractor. Manifestly, this type of statutory provision is designed to afford protection for employees not otherwise protected by insurance, but, as Larson also observes:

12
"Since the general contractor is thereby, in effect, made the employer for the purpose of the compensation statute, it is obvious that he should enjoy the regular immunity of an employer from third-party suit when the facts are such that he could be made liable for compensation; and the great majority of cases have so held." Ibid.

Appellants argue that:

13
"[S]ince all the employers, Staven, Schultz & Lindsay and Industrial were operating as contractors under contract to a common employer, Emmons County, and since plaintiff was employed by one of such contractors, he became a `statutory employee' of Schultz & Lindsay, the general contractor which the County hired to carry out the entire job, operating under an agreement to work with Staven, plaintiff's employer."

14
This ingenious argument is neither supported by the facts nor by the cases of Schwarze v. Farm-Rite Implement Co., 192 F.Supp. 645 (D.N.D.1960), and Ryland v. The Manhattan Construction Co., unreported, (D.N.D.), upon which appellants place reliance. It is significant that the Schwarze and Ryland cases were decided by the Honorable George S. Register, the same judge who presided over this trial, and who, of course, ruled that appellee's cause of action was not barred by the statutes we have discussed.

15
Schwarze involved an action for damages by an employee against his employer (a subcontractor) and the general contractor. The latter had secured compensation coverage for its employees. Judge Register held that under the Act, particularly § 65-01-02, supra, the general contractor was immune from an action by the injured employee of the subcontractor.

16
The Ryland case was discussed by Judge Register in his Schwarze opinion. From that discussion, it appears that the question presented in Ryland was whether the general contractor was immune from suit brought by the survivor of an employee of the second subcontractor. The court held that the general contractor was a statutory employer of the injured employee, so was immune from the action.

17
We cannot agree with appellants' claim that the facts of the instant case fall within the rule of the Schwarze and Ryland cases. Here, unlike in Schwarze and Ryland, appellee was not an employee of a subcontractor. Neither was he an employee of the general contractor, Schultz & Lindsay. It should be noted again that an employee is defined to be a person "employed by subcontractor, or by an independent contractor operating under an agreement with the general contractor, * * *". (Emphasis supplied). North Dakota Century Code, § 65-01-02, subd. 5(c). Even if we could characterize Staven as an independent contractor, appellants' position would still be untenable, because it is clear that Staven was not "operating under an agreement" with Schultz & Lindsay, but rather with Emmons County.

18
We are satisfied that Judge Register, who is eminently qualified to interpret North Dakota law, properly concluded that appellee was entitled to maintain this action under § 65-01-09 of the North Dakota Century Code.2

19
Appellants challenge the sufficiency of the evidence to make a submissible case and assign error for failure to grant their timely motions for directed verdict. They contend that the evidence reveals, as a matter of law, that there was no actionable negligence on the part of Industrial.

20
We recognize that, in this diversity case, since the accident occurred in North Dakota, the substantive law of that state is applicable.

21
However, we are confronted with the question, not raised by the parties, and never decided by the Supreme Court of the United States, Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Ozark Air Lines, Inc. v. Larimer, 352 F.2d 9 (8 Cir. Oct. 11, 1965); Lewis v. Nelson, 277 F.2d 207, 209 (8 Cir. 1960), whether the state or the federal test for the sufficiency of the evidence is applicable. The federal courts and the North Dakota courts apply substantially the same standard in determining the sufficiency of the evidence. (Coca Cola Bottling Co. v. Hubbard, 203 F.2d 859, 860-861 (8 Cir. 1953); Wray M. Scott Co. v. Daigle, 309 F.2d 105, 108-109 (8 Cir. 1962), setting forth the federal test; Grenz v. Werre, 129 N.W.2d 681, 685-686 (N.D.1964), setting forth the North Dakota test). Both parties assumed that North Dakota law was to be applied. Therefore, we shall follow the standard which the Supreme Court of North Dakota has enunciated in the following language:

22
"On a challenge to the sufficiency of the evidence to support the verdict this court will take the view of the evidence most favorable to the verdict, giving to plaintiff's evidence the strongest probative force of which it will admit and will draw therefrom such inferences and conclusions favorable to the jury's verdict as a reasonable consideration of the evidence will permit." (Citations of authority). Stadick v. Olson's Hardware, 64 N.W.2d 362, 364 (N.D.1954).

23
This rule was discussed by our court, Judge Johnsen, in the case of United States Fire Ins. Co. v. Milner Hotels, Inc., 253 F.2d 542, 546-547 (8 Cir. 1958). He stated:

24
"In relation to what has been said, it must conformingly be borne in mind that under North Dakota law, as generally, negligence and proximate cause are not ordinarily questions which may be taken from the jury. `They become questions of law only when the state of the record is such that reasonable men can draw but one conclusion therefrom'. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11, 13; Geier v. Tjaden, N.D., 74 N.W. 2d 361, 364.

25
"Negligence and proximate cause will become transformed from questions of fact into questions of law rather on probative deficiency than on probative abundance. Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise. Nor is a court required to set aside a verdict in such a situation, just because the judgment of the jury may have been strange and unusual on the evidence in the case."

26
The federal standard for the sufficiency of circumstantial evidence (as set out in Wray M. Scott Co. v. Daigle, supra) is also basically the same as that adhered to by the North Dakota courts and discussed in Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323, 327 (1949):

27
"* * * `The most direct and positive testimony may be completely demolished by circumstantial evidence, or overcome in the minds of a jury or the mind of a court by the establishment of other facts inconsistent therewith.' In Paulsen v. Modern Woodmen of America, 21 N.D. 235, 243, 130 N.W. 231, 234, this Court said:

28
"`Ordinarily the question of what inferences are deducible from the evidence is peculiarly a question for the jury, and it is only in rare instances that the court is justified in determining such question as a matter of law. If it can be said that reasonable men may fairly differ as to the inferences to be deduced from all the circumstances disclosed, it is a proper case for the jury.'"

29
As we noted, supra, appellee's complaint alleged appellants' negligence in general terms. The issue was also submitted to the jury generally, rather than in terms of specific acts. Under the court's instructions, the jury was authorized to return a verdict for appellee if it found that Industrial had been "negligent in one or more of the particulars alleged" and, that such negligence "was a proximate cause" of the injuries and consequent damages sustained by appellee. None of the parties took exception to the manner in which the court submitted the negligence issue to the jury.

30
As we read appellants' briefs, their position is: (a) that the temporary splice designed for the erection of the steel beams by Staven, appellee's employer, was wholly inadequate, unsafe and hazardous; (b) that Staven, as the design engineer, and appellee as the inspector-engineer, should have known of the inadequacy of the temporary splice; (c) that the unsafe method of construction was carried out under appellee's supervision; and (d) that the temporary splice, which joined the first two girders of the east beam, gave way solely because it was not adequate to support the weight of the two girders, not as the result of any negligence on the part of Industrial.

31
There was evidence tending to support appellants' theory, but the jury was not compelled to, and apparently did not, believe appellants' version of the cause of the accident. This is plausible since there are facts and circumstances which support appellee in his contention that the method chosen for the construction was not unsafe; that the temporary splice would not have broken except for an uncontemplated outside force set in motion by the negligent conduct of Industrial's employees. More particularly, appellee argues that there was probative evidence from which the jury was able to find that one of Industrial's crane operators moved either the boom or the cable of his crane in such a way as to cause the portion of the west beam that had been erected, to be moved abnormally, and that the movement was transferred to the east beam, via the diaphragm, causing the temporary splice to break and the east two girders to fall. Regarding this contention of negligence, appellants claim that there is "not a scintilla of evidence that the boom contacted the bridge in any way. It is a matter of pure and utter speculation."

32
We turn to the evidence relied upon by appellee to support this theory of actionable negligence.3

33
The first two girders, or segments, of the east beam had been placed on the north abutment and north pier. They had been joined together by the temporary splice, consisting of four erection bolts and a metal plate. This method appeared to be insufficient to hold the weight of the beams so, additionally, with appellee's approval, two steel rods were welded across the splice. This splice, without additional support, proved adequate and held for more than an hour and a half. After the lunch period, employees of Industrial placed the first two segments of the west beam on the north abutment and north pier (in a position corresponding to the segments of the east beam) and temporarily spliced them. Diaphragms (steel cross beams) were next placed between the east and west beam. Industrial's welder, Mr. Wieck, who had been working on bolting the third diaphragm in place, bolted the east end of the diaphragm to the east beam and began to walk across on the diaphragm to the west beam, where he was going to assist Mr. Bruesch in bolting the west end of the diaphragm to the west beam of the bridge. Although the diaphragm was "up tight against the west beam", Mr. Bruesch (also an Industrial employee) was having difficulty in bolting the diaphragm because the holes in the two pieces of steel were not properly aligned. As Mr. Wieck was crossing over the diaphragm, he saw Mr. Bruesch give the operator of the crane (an employee of Industrial), which was attached to the west beam, a signal, which Mr. Wieck interpreted to mean "boom down". At that time the boom of the crane was one and one-half to two feet from the west beam. Seconds later, with no prior warning, the splice joining the two girders of the east beam failed and the girders and appellee fell to the ground. There was also evidence that Mr. Breusch, who was standing on the east side of the west beam, with his feet on the bottom flange and his left arm holding onto the top of the west beam, sustained injury to his left arm and his right ribs. There was no equipment on or near the west beam, where Mr. Breusch was standing, except the crane and a drift punch, which had been inserted into a hole in the diaphragm and in the west beam. Mr. Breusch felt no motion when the east beam fell and, although his right leg was against the diaphragm, his right leg was not injured.

34
Based on this evidence, the jury was entitled to conclude that the temporary splice joining the two segments of the east beam was a proper and safe method of construction, and would have held if some other force had not intervened to cause the splice to give way. There was sufficient circumstantial evidence, as outlined above, to support the inferences: that there was an unusual movement of the boom or cable of the crane which caused the west beam to move; that the movement of the west beam subjected the splice in the east beam to an abnormal amount of stress; that the splice broke under the stress and; that Industrial was negligent in causing, or permitting, the unusual movement of the crane.

35
In summary, we are convinced that the evidence presented a question of fact which was properly submitted to the jury.

36
Appellants also assert that the court should have directed a verdict because:

37
"Plaintiff, as a matter of law, was guilty of contributory negligence and assumed the risk." Appellants do not favor us with any authority to support this contention. They merely rely upon the same facts and arguments which they used to demonstrate their freedom from negligence, and which, they say, "equally support the conclusion that, as a matter of law, plaintiff assumed the risk and, if defendant was negligent, plaintiff was more so."

38
North Dakota adheres to the rule, generally recognized throughout the United States, that the issue of contributory negligence is ordinarily one of fact for the jury, and it is only where the evidence is such that reasonable men can draw but one conclusion therefrom that it becomes a question of law for the court. Armstrong v. McDonald, 72 N.D. 28, 4 N.W. 2d 191, 192 (1942); Killmer v. Duchscherer, 72 N.W.2d 650, 655 (N.D.1955); Keller v. Elks Holding Co., 209 F.2d 901, 903 (8 Cir. 1954); Born v. Osendorf, 329 F.2d 669, 671 (8 Cir. 1964).

39
The North Dakota standard for determining whether or not a party has been guilty of such contributory negligence as will defeat his recovery is whether his activities were those of an ordinarily prudent person, in the same circumstances and in the same position. Umland v. Frendberg, 63 N.W.2d 295, 299 (N.D.1954); Olson v. Cass County Electric Co-operative, Inc., 94 N.W.2d 506, 511 (N.D.1959).

40
Applying this standard, we cannot hold that the state of the record is such that reasonable men could not differ on the issue. Indeed, inasmuch as the evidence supports a finding that the two segments of the east beam fell as the result of the active negligence of Industrial's crane operator, the contributory negligence argument pales into insignificance. Undoubtedly, appellee had the right to be in the position he was occupying when the girders separated and fell. There was no evidence that appellee, directly or indirectly, caused the movement of the boom or crane or that he, in any way, contributed to the breaking of the splice. If the evidence had established that the temporary splice gave way solely because of its inherent weakness and that appellee had actual or constructive knowledge of this condition, appellants' contention would merit more consideration. But, on this record, we have no difficulty in concluding that there is no rational basis for holding that appellee's conduct constituted contributory negligence, as a matter of law.

41
Under the court's instructions, the jury was at liberty to determine that appellee had assumed the risk of the hazards involved in bridge construction, and to find against appellee on that ground.4

42
Obviously, the district court and all of the parties were of the view that the assumption of risk doctrine would be applied by the Supreme Court of North Dakota in this type of negligence case.5

43
An impartial appraisal of the record clearly demonstrates that there is no merit in the contention that appellee is barred from recovery, as a matter of law, on the theory that he assumed the risk. If the doctrine of assumption of risk is applicable to this case, there was sufficient evidence to require submission of the issue to the jury.

44
Appellants contend that the court committed prejudicial error in instructing the jury that there was an evidentiary presumption that appellee was exercising ordinary care for his own safety at the time of the accident.

45
It is undisputed that, at the time of the trial, appellee was suffering from retrograde amnesia, which had been caused by the injuries he sustained in the accident. Although he did testify, he was totally unable to give information concerning any events which took place on the day of the accident.

46
This circumstance prompted the court to instruct the jury:

47
"If you find that the Plaintiff in this case, as a result of the accident in question, suffered a loss of memory so as to be unable to testify as to his conduct at the time of and immediately preceding the accident here in question, then I instruct you that the law presumes the Plaintiff, in his conduct at the time of and immediately preceding the accident was exercising ordinary care.

48
"This presumption is a form of evidence. It will support a finding in accord with the presumption where there is no proof to the contrary; and it will support such a finding in the face of contrary evidence if your judgment so directs after weighing the conflicting evidence.

49
"When such a conflict exists, it is the jury's duty to weigh the presumption against the contrary evidence and to determine which, if either, preponderates. Such deliberations, of course, shall be related to and be in accordance with my instructions on the burden of proof."

50
Appellants concede that there is, in North Dakota, a rebuttable presumption (hereinafter referred to as the presumption of ordinary care) that one, who has suffered death by accident, was, at the time of the injury, in the exercise of due care for his own safety. Kunkel v. Minneapolis, St. P. & S. S. M. Ry. Co., 18 N.D. 367, 121 N.W. 830, 835 (1909); Quam v. Wengert, 86 N.W.2d 741, 751 (N.D.1957); Serbousek v. Stockman Motors, Inc., 106 N.W.2d 879, 887 (N.D.1961).

51
However, appellants claim that this rebuttable presumption has not been, and cannot be, extended in North Dakota to operate in favor of a person who has a loss of memory, resulting from the accident, so that he cannot testify to his conduct prior to, and at the time of, the accident.

52
Appellee concedes that the presumption of ordinary care has never been extended in North Dakota to benefit a party suffering from retrograde amnesia.

53
However, many jurisdictions have extended the presumption, which originally redounded only to persons killed, to include in its application persons injured in accidents whose resultant loss of memory, or insanity, prevents them from being capable of testifying about the accident. See 141 A.L.R. 872; IX Wigmore, Evidence, §§ 2507, 2510 (1964 Supp. to 3rd Ed.). See also, Scott v. Sheedy, 39 Cal.App.2d 96, 102 P.2d 575, 578 (1940); Prewitt v. Rutherford, 238 Iowa 1321, 30 N.W.2d 141, 144 (1947); Breker v. Rosema, 301 Mich. 685, 4 N.W. 2d 57, 141 A.L.R. 867 (1942); Torantolla v. Kansas City Rys. Co., 226 S.W. 617, 619 (Mo.App.1920); Koock v. Goodnight, 71 S.W.2d 927, 932 (Tex.Civ.App.1934).

54
In their brief, appellants point out that the application of the presumption to an injured party suffering loss of memory was recently rejected by the Minnesota Supreme Court. Dickson v. Bober, 269 Minn. 334, 130 N.W.2d 526, 532 (1964). That case is inapposite. Minnesota, unlike North Dakota, has a statute which specifically provides for the application of the presumption in the case of death of the party. Immediately after setting out the Minnesota statute, the Court stated:

55
"Although there is authority from other jurisdictions giving support to the proposition that a plaintiff deprived of his ability to testify by injuries received in an accident should be afforded the benefit of the presumption of due care, no such principle has ever been accepted in this state. In our judgment, the trial court did not err in failing to instruct the jury that such a presumption was to be applied under the facts of this case." (Emphasis supplied). Id., at 532.

56
There is no rational reason why the presumption should not be extended to cover situations in which injury causes loss of memory; in fact, logic supports such an extension, since a person without memory of an accident can supply no more information about the circumstances of the accident than can a person who was killed.

57
We believe that Judge Register properly determined that the North Dakota Supreme Court would extend the presumption of ordinary care to a party incapable of testifying because of amnesia.

58
Appellants also claim that the presumption "disappears", and cannot be submitted to the jury, if "there is an eyewitness to the accident and there is testimony concerning the decedent's activities immediately preceding and at the time of the accident." Appellants then state:

59
"No less than five members of the crew working under the plaintiff's direction testified concerning the plaintiff's activities from the time they started work in the morning until the accident occurred. All of these witnesses had ample time and opportunity and did observe all the events and, specifically, the plaintiff's conduct during the time leading up to and at the very moment of the collapse of the bridge and the plaintiff's injury." It seems to be the rule in North Dakota that the presumption "disappears" if there is an eyewitness who can fully testify to the facts which would otherwise be presumed. "`Where there is an eyewitness to an accident, issue of due care rests upon proof, not upon presumption, and this is so even if eyewitness is the adverse party.' Foote v. Huelster, 272 Mich. 194, 261 N.W. 296, 298." Hausken v. Coman, 66 N.D. 633, 268 N.W. 430, 436-437 (1936). However, the mere fact that an eyewitness was present is not enough to annul the presumption. The eyewitness must have had sufficient time to observe whether the injured or deceased person was exercising due care in the crucial seconds before, and during, the accident. Quam v. Wengert, supra, 86 N.W.2d at 751-752, and cases there cited.

60
We have determined, supra, that the evidence supports a finding that the east beam splice failed because of some negligent movement of appellants' crane. In view of this permissible finding of negligence, the important question the jury was also required to resolve was whether the appellee was in the exercise of ordinary care for his own safety in the few seconds just prior to, and during, the actual breaking of the splice. We have carefully scrutinized the record, but have been unable to find even one eyewitness to appellee's conduct during those important moments. Therefore, the appellee was entitled to have the jury instructed on the presumption. See Cameron v. Great Northern Ry. Co., 8 N.D. 124, 77 N.W. 1016 (1898); Rober v. Northern Pac. Ry. Co., 25 N.D. 394, 142 N.W. 22 (1913); Smith v. Knutson, supra.

61
Appellants also complain because, under the instruction, the jury was permitted to consider the presumption as evidence. The question whether to instruct on presumptions and, if so, how to instruct on them has long been a troublesome one, regarding which the courts in the various states are not in unanimity. For more detailed discussion of the problem, see McCormick, On Evidence, §§ 314, 315, 316, 317 (1954). It is well settled in North Dakota that, in the absence of an eyewitness, the presumption of ordinary care is properly submitted to the jury. However, the cases do not clearly delineate whether the presumption is submissible to the jury as "evidence". See Cameron v. Great Northern Ry. Co., supra; Rober v. Northern Pac. Ry. Co., supra; Smith v. Knutson, supra; Quam v. Wengert, supra. It is the function of federal courts to interpret and apply, rather than to formulate and establish, state law. In diversity cases where, as here, the highest state tribunal has not definitely decided a legal issue, we attempt to determine how that court would decide the matter. Keeping in mind the applicable standards for review, we are of the opinion that Judge Register permissibly concluded that the North Dakota courts would submit the presumption as a form of evidence. Furthermore, in the absence of any eyewitnesses to appellee's conduct at the crucial time, we fail to perceive how prejudicial error could have resulted from the submission of the instruction.

62
As we stated, supra, the case was tried, and submitted to the jury, on the theory that appellant, Schultz & Lindsay, was vicariously liable for the negligence of Industrial because of the danger inherent in the construction of the bridge. Schultz & Lindsay contend that the "inherent danger" doctrine has no application and that the court erred: in admitting evidence bearing thereon; in submitting the issue to the jury and; in failing to grant its motion for directed verdict and motion for judgment n. o. v.

63
It is a fundamental principle of law, requiring no citation of authority, that an employer or contractee is not liable for the torts of an independent contractor. The subject, in all of its aspects, is discussed at 27 Am.Jur., Independent Contractors, § 27. However, the rule is not absolute. It affords no protection to the contractee for injuries caused by the failure of an independent contractor to exercise due care in the performance of work which is inherently or intrinsically dangerous. Restatement, Torts, 2d Ed. § 427; 27 Am.Jur., Independent Contractors, § 39. North Dakota recognized and applied the inherent danger doctrine in the early case of Ruehl v. Lidgerwood Rural Telephone Co., 23 N.D. 6, 135 N.W. 793, L.R.A.1918 C, 1063 (1912). The doctrine was also recognized in Taute v. J. I. Case Threshing Machine Co., 25 N.D. 102, 141 N.W. 134 (1913); and in the more recent case of Newman v. Sears, Roebuck & Co., 77 N.D. 466, 43 N.W.2d 411, 17 A.L. R.2d 694 (1950).

64
The question of what type of work is considered inherently dangerous is not always readily soluble. Our research indicates that courts have found no rule of universal application by which they may abstractly draw a line of classification. At least one court has said:

65
"* * * Generally speaking, the proper test is whether danger `inheres' in performance of the work, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it. It is not enough that it may possibly produce injury. Stated another way, intrinsic danger in an undertaking is one which inheres in the performance of the contract and results directly from the work to be done — not from the collateral negligence of the contractor. (27 Am.Jur., Independent Contractors, § 39, p. 518; 57 C.J.S. Master and Servant § 590, b.(1), p. 361, and the annotation at 23 A.L.R. 1084, 1095.)" Reilly v. Highman, 185 Kan. 537, 345 P.2d 652, 656 (1959).

66
In North Dakota, the question whether the undertaking is inherently dangerous is primarily a fact question for the jury to determine. Taute v. J. I. Case Threshing Machine Co., supra, 141 N.W. at 136. Judge Register submitted the issue by an instruction which properly included all the facets of the doctrine. The jury was told that "`inherently or intrinsically dangerous' means that an element of danger exists in the performance of the contract resulting directly from the work to be done, and not from the negligence of the party actually performing the work; * * *." The construction of the bridge involved extremely heavy steel girders and the use of machines and men working at a height of 18 to 20 feet, to name only a few factors. A witness for appellee who had been a structural engineer for the North Dakota State Highway Department, stated unequivocally that the construction was inherently dangerous and hazardous.6 We conclude that the evidence warranted submission of the issue to the jury.

67
Schultz & Lindsay further contend that the doctrine is not applicable because appellee was not in the category of persons who are entitled to recover from a contractee, such as Schultz & Lindsay. Specifically, it is argued that only a "third person" is entitled to invoke the "inherent danger" doctrine, and that appellee is not a "third person". Cited as authority for this proposition are: Sword, Houston Fire & Cas. Ins. Co. v. Gulf Oil Corp., 251 F.2d 829 (5 Cir. 1958); Kelly v. Ford Motor Co., 104 Ohio App. 185, 139 N.E.2d 99 (1957); Cagle v. McQueen, 200 F.2d 186 (5 Cir. 1952); Hurst, Employers Cas. Co. v. Gulf Oil Corp., 251 F.2d 836 (5 Cir. 1958); Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16, 39 L.R.A.,N.S., 328 (1912). These cases are factually distinguishable and not controlling. We do not believe that the rule of exclusion, for which these cases stand, should be extended to the point where only a person wholly disassociated with an inherently dangerous project will be entitled to invoke the doctrine. See Person v. Cauldwell-Wingate Co., 176 F.2d 237 (2 Cir. 1949), cert. denied, 338 U.S. 886, 70 S.Ct. 189, 94 L.Ed. 544 (1949); Blair v. Durham, 134 F.2d 729 (6 Cir. 1943); Fegles Construction Co. v. McLaughlin Construction Co., 205 F.2d 637 (9 Cir. 1953).

68
We have carefully examined the record in light of the contentions of appellants and the controlling law. The conclusion is inescapable that all questions presented on appeal had been properly ruled upon by the district court. The parties received a fair trial, and the judgment must be, and is, in all respects, affirmed.

Notes:

1
 Hereinafter, we shall refer to Schultz & Lindsay and Industrial collectively as "appellants"

2
 This statute provides that when an injury or death for which compensation is payable shall have been sustained under circumstancescreating in some person other than the fund a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the North Dakota Compensation Act and proceed at law to recover damages against such other person. The statute further provides that the fund shall be subrogated, pro tanto, to the extent of the amount of compensation paid to the injured employee. In this case, appellee was paid compensation benefits from the fund and, of course, the fund is entitled to recover the amount it has paid, from the proceeds of appellee's judgment.

3
 During the trial, appellee asserted, and attempted to prove, that Industrial was negligent in more than one particular. However, he has confined his claims here, primarily to the allegedly negligent conduct above mentioned

4
 This issue was submitted as follows:
"One of the issues in this case is whether the Plaintiff assumed the risk of the alleged hazards involved in bridge construction, employing construction methods as used in this case, and which conduct Plaintiff alleges caused the harm of which he here complains. If plaintiff assumed such risk, he may not recover for any such harm suffered by him.
"In order for Plaintiff to have assumed such risk, he must have had actual knowledge of the particular danger and an appreciation of the risk involved and the magnitude thereof and must thereafter have voluntarily assumed such risk, or the plaintiff, in the exercise of ordinary care, should have known of such danger and appreciated, or should, in the exercise of ordinary care, have appreciated the risk of injury therefrom and must have thereafter voluntarily assumed such risk."

5
 There is authority for confining the doctrine to cases relating to master and servant, or to cases involving a contract relationship. However, it seems to be generally recognized that the defense of assumed risk may exist independently of the relation of master and servant. See 38 Am.Jur., Negligence, § 171; 65 C.J.S., Negligence, § 174

6
 This witness stated: "In bridge construction of this nature, steel erection, you're working with equipment men and steel, of course, and height, and when you get height in a factor of equipment and men, along with the weight from the steel, I feel it is hazardous and dangerous."


                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD

     MARIA DE LA CRUZ MAGOWAN,                       DOCKET NUMBER
                   Appellant,                        DC-1221-11-0737-B-2

                  v.

     ENVIRONMENTAL PROTECTION                        DATE: May 9, 2016
       AGENCY,
                 Agency.

             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Maria de la Cruz MaGowan, Bethesda, Maryland, pro se.

           David P. Guerrero, Esquire, Washington, D.C., for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied the appellant’s request for corrective action. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of
     material fact; the initial decision is based on an erroneous interpretation of statute

     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                               2

     or regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).            After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The Board remanded this individual right of action (IRA) appeal to the
     regional office for the administrative judge to adjudicate the merits of the
     appellant’s claim that the agency converted her approved sick leave for
     September 30 and October 1, 2010, to absence without leave (AWOL) in reprisal
     for her April 2003 protected disclosure. MaGowan v. Environmental Protection
     Agency, 119 M.S.P.R. 9 (2012). On remand, the administrative judge dismissed
     the IRA appeal without prejudice in response to the appellant’s request for a
     continuance.   MaGowan v. Environmental Protection Agency, MSPB Docket No.
     DC-1221-11-0737-B-1, Remand Initial Decision (Apr. 24, 2013).
¶3        After the Board denied the appellant’s petition for review of that initial
     decision, MaGowan v. Environmental Protection Agency, MSPB Docket No.
     DC‑1221-11-0737-B-1, Final Order (Jan. 30, 2014), she moved to refile the IRA
     appeal, and the agency responded to clarify the issues, MaGowan v.
     Environmental Protection Agency, MSPB Docket No. DC-1221-11-0737-B-2,
     Remand File (RF), Tabs 1-2. The administrative judge issued an order in which
     he noted the refiling of the IRA appeal and reiterated that, consistent with the
                                                                               3

     Board’s Opinion and Order in MaGowan, 119 M.S.P.R. 9, the only personnel
     action at issue in the remanded appeal was the agency’s decision to convert the
     appellant’s approved sick leave for September 30 and October 1, 2010, to AWOL.
     RF, Tab 4. The appellant subsequently waived her right to a hearing and the
     administrative judge issued an order setting a date for the close of the record,
     pursuant to which the parties filed further evidence and argument. RF, Tabs 5,
     7‑10.
¶4           On the written record, the administrative judge found that the appellant
     established that she engaged in whistleblowing by making a protected disclosure
     in April 2003, to the agency’s Office of Inspector General (OIG). RF, Tab 11,
     Remand Initial Decision (RID) at 12-13. Because the appellant’s supervisor first
     learned about that disclosure in July 2009, and specifically asked the appellant
     about it in May 2010, requesting that she provide her with a copy of the OIG’s
     report into her allegations, the administrative judge also found the appellant’s
     disclosure was a contributing factor in the agency’s October 2010 decision to
     convert her approved sick leave to AWOL via the knowledge/timing test. RID
     at 13-15. Nevertheless, the administrative judge denied the appellant’s request
     for corrective action because she found that the agency established by clear and
     convincing evidence that it would have converted the appellant’s approved sick
     leave to AWOL in the absence of her protected whistleblowing activity. RID
     at 15-22.
¶5           In her timely filed petition for review, the appellant challenges the
     administrative judge’s finding that the agency established by clear and convincing
     evidence that it would have converted her approved sick leave to AWOL in the
     absence of her protected whistleblowing activity. Petition for Review (PFR) File,
     Tab 1. She argues that the agency’s only evidence in support of its action, the
     assumption that she must have lied about being sick on September 30 and
     October 1, 2010, because the agency initially had turned down her annual leave
     request covering those same days, is not enough to constitute clear and
                                                                               4

     convincing proof. Id. at 2. The appellant claims that the episode is part of a long
     history of her supervisor abusing her and argues that prior to the sick leave at
     issue in this matter, her supervisor wrongfully denied her annual leave on the
     basis that it was a particularly busy period in the office, contending instead that
     there is no particularly busy period in her workload as she has reporting duties
     throughout the entire year and had arranged for someone to back her up on the
     days at issue. Id. at 3, 5-7. She argues that she submitted several doctors’ notes
     in support of her claim that she was sick for weeks beginning in August 2010, and
     that she saw her internal medicine doctor on September 29, 2010, at which time
     he referred her to an ear, nose, and throat specialist because he did not know what
     was wrong with her. Id. at 4-5. The appellant also argues that the agency failed
     to show that other employees who are not whistleblowers are asked to provide
     medical evidence every time they are sick and that the agency converts their
     approved sick leave to AWOL when they fail to submit such documentation. Id.
     at 8. She cites several episodes of agency employees who were involved in very
     serious misconduct but did not have any of their time converted to AWOL as a
     result. Id. at 8-10.
¶6         With her petition for review, the appellant includes evidence regarding
     whether she actually grieved the agency’s failure to noncompetitively promote
     her to the GS-15 level.     Id. at 21-22.   She contends that she submitted these
     documents below and that they are a part of the record but that the administrative
     judge denied having seen them.         Id. at 10, 21-22.   She also asserts that the
     administrative judge denied her request for certain witnesses at the hearing, and
     she reiterates her arguments as to why she was not AWOL and should not have
     had to produce medical documentation for her absences on September 30 and
     October 1, 2010.       Id. at 11-12.    The agency responds in opposition to the
     appellant’s petition for review. PFR File, Tab 3.
¶7         After establishing the Board’s jurisdiction in an IRA appeal, the appellant
     then must establish a prima facie case of whistleblower retaliation by proving by
                                                                               5

     preponderant evidence that she made a protected disclosure that was a
     contributing factor in a personnel action against her.    5 U.S.C. § 1221(e)(1);
     Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If the appellant
     makes out a prima facie case, then the agency is given an opportunity to prove, by
     clear and convincing evidence, that it would have taken the same personnel action
     in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers
     v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011). The administrative
     judge found that the appellant proved by preponderant evidence that her
     April 2003 disclosure to OIG was a contributing factor in the agency’s decision to
     convert her approved sick leave to AWOL. RID at 12-15. The agency does not
     challenge those findings on review, and we see no reason to disturb them. Thus,
     the issue on review is whether the agency proved by clear and convincing
     evidence that it would have taken the same action in the absence of the
     appellant’s disclosure.
¶8        In determining if an agency has shown by clear and convincing evidence
     that it would have taken the same personnel action in the absence of
     whistleblowing, the Board will consider the following factors: the strength of the
     agency’s evidence in support of its action; the existence and strength of any
     motive to retaliate on the part of the agency officials who were involved in the
     decision; and any evidence that the agency takes similar actions against
     employees who are not whistleblowers but who are otherwise similarly situated.
     Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
     For the following reasons, we agree with the administrative judge that the agency
     proved by clear and convincing evidence that it would have converted the
     appellant’s approved sick leave to AWOL in the absence of her protected activity.
¶9        The record reflects that, during a September 28, 2010 meeting called to
     discuss the agency’s denial of the appellant’s request for annual leave for
     September 30 and October 1, 2010, the appellant stated something to the effect
     that she did not feel well and she therefore might be sick on those days. RF,
                                                                               6

      Tab 9 at 16-17.    Under those circumstances, it was not unreasonable for the
      agency to find it necessary to require medical evidence to support the appellant’s
      sick leave request for those dates or for it to charge her with AWOL when she did
      not present one.    See 5 C.F.R. § 630.405(a).       Moreover, we agree with the
      administrative judge that none of the appellant’s arguments about the details of
      her leave request render the agency’s request for medical evidence unreasonable
      or unnecessary under these circumstances. RID at 16-20. Thus, we find that the
      agency’s evidence supporting its action in this matter is strong.
¶10         Concerning the motive of the appellant’s supervisor to retaliate against her
      for her April 2003 protected disclosure, the administrative judge found no
      persuasive evidence of retaliatory motive, noting that the supervisor had approved
      hundreds of hours of leave for the appellant between July 2009 and
      September 2010, including sick leave, without requiring her to submit medical
      evidence in support. RID at 20-21. Additionally, the appellant’s supervisor did
      not serve in that role until January 2009, long after the appellant’s disclosure, and
      she was not complicit in any of the misconduct alleged in the appellant’s
      protected disclosure.   RID at 21.    Moreover, the strong evidence noted above
      supporting the specific action in this matter clearly outweighs any motive based
      on the negative effect of the appellant’s general criticism of agency management
      on those not directly involved in her protected disclosure. See, e.g, Whitmore v.
      Department of Labor, 680 F.3d 1353, 1370-71 (Fed. Cir. 2012).
¶11         On the third Carr factor, there is no evidence that similarly situated
      nonwhistleblowing employees have been required to submit doctors’ notes for
      similar absences. RID at 21-22. Where, as here, there is no evidence on the third
      Carr factor, it is not considered a significant factor, and the analysis instead turns
      on the other two factors.      See, e.g, Whitmore, 680 F.3d at 1374.           Again,
      considering the strong evidence in support of the agency’s straightforward action
      in this matter, especially bearing in mind the context of the appellant’s
      announcement that she might call in sick on the day she was denied annual leave,
                                                                               7

      and the lack of any significant evidence showing a motive to retaliate on the part
      of the appellant’s supervisor, we agree with the administrative judge that the
      agency showed by clear and convincing evidence that it would have taken the
      same action in the absence of the appellant’s protected disclosure.       Thus, we
      agree with the administrative judge’s decision to deny the appellant’s request for
      corrective action in this appeal.
¶12         As for the appellant’s nonpromotion claim, the administrative judge found
      in the first initial decision that because the appellant had elected to use the
      negotiated grievance procedure, the Board lacked jurisdiction over that action.
      MaGowan v. Environmental Protection Agency, MSPB Docket No. DC-1221-11-
      0737-W-1, Initial Decision (Oct. 4, 2011).       Because the appellant failed to
      challenge that finding in her subsequent petition for review of that initial
      decision, she may not pursue that claim here. MaGowan, 119 M.S.P.R. 9, ¶ 4;
      see, e.g., Dow v. Office of Personnel Management, 95 M.S.P.R. 355, ¶ 10 (2003)
      (explaining that, under the law of the case doctrine, a tribunal will not reconsider
      issues that have already been decided in the course of an appeal). Regarding the
      appellant’s claim that the agency denied her the chance to call certain witnesses,
      the record reflects that she waived her right to a hearing in this matter.      RF,
      Tab 5.   She indicates in her petition for review that this claim concerns her
      request for a hearing in 2013 in this IRA appeal.         PFR File, Tab 1 at 11.
      However, the record reflects that the administrative judge dismissed the appeal
      without prejudice in April 2013, before the scheduled hearing, in response to the
      appellant’s request for a continuance.    MaGowan v. Environmental Protection
      Agency, MSPB Docket No. DC-1221-11-0737-B-1, Initial Decision (Apr. 24,
      2013).   Because the appellant filed a petition for review of that decision, the
      appeal was not refiled until January 2014, and, as noted above, the appellant then
      waived her right to a hearing. RF, Tabs 1, 5. Moreover, the record reflects that
      the appellant failed to raise her arguments regarding witnesses prior to waiving
      her right to a hearing.    The appellant’s failure to timely object to rulings on
                                                                               8

      witnesses precludes her doing so on petition for review.         See Tarpley v. U.S.
      Postal Service, 37 M.S.P.R. 579, 581 (1988).
¶13        Accordingly, we affirm the initial decision.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order.      See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
      Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
      has held that normally it does not have the authority to waive this statutory
      deadline and that filings that do not comply with the deadline must be dismissed.
      See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you want to request review of the Board’s decision concerning your
      claims   of    prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited personnel practices, you
      may request review of this final decision by the U.S. Court of Appeals for the
      Federal Circuit or any court of appeals of competent jurisdiction. The court of
      appeals must receive your petition for review within 60 days after the date of this
      order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
      to file, be very careful to file on time. You may choose to request review of the
      Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
      court of appeals of competent jurisdiction, but not both. Once you choose to seek
      review in one court of appeals, you may be precluded from seeking review in any
      other court.
            If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
                                                                               9

2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.


58 Cal.App.2d 560 (1943)
F. L. KLUTTS, Respondent,
v.
A. J. RUPLEY, Appellant.
Civ. No. 6775.
California Court of Appeals. Third Dist.
May 11, 1943.
 Lyon & Roberts and Henry S. Lyon for Appellant.
 Thomas Maul, Richard Barry and C. W. Pearson for Respondent.
 ADAMS, P. J.
 Appeal from a judgment in favor of plaintiff in an action for fraud and deceit. The complaint alleged that in 1937 defendant represented to plaintiff that he had a contract with the Earl Fruit Company entitling him to cut all the timber from certain described lands belonging to said Earl Fruit Company; that relying upon the aforesaid representations plaintiff agreed to join with defendant and one G. E. Tuman in cutting said timber, converting same into lumber and selling the same, under the name Baltic Creek Lumber Company; that plaintiff and Tuman agreed to clear a portion of said land, prepare a millsite and lumber yard thereon and furnish the labor, lumber and machinery for the construction of a sawmill, while defendant agreed to advance $5,000 to defray a portion of the expenses; that in reliance upon defendant's statements plaintiff and Tuman, at great cost and expense to plaintiff, and with the knowledge and approval of defendant, entered upon said land at a place designated by defendant, hired labor and cleared away a site *562 for a mill at an expenditure of $2,686.40; that plaintiff also dismantled a mill owned by him in Siskiyou County and moved said mill with its tools and appurtenances to the new millsite at an expense of $450; that after the construction of the mill had begun, he called upon defendant for the $5,000 he had agreed to pay, but that defendant refused to comply with his agreement.
 It was further alleged that defendant did not have any interest whatsoever in the said lands nor any contract with the Earl Fruit Company, to cut timber thereon, that defendant's representations to plaintiff that he had such rights were false and were made by defendant with the intention that plaintiff should rely thereon and that plaintiff did rely thereon; and that plaintiff did not learn that said representations of defendant were false until after plaintiff had prepared the millsite, transported his equipment to said site and commenced the construction of the mill; that thereupon he and Tuman had discontinued their construction and plaintiff had moved his mill to Plumas County, but too late to start lumber operations there that winter; that he incurred an expense of $650 in moving his mill, and suffered damages in the sum of $3,000 by reason of his moving his equipment to El Dorado County and his inability to carry on lumber operations during the year 1938.
 Defendant in his answer admitted that he had stated to plaintiff that he had a right, under an agreement with the Earl Fruit Company, to cut all of the timber from the Baltic Creek area; but he alleged that he had stated to plaintiff that there was a fair site for a sawmill on Baltic Creek and that if plaintiff wanted to build a mill there he could do so and defendant would supply the mill with logs when it was ready for operation; that he agreed to sell to plaintiff and plaintiff agreed to purchase all of said timber at a given rate. He admitted that plaintiff entered upon the premises with the knowledge and approval of defendant, and with the aid of labor had cleared away timber in preparation of a site for the construction of a mill, and that plaintiff, at his own expense, had moved certain machinery and equipment upon said millsite. He denied that plaintiff had expended any sum in excess of $150 in the transportation of said equipment from Siskiyou County, and denied generally and specifically the other allegations of plaintiff's complaint. *563
 The cause was tried before the court without a jury, and findings of fact were filed wherein the allegations of plaintiff's complaint were found to be true, except that the amount which would compensate plaintiff for the detriment proximately caused him by the wrong done him by defendant was found to be $1,625.86. The allegations of defendant's answer hereinabove set forth the court found to be untrue. Judgment for plaintiff in the sum of $1,625.86 followed, and defendant has appealed.
 [1] Appellant's first contention is that the judgment is defective in that there is neither an allegation in the complaint nor any evidence nor any finding of fact that the defendant fraudulently intended to refuse to pay $5,000 to the plaintiff at the time he is alleged to have agreed to do so. Appellant's argument on this point is that the failure to perform a promise gives rise to no cause of action for fraud unless it is alleged and proven that the promisor did not, at the time it was made, intend to perform it. Apparently he contends that there is an insufficient showing that he did not intend to put up the $5,000, and that, therefore, plaintiff has not proved a case of fraud on the part of defendant. We do not agree with this contention.
 The trial court found that appellant made the representations as alleged in plaintiff's complaint, including the promise to put up $5,000; it also found as to appellant's representations and statements that at the time he made them he knew them to be false; and while the court did not, in so many words, find that appellant did not, at the time he made the statement, intend to put up any money, there is evidence to support such an inference. One's intent in such matters is usually not susceptible of direct proof, but it may be ascertained from his subsequent conduct and speech; and the fact as to such intent is one peculiarly to be deduced from the facts in evidence, by the trial judge. (Tench v. McMeekan, 17 Cal.App. 14, 20 [118 P. 476]; Holiday v. Tolosano, 39 Cal.App. 151, 153 [178 P. 170].) G. E. Tuman testified that in April or May, 1938, he had a conversation with Rupley in which the latter suggested that they let Klutts "slip out of the picture," then he and Tuman would secure use of the mill and the buildings Klutts had put up, and go on and put their own outfit there, and that he was not going to help Klutts finish the mill; that he did not tell this to Klutts, but *564 did tell him he would not get any financial help from Rupley. Edward E. Tuman also testified to this conversation between G. E. Tuman and Rupley in March or April, 1938, and stated the latter said that his idea was to sit tight, not put up any money, that then Klutts could not complete the mill but would abandon it, and they could then operate without him. [2] Furthermore, defendant's agreement that he would put up the $5,000 was but one of the representations made by defendant, upon which plaintiff relied, and a plaintiff is not required to prove that all the specifications of fraudulent representations are true; a single misrepresentation of a material fact, knowingly made with intent to influence another, if believed and relied on by that other, is sufficient to afford relief. (Neff v. Engler, 205 Cal. 484, 490 [271 P. 744]; Harris v. Miller, 196 Cal. 8, 16-17 [235 P. 981].)
 [3] Appellant's second argument is that there is no substantial evidence that when he informed respondent that he had an agreement with the Earl Fruit Company by which he had acquired the right to cut timber from its lands, he made said representations with knowledge that they were false. The court has found that he did, and the evidence supports such finding. A misrepresentatioon of facts cannot be justified by an alleged belief wholly unwarranted by the facts. (United States Nat. Bank v. Stiller, 119 Cal.App. 442, 444 [6 P.2d 529].)
 It was admitted by respondent that he told Klutts that he had a contract with the Earl Fruit Company, but he testified that he did have an oral contract with Mr. Barton, vice president, and Mr. Kerns, secretary, of that company. The depositions of Mr. Barton and Mr. Kerns were taken, and these witnesses testified that they had never had a contract or verbal understanding with Rupley regarding the Baltic Creek area of the company's lands, nor granted him any right to cut timber there, nor any timber other than that included within two written contracts, neither of which concerned the Baltic Creek area here involved; that Rupley had written them in September, 1937, that he had a party interested in putting up a mill on Baltic Creek, and had asked for a lease of 10 acres, but that they did not enter into such a lease.
 [4] Finally, appellant urges that there is no evidence to support the finding that respondent was damaged by the alleged misrepresentations of appellant. There is no merit in this *565 contention. The evidence shows expenditures of money, time and labor made by plaintiff in reliance upon appellant's representations, the expenditures of money shown by his testimony exceeding the amount allowed by the trial court. The decision in Overstreet v. Merritt, 186 Cal. 494 [200 P. 11], is pertinent. There plaintiff and defendant entered into an agreement for the formation of a business association, induced by representations of defendant, who thereafter failed and refused to carry out the terms of the agreement. The court said that when defendant, by his breach, deprived plaintiff of all opportunity to make good on the new venture, he became liable in damages for any loss suffered by plaintiff as the natural result of such default; and it was held that plaintiff was entitled to recover such loss as he had sustained in preparing to carry out his part of the contract. Also see Caspary v. Moore, 21 Cal.App.2d 694, 699 [70 P.2d 224].
 The testimony of plaintiff and that of G. E. Tuman established that appellant represented to both of them that he had a written contract with Earl Fruit Company to cut all their timber; that he, Tuman and Rupley went together to look over the timber in the Baltic Creek area belonging to said company; that they picked out a millsite with Rupley's approval; that plaintiff told Rupley and Tuman that he would have money enough to do a certain part of the work of constructing the mill, but after that would have to have financial assistance, whereupon Rupley offered to put up $5000 to complete the mill; that plaintiff moved his machinery to the millsite, partly constructed the mill, put up other necessary buildings, and expended several thousand dollars as well as his time and labor; that when he asked respondent to put up money, defendant then and at all times thereafter refused; that the agreement between the three of them was that they were to have a "three-way partnership" in the business which was to be known as the "Baltic Lumber Company"; that plaintiff was to contribute his machinery, labor, supplies and some money, and Rupley was to put up the $5,000 for himself and Tuman.
 Under section 1572 of the Civil Code, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; a promise *566 made without any intention of performing it; and any other act fitted to deceive, when committed by a party to a contract with intent to deceive another party thereto, or to induce him to enter into the contract, constitutes actual fraud. The evidence in this case is sufficient to establish fraud on the part of defendant within the provisions of the foregoing statute.
 The judgment is affirmed.
 Peek, J., and Thompson, J., concurred.


564 F.2d 222
The CHESAPEAKE AND OHIO RAILWAY COMPANY, Plaintiff-Appellant,v.ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.
No. 76-1831.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 16, 1977.Decided Oct. 20, 1977.Rehearing Denied Nov. 9, 1977.

James R. Gannon, Chicago, Ill., for plaintiff-appellant.
Francis D. Morrissey, Thomas J. Healey, Chicago, Ill., for defendant-appellee.
Before SWYGERT, CUMMINGS and BAUER, Circuit Judges.
BAUER, Circuit Judge.

1
In this diversity action, the Chesapeake and Ohio Railroad (C & O) seeks indemnity from the Illinois Central Gulf Railroad (ICG) for a judgment paid by the C & O to an ICG employee, plus costs and attorney's fees incurred in defending the suit brought by the ICG employee against both parties to this action.  The district court granted the ICG's motion for summary judgment on the ground that the governing Illinois law did not permit an "actively" negligent tortfeasor to obtain indemnity from a joint tortfeasor, even if the latter's negligence was also "active."  As the jury verdict rendered against the C & O in the prior suit brought by the ICG employee conclusively established that the C & O's negligence had been "active" rather than "passive" in character, the district court ruled that the ICG was entitled to summary judgment as a matter of law.  The C & O appeals on the ground that (1) a genuine issue of material fact exists as to whether its negligence as a joint tortfeasor was "active" or "passive"; and (2) that, in any event, it is entitled to indemnity from the ICG on the theory that the defendant was a joint master of the common servant whose negligence was the proximate cause of the injury suffered by the ICG employee.  We affirm the district court's judgment for the reasons noted below.

I.

2
In September 1972, James Stacy, an ICG employee, was injured when the train in which he was riding was suddenly braked by the engineer to avoid crossing a switch and colliding with a C & O engine that was picking up ICG trains for the C & O on a parallel track.  Stacy sued both railroads on the theory that either one or both of them were liable for his injuries because of the negligence of their employees.  The ICG settled with Stacy prior to trial.  The C & O defended the action and lost.  Then it brought this indemnity action against the ICG for the amount of the judgment awarded Stacy, and the costs and attorney's fees incurred in defending the suit.

3
The C & O contends that, because it was liable to Stacy only on a theory of respondeat superior, its negligence must be characterized as "passive" rather than "active" for purposes of this indemnity action between joint tortfeasors.  Its complaint alleges that the ICG owned, operated and controlled the tracks involved in the Stacy case, and that the ICG had the right to control the activities of the C & O employees that caused Stacy's injuries.  According to the C & O, the ICG and its employees were primarily responsible for Stacy's injuries because the ICG control tower failed to alert the train on which Stacy was riding about the presence of the C & O's crew and failed to direct the C & O employees working on the ICG tracks to close the cross-over switch.  Relative to the primary or "active" negligence of the ICG and its employees, says the C & O, its own and its employees' negligence was secondary or "passive" in character.  Therefore, the ICG should indemnify plaintiff for the judgment it paid to Stacy.  Alternatively, the C & O contends that it is entitled to indemnity from the ICG on the theory that the C & O employee whose failure to close the cross-over switch caused Stacy's injury was a "common" servant of the two railroads, as the ICG had the right to control the C & O employee's activities while he was working on the ICG tracks.

II.

4
The parties agree that, under settled Illinois law, indemnity actions between joint tortfeasors are permitted only when the negligence of one is "active" and the other's "passive."  E. g., Carver v. Grossman, 55 Ill.2d 507, 514, 305 N.E.2d 161, 163 (1973).  They disagree, however, about what constitutes "active" negligence.  The C & O contends that the process of determining whether its negligence was "active" necessarily involves a weighing of the relative blameworthiness of the tortfeasors a process that we cannot undertake without first determining certain material issues of fact raised by the pleadings concerning whose responsibility it was to control the cross-over switch that was the cause of Stacy's accident.  E. g., Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 187, 191, 198, 229 N.E.2d 769, 774-75 (1st Dist. 1967).  The ICG, on the other hand, argues that the relative fault of the joint tortfeasors for the accident is beside the point, as any breach of a duty of due care constitutes "active" negligence under Illinois law.  Chicago & Illinois Ry. v. Evans Constr. Co., 32 Ill.2d 600, 604, 208 N.E.2d 573, 575-76 (1965).  The ICG claims that the Stacy judgment collaterally estops the C & O from denying that it breached a duty of due care.  E. g., Shell Oil v. Foster-Wheeler Corp., 209 F. Supp. 931, 940 (1962), aff'd, 320 F.2d 591 (7th Cir. 1963).  Accordingly, as the C & O was "actively" negligent, it cannot obtain indemnity from the ICG, irrespective of the "active" or "passive" character of its own negligence or the relative fault of the parties.

5
We must confess at the outset that the line between "active" or "passive" negligence is often a blurred and indistinct one.  What constitutes "active" negligence barring the indemnification of a joint tortfeasor often depends on the facts of each case, as the Illinois courts have acknowledged.  E. g., Moody v. Chicago Transit Authority, 17 Ill.App.3d 113, 117, 307 N.E.2d 789, 793 (1974).  Fortunately, however, prior precedent of this Court is available to guide our inquiry.  In Shapiro v. Gulf M & O R.R.,256 F.2d 193 (7th Cir. 1958), for example, we held that, under Illinois law, "the degrees of negligence of the two wrongdoers could not be apportioned or measured for purposes of requiring indemnity" between joint tortfeasors where the negligence of the plaintiff-indemnitee was active or affirmative in character.  Id. at 93.  Though the relative culpability of the tortfeasors is irrelevant if the plaintiff's negligence was "active," we note that the "active" character of an indemnitee's negligence may sometimes depend whether it is deemed a primary or a secondary cause of the damages for which indemnity is sought.  See Carver v. Grossman, 55 Ill.2d 507, 514, 305 N.E.2d 161, 163 (1973).  This is not to say, however, that the indemnitee's negligence is deemed "passive" simply because the negligence of the indemnitor was a relatively greater cause of the injury.  Rather, an indemnitee's negligence will be deemed "active" in character if it was a substantial cause of the injury, even though it may not have been the primary cause relative to the indemnitor's negligence.  As we recently stated in Lorance v. Marion Power Shovel Co., 520 F.2d 737, 739 (7th Cir. 1975), the touchstone for determining whether an indemnitee's negligence was "active" in character under Illinois law is whether his conduct "significantly contributed to the harm caused so as not to warrant shifting the entire burden of damages" to the indemnitor.  Thus, if the C & O's negligence was a substantial cause of Stacy's injuries, it cannot recover the damages it paid him from the ICG, as a joint tortfeasor, for the C & O's "active" negligence would bar recovery regardless of the relative fault of the ICG.  Carver v. Grossman, supra at 514, 305 N.E.2d at 163.

6
With the above principles in mind, we turn to the question of whether the C & O's negligence significantly contributed to Stacy's injury.  We find ourselves in agreement with the district court that the judgment Stacy recovered against the C & O conclusively established that the conduct of the C & O employees was a substantial cause of his injuries, for even a cursory review of the pleadings and the instructions read to the Stacy jury reveals that, in rendering a verdict for Stacy, the jury necessarily determined that the employees of the C & O were negligent in either misaligning or failing to realign the cross-over switch, and that their negligence was a proximate cause of his injuries.  As the Stacy judgment rests on findings of fact that are fatal to the C & O's case here, the C & O is estopped by the judgment from denying that the negligence of its employees substantially contributed to Stacy's injury.  Shell Oil Co. v. Foster-Wheeler Corp., supra at 940.  The Stacy judgment thus establishes, as a matter of law, that the negligence of the C & O's employees was "active" in character, and nothing that the C & O could prove at trial regarding the relative responsibility of the ICG for Stacy's injuries could enhance the merits of its claim.

7
Notwithstanding the above, the C & O argues that, even if the Stacy judgment conclusively established the "active" negligence of its employees, it leaves open the question of whether the C & O's "own" negligence was "active" or "passive".  As the C & O was liable to Stacy solely on a theory of respondeat superior, rather than on the basis of its own negligence, the C & O contends that a trial is still required to determine whether its "technical" responsibility for Stacy's injuries approaches the primary or "active" negligence of the ICG whose control tower was principally responsible for the accident because of its failure to warn the ICG train of the presence of the C & O's crew and to direct the C & O employees to realign the cross-over switch on the ICG tracks.  Relative to this primary or "active" negligence of the ICG, says the C & O, its technical responsibility for the accident was "passive" or secondary in character.

8
The short answer to this argument is that Illinois law imputes the negligence of the C & O's employees to the C & O, and we see no reason for not giving effect to this imputation in a subsequent indemnity action brought against a joint tortfeasor other than the negligent employees themselves.  Thus, if the Stacy judgment conclusively settles the "active" character of the C & O employees' negligence, it likewise settles the character of the C & O's responsibility for the accident for purposes of this action.  Moreover, even if we were to hold the imputation of an employee's negligence to his employer in actions brought by third parties does not carry over into the employer's subsequent action against a joint tortfeasor for indemnity, the C & O would still be unable to recover against the ICG.  The flaw in the C & O's argument is that the ICG itself is likewise responsible for the negligence of its employees solely on a theory of respondeat superior.  Accordingly, if the C & O's own negligence must be deemed "passive" in character because it results from a technical imputation of fault, so likewise must the ICG's imputed negligence be deemed "passive" in character.  Such a result would bar the C & O's recovery, for indemnity between joint tortfeasors is permitted under Illinois law only when the negligence of the indemnitee was "passive" and that of the indemnitor "active."  We are aware of no Illinois decision permitting indemnification between two "passively" negligent tortfeasors, and we are not persuaded that the Illinois courts would recognize such a novel exception to the general bar against indemnification of joint tortfeasors embedded in their case law, for the theory underlying the few exceptions to the general rule recognized by the Illinois courts is the equitable necessity

9
"to do justice within the law so that one guilty of an act of negligence affirmative, active, primary in its character will not escape scot-free, leaving another whose fault was only technical or passive to assume complete liability."  Spivack v. Hara, 69 Ill.App.2d 22, 24, 216 N.E.2d 173, 174 (1st Dist. 1966).

10
That rationale does not apply as between two actively negligent tortfeasors irrespective of their relative culpability, Carver v. Grossman, supra at 514, 305 N.E.2d at 163, and we are not persuaded that any Illinois court would hold it applicable in a suit for indemnification between two passively negligent tortfeasors, irrespective of the relative culpability of the employees whose active negligence made the parties liable on a theory of respondeat superior.

11
Accordingly, as the judgment entered in the Stacy case estops the C & O from denying that its own negligence was "active," the district court correctly ruled that C & O cannot maintain this indemnity action against the ICG and properly granted summary judgment against the C & O, for none of the issues of fact raised by the C & O's pleadings are material to the resolution of this case in view of the conclusive effect of the Stacy judgment.

III.

12
Having disposed of the C & O's claim that the ICG is liable to it as an "actively" negligent joint tortfeasor whose conduct was the principal cause of Stacy's injury, we turn to the question of whether the C & O is entitled to indemnity on the theory that the ICG, which allegedly had the right to control the activities of the negligent C & O employees, was a joint master of a common servant.  Because there is no Illinois case law recognizing such a theory of recovery, the C & O refers us to the Restatement (Second) of Agency § 317(A) (2), which provides:

13
"(2) If the negligence or fraud of two servants or other agents of different principals unites in causing injury to a third person, one of the principals is entitled to indemnity or contribution for the injury, in accordance with the rules stated in the Restatement of Restitution."

14
According to the C & O, it has stated, under the Restatement rule, a viable cause of action for contribution, if both it and the ICG were equally at fault for Stacy's injuries, or for indemnity, if the ICG was primarily at fault.

15
We note that, so far as our review of the record reveals, the C & O never presented this novel theory of liability to the district court as a ground for denying the ICG's motion for summary judgment.  Nothing in the C & O's Memorandum in Opposition to the ICG's Motion for Summary Judgment, for example, speaks to the theory of liability espoused here on appeal.  Ordinarily we will not decide issues raised on appeal that were not raised and argued below.  E. g., Hamilton Die Cast, Inc. v. United States Fidelity & Guaranty Corp., 508 F.2d 417, 420 (7th Cir. 1975).  This is particularly true when an appellant asks us to reverse a district court decision on the basis of a new theory of liability not presented below.  E. g., Ohio Casualty Co. v. Rynearson, 507 F.2d 573, 582 (7th Cir. 1974); see Desert Palace, Inc. v. Salisbury, 401 F.2d 320, 323-24 (7th Cir. 1968).  Accordingly, as we are convinced that the C & O never raised its Restatement theory of liability in the district court, we decline to pass upon this question of first impression under Illinois law here.

The judgment of the district court is

16
AFFIRMED.

17
SWYGERT, Circuit Judge, dissenting.

18
I agree with the majority that if the C & O's negligence was anything more than "passive," the C & O cannot recover in the indemnity action.  Carver v. Grossman, 55 Ill.2d 507, 305 N.E.2d 161 (1973).  The problem is whether the character of the C & O's negligence should have been resolved by summary judgment.  The district court ruled that all genuine issues of material fact had been decided in Stacy's suit against the C & O.  This, in my judgment, was error.

19
The C & O's action is based on the following factual contentions.  Prior to the time Stacy was injured while riding in the caboose of the Illinois Central train, the C & O train had received permission from the Illinois Central employees in control of the tracks to travel over tracks 7 and 8 for a switching movement.  To accomplish this it was necessary for the C & O crew to use two cross-over switches.  While completing the switching operation the crew placed the switches in a cross-over position.  According to the Illinois Central's control tower procedures, the C & O crew could leave the switches in a cross-over position unless the tower directed that the switches be returned to a straight position.  At the time in question, the C & O crew had not been directed to realign the switches and had not been informed of the Illinois Central train's movement in the critical area.

20
The C & O contends: (1) that the Illinois Central was in control of the activities of the C & O crew and had superior knowledge (on which the crew relied) of the activities of the trains involved; and (2) that although the C & O was held to be legally liable for Stacy's injuries under the doctrine of respondeat superior, the negligent acts and omissions of the Illinois Central's employees were the actual or "active" causes of the chain of events that resulted in those injuries.

21
Because the C & O was found liable to Stacy under the doctrine of respondeat superior, the relationship between the Illinois Central and the C & O with respect to the activities of the C & O train crew was not at issue nor was it decided in the Stacy action.  This relationship and the responsibilities of the Illinois Central for the actions of the C & O crew are genuine issues of material fact which have yet to be resolved.  Only an adversary trial can determine whether Illinois Central committed "active" negligence and the C & O only "passive" negligence.

The majority says:

22
We find ourselves in agreement with the district court that the judgment Stacy recovered against the C & O conclusively established that the conduct of the C & O employees was a substantial cause of his injuries, for even a cursory review of the pleadings and the instructions read to the Stacy jury reveals that, in rendering a verdict for Stacy, the jury necessarily determined that the employees of the C & O were negligent in either misaligning or failing to realign the cross-over switch, and that their negligence was a proximate cause of his injuries.  As the Stacy judgment rests on findings of fact that are fatal to the C & O's case here, the C & O is estopped by the judgment from denying that the negligence of its employees substantially contributed to Stacy's injury.  Shell Oil Co. v. Foster-Wheeler Corp., supra at 940.  The Stacy judgment thus establishes, as a matter of law, that the negligence of the C & O's employees was "active" in character and nothing that the C & O could prove at trial regarding the relative responsibility of the ICG for Stacy's injuries could enhance the merits of its claim.

23
The flaw in this argument is that the relative negligence of the Illinois Central was not at issue in the Stacy action.  How can the C & O be estopped by the Stacy judgment to assert that its negligence was merely passive and that Illinois Central's negligence was active?  The answer seems obvious.  Until the C & O has its day in court to attempt to prove that the Illinois Central employees were the sole active agents in the happening, the C & O's claim for indemnity should not be foreclosed.

24
I would reverse and remand for further proceedings in the district court.


332 F.2d 26
CONTINENTAL GRAIN COMPANY, Libelant-Appellee,v.AMERICAN COMMERCIAL BARGE LINE COMPANY, and Blaske, Inc.,Respondents-Appellants.
No. 14428.
United States Court of Appeals Seventh Circuit.
May 20, 1964.

Warren A. Jackman, Daniel K. Schlorf, Bradley, Pipin, Vetter & Eaton, and Heineke, Conklin & Schrader, Chicago, Ill., for appellants.
Theo C. Robinson, and McCreary, Hinslea, Ray & Robinson, Chicago, Ill., for appellee.
Before DUFFY, KILEY, and SWYGERT, Circuit Judges.
SWYGERT, Circuit Judge.

1
This is an action in admiralty in which libelant Continental Grain Company sued the American Commercial Barge Line Company and its wholly-owned subsidiary, Blaske, Inc., for damages to a shipment of corn transported by respondents' barge from libelant's elevator at Seneca, Illinois, to South Chicago.  The district court found respondents liable in the amount of $8,455.  They appeal.

2
American's barge was spotted at Continental's elevator on December 10, 1957.  Before the corn was loaded, Continental inspected the barge and found it to be dry.  The barge was loaded by it on December 12, 1957, and the hatches closed and fastened by means of an electric winch.  The barge was picked up by American's towboat on December 19.  The time of arrival at Continental's elevator in South Chicago is disputed.  The shipper presented evidence that the barge did not arrive until December 27.  American asserted that the logbook (which was unauthenticated) of the towboat showed that the barge was dropped off on December 22.  The district judge found that the barge was delivered to Continental at South Chicago on December 27.  On that day the barge was opened by Continental and part of the corn was found to be spoiled.  A marine surveyor, who inspected the damage, testified that there was an indentation in one of the hatch covers and in his opinion the grain was damaged by water entering the barge where the indentation was located.

3
American contends that the district court erred in finding that Continental had sustained its burden of proof.  Specifically, it maintains that Continental submitted no evidence that its grain was in good condition at the time the barge was picked up by American's towboat and the corn was in a damaged condition when it was redelivered by the carrier.

4
American asserts that the corn was not delivered to it until the towboat picked up the barge on December 19, seven days after loading.  There is evidence that Continental loaded the barge soon after it was delivered and promptly notified American that the barge was ready to be moved to South Chicago.  The fact that the barge remained at Seneca for several days after it was loaded was the responsibility of the carrier, not the shipper.  The transportation arrangement was not a towage contract but a contract of affreightment wherein the carrier supplied both the barge and the tug.  Moreover, the evidence shows that the carrier issued Continental a 'clean' bill of lading, covering the shipment of corn with no exceptions noted, in accordance with section 193 of the Harter Act, 27 Stat. 445, 46 U.S.C.A. 193.  A finding that a shipment is in good order may be inferred from circumstantial evidence.  Mississippi Valley Barge Line Co. v. Inland Waterways Shippers Assoc., 289 F.2d 374 (8th Cir.1961).

5
American also contends that the damaged condition of the corn was not discovered until five days after arrival of the barge at libelant's elevator in South Chicago.  However, the finding of the district court that the barge was redelivered to the shipper on December 27, the same day the damage was discovered, is supported by both the elevator records and the testimony of its superintendent.  The finding was not erroneous.

6
The district judge also found that the damage to the corn was caused by water entering through a junction between two hatch covers, one of which was found by the marine surveyor to be defective and damaged.

7
The evidence justified this finding as well as those that the cargo was delivered in good condition to the carrier and that a portion of it was in a damaged condition when it was redelivered to the shipper.  Therefore, the damage could only have occurred while the cargo was in the custody and control of American.  There was no failure of proof on the part of libelant.

8
The decree is affirmed.


338 Mich. 261 (1953)
60 N.W.2d 915
MORRISH
v.
MORRISH.
Docket No. 63, Calendar No. 45,876.
Supreme Court of Michigan.
Decided November 27, 1953.
Guy W. Selby (Fred A. Sauer, of counsel), for plaintiff.
Fred S. Flick, for defendant.
BUSHNELL, J.
Plaintiff Catherine P. Morrish and defendant Ray S. Morrish were married on July 20, 1944. They lived happily together until some time in 1950, when they separated. The defendant and cross plaintiff, a surgeon, claims that on May 4, 1950, when he came home late that night, after being at the hospital, he found his wife with another man in a compromising situation. The party involved, who testified as a witness for the plaintiff, absolutely denied the allegations and said that the doctor was present at all times when he was in the home of the parties. The wife also denied this charge. The defendant further claims that his wife told him after this incident that she had something to say to him, and that she had "wronged him." This, the wife categorically denied. In any event, shortly after *263 the alleged incident occurred the wife, pursuant to previously made plans, left for California to visit her mother. She returned home on July 13, 1950, with her mother, and claims that when she arrived she was again accused by the defendant of infidelity. She returned to California on July 22d. During her absence her husband wrote her many endearing letters.
In August of 1950, Mrs. Morrish began a divorce action, which was later dismissed. She returned home about September 16, 1950, because her husband had been stricken with a cerebral thrombosis and was in a hospital. Mrs. Morrish visited him there a few times, but, according to the doctor, was not kind to him. On the contrary, she accused him of ill treatment. The relations between the parties failed to improve and they again separated on December 28, 1950, after which this suit was instituted for divorce and her husband filed a cross bill.
The defendant was 64 years old at the time of the trial, and since his illness has been unable to practice his profession. The bulk of his property was accumulated prior to his marriage. Plaintiff was 45 years old at the time of trial. She had $600 in bonds when she married. In 1949 she had a major operation and has since been unable to do any continuous work.
A decree was entered in favor of the wife, the husband being required to pay the sum of $20,000 in cash. He was given all the real estate and each is to choose such personal property as she or he might individually desire. The sum of $1 was awarded as permanent alimony, and $300 was allowed for the wife's attorney's fee.
Defendant appeals from this decree on the ground that it is not in accordance with the weight of the evidence, and that the division of property is unjust and inequitable.
*264 The finding that the wife had established grounds for a divorce is in conformity with the rule expressed in Brookhouse v. Brookhouse, 286 Mich 151; and Whitman v. Whitman, 286 Mich 458.
There is no rigid rule for division of property in divorce actions. The security of a living for the wife is a major consideration. Hallett v. Hallett, 279 Mich 246. The facts are distinguishable from those in Hall v. Hall, 307 Mich 502. and Maynard v. Maynard, 329 Mich 247. Although plaintiff bore no children to defendant, she gave him happy companionship for about 6 years. In the Maynard and Hall Cases the wife was the wrongdoer and contributed very little to the marriage. While the property here in question was accumulated prior to the marriage, there is no showing that the wife married defendant for his money. In fact, there is every indication that the wife would have continued living with her husband if he had been more reasonable and had not elected to accuse her of infidelity.
It is obvious that the plaintiff is unable to support herself by any remunerative employment, and we agree with the trial judge's view that she cannot earn her own living. On the other hand, the husband is receiving disability income. He has the home and an adjacent lot appraised at $25,000, which the trial judge thought was too high: some land in Flint township; some vacant lots; land in Canada worth $2,500; 400 shares of General Motors stock; and 300 shares of Sears Roebuck stock; life insurance totaling $25,000; and 2 automobiles.
The decree is affirmed, with costs to appellee.
DETHMERS, C.J., and ADAMS, BUTZEL, CARR, SHARPE, BOYLES, and REID, JJ., concurred.