244 F.3d 189 (1st Cir. 2001)
AMERISTAR JET CHARTER, INC., Plaintiff,v.SIGNAL COMPOSITES, INC. d/b/a SIGNAL AEROSPACE, Defendant, Appellant.GENERAL ELECTRIC AIRCRAFT ENGINES, PAUL WHELAN, MARK DANCWICZ and DAVE COHEN, Appellees.
No. 00-1901
United States Court of Appeals For the First Circuit
Heard March 8, 2001Decided April 3, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Jennifer A. Creedon, with whom Lawrence C. Ecoff, Zimmerman, Rosenfeld, Gersh & Leeds, LLP, Lawrence G. Cetrulo, and Cetrulo & Capone LLP were on brief, for Signal Composites, Inc. d/b/a Signal Aerospace, appellant.
Joseph L. Stanganelli, with whom Hale and Dorr LLP were on brief, for General Electric Aircraft Engines, Paul Whelan, Mark Dancwicz and Dave Cohen, appellees.
Before Lipez, Circuit Judge, Bownes, Senior Circuit Judge, and Stearns,* U.S. District Judge.
BOWNES, Senior Circuit Judge.

1
The appellant argues that the district court erred when it granted the appellees' motion for a protective order quashing appellant's deposition subpoenas. Appellant claims that this decision was "plainly wrong and resulted in substantial prejudice to Appellant." We disagree, and for the reasons stated below, affirm the district court's ruling.

I. BACKGROUND

2
The appellant, Signal Composites, Inc. d/b/a Signal Aerospace ("Signal"), is a party to a civil action pending in the United States District Court, Northern District of Texas (Ameristar Jet Charter, Inc. v. Signal Composites, Inc., et al., No. 3-98-CV-1360-M). In that action, the plaintiff, Ameristar Jet Charter, Inc. ("Ameristar"), seeks damages against Signal based upon several causes of action arising out of the alleged sale of counterfeit combustion liners,1 including breach of warranty, fraud and conspiracy to defraud. The appellees are non-party movants General Electric Aircraft Engines ("GEAE") and its employees Paul Whelan, Mark Dancwicz and Dave Cohen.

3
A very brief factual history of the underlying action is necessary to understand how and why GEAE got involved in this case. Ameristar operates a jet charter service. A Texas partnership, 3-D Industries ("3D") purchased, on behalf of Ameristar, military combustion liners from Signal. Ameristar claims that the combustion liners were represented to be manufactured by GEAE, or an authorized GEAE vendor, as required by the Federal Aviation Administration ("FAA"). The premises of 3D was visited by the FAA and the Department of Transportation ("DOT"). The FAA and DOT obtained combustion liners, and sent them to GEAE for a team of employees to analyze and evaluate for authenticity. The team concluded that the liners differed in a number of ways from GEAE manufactured liners. Paul Whelan, Mark Dancwicz and David Cohen were some of the GEAE employees on the team.

4
In March, 1999, Ameristar subpoenaed GEAE pursuant to Federal Rule of Civil Procedure 30(b)(6).2 GEAE presented two witnesses to testify on its behalf in depositions taken on April 8, 1999. The two witnesses deposed pursuant to Fed. R. Civ. P. 30(b)(6) were Thomas Woo, GEAE's Mature Engines Program Quality Manager, who led the team of employees that analyzed the combustion liners; and Ronald Gould, another member of the team and Technical Leader for GEAE's Engine Systems Design and Integration Group. Counsel for Ameristar and Signal were present at the deposition.

5
Ameristar moved for partial summary judgment, and on March 27, 2000, Magistrate Judge Boyle issued her findings, conclusions and recommendations in favor of granting the motion. One year after the two GEAE depositions were taken, and after the magistrate judge issued her report, Signal moved on April 10, 2000, to extend the time to file its objections to Magistrate Judge Boyle's report. On April 10, 2000, Signal also served a Rule 30(b)(6) deposition subpoena on GEAE. On April 27, 2000, District Judge Lynn granted Signal's motion to extend the time within which it had to file objections, but stated that "none of the discovery set out in the motion will now be permitted." She referred any additional discovery requests to Magistrate Judge Boyle. On May 2, 2000, Signal subpoenaed depositions from GEAE employees Whelan, Dancwicz and Cohen. On May 16, 2000, Magistrate Judge Boyle denied "at this late juncture" Signal's request for additional discovery of GEAE and its employees.

6
Meanwhile, on May 10, 2000, GEAE and its employees moved, in the United States District Court for the District of Massachusetts,3 for a protective order quashing the four subpoenas issued to them. Signal opposed that motion. On June 15, 2000, District Judge Lindsay granted GEAE's motion to quash the non-party subpoenas "both on the merits and because [the] discovery sought appears to be precluded by Judge Boyle's order of May 16, 2000." Signal now appeals Judge Lindsay's order, arguing that it was "plainly wrong and resulted in substantial prejudice to the Appellant."

II. DISCUSSION

7
The hurdle which the appellant must overcome to prevail is high. As we have stated, "[t]he standard of review in discovery matters is not appellant-friendly." Faigan v. Kelly, 184 F.3d 67, 84 (1st Cir. 1999). "We will intervene in such matters only upon a clear showing of manifest injustice, that is, where the lower court's discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989). Signal cannot clear the hurdle; it has not demonstrated that the district court's order was plainly wrong or that the order resulted in substantial prejudice.

8
The Supreme Court has long recognized that the Federal Rules of Civil Procedure are to be construed liberally in favor of discovery. Hickman v. Taylor, 329 U.S. 495, 507 (1947) ("[T]he deposition-discovery rules are to be accorded a broad and liberal treatment."); see also SECav. Sargent, 229 F.3d 68, 80 (1st Cir. 2000) (quoting Hickman). There are, however, limitations on pre-trial discovery. Mack, 871 F.2d at 187 (discussing amendments made to the Federal Rules of Civil Procedure "to deal with the problem of over-discovery").

9
Federal Rule of Civil Procedure 26(b)(2) provides, in pertinent part, that discovery

10
shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit . . . .

11
Rule 26(c) provides for protective orders, issued by the district court, to limit or eliminate discovery sought. Upon a showing of "good cause" by the movant, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." Fed. R. Civ. P. 26(c).

12
Further, Rule 45(c)(3)(A) gives the court the power to "quash or modify the subpoena if it . . . (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden."

13
At issue in this appeal are four deposition subpoenas issued on behalf of Signal to GEAE and its employees Whelan, Dancwicz and Cohen. GEAE had been subpoenaed by Ameristar in March of 1999 in the same case. We rule that the district court correctly granted the appellees' protective order to quash all four subpoenas. Our reasons follow.

14
First, it was not "plainly wrong" for the district court to quash the subpoena issued to GEAE pursuant to Rule 30(b)(6). Pursuant to Rule 30(a)(2)(B), "[a] party must obtain leave of court . . . if . . . the person to be examined already has been deposed in the case . . . ." Here, GEAE was previously deposed. On Aprila8, 1999, GEAE presented two witnesses--Thomas Woo and Ronald Gould--to testify on its behalf. Counsel for Signal was present. One year later and after Magistrate Judge Boyle's recommendation for partial summary judgment against it, Signal issued a Rule 30(b)(6) subpoena to GEAE. Because this second Rule 30(b)(6) subpoena was issued to GEAE without leave of the court, it was invalid. Even assuming arguendo that Signal sought leave of the Texas District Court4 to re-depose GEAE pursuant to Rule 30(b)(6), such request was denied by Magistrate Judge Boyle on May 16, 2000. For the foregoing reasons, it was not "plainly wrong" for Judge Lindsay to grant the protective order quashing the second Rule 30(b)(6) subpoena issued to GEAE.

15
We next turn to the three individual subpoenas issued to GEAE employees Whelan, Dancwicz and Cohen in May, 2000. The district court was not "plainly wrong" when it quashed the subpoenas issued to the three employees, and Signal has not shown that it was "substantially prejudiced" by the court's ruling.

16
Unsatisfied with the findings and recommendations of Magistrate Judge Boyle, Signal attempted to depose three other members of the GEAE team. This request was belated, duplicative and cumulative, and otherwise unduly burdensome to the appellees. Two GEAE representatives were already deposed, and Signal did not articulate any dissatisfaction with the testimony it received. Moreover, it did not seek additional testimony until after Magistrate Boyle issued her findings and recommendations a year later.

17
Signal presents no evidence that any new, relevant information will be obtained if it is permitted to take the depositions of the three GEAE employees. Signal merely has "hope" that the testimony of Whelan, Dancwicz or Cohen will contradict the testimony of the GEAE representatives already deposed. Counsel for Signal concedes, however, that it has no evidence that it will receive contradictory testimony. We will not allow Signal to go on a "fishing expedition," with the mere "hope" that it will obtain such information. See Mack, 871 F.2d at 187 (holding that a party may not "undertake wholly exploratory operations in the vague hope that something helpful will turn up.").

18
The district court has the discretion to limit discovery. The court may limit discovery if it determines that "the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive . . . ." Fed. R. Civ. P. 26(b)(2)(i). Signal had an opportunity to question GEAE representatives and did so in March, 1999. See Fed. R. Civ. P. 26(b)(2)(ii). Signal has not shown that the information sought from Whelan, Dancwicz or Cohen would be anything but cumulative or duplicative. Therefore, it would be an "undue burden" on GEAE, a non-party, to permit such a "fishing expedition." Fed. R. Civ. P. 26(c) (a court "may make any order which justice requires to protect a party or person from .a.a. undue burden").

III. CONCLUSION

19
For the aforementioned reasons, the district court was not "plainly wrong" when it granted the appellees' motion for a protective order to quash the four subpoenas and the appellant has not shown that it was "substantially prejudiced" by this order. The order of the district court is affirmed.

Notes:

*
 Of the District of Massachusetts, sitting by designation.

1
 A combustion liner is part of an aircraft that must periodically be replaced.

2
 Fed. R. Civ. P. 30(b)(6) provides, in pertinent part:
A party may in the party's notice and in a subpoena name as the deponent a public or private corporation . . . and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf . . . .

3
 GEAE and its employees are located in Massachusetts and, therefore, the subpoenas were issued under the authority of the District Court of Massachusetts.

4
 Arguably, Signal requested additional discovery when it moved for an extension of time within which to file its objections to Magistrate Judge Boyle's findings and recommendations. We need not decide whether Signal actually requested leave of the court, as it was required to do pursuant to Rule 30(a)(2), because the result is the same.


357 S.W.2d 83 (1962)
Gary Eugene HALL, a Minor, by his father and next friend, Dorwin Hall, Respondent,
v.
Verne F. RAGER, Appellant.
No. 48856.
Supreme Court of Missouri, Division No. 2.
May 14, 1962.
*84 Robert L. Jackson, Kansas City, for appellant.
James E. Lockwood, Brenner, Wimmell, Ewing & Lockwood, Kansas City, Walter B. Patterson, Fort Scott, Kan., for respondent.
PER CURIAM.
In this action plaintiff sought to recover damages in the sum of $50,000 for personal injuries sustained in an occurrence involving the car in which he was riding and a truck operated by an employee of defendant. A trial resulted in a verdict for defendant. Thereafter, the trial court entered an order granting plaintiff a new trial upon the grounds that the court had erred in giving Instructions 7 and 9 at the request of defendant. Defendant has appealed from that order.
*85 While defendant here contends that the said instructions were not prejudicially erroneous, his first and perhaps primary contention is that any error in the instructions would be immaterial because plaintiff failed to make a submissible case, and hence the trial court should have sustained his motion for a directed verdict filed at the close of all the evidence. In determining that contention we will view the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences flowing therefrom, and disregard defendant's evidence except as it may aid plaintiff. Erbes v. Union Electric Co., Mo.Sup., 353 S.W.2d 659.
The casualty in question occurred shortly after noon on July 18, 1957, at the intersection of two county roads located approximately six miles northeast of Fort Scott, Kansas. Plaintiff, then 5 years of age, was riding in an automobile being driven by his grandmother, Mrs. Alta Jacquinot. The intersection involved was located a little more than a mile west of the Jacquinot farm home. Both roads were constructed of chat on rock. The east-west road (known as Richards Road) was 25 or 30 feet wide while the north-south road was not that wide. There were no stop signs at the intersection. Mrs. Jacquinot was driving her 1949 Chevrolet westwardly on Richards Road. John Bower was driving defendant's stock truck northwardly on the intersecting county road. The car and truck reached the intersection at about the same time, but, as will hereinafter more fully appear, there was no actual contact between the two vehicles.
Mrs. Jacquinot testified that when her car was one quarter mile east of the intersection she saw defendant's truck about a half mile to the south thereof; that from that point on her view of cars approaching from the south was obscured by corn growing in a field at the southeast corner of the intersection; that her car was going "around" 25 m. p. h. and when she arrived at the east edge of the intersection she saw the truck about 40 to 50 feet to the south traveling at a speed of 50 m. p. h.; that when she saw the truck "I didn't think I had time to go across, * * * I didn't have time to stop. If I had stopped, I would have been right in front of it. * * * I swerved to the right, and I kind of lost control of the car and I went back kind of to the west and hit the ditch on the northwest corner of the intersection and ran into a big bank there. * * * The truck went behind me as I hit the bank, going toward the north. He didn't slow down or he didn't stop. He went straight on to the north through the intersection just as I hit the bank." This witness further testified that as a result of the impact she received certain injuries and that plaintiff's head hit the dashboard and he was rendered unconscious; that the truck driver returned to the intersection and took them to the home of a neighbor who drove them to the hospital.
Defendant presented the testimony of the truck driver, John Bower, who related a much different version of the occurrence. He stated that his truck arrived at the intersection first; that as he started to cross the intersection he looked to the east and saw Mrs. Jacquinot's car from 125 to 150 feet away and "it looked like she put the brakes on and the front end went down and started to slide sideways a little"; that he went on across and her car passed back of the truck and he could see in the rear-vision mirror that it was in the ditch. On cross-examination Mr. Bower testified that as he approached the intersection his view to the east was obscured by tall brush; that his truck was going from 40 to 45 m. p. h. and he did not apply his brakes, reduce the speed of the truck, swerve or sound his horn.
Plaintiff's main verdict-directing instruction conjunctively submitted two assignments of negligence, i. e., (1) that the Jacquinot car entered the intersection ahead of or at the same time as defendant's truck and that defendant's driver failed to yield the right of way, and (2) that the truck was driven into said intersection at a speed of 45 to 50 m. p. h. and that under the circumstances *86 detailed in said instruction such speed was negligent.
In considering the first assignment submitted it should be noted that § 8-550, General Statutes of Kansas 1949, provides as follows: "(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. (b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. (c) The foregoing rules are modified at through highways and otherwise as hereinafter stated in this article."
Defendant contends that plaintiff failed to make a submissible case of failure to yield the right of way because there is no substantial evidence to the effect that defendant's truck interfered with the right of way of the Jacquinot Chevrolet. His brief recites that "there never was a collision between the two vehicles involved in this case, and, furthermore, there was no evidence that if both cars had proceeded in the same manner as testified to by Mrs. Jacquinot, that there ever would have been a collision between said vehicles. In fact, the evidence strongly indicates exactly to the contrary." He cites cases such as Applegate v. Home Oil Co., 182 Kan. 655, 324 P.2d 203, 208, which state the rule that "mere violations of traffic laws are not themselves sufficient to make the operator of a motor vehicle guilty of actionable negligence in a collision of automobiles; to make him liable it must appear that the violation contributed to the collision and was a proximate cause of the injury sustained."
At the outset of our consideration of this question it should be made clear that the "mere absence of contact does not prevent an act of negligence from being the proximate cause of an injury. This general principle is applicable where a vehicle is forced off the highway, and is in accordance with the rule that he who, by his negligence, creates a dangerous situation is liable to one who, acting as a reasonably prudent person, is injured while attempting to avoid the danger so created. * * * To be the producing or proximate cause of an accident, it is not necessary that there be actual contact between the respective automobiles; the test of whether the negligent acts of two or more persons concurred in contributing to an accident being whether the accident could have happened without the co-operation of such acts." 4 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, § 2538, pp. 35, 36, and § 2644, p. 146. See also Tilden v. Ash, 145 Kan. 909, 67 P.2d 614, and Garrison v. Ryno, Mo.Sup., 328 S.W.2d 557.
Defendant's contention in regard to nonsubmissibility as to excessive speed is substantially the same as his contention in regard to failure to yield the right of way. He says the speed of defendant's truck was not shown to be a proximate cause of the accident. He states in his brief that "regardless of what defendant's speed was, there was no collision between the two vehicles. Furthermore, there was no substantial evidence that there was ever any danger of a collision * * *. Obviously, whatever defendant's speed was, the proximate cause of the accident here was Mrs. Jacquinot's misjudgment and loss of control of her own car."
We have concluded that plaintiff made a submissible case on both of the assignments. It is not essential to submissibility that plaintiff demonstrate to a mathematical certainty that there would have been a collision unless some action had been taken to prevent it. It is sufficient for the evidence to reasonably support a jury finding that because of the manner in which defendant's truck approached the intersection Mrs. Jacquinot would reasonably have anticipated that a collision would occur unless she took evasive action. When the front of the Jacquinot car arrived at the intersection the driver saw defendant's truck 40 feet to the south traveling at a speed of 50 m. p. h. Mrs. Jacquinot's car *87 was going 25 m. p. h. Had no evasive action been taken it might be that no collision would have occurred. However, a jury could reasonably have found that under the circumstances Mrs. Jacquinot could reasonably have concluded that there would be a collision unless she took emergency action in an effort to avoid it. As indicated, the evidence was sufficient to warrant the jury in finding that defendant's negligence, in either or both of the respects submitted, was a proximate cause of plaintiff's injuries.
In Tilden v. Ash, supra, it is said that if "appellants had not driven onto No. 10 as they did, there would have been no occasion for the Ash truck to swerve into the proper lane of an approaching car from the west. Except for appellants' conduct the Ash truck could have proceeded westerly by remaining on its proper north side of the slab and the Tilden car could have proceeded east on the south side of the highway which it was rightfully occupying. Because the driver of the Ash truck was also guilty of negligence it does not follow appellants were free from negligence. The fact appellants' truck did not strike the Ash truck does not relieve them of liability for the damage which their conduct, combined with the negligence of another, wrought upon an innocent third party. In Huddy's Cyclopedia of Automobile Law, [vols.] 3, 4, it is said: `The negligence of a driver in forcing another traveler off the road may be the proximate cause of injuries received by the latter through a collision with an object outside of the road.' Page 48." 145 Kan. 916, 67 P.2d 618. In the case before us there was ample evidence to reasonably support a jury finding that had it not been for the fact that defendant's truck approached the intersection at a high rate of speed (under the circumstances) the Jacquinot car would have remained on the road as it proceeded through the intersection and plaintiff would not have been injured.
Furthermore, in regard to the speed issue, we think it is apparent that evidence to the effect that defendant's driver approached to within 40 feet of the intersection at a speed of 50 m. p. h., when he admittedly could not see vehicles approaching from the east, was sufficient, under all the circumstances in evidence, to reasonably support a finding that such was an excessive and negligent speed. The contention that plaintiff failed to make a submissible case is ruled adversely to defendant.
In its order granting plaintiff a new trial the court found that defendant's Instruction No. 7 was erroneous because it failed to "specifically negate the existence of any negligence on the part of defendant and failed to hypothesize the specific negligence of the third person relied upon as the sole cause of the collision." Said instruction reads as follows:
"The court instructs the jury that under the law of Kansas it was the duty of Alta Faye Jacquinot, the driver of the vehicle in which the plaintiff was riding, to drive and operate her vehicle at a reasonable and prudent speed under the conditions then and there existing, and she was under a further duty to drive and keep her vehicle under proper control. You are instructed that if you find and believe from the evidence that Alta Faye Jacquinot, as she drove in a westerly direction approaching the intersection, as mentioned in evidence, if so, was driving her vehicle at an excessive rate of speed under the circumstances then and there present, and if you find and believe that she failed to drive and operate her vehicle in such a manner as to keep same under proper control, under the circumstances then and there present, if so, and that she was thus and thereby negligent, if so, and that as a result of said negligence she caused her said vehicle to drive into the ditch on the northwest corner of the intersection, as mentioned in evidence, and that her negligence in so doing, if you find she was negligent, was the sole cause of the accident and occurrence in question, then your verdict will be for the defendant and against the plaintiff." *88 We fully agree with the foregoing conclusions of the trial court. The instruction does not, in any manner, negative the existence of negligence on the part of the defendant. Also, while the instruction submits two charges of negligence on the part of Mrs. Jacquinot, it fails to hypothesize any facts which would demonstrate that her acts were the sole cause of plaintiff's injuries. We have recently said that a defendant may "undertake to absolve himself of liability on the ground that the negligence of the plaintiff or of some third person was the sole proximate cause of plaintiff's injuries, and he may submit this issue to the jury by what is referred to as a sole cause instruction. This latter form of an instruction, as contrasted to a converse instruction, concedes that the injuries to plaintiff resulted from the negligence of someone, and it authorizes a finding by the jury for the defendant only if it finds that the negligence of the plaintiff, or someone other than the defendant, was the sole proximate cause of the injuries, and also that defendant was not negligent, or if he was negligent that his negligence was not concurring negligence. Therefore, if the defendant undertakes to absolve himself from liability to plaintiff on the basis of sole cause negligence, he thereby assumes the burden of hypothesizing a statement of facts, supported by the evidence, from which a jury could find that not only did his negligence not contribute in causing plaintiff's injuries, but in addition thereto that the sole proximate cause of plaintiff's injuries was the negligence of someone other than him, and the hypothesization of facts in the instruction, or by proper reference to other instructions, must be complete in both respects." Happy v. Blanton, Mo. Sup., 303 S.W.2d 633, 637. For the reasons heretofore indicated we hold that Instruction No. 7 was prejudicially erroneous. In addition to Happy, our conclusion is supported by the following cases: Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289, Johnson v. Cox, Mo.Sup., 262 S.W.2d 13, Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254, Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54, and Counts v. Kansas City Southern Ry. Co., Mo.Sup., 340 S.W.2d 670.
Defendant has briefed the contention that any error in failing to negative defendant's negligence in Instruction No. 7 was cured by Instruction No. 8 which told the jury that if it found that Mrs. Jacquinot and John Bower were both guilty of negligence which combined to cause the casualty, "then such negligence, if any, on the part of Mrs. Jacquinot constitutes no defense whatever to this action." We do not agree. Instruction No. 7 purported to be a complete submission and directed a verdict for defendant in accordance with the findings and directions therein contained. It entirely omitted an essential element of the submission. In that situation the error in question was neither waived nor cured by the fact that the court gave Instruction No. 8 at the request of plaintiff. Hickerson v. Portner, Mo.Sup., 325 S.W.2d 783; Landau v. St. Louis Public Service Co., Mo.Sup., 322 S.W.2d 132; Stanich v. Western Union Tel. Co., supra.
It is also contended by defendant that it was unnecessary that the instruction contain a hypothesis of the facts relied upon as a basis for a finding that the conduct of Mrs. Jacquinot was the sole cause of the casualty because "the driving off of the road by Mrs. Jacquinot constituted a res ipsa loquitur situation with respect to which defendant was entitled to submit in terms of general rather than specific negligence." There is no merit in that contention. The res ipsa loquitur doctrine has no application in this situation where the evidence on both sides indicated that the casualty resulted from the efforts of Mrs. Jacquinot to avoid a collision with the defendant's truck. Moreover, defendant did not draft the instruction in accordance with the res ipsa loquitur doctrine. It actually submitted two charges of specific negligence. As relates to this point the defect in the instruction was its failure to *89 hypothesize the facts relating to those assignments. In that situation defendant is in no position to contend that the res ipsa loquitur doctrine would excuse his failure to hypothesize the facts in the instruction.
We deem it unnecessary to extend this opinion by a discussion of the contention that the court erred in giving Instruction No. 9. Prior to another trial counsel for defendant will have the opportunity to reexamine that instruction and make such corrections therein as may be considered necessary in view of the attack made thereon by plaintiff.
The order granting a new trial is affirmed and the cause is remanded.


120 Ga. App. 691 (1969)
172 S.E.2d 170
HOOD
v.
RICE et al.
44652.
Court of Appeals of Georgia.
Argued September 2, 1969.
Decided November 7, 1969.
Rehearing Denied November 24, 1969.
*692 G. Seals Aiken, for appellant.
Latimer, Hadden & Stanfield, A. C. Latimer, John C. Pennington, for appellees.
BELL, Chief Judge.
1. Succinctly stating the enumerations of error considered in this division of the opinion, appellant protests various rulings and judgments of the Atlanta Board of Education, the State Board of Education and the Superior Court of Fulton County. She objects to findings that she voluntarily left her employment in the Atlanta School System, that she was not in fact discharged by the Atlanta school authorities and that *693 no conspiracy existed to deprive her of the statutory rights of notice, preferment of charges and the opportunity to be heard in her own defense. All of these contentions are based ultimately on the premise that there is no evidence to support the rulings or judgments or that the evidence demanded rulings contra to these entered. Needless to say, we have painstakingly examined the entire record. From that it is apparent to us, as it obviously was to the superior court judge, that the evidence, while often in conflict, was in each situation sufficient to authorize the ruling complained of. Thus, having voluntarily left her job, the provisions of the Civil Service for Teachers Act (Ga. L. 1937, p. 879) which she seeks to invoke in her case, are not applicable. Historically, the appellate courts of this State have followed the policy of refusing to nullify facts supported by evidence which have been found by the various fact-finding bodies. See Scott v. Hester, 72 Ga. App. 889 (35 SE2d 389); Stallings v. City of Atlanta, 73 Ga. App. 169 (35 SE2d 782); Tibbs v. City of Atlanta, 125 Ga. 18 (53 SE 811). This disposes of enumerations 1, 2, 3, 4, 5, 6, 9, 10, 11, 14 and 15.
2. The Supreme Court, in transferring this case to this court, disposed of enumerations 17, 18, 19, 20, 21 and 23. See Hood v. Rice, 225 Ga. 327 (168 SE2d 150).
3. At the commencement of the hearing before the Atlanta Board, the chairman stated that it was the contention of the Board of Education that Miss Hood was not discharged but left the school system suddenly and without cause of her own volition and that whatever contractual rights she may have had in 1952 were barred by the statute of limitation. It is urged that the remarks caused the disqualification of the Atlanta Board as it had already pre-judged the case against her and deprived her of a fair and impartial tribunal to hear and pass upon her case, and the superior court erred in not so holding. These remarks were nothing more than a statement of the issues, and do not constitute any pre-judgment of the case. The record shows that the proceedings were conducted in an eminently fair manner. Enumeration 7 has no merit.
4. The chairman also stated that Miss Hood occupied the position of a plaintiff and had the burden of proof. It is argued *694 that this is error as the burden of proof should have been placed upon the Board of Education. Here, the burden of proof rested upon Miss Hood as she alleged the right to recover and this burden remained on her continuously during the trial since the Atlanta Board denied her allegations throughout all proceedings in the case. Richter Bros. v. Atlantic Co., 59 Ga. App. 137, 141 (200 SE 462); Lovett v. American Family Life Ins. Co., 107 Ga. App. 603, 608 (131 SE2d 70). Enumeration 8 has no merit.
5. (a) In enumerations 12 and 13 it is urged that the superior court erred in not holding the orders or judgments of both the Atlanta and State Boards of Education void because neither included findings of fact and conclusions of law separately stated or was accompanied by a concise and explicit statement of the underlying facts which supported the respective findings. Counsel in support of these alleged errors relies upon a provision of the Georgia Administrative Procedure Act (Code Ann. § 3A-118 (b)) which requires agencies to which the Act applies in contested cases to include findings of fact and conclusions of law, separately stated. The fallacy of this contention is that a city board of education is not included within any of the definitions of "agency" contained in this statute. Code Ann. §§ 3A-101 and 3A-102. Thus the Administrative Procedure Act does not apply to local boards of education. Although special or detailed findings of fact and conclusions of law may be desirable in a case of this nature, their absence will not affect the validity of the determination of a quasi-judicial tribunal when not required by statute. Saporiti v. Zoning Board &c. of Manchester, 137 Conn. 478 (78 A2d 741); Bandeen v. Howard, (Ky.) 299 SW2d 249; 2 AmJur2d 262, Administrative Law, § 450.
(b) All the more, the Administrative Procedure Act does not apply to the State Board of Education when, as here, the board sat as an appellate body and did not decide the controversy de novo but based its appellate decision on the evidence heard by the local board. See Boney v. Board of Educ. of Telfair County, 203 Ga. 152, 155 (45 SE2d 442).
6. In enumeration 16, counsel argues that the superior court erred in not holding that the Atlanta Board was estopped by *695 its granting a hearing to Miss Hood from contending and holding any rights she may have had in 1952 were no longer available to her due to the running of the statute of limitation. The record does not show that the Atlanta Board's decision was in any way based upon the running of any statute of limitation. However, assuming that it was, counsel's theory that by granting Miss Hood a hearing the board was thereby estopped from denying her relief by the running of the statute of limitation is not supported by any cited authority and will not receive the sanction of this court. Enumeration 16 has no merit.
7. Enumerations 22 and 24 are merely repetitious summarizations of others already considered and disposed of and need not be discussed.
Judgment affirmed. Eberhardt and Deen, JJ., concur.


118 F.Supp. 322 (1954)
TWOHIG et al.
v.
LAWRENCE WAREHOUSE CO.
Civ. No. 742.
United States District Court N. D. Iowa, W. D.
January 16, 1954.
*323 *324 *325 Charles F. Stilwill and Kenneth T. Wilson (of Stilwill, Brackney, Stilwill & Wilson), Sioux City, Iowa, for plaintiffs.
Charles O. Butler, Chicago, Ill., Maynard Garrison (of Wallace, Garrison, Norton & Ray), San Francisco, Cal., and Harry H. Miller (of Sifford & Wadden), Sioux City, Iowa, for defendant.
GRAVEN, District Judge.
The plaintiffs all citizens of the State of Iowa, are copartners in a livestock commission house buying and selling livestock on the Sioux City market under the partnership name of Wagner, Garrison & Abbott. They will hereinafter be referred to by their firm name or as plaintiff. The defendant, Lawrence Warehouse Co., Inc., a California corporation, hereinafter referred to as Lawrence or defendant, is engaged in the warehousing business on a nation-wide basis and was amenable to service of process within the Northern District of Iowa.
In substance plaintiff's complaint in three counts alleged: (1) conversion by defendant of 100 beef carcasses; (2) wrongful appropriation by defendant of those same 100 carcasses; (3) appropriation by defendant of those same 100 carcasses from or with the "Mid States Packing Co." with knowledge of plaintiff's beneficial interest in the carcasses. Plaintiff prayed for judgment in the sum of $21,789.39, or for restitutionary remedies by way of an accounting and constructive trust.
Prior to March 17, 1952, defendant entered into an arrangement with the Mid States Packing Co., Inc., a corporation hereinafter referred to as Mid States, operating a meat packing plant at Milan, Illinois, a town near Rock Island, Illinois. Under the arrangement the defendant, under a lease from Mid States, operated a cooler area of Mid States' Milan plant as a bonded warehouse, issuing non-negotiable warehouse receipts on carcasses deposited by Mid States in the cooler. These warehouse receipts were issued to the First National Bank of Rock Island, Rock Island, Illinois, hereinafter referred to as the Bank, and held by it as collateral on its loans to Mid States. Except in the case of sales to Jewel Food Stores the defendant was authorized to release carcasses from the cooler for sale by Mid States only upon execution by the Bank of an "Order for Warehouse Release." Defendant engaged E. E. Ostrander, hereinafter referred to as Ostrander, as Warehouse Manager at Milan. With defendant's knowledge and consent Ostrander was also employed by *326 Mid States as record keeper and financial agent. He was thoroughly familiar with the entire pattern of operation at Milan and he was repeatedly instructed as to defendant's duty to the Bank under its warehouse receipts.
On March 17, 1952, Mid States and plaintiff entered into an agreement at Sioux City, Iowa, under which plaintiff became a purchasing agent for Mid States. The pertinent provision of this agreement was that plaintiff would purchase cattle for Mid States on the Sioux City market on a commission basis. The plaintiff was to advance the purchase price and be reimbursed for the purchase price and expenses and commissions by drawing drafts on Mid States and forwarding the drafts through regular banking channels for collection at the Rock Island Bank. Cattle so purchased were shipped immediately to Mid States at Milan. They were insured in the name of Mid States. The drafts for such cattle required 3 or 4 days to clear through Chicago and arrive at Rock Island. The practical effect of the Milan arrangements and the purchasing agreement between Mid States and plaintiff was that cattle shipped by plaintiff could be processed, warehoused, and loans obtained from the Rock Island Bank on warehouse receipts representing the carcasses of those cattle before plaintiff's drafts arrived for collection. Defendant through Ostrander had full knowledge of this arrangement.
Shortly after March 17, 1952, plaintiff requested written assurances from Mid States that drafts sent pursuant to the agreement would be honored. In response to this request plaintiff received the following letter:
         "Mid States Packing Company
                   Milan, Illinois
                                  April 7 1952
"Mr. D. A. Nordstrom
Wagner Garrison and Abbott
Sioux City Iowa
"Gentlemen:
"We have today advised the First National Bank of Rock Island Rock Island Illinois as follows; (Mid-States packing Co., Inc. will accept and pay any and all Drafts sent your Bank for collection which are drawn for the the payment of cattle by R. B. Mead and Wagner Garrison and Abbott. Will you please advise Mr. D. A. Nordstrom of Wagner Garrisn and Abbott Sioux City Iowa of the Content of this letter, thus clearing the way for regular Bank Draft service)
"We expect that a letter of advice will reach you this week
"Thank You,
            "Very truly yours,
             Mid* States Packing Co., Inc.
             by /s/ E. E. Ostrander
                   ________________
                    E. E. Ostrander"
Ostrander signed this letter in his capacity as an employee of Mid States. Plaintiff did not learn of his dual employment or of any of the warehousing and credit arrangements at Milan until after August 4, 1952. From March 17 to July 29, 1952, plaintiff made 39 purchases and shipments under this agreement and in each instance its drafts were paid.
On the evening of July 30, 1952, Ostrander, acting as defendant's warehouse manager, permitted the removal of 62 carcasses from the cooler for shipment to a purchaser without the surrender of the warehouse receipts covering them. The warehouse receipts for those carcasses were held by the Bank as collateral for loans by it to Mid States. No release from the Bank was ever obtained as to those carcasses. That night or the next day those carcasses were hijacked in Chicago and the purchaser stopped payment on the check given for the purchase price. Mid States did not have sufficient resources to pay its debt to the Bank for which these hijacked carcasses were the pledged security. After the hijacking the Bank refused further loans to Mid States with defendant's warehouse receipts as collateral.
Meanwhile plaintiff had made purchases for Mid States of 50 head of cattle *327 on July 29 and 50 head on July 30, 1952, and sometime during the period from July 30 to August 1, 1952, these cattle were processed and 100 carcasses came into the cooler at Milan, but no warehouse receipts were ever issued on them. Defendant and Mid States knew that drafts for the purchase price of these cattle were then en route from Sioux City and knew that under Mid States' existing financial situation the plaintiff could not be reimbursed for the purchase price unless the proceeds from the 100 carcasses were made available therefor.
Under these circumstances Ostrander prepared false Orders for Warehouse Release and joined with Mid States in the disposition of these 100 carcasses to third party innocent purchasers for value. The false Orders for Warehouse Release effected the substitution of these 100 carcasses under prior outstanding warehouse receipts, including those covering the 62 hijacked carcasses. This substitution effected the complete release of those receipts by the Bank. The drafts for the purchase of these cattle, totalling $30,089.94, were dishonored on August 4, 1952. Subsequently the plaintiff received $8,300.55 from Mid States and its loss stands at $21,789.39. It is to be noted that the total benefit to be received by the plaintiff from the transaction involving the 100 head of cattle was the sum of $103.50 in commissions.
There was a large amount of documentary and other evidence introduced. Detailed Findings of Fact have been made and filed herein. The parties in their briefs discussed the law in a great many fields. However, it would seem that the pertinent facts and applicable law may be rather briefly stated.
The act of the defendant's manager in allowing 62 carcasses to be taken out of its warehouse without the authorization of the holder of the warehouse receipts covering them resulted in the defendant being short those carcasses when they were hijacked. Mid States was liable to the Bank for the loan by the Bank upon the warehouse receipts covering those carcasses. The defendant was liable to the Bank for the value of the 62 carcasses covered by those receipts. Mid States was insolvent. The defendant and Mid States, acting in co-operation, appropriated 62 carcasses of the cattle in question to make good the shortage on the receipts referred to. The defendant became a transferee without value and with notice of the 62 carcasses of the cattle in question. As a result of their appropriation by the defendant, it received the benefit of the 62 carcasses which were of the value of $19,237.36.
It seems clear that the relation between the plaintiff and Mid States was that of principal and agent. All of the incidents of their relationship are indicative of that legal status. The plaintiff's commission was on a head basis. The amount the plaintiff was to receive was not dependent upon the value of the particular cattle involved, or their market price. Owners do not receive commissions; agents do. It was heretofore noted that under the arrangements between the plaintiff and Mid States the plaintiff took out transit insurance on the cattle. In that insurance the plaintiff listed the defendant as the owner. The cattle involved were delivered by the truckers hauling them on the receipt of Mid States only. No bills of lading or similar devices were made use of or contemplated by the plaintiff as a means of retaining or exercising dominion over the cattle. It was contemplated by the parties in their arrangements and followed in practice that after delivery of the cattle full dominion over them was in Mid States. The relation between principal and agent is a fiduciary relation. 2 C.J.S., Agency, § 1, p. 1023; Trice v. Comstock, 8 Cir., 1903, 121 F. 620, 626, 61 L.R.A. 176. It is one of trust and confidence. 2 C.J.S., Agency, § 1, p. 1024. The relation of principal and agent is one upon which the law imposes the requirement of fidelity and faithfulness. *328 Trice v. Comstock, supra, 121 F. at page 623. A principal is under the obligation to deal fairly and in good faith with his agent. 3 C.J.S., Agency, § 174, p. 64. It is the duty of the principal to reimburse his agent for money advanced by the agent for the purchase of property in his behalf. 2 Am.Jur., pp. 231, 232; 3 C.J.S., Agency, § 197, p. 102.
While the overwhelming number of cases having to do with the fiduciary relationship between principals and agents involve the acts and conduct of agents, the duties and obligations imposed upon that relationship are not unilateral in character. The fiduciary relation between a principal and his agent is not a one-way legal street.
It seems clear that Mid States, as principal, stood in a fiduciary relation to the plaintiff, its purchasing agent, and it was subject to the duties and obligations of a fiduciary. It was unknown to the plaintiff that Mid States was operating on a basis under which the plaintiff was being reimbursed in each transaction from the proceeds of the very cattle shipped rather than from any independent resources of Mid States. It was known to Mid States that if the 100 head of cattle in question were appropriated towards the liquidation of pre-existing obligations the plaintiff could not be reimbursed for the cattle. With full knowledge of that situation, Mid States appropriated the cattle for the liquidation of such other obligations. A party is presumed to intend the nature of his acts. Therefore, it must be presumed that it was the intent of Mid States to appropriate the cattle without paying their purchase price. Even in situations where no fiduciary relation exists acceptance of goods with the intention not to pay for them constitutes fraudulent conduct. 77 C.J.S., Sales, § 50, p. 686. The conduct of Mid States violated the duties and obligations owed by it to the plaintiff as its fiduciary. It constituted a betrayal of fiducial trust and confidence. Its conduct must also be characterized as fraudulent. The defendant, with full knowledge of the situation, cooperated and colluded with Mid States in its violation of its duty as a fiduciary, in its betrayal of fiducial trust and confidence, and in its fraudulent conduct.
In Count I of its complaint the plaintiff seeks to recover on the theory of conversion. However, the plaintiff had neither title nor possession at the time of the wrong complained of. It seems clear that the plaintiff cannot recover on the theory of conversion. In Counts II and III of its complaint the plaintiff seeks to recover on the theory that the defendant was and is under the duty to make restitution of the benefit received.
In Restatement of Restitution, Sec. 138(2), it is stated: "A third person who has colluded with a fiduciary in committing a breach of duty, and who obtained a benefit therefrom, is under a duty of restitution to the beneficiary." In the briefs the matter of conflict of laws is discussed. It is the view of the Court that the wrong in question was committed in the State of Illinois and that the Illinois law is applicable. The parties have made no showing nor has search on the part of the Court indicated that the law of Illinois is not in accord with the Restatement Rule above set forth. It appears that the Illinois decisions are in accord with the general principles of equity relating to restitution. See Giese v. Terry, 1943, 382 Ill. 34, 46 N.E.2d 90; Harmony Way Bridge Co. v. Leathers, 1933, 353 Ill. 378, 187 N.E. 432; Miller v. Miller, 1915, 266 Ill. 522, 107 N.E. 821; Kern v. Beatty, 1915, 267 Ill. 127, 107 N.E. 794; Stahl v. Stahl, 1905, 214 Ill. 131, 73 N.E. 319, 68 L.R.A. 617; Pope v. Dapray, 1898, 176 Ill. 478, 52 N.E. 58. Judge Goodrich, speaking for the United States Court of Appeals for the Third Circuit, has stated, "* * But in the absence of direct local authority it seems to us proper to rely upon the Restatement of the Law as evidence of the law of the State. * * *" Venuto v. Robinson, 3 Cir., 1941, 118 F.2d 679, 682. See also Trowbridge v. Abrasive Co., 3 Cir., 1951, 190 F.2d 825, 828, *329 "* * * This court has held, however, that the doctrine of that case has been so widely accepted that it has now become a part of the general law of torts. It has found expression in Section 395 of the Restatement of the Law of Torts. Hence, in the absence of any decisions to the contrary, we assume it to be the law of Oregon * * *."; and Pierce v. Ford Motor Co., 4 Cir., 1951, 190 F.2d 910, 915. It is the belief of the Court that the Iowa law is also in accord with the Restatement Rule. See Eliason v. Stephens, 1933, 216 Iowa 601, 246 N.W. 771, 774, "* * * equity will construct a trust where one, through actual fraud, abuse of confidence, or questionable means, gains something which in equity and good conscience he should not be permitted to hold." See also Liken v. Shaffer, 8 Cir., 1944, 141 F.2d 877, 880, "* * * it (the complaint) also clearly states a cause of action cognizable in equity on the ground of violation of fiduciary relationship and duty by unjust enrichment * * *," and, "If an unjust enrichment exists on the basis of the fiduciary relationship and duty, equity may grant relief on that ground alone * * *." These statements from Liken v. Shaffer are quoted approvingly by the Supreme Court of Iowa in Atlas Coal Co. v. Jones, Iowa 1953, 61 N.W.2d 663, 668. See also Barnes v. Thuet, 1902, 116 Iowa 359, 89 N.W. 1085.
The Court is of the view that the statement quoted above from Section 138(2) of the Restatement of Restitution sets forth the substantive rule of law applicable to this case. In this connection it may be noted that restitution may often be had from an innocent transferee who is not a purchaser for value. See article by Scott, Restitution From An Innocent Transferee Who Is Not a Purchaser For Value, 62 Harvard Law Rev. 1002 (1949), especially pp. 1002, 1007, 1011, 1014.
It is clear that the defendant is chargeable with Ostrander's knowledge in the transactions relative to this case. Ostrander, as manager of defendant's Milan warehouse, was clothed with authority to receive carcasses for deposit, issue warehouse receipts, prepare documents relative to the release of carcasses, and release carcasses from the warehouse area. Defendant's whole position is based upon an affirmance of Ostrander's disposition of these 100 carcasses, and therefore defendant could not and does not contend that it is not chargeable with whatever knowledge Ostrander had. The facts show that defendant knowingly colluded with Mid States in a breach of the duty owed by Mid States to plaintiff and in the betrayal of fiducial trust and confidence on the part of Mid States and without parting with value of any kind substituted 62 of these 100 carcasses to cover outstanding warehouse receipts held by the Bank which were originally issued on the 62 carcasses which were hijacked. Therefore, the defendant, in concert with plaintiff's principal, Mid States, unjustly enriched itself at plaintiff's expense to the extent of 62 carcasses. Those carcasses were of the value of $19,237.36.
It is not in accord with the policy of the law to allow a party to enrich itself by participation in a betrayal of fiducial trust and confidence.
Plaintiff's loss now stands at $21,789.39. As against Mid States or in an action for conversion this amount would be plaintiff's measure of recovery. But plaintiff's recovery from Lawrence is founded on principles of restitution. Under principles of restitution the measure of recovery against a nontortious transferee is the amount by which the transferee has unjustly enriched itself at plaintiff's expense. Restatement of Restitution, Section 155(1). However, if the defendant has acquired, retained, or disposed of plaintiff's property by fraud or consciously tortious conduct, the measure of recovery is the value of the property at the time of its improper acquisition, retention, or disposition. Restatement of Restitution, Section 151. Comment (a) to that section of the Restatement explains, "* * * It (the *330 rule) applies where a subsequent transferee of things obtained by fraud or duress either participated in the original wrongful conduct, or knew of the facts before receiving or disposing of the subject matter. * * *"
It appears quite clearly and satisfactorily that defendant has unjustly enriched itself to the extent of $19,237.36 by its substitution of carcasses shipped by the plaintiff under warehouse receipts on which it was short 62 carcasses. As to those 62 carcasses the measure of plaintiff's recovery would be the same under either Section 151 or Section 155 (1).
It has been held that in restitution cases the defendant's gain, not the plaintiff's loss, is the measure of recovery. Trevor v. Fuhrmann, 1953, 338 Mich. 219, 61 N.W.2d 49. However, the rule set forth in Section 151 of the Restatement of Restitution goes further and in substance would permit recovery to be measured as in cases of conversion if the defendant acquired, retained, or disposed of plaintiff's property by fraud or consciously tortious conduct. The quoted comment appended to that statement in the Restatement refers to a "subsequent transferee." (Emphasis added.)
In restitution cases the burden is upon the party seeking restitution to clearly and satisfactorily establish his right to restitution. To warrant the imposition of a duty to make restitution by constructive trust or otherwise because of betrayal of fiducial confidence there must be clear and satisfactory evidence that a fiduciary relationship existed, that it was breached, and that as a consequence of the breach the defendant was enriched. Young v. Bradley, 6 Cir., 1944, 142 F.2d 658, 660. The plaintiff has clearly and satisfactorily established its right to restitution as to the 62 carcasses. The plaintiff has not so established its right to restitution as to the 38 carcasses. As to the 38 carcasses there is no clear and satisfactory showing that the defendant was a "subsequent transferee" or that the defendant was enriched by its connection with them. So far as the record shows, the defendant may have been no more than a conduit. The defendant was and is under the duty to make restitution to the plaintiff for the 62 carcasses of the value of $19,237.36, the amount of its enrichment.
The plaintiff is further entitled to the interest on the sum of $19,237.36 from August 28, 1952, the date its receipt of the benefit was completed. In Restatement of Restitution, Section 156 (b), it is stated that a person liable to make restitution is also under a duty to pay interest from the time he committed a "breach of duty" in failing to make restitution. In comment (a) to that same section, it is stated that a person is considered to have committed a "breach of duty" from the time such person has been "tortious or otherwise at fault." The defendant having been "at fault." from the beginning, it "committed a breach of duty in failing to make restitution" at the time the transaction was completed. See also Smith v. Dravo Corp., 7 Cir., 1953, 208 F.2d 388, 391.
Where a party is entitled to restitution, there are a number of remedies made use of by the Courts to effect restitution. In Restatement of Restitution, Section 4, entitled "Remedies," there are set forth at least six ways by means of which a Court may effect restitution. It is stated in that section that, among other ways, a Court may enter a judgment at law or a decree in equity for the payment of money. In the present case the carcasses in question have long since passed into the hands of consumers. The monetary value of the benefit received by the defendant has been definitely established. There is no question as to the solvency of the defendant. Therefore, the Court will effect restitution by the entry of a money judgment against the defendant in the sum of $19,237.36 with interest thereon at the rate of five per cent per annum from August 28, 1952.


827 F.Supp. 1576 (1993)
Willie L. DAVIS, Plaintiff,
v.
UNITED STATES of America and the M/V BELLATRIX, Defendants.
No. CV 492-199.
United States District Court, S.D. Georgia, Savannah Division.
July 19, 1993.
*1577 Eugene C. Brooks, IV, Savannah, GA, Richard P. Salloum, Gulfport, MS, for plaintiff.
Robert S. Glenn, Jr., and Theresa F. Pindar, Jay D. Gardner, Asst. U.S. Atty., Savannah, GA, for defendants.

ORDER AND MEMORANDUM
NANGLE, District Judge.
Currently before the Court is defendant United States of America's Motion for Summary Judgment. For the reasons described below, the United States' motion will be granted.

FACTS
On August 13, 1990, plaintiff Willie L. Davis was accidentally injured while employed by Southeastern Atlantic Cargo Operators (SEACO), a stevedoring company, as a longshoreman aboard the M/V BELLATRIX. *1578 The United States (through the Department of the Navy) owns the BELLATRIX, a "roll on, roll off" vessel. A "RORO" vessel is "the floating equivalent of a multi-level parking garage, with the decks of the vessel corresponding to the floors of the garage." Lagana v. Toyofuki Kaiun, K.K., 1991 A.M.C. 2397, 2398, 1991 WL 33356 (S.D.N.Y.1991). The BELLATRIX served as a carrier of military cargo which was rolled and driven onto it. The BELLATRIX was originally a container vessel when purchased in 1982, but the United States converted her into a RO-RO vessel in 1984.[1]
To convert the BELLATRIX into a RO-RO vessel, the United States added ramps and watertight doors. The ramps connecting the vessel's decks are fifty feet long and have a design incline of twelve degrees. The door assembly is described by its manufacturer as follows:
The door assembly consists of a steel door panel measuring thirteen feet in height and eighteen feet in width, which is connected by steel hinges to a steel door frame. The base of the door frame consists of a steel bar sill which measures two and one-half inches in height ... The door assembly was designed and manufactured to be watertight, and ... [t]he steel bar sill serves to preserve the watertight integrity of the door.
Aff. of A.L. Bunch, attached as Ex. B to Def.'s Supp. to Reply Br. During cargo operations, the exposed sill is protected with a metal plate. This type of door is present at the bottom of the ramp connecting the C and D decks.
At the time of the accident at issue, Davis was operating a forklift owned by SEACO and gathering lashing gear collected by fellow longshoremen. A pallet rested on the forklift's blades, and other members of the lashing gang placed gear from the deck onto the pallet. After completing work on the C deck, Davis drove the forklift in reverse down the ramp connecting the C deck with the D deck. According to Davis, his forklift's brakes failed as he traveled down the ramp, and the forklift hit the raised sill at the end of the ramp. The resulting jolt caused the two thousand pound counterweight to fall off the forklift. Davis' head hit the forklift's overhead "headache rack," and he eventually required surgery to repair a herniated disk.
Davis filed the instant action pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA). See 33 U.S.C. § 905(b). Since the BELLATRIX is owned by the United States, this Court has jurisdiction under the Suits in Admiralty Act, 46 U.S.C.App. §§ 741 et seq., and the Public Vessels Act, 46 U.S.C.App. §§ 781 et seq.

DISCUSSION
The United States' Motion for Summary Judgment counters Davis' contentions in his original and amended complaints that the forklift's brakes overheated and that the brakes slipped due to the steepness of the ramp. Davis' response does not specifically address these arguments. Instead, it alleges that the United States provided him an unsafe workplace by placing a raised sill and metal plate at the end of the BELLATRIX' ramp. Davis also identifies as an issue whether the BELLATRIX was properly designed and modified for use as a RO-RO vessel. See Pl.'s Statement of Material Facts for Which There Are Genuine Issues to Be Tried. To fully determine the applicability of summary judgment, all of these arguments will be discussed.
Summary judgment is appropriate only when the pleadings, depositions and affidavits submitted by the parties show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The evidence and any inferences which may be drawn from it should be viewed in the light most favorable to the nonmovant. Mercantile Bank & Trust Co., Ltd. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985). The party seeking summary judgment must first identify grounds which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 *1579 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that there is a genuine issue of material fact. Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566 (11th Cir.1991); see also United States v. Gilbert, 920 F.2d 878 (11th Cir. 1991). A mere scintilla of evidence supporting the nonmovant's position will not suffice, however. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). The nonmovant "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).
The Supreme Court defined a ship owner's duties to stevedores and longshoremen at various stages in cargo operations in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). First, before the vessel is turned over to the longshoremen, a vessel owner must have "the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety." Id. at 166-167, 101 S.Ct. at 1622. Second, prior to cargo operations, the owner must warn the stevedore of any hazards of which the owner knows or should know that would likely be encountered by the stevedore in the course of his operations and which are not obvious to or anticipated by the stevedore.[2]Id. Third, a vessel may be liable to an injured longshoreman if it is actively involved in cargo operations and fails to exercise due care to avoid exposing the longshoreman to harm. Id. at 167, 101 S.Ct. at 1622. Finally, if a stevedore's judgment is "obviously improvident" and the ship owner knew of a defect presenting an unreasonable risk of harm, the ship owner may have a duty to intervene and repair the unsafe condition. Id. at 175, 101 S.Ct. at 1626. A ship owner has no general duty to inspect or supervise to discover dangerous conditions that develop within the confines of cargo operations assigned to the stevedore, Id. at 172, 101 S.Ct. at 1624-25, and may rely on the stevedore to avoid exposing the longshoremen to unreasonable harm. Id. at 170, 101 S.Ct. at 1623-24.

A. The United States owed no duty to Davis with regard to the forklift's brakes.

Davis claims that the forklift's brakes overheated, causing him to lose control of the forklift on its descent. Summary judgment in favor of the United States is appropriate on the issue of overheating brakes for several reasons. First, SEACO owned the forklift. Under Scindia, the forklift was not part of the BELLATRIX' equipment which the United States was required to turn over to the stevedore "in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety." Id. at 166-167, 101 S.Ct. at 1622. Second, there is no evidence that the United States was actively involved in cargo operations to the extent that it would have to intervene if a brake failure were known. See Scindia, 451 U.S. at 167, 101 S.Ct. at 1622.
Finally, all evidence bolsters the conclusion that no one  including the stevedore  knew of the allegedly faulty brakes on the forklift driven by Davis. Michael Sheehan, the stevedore foreman, testified that after the accident, Davis did not tell him that the brakes had failed. Sheehan Dep., p. 21, attached as Ex. E to Def.'s Mot. for Summ. J. If Davis had reported a failure, Sheehan would have called the mechanics to check out the problem. Sheehan Dep., p. 19, attached as Ex. E to Pl.'s Resp. After the accident, the longshoremen continued to operate the forklift used by Davis without any problems. Sheehan Dep., p. 21, attached as Ex. E to Def.'s Mot. for Summ. J. Similarly, Richard McPherson, the lashing crew foreman, testified that he had heard of no forklift operator experiencing a brake failure on the BELLATRIX. McPherson Dep., p. 73, attached as *1580 Ex. F to Def.'s Mot. for Summ.J.[3] A SEACO employee responsible for maintenance of SEACO's forklifts stated that he had no knowledge of any problems involving brakes slipping while going down a ramp, and concluded that such an event would be "unusual" because longshoremen do not normally call with such a complaint. Knight Dep., p. 24, attached as Ex. S to Def.'s Mot. for Summ. J. Since the United States (or any other party) did not know that the forklift had defective brakes, the stevedore's use of the forklift was not "obviously improvident," and the United States had no duty to intervene.
Given the facts that SEACO owned the forklift, the United States was not actively involved in cargo operations, and the United States and SEACO had no knowledge of the allegedly defective brakes, the United States owed no duty to Davis under the Scindia standard. Accordingly, summary judgment in favor of the United States is appropriate on Davis' argument that his forklift's brakes failed.

B. Davis did not present sufficient evidence on the steepness of the ramp to survive summary judgment.

Davis presented evidence only that the BELLATRIX' ramp was the steepest ramp that he had encountered. Davis Dep., p. 39, attached as Ex. C to Pl.'s Resp. His response to the United States' motion apparently abandons any argument that the steepness of the ramp caused the brakes to fail. For example, Davis states that "the brakes either failed to hold or the forklift built up too much speed for the brakes to hold it." Pl.'s Resp., p. 2. He later argues that "[i]f, for whatever reason, the speed builds up too much," the forklift may hit the raised sill. Id. at p. 10.
Summary judgment on an issue is appropriate where an adverse party does not respond with evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). Since Davis' assertion that this ramp was the steepest that he had encountered does not sufficiently set forth facts showing a genuine issue for trial, summary judgment on this ground is appropriate.[4]

C. The United States did not breach its duty to provide Davis with a reasonably safe workplace by placing raised sills on the end of the ramp.

Davis next argues that the United States failed to provide him with a reasonably safe workplace since it was foreseeable that a forklift might lose its brakes, careen down the ramp, and hit the raised sill. Under Davis' theory, the United States breached its turnover duty. The United States counters that Davis never offers proof that the door sill was a hazard and that his assertion attempts to introduce the warranty of seaworthiness into the case. The United States' assertions are correct.

1. Davis has submitted no proof indicating that the raised sill is a hazard.
Davis argues that "[t]he speed bump was a hazard because it was foreseeable that vehicles going down the interior ramp would bounce over this speed bump if their brakes heated up or simply if the vehicle was going too fast." Pl.'s Resp., p. 9. Davis testified that if the raised sill were not present, his forklift would have rolled onto the next deck rather than jolting him into the headache rack. Davis Dep., p. 79, attached as Ex. M to Def.'s Mot. for Summ. J. Davis also submitted his affidavit and an identical affidavit from McPherson claiming that all other RO-RO vessels lacked the raised sills found on the BELLATRIX. See Davis Aff. ¶ 7, attached *1581 as Ex. F to Pl.'s Resp.; McPherson Aff. ¶ 7, attached as Ex. I to Pl.'s Resp.
Davis' accident occurred only due to the combination of his forklift's overheating brakes and the raised sill. Terry v. M/S BIRTE RITSCHER KG, 1992 A.M.C. 2199 (D.N.J.), aff'd without opinion, 952 F.2d 1393 (3d Cir.1991), addressed a similar situation. In Terry, the vessel's two hydraulic cranes lowered containers from a barge onto the vessel. As the cranes released the containers, the ship would rapidly rock to right itself. The longshoreman plaintiff, who had to guide containers with his hands, had one hand crushed as he guided a container. The Court granted summary judgment to the vessel despite plaintiff's argument that the vessel breached its turnover duty.
The Court addressed plaintiff's allegations that the instability of the ship, coupled with the absence of stabilizing devices on the hydraulic cranes, rendered the vessel unsafe for cargo operations. Although stabilizing devices may have made the cranes safer, the lack of stabilizing devices did not prove that the cranes were in a defective or unsafe condition without them. Id. at 2204. Additionally, there was no evidence that the accident would not have occurred if the stabilizing devices had been installed. Id. Thus, "[t]he alleged dangerous condition is not the result of a defect or unsafe condition of the vessel but is the result of a combination of factors," including the lack of stabilizing devices, the operation of both cranes simultaneously, the floating barges, and the need for the stevedore to stabilize the containers with his hands. Id. at 2205. The condition came into existence only during cargo operations, moving plaintiff's claim outside of the turnover duty. Id.
As in Terry, the exact combination of factors resulting in plaintiff's injury came into existence only after the vessel had been turned over to the stevedore. The allegedly dangerous condition resulted from the combination of the raised sill and the SEACO forklift's failing brakes. As noted in the preceding discussion, the United States owed no duty to Davis with regard to the forklift's brakes.
Although the raised sill was in existence prior to cargo operations, Davis has presented no evidence that the design of the sill itself was hazardous. Davis only submitted affidavits stating that the sill was unlike the door assembly on "all other RO-RO vessels." This evidence is insufficient to show that the raised sill was a hazard. First, the Court doubts that the affiants have seen all other RO-RO vessels, as demonstrated by the door manufacturer's testimony that this sill design had been installed on vessels other than the BELLATRIX. More importantly, the evidence that the assembly was different does not necessarily lead to the conclusion that it was hazardous.[5]
The United States did not breach its turnover duty. Scindia requires only that a vessel owner have "the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety." Scindia, 451 U.S. at 166-167, 101 S.Ct. at 1622. The United States presented the BELLATRIX in such a condition, and SEACO could carry on its cargo operations with reasonable safety. The United States is not responsible for the brake failure on the SEACO forklift driven by plaintiff; if the forklift had operated and stopped normally, it appears that this unfortunate accident would not have occurred.

2. Alternatively, Davis' claim goes to unseaworthiness, which is not actionable under the LHWCA.
To determine whether the United States provided him with an unsafe work place, Davis states that this Court must determine whether the United States properly modified the BELLATRIX into a RO-RO vessel during a 1984 conversion. This modification argument involves unseaworthiness, which is not actionable under the LHWCA.
*1582 Under the LHWCA, a person injured by the negligence of a vessel may bring an action against the vessel. 33 U.S.C. § 905(b). However, the liability of a vessel "shall not be based upon the warranty of seaworthiness or breach thereof at the time the injury occurred." Id. A claim for negligent design is merely another way of alleging that the ship was unseaworthy. Bilderbeck v. World Wide Shipping Agy., 776 F.2d 817 (9th Cir.1985) (claim that design and modification of vessel rendered vessel dangerous to persons working aboard were generalized conclusions of causation amounting to mere unseaworthiness claim).
Davis' claim that the United States provided him with an unsafe workplace by modifying the BELLATRIX to include raised sills must fail in light of applicable case law. See Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161 (5th Cir.1990) (jury verdict for plaintiff upheld based on presence of oil in tally room; court specifically disavowed reliance on claim that placement of a pipe caused the accident since placement was a design defect); Salvato v. Hakko Maritime Corp., 718 F.Supp. 1443 (N.D.Cal.1989) (allegations that defendant negligently placed lashing padeyes on car carrier amounted to a design defect not actionable under the LHWCA); McSwiggan v. Oulu Shipping Ltd., 1992 A.M.C. 1825, 1992 WL 70416 (E.D.Pa.1992) (plaintiff's claim that existence of a recessed ladder is a design defect rendering the ship unseaworthy is not available under the LHWCA); Matthews v. Lykes Bros. S.S. Co., Inc., 1987 A.M.C. 1707, 1987 WL 16506 (C.D.Cal.1987) (no products liability claim against ship owner available from allegations that ship's ramps were defectively designed, constructed, or had insufficient warnings). Accordingly, summary judgment is appropriate on Davis' claim that the BELLATRIX' design resulted in his injury.

CONCLUSION
This Court has no doubt that Davis sustained disabling and life-altering injuries in the accident aboard the BELLATRIX. Nonetheless, his claims against the United States cannot survive summary judgment.
First, the United States owed no duty to Davis with regard to the forklift's brakes. SEACO owned the forklift, the United States was not involved in cargo operations, and the lack of knowledge about the brake problems rendered the United States' duty to intervene inapplicable. Given this lack of duty, summary judgment for the United States is appropriate.
Second, Davis' evidence on the steepness of the ramp indicated only that the ramp was the steepest one that he had seen. Although Davis testified at his deposition that the brakes would not hold because the ramp was so steep, he apparently abandoned this theory at summary judgment. His response discusses only the possibility that the brakes failed to hold or that the forklift collected too much speed for whatever reason. Even if Davis did not abandon his ramp theory, the steepness of the ramp is a design defect not actionable under the LHWCA.
Finally, Davis' accident was due to a combination of the failing brakes and the raised sill at the bottom of the ledge. This combination did not occur until after the United States had turned over the BELLATRIX for cargo operations, and the accident itself would not have occurred had the brakes not failed. Davis presented no evidence that the design of the raised sill was hazardous so that the stevedore in the exercise of reasonable caution could not have safely carried on cargo operations. Additionally, the claim that the United States' design of the BELLATRIX resulted in plaintiffs harm is merely an unseaworthiness claim, which was eliminated from the LHWCA in the 1972 amendment. Accordingly,
IT IS HEREBY ORDERED that defendants' Motion for Summary Judgment be and is granted.
NOTES
[1]  Details of the conversion are contained in the exhibits attached to Davis' Motion to File Exhibits Out of Time. Accordingly, that motion is granted.
[2]  The first and second duties are referred to as, respectively, the ship owner's turnover duty and the turnover duty to warn.
[3]  McPherson hypothesized that the brakes could slip because "sometimes you would be riding on a lift or whatever and going up or downhill, the brakes could crystallize or whatever you want to call it, and you don't have brakes because you hold the brakes too much, you heat them up and this would come ... you could have perfect brakes until it gets to this point, then you hold the pressure on it too long, because of the incline ..." McPherson Dep., pp. 17-18, attached as Ex. D. to Pl.'s Resp. Although McPherson testified in this manner, he never testified that he knew of brake problems on the BELLATRIX.
[4]  Alternatively, the discussion relating to design defect of the raised sill applies.
[5]  Compare Martinez v. Korea Shipping Corp., Ltd., 903 F.2d 606 (9th Cir.1990) (summary judgment inappropriate where plaintiff presented affidavits from naval architect and marine engineer indicating that unguarded ladder opening was unsafe, photographs showing precautions on other vessels, and OSHA standards requiring covering or rails to protect workers on deck).


510 U.S. 1207
Maysv.United States.
No. 93-7980.
Supreme Court of United States.
March 21, 1994.

1
Appeal from the C. A. 6th Cir.

2
Certiorari denied. Reported below: 16 F. 3d 1222.


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  September 30, 2013                                                                                Robert P. Young, Jr.,
                                                                                Chief Justice

  147157                                                                                Michael F. Cavanagh
                                                                                Stephen J. Markman
                                                                                Mary Beth Kelly
                                                                                Brian K. Zahra
                                                                                Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                                        David F. Viviano,
            Plaintiff-Appellee,                                                                                Justices

  v                                                                 SC: 147157
                                                                    COA: 310686
                                                                    Huron CC: 10-004904-FH
  ROBERT JOSEPH SHAHBAZ,
           Defendant-Appellant.

  ____________________________________/

          On order of the Court, the application for leave to appeal the March 29, 2013 order
  of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
  that the questions presented should be reviewed by this Court.

                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           September 30, 2013
           h0923
                                                                               Clerk