C. Merritt Winsby v. John Oster Manufacturing Co. And Gimbel Brothers, Inc , 482 F.2d 276 ( 1973 )

482 F.2d 276

C. Merritt WINSBY, Appellant,
v.
JOHN OSTER MANUFACTURING CO. and Gimbel Brothers, Inc.

No. 72-1256.

United States Court of Appeals,
Third Circuit.

Submitted Feb. 6, 1973 under Third Circuit Rule 12(6)
Decided June 28, 1973.

T. Lawrence Palmer, Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, Pa., for appellant.

Kim Darragh, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for appellees.

Before BIGGS and GIBBONS, Circuit Judges and HUYETT, District Judge.

OPINION OF THE COURT

PER CURIAM:

1

In this products liability suit,1 plaintiff was required, despite timely objection, to proceed to trial before a six-man jury per force of local Rule 21(C) of the United States District Court for the Western District of Pennsylvania.2 The jury returned a verdict in favor of defendants, judgment was so entered, and the court below denied plaintiff's motion for a new trial.3 This appeal followed.

2

Plaintiff asserts that the Seventh Amendment to the Constitution, 28 U.S. C. Sec. 2072, and F.R.Civ.P. 48 (see 28 U. S.C. Sec. 2071 and F.R.Civ.P. 83) all prohibit reduction in the size of the 12-man jury in civil cases by means of a district court rule. The Supreme Court has, however, by its recent decision in Colgrove v. Battin, - U.S. -, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973) (filed June 21, 1973), resolved such doubts as to the propriety of a district court's unilateral reduction in the size of the 12-man jury, and plaintiff's challenge is thus foreclosed.

3

Plaintiff also claims that the trial court's instructions to the jury were inadequate on the theory of strict liability, Sec. 402A of the Restatement (Second) of Torts. On review of the charge, we find no error in this regard.

4

The judgment of the district court will be affirmed.

1

Jurisdiction rests on diversity of citizenship, 28 U.S.C. Sec. 1332 (1970)

2

Rule 21(C) of the United States District Court for the Western District of Pennsylvania provides: "C. Civil Action Juries. In all civil jury cases the jury shall consist of six members."

3

The opinion of the district court is reported at 336 F. Supp. 663 (W.D.Pa. 1972)