C. Merritt Winsby v. John Oster Manufacturing Co. And Gimbel Brothers, Inc

482 F.2d 276, 17 Fed. R. Serv. 2d 558, 1973 U.S. App. LEXIS 9089

• Court: Court of Appeals for the Third Circuit
• Decided: June 28, 1973
• Docket: 72-1256
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM:

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.

Plaintiff asserts that the Seventh Amendment to the Constitution, 28 U.S.C. § 2072, and F.R.Civ.P. 48 (see 28 U.S.C. § 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.

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

The judgment of the district court will be affirmed.

1 . Jurisdiction rests on diversity of citizenship, 28 U.S.C. § 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 eases the 4'ury shall consist of six members.”

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