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DUTY v. EAST COAST TENDER SERVICE, INC.

Nos. 79-1540, 79-1541.

660 F.2d 933 (1981)

William H. DUTY, Jr., Appellant, and Raymond International, Inc. and Peter Kiewitt Sons Company and Tidewater Construction Corporation, a joint venture d/b/a Raymond-Kiewitt-Tidewater, Intervening Plaintiffs, v. EAST COAST TENDER SERVICE, INC., Appellee. William H. DUTY, Jr., Plaintiff, and Raymond International, Inc. and Peter Kiewitt Sons Company and Tidewater Construction Corporation, a Joint Venture d/b/a Raymond-Kiewitt-Tidewater, Appellants, v. EAST COAST TENDER SERVICE, INC., Appellee.

United States Court of Appeals, Fourth Circuit.

Decided January 23, 1981.

On Rehearing September 1, 1981.

Attorney(s) appearing for the Case

Paul D. Bekman, Baltimore, Md. (William H. Engelman, Harriett E. Cooperman, Kaplan, Heyman, Greenberg, Engelman & Belgrad, P. A., Baltimore, Md., on brief), for appellant in 79-1540; (James W. Bartlett, III, Francis J. Gorman, David R. Owen, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellant in 79-1541.

George J. Koelzer, Red Bank, N. J. (Thomas D. Monte, Jr., Red Bank, N. J., George Beall, Baltimore, Md., Evans, Koelzer, Marriott, Osborne & Kreizman, Red Bank, N. J., Miles & Stockbridge, Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and MURNAGHAN, Circuit Judges.

On Rehearing In Banc September 1, 1981.

MURNAGHAN, Circuit Judge:

The case involves two mistakes, one by counsel for the plaintiff, one by the district judge. The mistakes relate to the language of a jury instruction. Are we to reverse for judicial error or should we affirm because of counsel's failure to draw pertinent authority to the court's attention which would have readily alerted him to his error, and permitted him to correct it? That is the question...

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