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SYPERT v. BENDIX AVIATION CORPORATION

September 22, 1958

JOHNNY SYPERT, PLAINTIFF,
v.
BENDIX AVIATION CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Miner, District Judge.

Plaintiff filed suit in this Court on August 3, 1954, to recover for personal injuries arising out of the explosion of an airplane oxygen regulator in Texas. At the time and place of the occurrence, plaintiff was employed by an airplane builder, and was engaged in testing the oxygen regulator as part of his duties. The complaint alleges that his injuries were caused by the negligence of the defendant, manufacturer of the regulator.

On October 26, 1954, defendant filed a motion asking that the action be transferred to the United States District Court for the Northern District of Texas, Dallas Division. After hearing on affidavits, counter-affidavits and briefs, the motion was denied by District Judge Julius J. Hoffman of this Court on October 31, 1955. The case was subsequently tried before District Judge Hoffman and a mistrial declared for failure of the jury to agree on a verdict. Several days later, in another proceeding, Judge Hoffman adversely commented upon his ruling on the motion to transfer, clearly indicating a reversal of his prior opinion.

    (1) That plaintiff alleges in his complaint that
  his injuries were sustained in Dallas, Texas;
    (2) That plaintiff now resides, and did at the time
  of the occurrence reside, in Dallas, Texas;
    (3) That the trial of the case held from January
  13, 1958, to February 4, 1958, before District Judge
  Hoffman, resulted in disagreement of the jury;
    (4) That seven witnesses testified for the
  plaintiff, five having been brought to Chicago from
  Dallas; that the remaining two were, respectively, a
  Chicago doctor who examined the plaintiff after
  commencement of the trial only for the purpose of
  testifying, and a Glenview naval officer who
  described the workings of an oxygen regulator;
    (5) That four witnesses testified for the
  defendant, three having been brought to Chicago from
  Dallas and one, defendant's mechanical engineer, from
  Davenport, Iowa;
    (6) That the testimony of several witnesses had to
  be, and was, offered by deposition, since they live
  in Dallas;
    (7) That the testimony of prospective witnesses
  (not identified) was not presented because their
  presence at the trial could not be obtained since
  they live in Dallas;
    (8) That certain documents, reports and exhibits
  (not identified), which are available and subject to
  subpoena in the Dallas court, were not available in
  this district and could not be presented at the
  trial;
    (9) That since the trial, in treating with a
  similar motion in another case, District Judge
  Hoffman has stated on record that the trial of this
  case convinced him that he had been mistaken in
  denying the prior motion to transfer. Counsel has
  attached to his affidavit a copy of the transcript
  which quotes Judge Hoffman;
    (10) That the substantive law applicable to the
  motion is the law of Texas.

Plaintiff objects to the motion and has countered with affidavits of his counsel affirming facts set forth in his written "Objections" and "Reply to Suggestions of Defendant." The facts so affirmed, which ...


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