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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 ...