Summary
stating that "[w]here a trustee fails to act or to exercise his or her discretion, de novo review is appropriate because the trustee has forfeited the privilege to apply his or her discretion; it is the trustee's analysis, not his or her right to use discretion or a mere arbitrary denial, to which a court should defer"
Summary of this case from Wertheim v. Hartford Life Insurance Co.Opinion
No. 13889.
February 10, 1960.
S.F. Komito, A.H. Dudnik, Cleveland, Ohio, for appellant.
Dan M. Belden of Black, McCuskey, Souers Arbaugh, Canton, Ohio, for appellee.
Before MILLER and POPE, Circuit Judges, and KENT, District Judge.
In an action filed by the appellants on behalf of a young boy three years of age against the appellee, the manufacturer of a toy spinning top, seeking damages for the loss of an eye alleged to have been caused by the negligent manufacture of the top, and tried to the Court without a jury, the District Judge found that the evidence failed to prove negligence on the part of the appellee, and dismissed the action.
The Court, being of the opinion that the finding is supporting by the evidence and is not clearly erroneous, Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A., See: Graffius v. Weather-Seal, 6 Cir., 165 F.2d 782.
It is ordered that the judgment be affirmed.