Before: SNEED and PREGERSON, Circuit Judges and EAST,*fn* District Judge
The panel as constituted in the above case has voted to amend its March 30, 1982 opinion by inserting in place of the paragraph beginning on page 4, line 12, and ending on page 5, line 2, of the slip opinion the following paragraphs:
An erroneous ruling which relates to the substantial rights of a party is grounds for reversal unless it affirmatively appears from the whole record that it was not prejudicial. McCandless v. United States, 298 U.S. 342, 347-48 (1936). This is especially true of an error in jury instructions. Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 82 (1919). However, a careful reading of the transcript and record convinces us that in this case the instruction does not require reversal. Giving it was harmless error.
There is no indication in the proceedings that the outcome would have changed if the Kelly jury instruction had been given; to the contrary, it affirmatively appears from the record that the instruction did not prejudice defendant. This case was not decided by a hairsbreadth.There was ample evidence that consideration of age "made a difference" in the termination of Cancellier, Costello, and Ritter. Cf. Van Domelen v. Westinghouse Electric Corp., 382 F.2d 385, 387 (9th Cir. 1967) (ample evidence of forbearance); TSS Sportswear, Limited v. Swank Shop (Guam), Inc., 380 F.2d 512, 522, 523 (9th Cir. 1967) (overwhelming support in record for result below). Unlike the instructions given in cases requiring reversal, which affirmatively stated an erroneous version of the law, United States v. River Rouge Improvement Co., 269 U.S. 411, 420-21 (1926); Fillipon, supra at 83-84, or forbade the jury to consider what it properly should have considered, McCandless, supra at 345, the trial judge's instruction here was merely an unelaborated version of the correct standard. Significantly, the challenged instruction was fashioned by the judge from language submitted by I. Magnin.
While we are extremely reluctant to affirm verdicts based on jury instructions different from those approved in Kelly or their equivalent, n.3 (Footnote Omitted) we find that on the facts of this case refusing a new trial is consistent with substantial justice. Fed. R. Civ. P. 61; Ginsburg v. Ginsburg, 276 F.2d 94, 96 n.2 (9th Cir. 1960); 7 J. Moore & J. Lucas, Moore's Federal Practice P61.11 & n.1a (2d ed. 1979). The instruction approved in Kelly adequately protects against mistaken inferences either that age must be the sole factor in the discharge, or that age may be less than a "but for" cause of the discharge. It is strongly preferred. Here, however, where the record convincingly rebuts any presumption of prejudice, we find the error harmless.
With the opinion so amended, the panel has voted unanimously to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion. Fed. R. App. P. 35(b).
The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.
* Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.