dissenting:
*897I agree with the majority that once the parties to the third party complaint demanded jury trial, they were entitled to have a jury trial on the issues raised by that complaint. I do not agree that there was an insufficient waiver, and in addition, I do not agree that Fisher preserved the issue for appeal.
Rules 38 and 39 of the Federal Rules of Civil Procedure indicate ways in which a waiver of jury trial may be accomplished. But these are not the only ways. The majority recognise that the parties can waive the right merely by their conduct. But they say that silence cannot constitute a waiver because the right to jury trial is so “fundamental”. I do not think it is more fundamental than other constitutional rights for purposes of waiver. Just the opposite. It can be waived simply by not acting in time (Rule 38(b), F.R.Civ.P.) and an unintentional and inadvertent waiver can be binding on a party. Mardesich v. Marciel, 538 F.2d 848 (9th Cir. 1976); Bush v. Allstate Ins. Co., 425 F.2d 393, 396 (5th Cir. 1970); Noonan v. Cunard S. S. Co., 375 F.2d 69 (2nd Cir. 1967).
Pradier v. Elespuru, 641 F.2d 808 (9th Cir. 1981), is clearly distinguishable on its facts from this case. In any event, it merely holds that every “reasonable” presumption should be indulged against the waiver of jury trial. It does not say that there can never be a waiver. In this case, Fisher did not object when the case was calendared for jury trial, or when it commenced without a jury present, or when evidence was taken on any of the six days of trial, or at any time before he began to write his briefs for this Court. He never submitted proposed jury instructions, prior to trial, as required by the rules of the district court. In my view this is ample evidence of waiver. It would be unreasonable to presume that he really wanted to have a jury try his case.
Furthermore, we need not consider this issue, which was never raised in the district court. Simpson v. Union Oil Co. of California, 411 F.2d 897, 901 (9th Cir. 1969), rev’d on other grounds, 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13; Williamson v. Weyerhaeuser Timber Co., 221 F.2d 5, 14 (9th Cir. 1955). There may be times when it looks as if we are permitting a party to ambush a trial judge. But when we can avoid it, we should.
I would affirm the judgment of the district court.