text:
    Paris HALE and Catherine Hale, his wife, Plaintiffs-Appellants-Appellees, v. HOLY CROSS HOSPITAL, INC., et al., Defendants-Appellants, Peter R. Sciarretta, M. D., Defendant-Appellee.
    No. 74-1736.
    United States Court of Appeals, Fifth Circuit.
    May 22, 1975.
    Rehearing and Rehearing En Banc Denied June 18, 1975.

      Robert W. Boughton, Cleveland, Ohio, William Manker, Miami, Fla., for Hale.
    Frank E. Maloney, Jr., William M. O’Bryan, Fort Lauderdale, Fla., for Holy Cross Hospital.
    Robert M. Montgomery, Jr., Edna L. Caruso, West Palm Beach, Fla., for Sci-arretta.
    Before GIBSON , THORNBERRY and AINSWORTH, Circuit Judges.

       Of the Eighth Circuit, sitting by designation.

   AINSWORTH, Circuit Judge:

This is a Florida diversity personal injury case brought by Paris Hale and his wife Catherine (citizens of Ohio) against Holy Cross Hospital, Inc. (Fort Lauder-dale, Florida),' Dr. Peter R. Sciarretta, two nurses employed by the hospital, and the manufacturer of a therapeutic heating device known as an Aquamatic K-Pad. Plaintiffs sought damages on behalf of Paris Hale for injuries suffered as the result of alleged burns caused by the application of the aqua pad to his body, and on behalf of Catherine Hale for her services in attending her husband and deprivation of his companionship and consortium as a result of his injury. The manufacturer of the aqua pad was dismissed for lack of diversity and the case was tried against the remaining defendants, all citizens of Florida. At the conclusion of plaintiffs’ case a directed verdict was granted in favor of Dr. Sci-arretta and the two hospital nurses. The case went to the jury on the issue of negligence of defendant Holy Cross Hospital, resulting in a zero verdict for Catherine Hale and a verdict in the amount of $20,000 in favor of Paris Hale against the hospital from which the hospital appeals. Plaintiffs . also appeal from the directed verdict in favor of Dr. Sciarretta. We affirm.

On Saturday, November 6, 1971, Paris Hale sustained a fractured left hip and was rushed to the emergency room of Holy Cross Hospital, Fort Lauderdale, Florida, at approximately 10 p. m. The patient had a previous medical history of having suffered a stroke; was also diabetic and had impaired blood circulation. Dr. Peter Sciarretta, an orthopedic surgeon on the staff of the hospital, was contacted by telephone about 10:30 p. m. by the emergency room, at which time he directed that the patient be admitted to the hospital. In a subsequent telephone call Dr. Sciarretta ordered traction and the application of an aqua pad to the patient’s left hip. Nurse McIntosh, who was working the 3 to 11:30 p. m. shift, requested an aqua pad from the Central Supply room, but rejected it and returned it to the supply room because it was leaking. At the time she went off duty the pad had not been replaced. Later a pad was applied to the patient, but the record is not clear when or by whom. On the following evening, at 8 p. m., nurse McIntosh made the following notation on her report: “Buttocks appeared reddened — large area over left buttock opened. Blister on right buttock.” She also observed the notation by the nurse who had preceded her on the earlier shift, “Sacral area broken” and the words “Aqua Pad” under Treatment and Remarks. As a consequence of these lesions, hip surgery, which was originally scheduled for November 9, was postponed until January 28, 1972. In the interim Hale remained hospitalized for treatment of the lesions, which developed into large open ulcers.

The principal factual controversy at the trial was whether the lesions were caused from a defective aqua pad or from decubitus (bedsores), and whether because of Hale’s diabetic condition and circulatory impairment the use of the aqua pad was negligence which proximately caused his injuries.

The directed verdict in favor of Dr. Sciarretta.

Plaintiffs called as witnesses, among others, Dr. Sciarretta and Dr. David M. Gozansky, an internist on the hospital staff who had consulted with Dr. Sciar-retta.

Dr. Sciarretta testified that he saw the patient for the first time about 3 a. m. on November 7, at which time he became aware of a previous cardiovascular accident from which the patient suffered some paralysis, and also that he was suffering from mild diabetes. Dr. Sciarretta had not previously read the manufacturer’s printed safety requirements for the use of the pad which caution: “Keep pad temperature substantially away from dial limits shown, particularly on children, diabetics, incapacitated patients, insensitive skin areas or where poor circulation is present.” He said, however, that had he known about the diabetic and circulatory problems of the patient he would have still ordered the pad. He considered the maximum temperature of 105 degrees safe. With respect to his order indicating the application of the pad, he said that it is the standard and usual custom and practice in the community and other communities not to specify in the order the temperature of the pad. He was asked whether, based upon his familiarity with the aqua pad, he had an opinion as to its safety, to which he responded: “It is an extremely safe means of applying heat. In fact, the safest that I know of.” When asked why he ordered the aqua pad rather than moist towels, his reply was: “It is the most superior appurtenance or instrument or applicable form of heat that I know of. It is used standard in my treatment as well as other orthopedic surgeons.”

Dr. Gozansky corroborated the testimony of Dr. Sciarretta in regard to the propriety of using an aqua pad under the particular circumstances. When he first saw the patient on Sunday, November 7, he was aware that the pad had been ordered for application to the left hip. Knowing the patient’s condition of diabetes and his incapacity, he still felt that the order and the treatment were proper. He said that aqua pads are preferable to other forms of heat because they are known not to burn a patient. The pad’s highest range of temperature (105 degrees) is a proper temperature. Dr. Gozansky was of the opinion that Dr. Sciarretta’s care and treatment of the patient, including the order for the application of the aqua pad, were excellent and in keeping with community standards.

Plaintiffs introduced no evidence, expert or otherwise, to contradict the testimony of Doctors Gozansky and Sciarretta, from which the jury could reasonably conclude that Dr. Sciarretta failed in his duty to use the ordinary, skill, diligence, means and methods ordinarily used by physicians in his community or similar communities. Consequently they failed in their burden to prove malpractice or negligence of Dr. Sciarretta. See Foster v. Thornton, 1936, 125 Fla. 699, 170 So. 459; Hill v. Boughton, 1941, 146 Fla. 505, 1 So.2d 610; Brown v. Swindal, Fla.App., 1960, 121 So.2d 38; O’Grady v. Wickman, Fla. App., 1968, 213 So.2d 321. Applying the standards of Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365 (en banc), the motion for a directed verdict in favor of Dr. Sciarretta was properly granted under these circumstances.

The jury verdict against Holy Cross Hospital, Inc.

The District Court correctly gave the jury a charge on the doctrine of res ipsa loquitur and its availability if the jury found from the evidence that the pad caused the injury. When Hale was admitted to the hospital there was no evidence of any lesions. Within less than 22 hours later the lesions appeared. Since the aqua pad was under the control and management of the hospital, the doctrine of res ipsa loquitur is applicable. See West Coast Hospital Ass’n v. Webb, Fla., 1951, 52 So.2d 803; Southern Florida Sanitarium & Hospital, Inc. v. Hodge, Fla.App., 1968, 215 So.2d 753. Defendant hospital admits that res ipsa loquitur is applicable in approriate cases, in a claim of injury by a patient against a hospital, but contends that the charge was erroneous because there was no evidence from which the jury could conclude that the aqua pad was the cause of plaintiff’s injury. An examination of the evidence convinces us otherwise.

The lesions on the buttocks of the patient were observed by nurse McIntosh at 8 p. m. on Sunday, November 7, just 2IV2 hours after he was admitted to the hospital. A previous entry by the nurse on the preceding shift showed, “Sacral area broken” and indicated that an aqua pad was being used. Inasmuch as Hale was not suffering from this condition when he entered the hospital, it is obvious that the lesions formed no more than 21V2 hours after his admission. Dr. Gozansky testified that when he first noticed the condition of the patient’s buttocks his impression was that he had sustained a third-degree burn, probably due to the aqua pad. On a prior deposition he likewise attributed the burn to the aqua pad. The speed of the development of the lesion supported his opinion that it was a burn rather than a pressure sore. The medication he prescribed for the lesion is usually used for burns. Dr. Gozansky later testified that his assumption of a burn caused by an overheated pad was based on his observation of the nurse’s notes of a defective aqua pad.

Dr. Sciarretta’s testimony was conflicting. A handwritten notation by him on the patient’s medical chart shows: “Fracture of left hip. Third degree burn, left and right buttocks.” The final discharge summary dictated and signed by him shows: “The patient was scheduled for surgery, however, prior to surgery he developed third degree burns of the buttocks as a result of Aqua Pad malfunctioning.” The day after Hale was admitted, Dr. Sciarretta prescribed medication and instructed that the patient be kept “off the burns at all times.” One day after that he examined the burned area and noticed that “on both buttocks there were open areas which were nasty looking: Red, with blisters and seepage, sort of a protein-type seep.” In his progress notes of the same day, however, he wrote, “Case can-celled because of decubitus.” At trial he admitted that as a result of Hale’s developing burns he asked Mrs. Hale to secure around-the-clock nursing. Later in his testimony Dr. Sciarretta’s recollection was that he had told Mrs. Hale that her husband had sustained bedsores or pressure sores. This testimony conflicted with his previous deposition in which he stated that he had informed Mrs. Hale that the lesion- was a burn caused by the patient lying on the pad. He admitted that ordinarily a bedsore develops over a period of two to four days at its earliest, but said that it is difficult to distinguish a bedsore from a sore resulting from heat.

Because of these conflicts in substantial evidence upon which reasonable men could differ, the District Court correctly denied the motion for a directed verdict in favor of the hospital since it was apparent that the issue of the hospital’s negligence and the cause of the injury were questions for the jury’s determination. See Boeing Company v. Shipman, supra. Thus the District Judge also correctly denied the hospital’s motion for judgment notwithstanding the verdict.

Affirmed.

      . There was conflict in the evidence in regard to whether the pad was correctly positioned. It was defendants’ contention that application of the pad to the left hip could not have caused burns on the right side of the patient.

      . In Boeing we said: “On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury.” 411 F.2d at 374.

      . Dr. Sciarretta was recalled as a witness for Holy Cross Hospital at which time he recanted the statement in his discharge summary that the injury was the result of the application of an aqua pad. Dr. William F. Hogan, the physician who treated the patient for the ulcerated condition of the buttocks, was also of the opinion that the lesion was a bedsore. This favorable evidence for the hospital did not resolve the conflict; the matter remained a question for determination by the jury.


source: Caselaw Access Project

author: GROOMS, District Judge: GOLDBERG, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Russell Lamar DAVIS, Defendant-Appellant.
    No. 74-2577.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1975.
    Rehearing and Rehearing En Banc Denied Sept. 29, 1975.

      C. R. Laurendine, Mobile, Ala. (Court-appointed), for defendant-appellant.
    C. S. White-Spunner, ■ U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.
   GROOMS, District Judge:

The appellant, Russell Lamar Davis, was indicted for kidnapping a sixteen year old girl in Bay St. Louis, Mississippi, and transporting her in interstate commerce to Mobile, Alabama, in violation of 18 U.S.C. § 1201. He pleaded not guilty by reason of insanity. The jury resolved the issue against him in its verdict of guilty. He was sentenced to life imprisonment.

Appellant insists that the court erred: (1) in directing a second medical examination to determine his sanity at the time of the offense and his capacity to stand trial; (2) in not admitting in evidence a state court sentence where he pleaded not guilty by reason of insanity, and was committed to a mental hospital; (3) in not admitting in evidence the trial court’s order first entered in respect to his competency; (4) in improperly limiting the cross-examination of a Government expert witness; and (5) in the admission of evidence of prior criminal acts. He also claims that there was a failure to prove beyond a reasonable doubt his sanity; and finally, that he was improperly denied bail'.

We find no error and therefore affirm.

The record reveals the following facts: Late in the afternoon of November 21, 1972, the victim drove her parents’ car to her aunt’s home in a sparsely settled area on Melody Lane in Bay St. Louis to pick up some things she had left after cleaning the house earlier in the day. She drove half way up the driveway, stopped, got out of the car, and for the first time saw appellant leaning on a mail box at the end of the driveway. He approached and asked her for directions to the bus station. Given the direction he observed that it was too far to walk. He then inquired as to taxi service. Upon receiving negative information he requested the victim to call the police because they would give him a ride. The victim entered the house, picked up the phone and turned to find the appellant putting a pair of scissors to her neck. He demanded the car keys and took them from her purse. He then tore up a bed sheet, bound her hands behind her back and gagged her, forced her into the trunk of the car, and drove east on U.S. Highway 90. Some two hours later he entered a wooded area, parked, removed the victim from the trunk and raped her. Following which, he placed her in the front seat and drove to Mobile. There he entered a filling station for gas. As he left he noticed a police car in the vicinity, whereupon he drove the car to an abandoned shed, and forced the victim to get back into the trunk.

An attendant at the station recognized appellant, and observing the girl’s frightened appearance, took the license number, and alerted the police. When appellant heard the police siren, he started to speed up, but thought better, and pulled into the driveway of an apartment, stopped the car and fled, hiding under the apartment. He was removed after much effort. Other officers removed the screaming victim from the trunk.

There was no error in directing a second medical examination to determine appellant’s sanity at the time of the offense and his capacity to stand trial. Under the circumstances the court’s action was within its sound discretion, Birdsell v. United States, 5 Cir., 346 F.2d 775, and its action will not be upset unless there is an abuse of that discretion. United States v. Cook, 9 Cir., 418 F.2d 321. The court’s action was prudent and judicious and in no respect erroneous.

Nor do we find error in the action of the court in not admitting into evidence its first order finding that the appellant was incompetent to stand trial. An attempt to get a like finding before the jury failed in United States v. Collins, 5 Cir., 491 F.2d 1050.

Appellant fares no better with his claim that the court erred in not admitting in evidence a state court judgment wherein the prosecuting attorney confessed his plea of not guilty by reason of insanity following which the court found him not guilty for that reason and committed him to a state mental hospital. Appellant was indicted for the crime of burglary committed on March 7, 1970. The judgment referred to was entered on May 24, 1973. The facts here presented do not bring this case within the reach of United States v. Minor, 5 Cir., 459 F.2d 103, where the rejected evidence was “the certified record of the civil adjudication by a state court of plaintiff as an incompetent.” The trial court correctly rejected the offer.

In ascertaining an accused’s mental capacity, evidence is admissible with respect to the condition of his mind, both as to sanity and insanity, provided the conduct is shown to be within a reasonable time before and after the commission of the crime with which he is charged. Breland v. United States, 5 Cir., 372 F.2d 629, 633. Within this rule, evidence of prior criminal conduct may under proper circumstances and with proper limitation and admonition be received on the issue of mental capacity. See Davis v. United States, 5 Cir., 413 F.2d 1226, 1230.

Evidence was received as to an arrest of the appellant in New Orleans in September in which he used an alias. The same alias was employed on the day of the crime here involved when he registered at a hotel in that city. He robbed the hotel and fled with the manager’s car and shotgun. Later in the day he drove the car into the rear of a car in Bay St. Louis. He left the scene of the accident with the stated purpose of contacting the highway patrol, but did not return. He went into a secluded wooded area to rape his victim.

Appellee contends that appellant’s conduct on all these occasions evidenced a well organized, goal directed individual; that his acts, including his attempt to conceal his identity, to cover the course of his conduct, and to facilitate his escape, indicated no lack of coordination or reasoning, nor acts of a person acting out of impulse, but clearly indicated that he was acting according to design and plan, wholly consistent with the acts of a sane person and equally inconsistent with one afflicted with a mental disease.

The evidence as to such other conduct was properly submitted to the jury. The court having been forewarned, in camera, of the nature of the evidence gave an advance as well as a final instruction carefully admonishing the jury as to the weight to be given to the evidence and clearly limiting the effect of such evidence to the issue of sanity.

There was no abuse of discretion by the trial court in limiting the cross-examination of Dr. Nicholas Godfroy when he was asked the question if he was leaving the employment of the Justice Department. Upon inquiry as to the relevancy of the question, counsel for appellant replied that he had been informed that Dr. Godfroy was leaving the Department because of his inability to agree with other psychiatrists there, and added “my source is not the most responsible in the world.”

When _ raised as a defense in a criminal case the issue of the defendant’s sanity is for the jury, to be determined from all the evidence. United States v. Collins, supra; United States v. Harper, 5 Cir., 450 F.2d 1032. The court properly submitted that issue to the jury.

The assignment as to the denial of bail is without merit.

The action of the trial court is affirmed.

Affirmed.

GOLDBERG, Circuit Judge

(dissenting):

I respectfully dissent from the disposition of this case for one reason. I believe that our decision is controlled by this Court’s opinion in United States v. Minor, 5 Cir. 1972, 459 F.2d 103.

In Minor, also a federal criminal prosecution, the district court refused to admit the “certified record of the civil adjudication by a state court of plaintiff as an incompetent.” On appeal, we held that the refusal to admit the Florida judgment was error, because it was relevant to the issue being tried in federal court — Minor’s defense of insanity — and its weight was for the jury. Moreover, we held that the error was not harmless because “[t]he evidence in question was both pertinent and powerful when compared to oral testimony.” In the present case, the federal district court refused to admit evidence of a state court adjudication that defendant was not guilty of a state crime because of insanity. Here, however, my brethren have held that the refusal to admit the prior adjudication was not reversible error. I believe that neither of the possible bases upon which the majority may have reached its decision distinguish the credibility of the state adjudication here from that in Minor.

First, the majority assumes that Minor’s adjudication of incompetency followed adversarial process while here the state judgment came after the prosecutor confessed a plea of not guilty by reason of insanity. There is no significance in this distinction. The credibility of the state court judgment cannot depend on whether it was confessed or adversarial, for the law gives equal weight to both types of judgment. Moreover, the fact that the state prosecutor did not contend that Davis was sane cuts in favor of the reliability of the finding. It indicates that the prosecutor thought that the evidence of insanity was clear enough so as not to be worth investing his time and resources in litigation of the issue.

Second, while in Minor the state adjudication established civil incompetency, here the evidence of insanity stems from an acquittal on a criminal charge. But, the insanity acquittal here is no less probative of the mental condition of the defendant at the time of the state adjudication than was the finding of incompetency by the state court in Minor. Alabama, which tried Davis, has put the burden of proving the affirmative defense on insanity squarely on the defendant. Code of Ala., tit. 15, § 422 reads: “Every person over fourteen years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.” Minor was evidently civilly committed pursuant to Fla. Stat.Ann. tit. 27, § 394.22 (repealed eff. July 1, 1972) (now Fla.Stat.Ann. tit. 27, § 394.467) under which there was a legal presumption of sanity. Campbell v. Stoner, Fla.1971, 249 So.2d 474. The state adjudication in Minor thus showed that it was more likely than not that Minor was incompetent.

The burden of proving insanity is about the same for a Florida civil adjudication and an Alabama criminal defense. In each case the proponent of insanity is required to carry the burden and prove his case by a preponderance of the evidence. If they differ at all, the Alabama criminal procedure places a greater duty on defendant with its “clearly proved to the reasonable satisfaction” standard.

I am convinced that we cannot make any legally cognizable distinction between the probative value of the adjudication of insanity in the state court in this case and that in the state court in Minor. I think the majority here makes the legendary “distinction without a difference”.

      . With an exception not here applicable the section provides for punishment of any person who “knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise . ”

      . Likewise a finding that the accused is mentally competent to stand trial may not be admitted. United States v. Moudy, 5 Cir., 462 F.2d 694, 18 U.S.C. § 4244.

      . “The Government will seek to introduce evidence, as has been outlined to you, of other and different occasions on which the Defendant may have followed a course of conduct which would indicate his mental capacity. That is, his insanity. This involves acts which might or might not constitute other crimes or criminal conduct. I want you to understand and to be clear in your mind that we are not here concerned with any other possible crime that this Defendant may or may not have committed. We are here concerned only with whether or not the Defendant is guilty of the crime charged in the indictment, and whether or not at the time of the commission of that act he had the capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Testimony of other acts or crimes [will] not [be] offered for the purpose of proving that he did the crime with which he is here charged, and you must be careful in considering this testimony not to allow it to influence you or to inflame you against the Defendant because of the fact that he may have engaged in such conduct. But it can be considered by you for purposes of showing his capacity at the time of the commission of the crime charged in this indictment, that is whether or not he had the substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”

      . “The Government introduced evidence in this case that on other and difference occasions the Defendant followed a course of conduct which is indicative of his mental capacity, that is, on the issue of his sanity. This involved acts which might or might not constitute criminal conduct by this Defendant on those occasions. And as I say, we are not here concerned with whether or not he may have committed other crimes or possibly pursued a course of conduct that might have been criminally oriented. We are here concerned only with whether or not the Defendant is guilty of the crime charged in the indictment . . And the testimony of other acts or crimes was not offered in the case for the purpose of proving that he committed the crime here charged, that is, kidnapping, and you must be careful in considering this other evidence not to allow it to inflame you or influence you against the Defendant because of the fact that he may have been engaged in such conduct. But it can be considered by you only for the purpose of showing his capacity at the time of the commission of the crime charged in the indictment, and that is whether or not it would indicate to you either he did or did not have substantial capacity either to appreciate the wrongfulness of his conduct at that time or to conform his conduct to the requirements of the law.”


author: PER CURIAM:

text:
    Houston Ellis PHIFER, Sr., et al., Plaintiffs-Appellants, v. T. L. JAMES AND COMPANY, INC., Defendant-Appellee.
    No. 74-2506.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1975.
    Rehearing Denied Aug. 20, 1975.

      Harry R. Allen, David L. Cobb, Gulf-port, Miss., for plaintiffs-appellants.
    James M. McCarthy, Rae Bryant, Gulf-port, Miss., for defendant-appellee.
    Before GEWIN, DYER and ADAMS, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   PER CURIAM:

The question presented on this appeal is whether the district court correctly directed a verdict in favor of appellee T. L. James and Company, a highway construction corporation, because there was no evidence upon which it could be found guilty of negligence.

The facts are not hotly disputed. T. L. James and Company had two contracts with the state for construction of Interstate Highway 10 and surrounding interchanges near Biloxi, Mississippi— one for grading and one for paving. The grading contract was let in July of 1969 and was accepted by the state in October of 1972. The contractor could not officially begin work on the paving contract, however, until March of 1973, after it received notice to proceed from the state.

The accident forming the genesis of this complaint occurred on January 21, 1973, after the grading contract was complete but before paving had begun. Cynthia Phifer and her fiancee were driving along a portion of the Canal Road interchange when he struck a pothole that sent them careening into oncoming traffic. She was killed as a result of the accident, and her survivors brought suit against the contractor for negligently maintaining the construction site.

The pothole, approximately three feet long and eight inches deep, was located eighteen feet south of the geographical limits of either the grading or paving contracts. Thus, it would appear at first glance that T. L. James and Company had no responsibility over the pothole either geographically or temporally at the time of the accident. Appellants maintain, however, that because the contractor placed “wing barricades” at each end of the site beyond the geographical limits of the contracts that it exercised actual control over the pothole area.

Wing barricades are large oblong striped signs placed on the shoulders of the highway toward each end of the construction site. Project markers are often situated beside the barricades to announce the number of the project and the identity of the contractor performing work for the state. These barricades do not impede traffic in any sense, but serve to alert drivers to the fact that road construction is about to begin. T. L. James’ safety engineer erected the wing barricades for this project when grading began, and they were not removed until the paving contract was completed in August of 1973. County maintenance employees ceased their repair operations at the barricades.

The accident-producing pothole was located between a wing barricade and the geographical starting point of the contract. There is no debate but that this section of the road was improperly maintained. The question before the district court was whether there was sufficient evidence of T. L. James and Company’s de facto control over the area to present a jury question concerning the company’s negligence. We hold there was not.

The polestar for our analysis is Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969), where this court stated:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case— but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. Id. at 374.

Here there is no doubt that the company was between contracts at the time the accident occurred. The Supreme Court of Mississippi has held that a contractor’s duty to maintain a road ceases when county engineers accept the construction and certify it for payment. Williams v. Sullivan, Long and Hagerty, Inc., 209 So.2d 618 (Miss.1968). It is also indisputable that the pothole was outside the contract area. The only possible indicium of de facto control by the contractor, therefore, was the placement of the barricades. There is no explanation in the record why the county did not perform repairs up to the geographical limits of the contract. Yet we believe it would be unduly burdensome to hold a contractor to a continuing duty to repair even when he is not performing work at the site. It was not unreasonable to place the barricades a few feet in front of actual construction, in order that they might have some value as warning devices. Nor did the contractor act unreasonably in leaving the barricades standing between contracts, since construction had not yet terminated.

Wade v. Gray, 104 Miss. 151, 61 So. 168 (1913), cited by appellants, does not indicate a different result. In that case the contractor had a contract with the county to maintain all public roads. The court found he had a concomitant tort duty to the public to keep the road in good repair, and that a traveler could sue him for negligent performance of that duty. The extent of the contractor’s duty was not the issue, while in this case that question lies at the heart of the litigation. To the same effect is Holmes v. T. M. Strider and Co., 186 Miss. 380, 189 So. 518 (1939). There the contractor had agreed to replace the guard rails of a bridge, and its negligent replacement provided the grist for a tort action. Again, the scope of the contractor’s duty was not in question.

The Supreme Court of Mississippi has stressed that the correlative duties of road contractor and traveler should be determined in light of all the surrounding circumstances. Webb v. Brock, 232 Miss. 154, 98 So.2d 139 (1957). In view of the accident’s temporal occurrence between contracts and its geographical incidence outside the contract limits, the district court correctly held that the pothole was outside the range of the contractor’s responsibilities.

The judgment of the district court is affirmed.

      . Although appellants attempt to buttress their position by emphasizing that the contractor was working on a detour road near the interchange when the accident took place, the detour road was not part of the Canal Road construction site that forms the basis of the present action. The detour road was located on the opposite side of the highway.


author: STEPHENSON, Circuit Judge.

text:
    Charles WHITNEY and Edward Russell Watson, Appellants, v. UNITED STATES of America, Appellee.
    No. 74-1239.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1974.
    Decided Nov. 25, 1974.

      Charles Whitney and Edward Russell Watson, pro se.
    Donald J. Stohr, U. S. Atty., and Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

The issue on this appeal is whether the district court erred in denying without a hearing appellants’ motion to vacate sentence under 28 U.S.C. § 2255 (1970). We have carefully reviewed each of the points raised by appellants in support of this contention and affirm the lower court’s denial of relief.

Appellants Whitney and Watson, half-brothers, were found guilty by a jury in 1970 of possession of merchandise stolen while in interstate commerce, a violation of 18 U.S.C. § 659 (1970). They received sentences of ten and five years, respectively. On direct appeal to this court those convictions were upheld. United States v. Watson, 450 F.2d 290 (8th Cir. 1971), cert. denied, 405 U.S. 993, 92 S.Ct. 1266, 31 L.Ed.2d 462 (1972).

Subsequently, appellants submitted a joint pro se petition seeking vacation of sentence under § 2255. While ■ the motion on its face purported to have been signed and verified by both men, the district court found that on the date of the verified signing, Whitney was incarcerated at a federal prison in Indiana, and Watson was in a federal detention facility in Oklahoma. In addition, it was noted by the court that all papers filed after the original petition bore only Whitney’s signature. In view of these apparent irregularities, the fact that a joint § 2255 filing was unprecedented, and the realization that some of the allegations would require consideration of different facts with respect to each appellant, the district court treated the motion as having been made by Whitney alone.

On the merits of the petition the trial court reduced appellants’ thirty alleged errors of law into nine general assertions. Six of these were held to be beyond the proper scope of § 2255 review. The other three were given detailed consideration and found to be without merit on the basis of the petition, the record, and the files of the case. As a result of this finding, the motion was dismissed without a hearing. 28 U.S.C. § 2255 (1970). This appeal followed.

Initially we consider the district court’s refusal to treat the motion as a joint petition for relief. Based on the facts outlined above, we are not prepared to say that the district court erred. Neither the language of the statute nor its extensive interpretative history suggests that a joint petition of this naturé is allowed. In addition, the dismissal as to Watson did not prejudice him or prevent him from seeking individual § 2255 relief in the future. Thus we believe that this decision was within the realm of the district court’s discretion.

However, in the interest of judicial economy, this court will consider Watson’s contentions in addition to those made by Whitney. The record in this case is common to both men, as is the specific crime charged. The only allegation that must be considered as to Watson alone is that of ineffective assistance of counsel at the joint trial.

Appellants contend that the searches in the instant case which resulted in the discovery of the contraband were illegal. By virtue of the Supreme Court’s holding in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), search and seizure issues are cognizable in § 2255 proceedings even if they were not raised on direct appeal. The challenged search of 3427 Arlington was performed pursuant to a search warrant. The search of 3437 Arlington was carried out following the acquisition of a signed consent to search from the owner of the property. After careful review of the record we have concluded that neither questioned search affords a basis for § 2255 relief.

The record reveals that when the search warrant for 3427 Arlington was served upon the owner of the property by an FBI agent, appellant Whitney was present and apparently read the warrant. Shortly after witnessing this warrant’s execution, Whitney proceeded to the nearby 3437 address. Approximately one hour later, smoke began to pour out of the basement of that residence. FBI agents who had been watching the house entered the back yard at once and soon thereafter observed firemen carrying from the basement charred boxes of shoes and boots, the type of merchandise believed to be in appellants’ possession. Upon seeing the possible contraband, the agents obtained a signed consent from Mrs. Watson, mother of appellants and owner of the property, and proceeded to search the premises. The search uncovered literally hundreds of boxes of stolen shoes stored in a false ceiling in the basement where the fire began, in the garage, and elsewhere in the house. Appellants were both in their mother’s home when the fire began.

Appellants now contend that the issuance of the search warrant was based on false information in the underlying affidavit of the FBI agent and that the consent to search was obtained through coercion. However, we do not reach the merits of these claims of illegality. In our view, appellants have waived the right to challenge either of these searches. Trial counsel for appellants did not contest the searches by seeking a motion to suppress, by making an evidentiary objection at trial, or by means of direct appeal. If appellants were motivated by discernible considerations of trial strategy, such a deliberate bypass of procedures will result in a waiver. Henry v. Mississippi, 379 U.S. 443, 449—52, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The Supreme Court in Kaufman, supra, clearly stated that a defendant could waive the right to challenge a search in- a § 2255 motion. 394 U.S. at 227 n. 8, 89 S.Ct. 1068. See also Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1062-66, 1106 n. 70 (1970).

The critical prerequisite to a finding of waiver in these circumstances is that counsel’s failure to act was a deliberate bypass of a known right. This court in Pope v. Swenson, 395 F.2d 321, 326 (8th Cir. 1968), observed that a waiver will result when “the record is clear * * * that counsel knowingly, strategically and certainly not inadvertently waived objection * * * in the presence of the defendant.” Even if counsel’s choice of strategy subsequently backfires, the waiver is binding on the defendant in all but the most exceptional situations. Henry, supra, 379 U.S. at 451—52, 85 S.Ct. 564. See also Nelson v. California, 346 F.2d 73, 81-82 (9th Cir.), cert. denied, 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367 (1965).

Our examination of the record indicates that the failure to here object was a deliberate and strategic choice by appellants’ counsel. The appellants’ defense was premised on the concept that possession, an essential element of the crime charged, was not shown by the evidence. Counsel could have believed that if they unsuccessfully objected to the searches at trial, they would have been admitting a possessory interest in the searched premises where the contraband was found. In addition, counsel may have felt that there was little likelihood of success in attacking either the search warrant or the consent to search. In either case, the record clearly reveals a deliberate decision not to object.

On one occasion during the trial a defense attorney objected to testimony which was being offered by the government as a foundation for the introduction of the signed consent to search form into evidence. The basis for the objection was that since the search was “not binding upon either defendant,” the circumstances surrounding the acquisition of that consent were irrelevant. Then, when the court seemed to be on the verge of overruling the relevancy objection in view of the fact that the owner of the searched property was already on the witness stand, counsel quickly conceded the validity of the consent search and stated to the court: “What point does it prove that the search was a good search when it’s not being objected to?”

The exchange between defense counsel and the court at this point demonstrates that appellants’ counsel deliberately bypassed their opportunity to object to the searches in this case. Even though unsuccessful in the final analysis, this choice of strategy amounted to a waiver that binds both appellants and precludes consideration of their substantive search and seizure claims by this court. Pope, supra, 395 F.2d at 326.

Appellants next contend that they .were ineffectively represented by counsel. It is specifically alleged that the failure to move for suppression of the evidence, the lack of a pre-trial investigation, the inadequate cross-examination of witnesses, and the fact that no defense witnesses were called at trial demonstrate constitutionally insufficient legal representation. We agree with the district court’s finding, based on the record, that each of these specific contentions lacks merit.

The failure to seek suppression of the evidence produced by the searches of 3427 and 3437 Arlington has been fully discussed. We will not now pass judgment on deliberate decisions by counsel. The allegations regarding the absence of proper pre-trial investigation and the inadequate cross-examination of government witnesses are totally rebutted by the trial transcript in which the preparation and skill of both defense attorneys is readily apparent. Finally, the lack of defense witnesses is attributable to the strength of the government’s case and to the use of a defense based on the ground that the government’s evidence failed to show actual possession of the contraband by appellants.

Counsel is presumed to be competent. Crowe v. South Dakota, 484 F.2d 1359, 1361 (8th Cir. 1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1435, 39 L.Ed.2d 485 (1974). In Garton v. Swen-son, 497 F.2d 1137, 1139 (8th Cir. 1974), we observed that the appellant, especially in a collateral proceeding, bears a heavy burden in proving inadequacy of counsel. Since the record in the present case does not indicate any actionable failure of duty by either counsel which prejudiced appellants, the claim of ineffective assistance of counsel is lacking in merit. McQueen v. Swenson, 498 F.2d 207, 218 (8th Cir. 1974).

The final substantive allegation that we consider on this appeal is the claim that the trial transcript was falsified or improperly altered. The district court found that the transcript was corrected in order to comply with court reporter’s original notes. In addition, it was found that these corrections were made prior to certification of the transcript. We agree with these findings and with the judge’s conclusion that this allegation is without merit.

Appellants raised six other general allegations of error in their § 2255 motion. None of these was properly before the district court for review. The contentions regarding improper impeachment of prosecution witnesses by the government and errors in the instructions to the jury were raised on direct appeal and answered by this court in United States v. Watson, 450 F.2d 290, 291—92 (8th Cir. 1971). No relitigation of these issues is permitted. Vincent v. United States, 488 F.2d 1109, 1110 (8th Cir. 1973); Young v. United States, 457 F.2d 800 (8th Cir. 1972).

Similarly, in view of their nature and the non-specific factual manner in which they have been presented, the court may not now entertain appellants’ contentions regarding: insufficiency of the evidence to justify a conviction, Bram v. United States, 302 F.2d 58, 60 (8th Cir.), cert. denied, 371 U.S. 926, 83 S.Ct. 295, 9 L.Ed.2d 233 (1962); the legality of Whitney’s arrest, Cox v. United States, 351 F.2d 280, 281 (8th Cir. 1965); the insufficiency or procedural defectiveness of the indictment, Scalf v. Bennett, 408 F.2d 325, 328 (8th Cir.), cert. denied, 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969); Keto v. United States, 189 F.2d 247, 249 (8th Cir. 1951); and the knowing use of perjured testimony by the prosecution, Derringer v. United States, 441 F.2d 1140, 1141-42 (8th Cir. 1971); Holt v. United States, 303 F.2d 791, 794 (8th Cir. 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963); Taylor v. United States, 229 F.2d 826, 832 (8th Cir.), cert. denied, 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956).

The motion, record, and files of this § 2255 action reveal that appellants’ contentions were properly found to be without merit and did not require an eviden-tiary hearing.

Affirmed.

      . The record reveals that on March 7, 1974 Edward Watson gave an apparently valid power of attorney to Charles Whitney authorizing him to act in his behalf in this § 2255 proceeding. This action was certainly an effective expression of Watson’s intent, but it came after all papers had been filed and does not affect the propriety of the district court’s decision.

      . Neither appellant was present at 3437 Arlington when the FBI agents obtained the consent from Mrs. Watson. However, since appellant Whitney personally witnessed the serving of the search warrant at 3427 Arlington, counsel apparently felt that a similar relevancy objection to the introduction of testimony regarding that event could not have been made in good faith.


author: PECK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Edward ALRED, Defendant-Appellant.
    No. 74-1972.
    United States Court of Appeals, Sixth Circuit.
    April 8, 1975.

      Thomas J. Roberts, Middlesboro, Ky., William E. Aired, for defendant-appellant.
    Eugene E. Siler, Jr., U. S. Atty., William D. Kirkland, Lexington, Ky., for plaintiff-appellee.
    Before EDWARDS, PECK and EN-GEL, Circuit Judges.
   PECK, Circuit Judge.

Defendant-appellant was convicted at a jury trial in district court of conspiring to willfully receive, conceal, transport, and dispose of stolen explosive materials, 18 U.S.C. § 842(h) (1970), and of carrying a firearm unlawfully during the commission of a felony, 18 U.S.C. § 924(c) (1970).

On the instant appeal, appellant argues that the unexplained delay of fifteen (15) months between the commission of the offenses (October 18, 1972) and the indictment charging him with such offenses (January 29, 1974) deprived him of due process particularly where the only trial witness identifying appellant as being involved in the attempted theft of certain explosives identified appellant three days after the offenses (October 21, 1972) as being involved. At least, appellant argues, the district judge erred in refusing to permit defense counsel to elicit from government agents their authority to arrest without a warrant, appellant’s theory being that the failure to arrest him, once he had been identified as being involved, would be relevant as showing a lack of governmental belief in his guilt and, consequently, helpful in arguing to the jury that the government had failed to prove his guilt beyond a reasonable doubt.

Although this court originally held that statutes of limitations exclusively control the permissible length of pre-indictment delay (see, e. g., Lothridge v. United States, 441 F.2d 919, 922 (6th Cir.), cert. denied, 404 U.S. 1003, 92 S.Ct. 573, 30 L.Ed.2d 557 (1971), Hoopengarner v. United States, 270 F.2d 465, 469 (6th Cir. 1959)), this court in United States v. Giacalone, 477 F.2d 1273, 1276-1277 (6th Cir. 1973), recognized that, given a sufficiently unexplained pre-indictment delay and sufficient prejudice stemming from such delay, a pre-indictment delay could violate due process.

Even assuming that appellant’s failure to raise the preindictment delay on a pre-trial motion or at trial did not waive his claim of delay, see United States v. Russo, 442 F.2d 498, 502-503 (2d Cir. 1971), cert. denied, 404 U.S. 1023, 92 S.Ct. 669, 30 L.Ed.2d 673 (1972); United States v. Scully, 415 F.2d 680, 682 (2d Cir. 1969); Chapman v. United States, 376 F.2d 705 (2d Cir.), cert. denied, 389 U.S. 881, 88 S.Ct. 119, 19 L.Ed.2d 174 (1967), but see Barker v. Wingo, 407 U.S. 514, 524-532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we find no deprivation of due process in the 15-month delay because appellant did not show substantial delay-caused prejudice. Giacalone, supra, 477 F.2d at 1276—1277; United States v. Davis, 487 F.2d 112, 116 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974); United States v. Feldman, 425 F.2d 688, 691—692 (3rd Cir. 1970); United States v. Baker, 424 F.2d 968, 970 (4th Cir. 1970); United States v. Deloney, 389 F.2d 324, 325 (7th Cir.), cert. denied, 391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 417 (1968); United States v. Feinberg, 383 F.2d 60, 65-67 (2d Cir. 1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836 (1968). See United States v. Strauss, 452 F.2d 375, 377-378 (7th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972).

Appellant claims prejudice in that the delay prevented him from preserving “his memory and [that of] those around him on the night in question.” The trial transcript, however, reveals that appellant paraded no fewer than six alibi witnesses who testified they were in appellant’s residence the night he received a telephone call informing him that one Eugene Brock “had just got shot in Bell County.” Appellant argued that, because Brock was shot in the attempted theft of explosives underlying the government’s charges, because appellant was in his residence the evening and night the alibi witnesses first learned of the shooting of Brock, and because in the “small rural communities in Eastern Kentucky” had Brock been shot on a pri- or night the alibi witnesses would have had previously heard of the shooting, he could not have been involved in the attempted theft.

Although the government’s case-in-chief indicated the offenses occurred on October 17, 1972, the government, in rebuttal, produced state police records indicating that the attempted break-in occurred on October 18, 1972. Unfortunately, the government discovered the error only after the testimony of the six alibi witnesses. Even assuming that the alibi witnesses would have been able to have dated the telephone call as being October 18, 1972, had appellant been more timely indicted, we fail to see substantial prejudice to his alibi defense since the alibi witnesses recalled, in great detail, the telephone call and the events surrounding it. Three of the witnesses, in fact, were unable to recollect whether appellant received the call on October 16, 17, or 18, or even just sometime in October, 1972. Another witness originally was unable to recall the date as being October 17. Even though that witness, and two others, eventually testified, on direct or re-direct examination, that appellant received the call on October 17 such error is immaterial. The crux of their testimony, and all that the jury need believe to establish the alibi, was that appellant — at home all evening and night — received a telephone call, informed the alibi witnesses that Brock had just been shot, and they, at that time, had never heard of the Brock shooting. In essence, the telephone call, rather than the calendar, dated their testimony.

We also reject appellant’s claim, without citing authority, that the district judge erred in refusing to permit him to elicit that government agents, although having the authority to arrest on probable cause without a warrant, failed to arrest him prior to the indictment. Purportedly, such failure would reflect the agents’ lack of belief in appellant’s guilt and would be relevant in the jurors’ determination of appellant’s guilt. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966), established that

“[tjhere is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect . . Law enforcement officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”

Under such circumstances, and in the absence of authority, but see, United States v. Sanchez, 361 F.2d 824 (2d Cir. 1966), we decline to hold that the district judge abused his discretion, United States v. Dolleris, 408 F.2d 918, 922 (6th Cir.), cert. denied, 395 U.S. 943, 89 S.Ct. 2014, 23 L.Ed.2d 461 (1969), United States v. Craft, 407 F.2d 1065, 1070 (6th Cir. 1969), in excluding such evidence. See People v. Garcia, 7 Ill.App.3d 742, 288 N.E.2d 637, 641 (1972) (no error in refusing to admit evidence that state previously had nolle prossed burglary charge). See also Alexander v. Commonwealth, 450 S.W.2d 808, 810—811 (Ky. 1970).

Affirmed.

      . “It shall be unlawful for any person to receive, conceal, transport, ship, store, barter, sell, or dispose of any explosive materials knowing or having reasonable cause to believe that such explosive materials were stolen.”

      . “Whoever—
      carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States, shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years. . . . ”

      . See, e. g., United States v. Marion, 404 U.S. 307, 324-326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Ross v. United States, 121 U.S.App. D.C. 233, 349 F.2d 210 (1965); United States v. Judice, 457 F.2d 414, 417-418 (5th Cir.), cert. denied, 409 U.S. 886, 93 S.Ct. 104, 34 L.Ed.2d 142 (1972); Wilson v. United States, 409 F.2d 184 (9th Cir.), cert. denied, 395 U.S. 983, 89 S.Ct. 2146, 23 L.Ed.2d 771 (1969).

      . Though defense counsel at trial attempted to argue that the government’s delay in arresting appellant reflected a lack of governmental belief in appellant’s guilt, counsel apparently never asserted that due process requires that the indictment be dismissed for prejudicial pre-indictment delay. On oral argument in this court, counsel asserted that he failed to raise the pre-indictment delay earlier because the lack of justification for the delay was “not readily evident;” only at trial, counsel claimed, he learned that appellant was identified as being involved three days after the commission of the offenses.


author: PER CURIAM.

text:
    Arthur W. BROWN, Receiver of Prudential Building and Loan Association, Plaintiff-Appellant, v. COMMONWEALTH OF KENTUCKY et al., Defendants-Appellees.
    No. 74-1347.
    United States Court of Appeals, Sixth Circuit.
    April 2, 1975.

      Arthur W. Grafton, Stuart E. Lampe, James N. Williams, Jr. (argued), Parker W. Duncan, Jr., Louisville, Ky., for plaintiff-appellant.
    William J. Brown, William Compton, Columbus, Ohio, for state of Ohio, ami-cus curiae.
    Ed W. Hancock, Atty. Gen. of Ky., G. Edward James, James M. Ringo (argued), Robert E. Hatton, Frankfort, Ky., W. Scott Miller, Jr., Merritt S. Deitz, Jr., Louisville, Ky., William E. Scent, Hop-kinsville, Ky., Leon J. Shaikun, Frank A. Logan, Frank E. Haddad, Jr., Louisville, Ky., for defendants-appellees.
    Smith & Schnaeke, Dayton, Ohio, for amicus curiae.
    Before MILLER, LIVELY and EN-GEL, Circuit Judges.
   PER CURIAM.

This appeal presents the sole issue of whether the Eleventh Amendment to the Constitution protects the Commonwealth of Kentucky from suit by one of its citizens for damages resulting from alleged violations by its officials of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j, Rule 10b-5, 17 C.F.R. 240.10b-5 and Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q. The District Court held that such a suit against the state was barred and dismissed the action against the Commonwealth accordingly. We affirm.

Plaintiff Arthur W. Brown was appointed by the Jefferson County Circuit Judge as a Receiver of Prudential Building and Loan Association, an insolvent Louisville savings and loan association organized under Kentucky law. Plaintiff sought to recover for the Association’s members, creditors and depositors some $23,000,000 in damages, charging that this amount was lost through the fraudulent or grossly negligent failure of the Commissioner of Banking and Securities and certain named loan examiners employed by that department to discover the mismanagement and unlawful self-dealings of the president and certain officers of the Association over a four year period.

Under Kentucky Revised Statutes 289.710, the Commissioner of Banking and Securities, or an examiner, is required annually and without notice to “make a thorough examination into the condition, workings and affairs of the association”, K.R.S. 289.710(1), and to “report any violation of law or any unauthorized or unfit practices or any failure to keep and have correct amounts of business of the association . . ”, K.R.S. 289.710(2). The complaint specifically alleged that one of the state loan examiners indirectly accepted payments from Prudential for services purportedly performed by the examiner’s wife in violation of K.R.S. 289.690. That statute forbids an examiner, directly or indirectly, from receiving any payment, compensation or gratuity from any association. It was further charged that “ . no reasonable person could have made any kind of examination of Prudential without discovering and reporting the many improper and illegal acts and omissions of Prudential management”. Accordingly, it was alleged, by such gross neglect of its statutory duty to inspect, the Commonwealth permitted the Association to become insolvent.

In Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967), the Supreme Court held that capital shares of a state chartered savings and loan association are “securities” within the meaning of Section 10(b) of the Securities Exchange Act of 1934. On this basis, plaintiff claimed that the failure to discover and disclose the insolvency of the Association amounted to “a failure to disclose under the Exchange Act” warranting the invocation of the District Court’s federal question jurisdiction, 28 U.S.C. §§ 1331, 1337, 15 U.S.C. §§ 78aa and 77v.

In Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) the Supreme Court held that by its operation of a common carrier railroad in interstate commerce, the State of Alabama waived its sovereign immunity and consented to a suit brought in federal court by employees of the railroad under the Federal Employers’ Liability Act. While observing that “It remains the law that a State may not be sued by an individual without its consent”, 377 U.S. at 192, 84 S.Ct. at 1213, Parden nevertheless held that consent was necessarily granted by Alabama when it entered into the interstate railroad business approximately 20 years after the enactment of the FELA. In like manner, urges the receiver here, in the 1933 and 1934 Acts “Congress has enacted a comprehensive scheme of laws regulating the sales of securities and has given exclusive jurisdiction to the federal courts to hear such actions”. Thus, he argues, by interposing itself completely in the affairs of Prudential and hence, at least since Tcherepnin, a sphere of activity subject to concurrent federal regulation, the Commonwealth of Kentucky must therefore be deemed to have waived its immunity to suit.

Whatever doubts may have been raised concerning the continuing viability of the immunity doctrine under the Eleventh Amendment after Parden v. Terminal R. Co., supra, have been since laid to rest by Employees v. Missouri Public Health Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) and Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). As pointed out in Edelman, “The question of waiver or consent under the Eleventh Amendment was found in those cases (Parden, Employees and other citations therein) to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity.” Edel-man v. Jordan, supra, at 672, 94 S.Ct. at 1360.

Our examination of both the Securities Act of 1933 and the Securities Exchange Act of 1934 totally fails to reveal “a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts.” Employees v. Missouri Public Health Dept., supra, 411 U.S. at 285, 93 S.Ct. at 1618. Here the statutory duty imposed upon the Kentucky Commissioner of Banking and Securities cannot in any way be construed as the exercise of a proprietary function, but is rather clearly the exercise of a regulatory function of the state over its own chartered institutions which has been historically exercised as part of its governmental powers. There is nothing to suggest that either federal act was intended to be or should be construed either to divest the Commonwealth of Kentucky of the power to regulate its state chartered institutions or beyond that, to do so only upon condition of its consent to be sued by one of its own citizens if that power is for any reason improperly exercised. Edelman v. Jordan, supra, made it manifestly clear that:

Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language, or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909).

In this case, plaintiff has sought money damages from the Commonwealth itself. No injunctive or other merely prospective relief has been sought. Cf. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Recovery, if any, will come from the state treasury. This, we think, is the clearest type of case in which the Eleventh Amendment bar against suit protects the state. Accordingly, since we find no waiver of the Amendment, the judgment dismissing the Commonwealth of Kentucky as a defendant in the above entitled cause is affirmed. Costs to' appellees.

      . The Eleventh Amendment provides:
      “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”.

      . The language of the Amendment has consistently been construed to bar suits by the state’s own citizens as well as citizens of other states. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

      . Section 17 of the Securities Act of 1933 provides:
      § 77q. Fraudulent interstate transactions (a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
      (1) to employ any device, scheme, or artifice to defraud, or
      (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
      (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.
      (b) It shall be unlawful for any person, by the use of any means or instruments of transportation or communication in. interstate commerce or by the use of the mails, to publish, give publicity to, or circulate any notice, circular, advertisement, newspaper, article, letter, investment service, or communication which, though not purporting to offer a security for sale, describes such security for a consideration received or to be received, directly or indirectly, from an issuer, underwriter, or dealer, without fully disclosing the receipt, whether past or prospective, of such consideration and the amount thereof.

        (c) The exemptions provided in section 77c of this title shall not apply to the provisions of this section.
      May 27, 1933, c. 38, Title I, § 17, 48 Stat. 84; Aug. 10, 1954, c. 667, Title I, § 10, 68 Stat. 686.
      Section 10(b) of the Securities Exchange Act of 1934 provides:
      § 78j. Manipulative and deceptive devices It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange—
      (a) To effect a short sale, or to use or employ any stop-loss order in connection with the purchase or sale, of any security registered on a national securities exchange, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
      (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
      June 6, 1934, c. 404, § 10, 48 Stat. 891.