author: MOORE, Circuit Judge: JOHN R. BROWN, Chief Judge PER CURIAM:

text:
    Jonathan BOYCE (F. Gordon Boyce, Administrator of the Estate of Jonathan Boyce, Deceased, substituted in the place and stead of), Plaintiff-Appellee, v. PI KAPPA ALPHA HOLDING CORPORATION, Defendant-Appellant.
    No. 72-1540.
    United States Court of Appeals, Fifth Circuit.
    Feb. 1, 1973.
    Rehearing Denied April 20, 1973.

      Steven R. Berger, Raymond J. Dwyer, Miami, Fla., for defendant-appellant.
    Larry S. Stewart, L. Edward McClellan, Jr., Miami, Fla., for plaintiffappellee.
    Before JOHN R. BROWN, Chief Judge, MOORE and RONEY, Circuit Judges.

       The Honorable Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   MOORE, Circuit Judge:

This is an appeal from a Florida common law negligence action which was removed from the Florida State court to Federal District Court on grounds of diversity jurisdiction. The complaint alleged that plaintiff-appellee Jonathan Boyce on July 20, 1970, was an invitee at the Pi Kappa Alpha Fraternity House on the University of Miami campus (hereinafter “Pike House”), premises owned by defendant-appellant Pi Kappa Alpha Holding Corporation, and that as a result of defendant’s negligence, plaintiff was caused to dive into an empty swimming pool and to sustain paralytic injuries. The cause came on for trial by jury on October 13, 1971. After several days of testimony special interrogatories were submitted to the jury which required them to determine- the status of the plaintiff on defendant’s property, the negligence of the defendant, and the degree of negligence, if any. The jury determined that plaintiff’s status had been that of an invitee, that defendant had been negligent, and that defendant’s conduct constituted willful and wanton negligence, the latter determination precluding a jury finding on the question of plaintiff’s contributory negligence. The plaintiff was awarded damages in the amount of $850,000.

On appeal from that verdict, and judgment thereon, the defendant-appellant here asserts numerous points of error. Resolution of this appeal must necessarily commence with a recitation of the facts surrounding this most unfortunate event.

On July 20, 1970, plaintiff-appellee Boyce was a student at the University of Miami in Coral Gables, Florida, and a member of the Phi Delta Theta social fraternity. Then 23 years old, he was attending the university’s summer session. At approximately 2:00 P.M. on that date plaintiff, his fraternity roommate Charles Parker, and several others went to the Varsity Inn, a student beer parlor which they frequented, on the average, once or twice weekly. The small group remained at the Inn until 5:30-6:00 P.M., socializing and drinking beer. The beer was purchased primarily in pitchers measuring approximately twelve inches high by six to seven inches wide. Although plaintiff could not recall precisely the amount of beer he consumed during this 3-3% hour period, he testified at trial to having drunk more than five glasses (Trial Transcript, hereinafter “Tr.”, at p. 571), while his roommate testified that he himself had consumed “a pitcher or two” (Tr. at 223). Other testimony established that plaintiff ate nothing from noon onwards that day. At approximately 6:00 P.M. the group decided to take up a collection among themselves and to purchase a 15% gallon keg of beer, for consumption that evening. The keg was bought and set up at the Phi Delta Theta house and the small group, including plaintiff, at 7:00-7:30 P.M., resumed the drinking begun in the early afternoon at the Varsity Inn. At 8:30 P.M. plaintiff’s girl friend, Nancy Lindberg, arrived at the party with her roommate, Susan Bowen. Miss Lindberg testified that, during the time she was present, she observed plaintiff consume “four or five” twelve-ounce cups of beer. (Tr. 261, 277). The plaintiff testified that he could not recall the precise quantity he had consumed during the evening.

At approximately 11:30 P.M. either plaintiff or Parker suggested that they and the girls go to the Pike House, two blocks distant and the only fraternity on campus having a swimming pool, for a late night swim. Apparently, all intended to swim dressed in street clothes. (Tr. 231). The group departed for the Pike House, plaintiff carrying Miss Bowen draped over his shoulder, and Parker and another (one “Dennis”) carrying Miss Lindberg between them, their hands and arms in chair-like fashion. The plaintiff and Miss Bowen arrived at the darkened pool area several minutes before the other three. Playfully, Boyce threatened to throw Miss Bowen into the pool, but protesting, she was able to persuade him to set her down. He placed her down, apparently with his back to the pool, and then he either dived or jumped into an empty pool, at a depth of four to five feet, landing on his back. On hitting the pool floor plaintiff instantaneously severed his spinal cord, causing virtual total paralysis from the shoulders down.

At trial the theory of plaintiff’s case was (1) that plaintiff had been an invitee on the defendant’s premises, by virtue of defendant’s express and implied invitations to plaintiff to use the swimming pool; (2) that although plaintiff had never used the pool he had seen it full numerous times in the past and had no knowledge that the pool lacked a filter system, which necessitated that it be fully emptied for purposes of cleaning; (3) that defendant was negligent in constructing and maintaining its pool in violation of a city ordinance, in not providing adequate lighting around the pool area, and in not giving some warning (e. g., fencing the pool off during the emptying procedure) to indicate that the pool was dry and in a hazardous condition; (4) that defendant’s negligence was the proximate cause of the injury, and that the negligence was of a “willful and wanton” nature; and (5) that plaintiff could thus recover for past and future medical expenses, loss of future earnings, and pain and suffering.

While denying that it was negligent in any way, defendant raised the affirmative defense that plaintiff, a trespasser, or at best a licensee, on its property, had been contributorily negligent in failing to exercise due care for his own safety. Defendant argued that, although the pool area was quite dark, the light provided by nearby street lamps and the moon was sufficient to enable plaintiff to have seen that the pool was empty, had he bothered to look; that, although violation of the city ordinance (failure to fence and lock the pool) constituted negligence under Florida law, the totality of the circumstances involved, as a matter of law, could in no way support a finding of willful and wanton negligence ; that the issue of willful and wanton negligence, as a matter of law, should thus be withheld from the jury; and that the issue of contributory negligence was for jury determination.

Because in arriving at its verdict the jury did not determine the question of plaintiff’s contributory negligence (see Special Interrogatories, note 1, supra), and because we rule that the Trial Judge erred in submitting the issue of willful and wanton negligence to the jury, we reverse the judgment below and remand the cause for a new trial, with instructions as indicated hereafter.

We note at the outset that Florida law controls. Analyzing the evidence in a light most favorable to the plaintiff-appellee, as we must upon a challenge to the sufficiency of evidence to support the jury verdict, Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en bane), we are of the opinion that the facts recited do not support a finding of willful and wanton misconduct by defendant. It is well settled that whether or not the totality of a situation evidences gross negligence or willful and wanton misconduct is a jury question, subject, however, to an initial determination by the trial judge that sufficient evidence exists to justify submitting the issue to the jury. Hodges v. Helm, 222 So.2d 418, 420 (Fla.1969); Carraway v. Revell, 116 So.2d 16, 22 (Fla.1959); Cormier v. Williams, 148 Fla. 201, 4 So.2d 525, 526 (1941). The narrow issue we must here determine is whether the conduct of defendant meets the test of “willfulness and wantonness” established by Florida law. Although numerous jurisdictions have abandoned attempts to distinguish among degrees of negligence, see 57 Am.Jur. § 94 and cases there cited, Florida apparently continues to hold fast to its common law tradition. Recent Florida decisions have drawn fine distinctions among the traditional categories of negligence: (1) “ordinary negligence”; (2) “gross negligence”; and (3) “willful and wanton negligence”, the latter being considered a “more culpable” form of misconduct, that is, conduct which is more in the nature of an intentional wrong. In Carraway v. Revell, supra, the Supreme Court of Florida attempted the admittedly difficult conceptual task of defining the “degrees” of negligence inherent in the just stated categories. After assigning each to its comparative level of culpability by noting that “gross negligence * * * is that kind or degree of negligence which lies in the area between ordinary negligence and willful and wanton misconduct,” the court quoted from an earlier opinion, Bridges v. Speer, 79 So.2d 679, 682 (Fla.1955):

We think the rule which would more nearly solve the problem than any other would be one which recognized that simple [ordinary] negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or “clear and present” that negligence is gross, whereas other negligence would be simple negligence. 116 So.2d at 22-23. (emphasis in original.)

If, as the quoted language indicates, a finding of gross negligence requires knowledge, actual or constructive, by the actor that injury to another is imminent or “clear and present”, then, a fortiori, a finding of willful and wanton negligence under Florida law must meet the knowledge requirement, and more. In a more recent case, Glaab v. Caudill, 236 So.2d 180, 184 n. 13 (Fla.D.C.A.2, 1970), the court stated:

Since Carraway v. Revell, * * * we now perceive “willful and wanton” conduct to be criminal negligence, amenable to punitive redress, whereas gross negligence as such is necessarily something less. We therefore distinguish a “conscious disregard of consequences” [gross negligence] from that “wantonness or recklessness, * * * or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. (emphasis in original.)

Extracting from these pronouncements the essential elements of willful and wanton misconduct, we note that (1) the actor must have knowledge, actual or constructive, of the likelihood that his conduct will cause injury to other persons or property; and (2) the conduct must indicate a reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights. See 57 Am.Jur.2d, Negligence §§ 101-105, 65 C.J.S. Negligence § 63(38).

To take our analysis a step further, the cases teach that willful and wanton negligence may be of two types: (1) that involving an affirmative act by the defendant; and (2) that involving a failure to act, or an act of omission, by a passive defendant. The first type is the more usual, as, for example, the conduct we dealt with in Horne v. Georgia Southern & Florida Ry., 421 F.2d 975 (5th Cir. 1970), where the defendant railway company was found to be willfully and wantonly negligent when its trainman overtly (affirmatively) backed a train over a busy pedestrian crossing, failing to keep a lookout (reckless disregard) despite prior express warnings (actual knowledge) that injury was likely to result at the crossing. The train hit, then dragged to death, the plaintiff’s wife. We said there, quoting from an early Florida Supreme Court opinion:

Where a party has inflicted an injury intentionally, or where it has been done through negligence, and hence unintentionally, and his conduct in doing it has been wanton or reckless of its injurious consequences, the contributory negligence of the person injured is not a defense to an action brought by him for such injury, [citations omitted] 421 F.2d at 980.

In the cases involving a defendant’s failure to act, the conduct of the passive defendant has been held to be willfully and wantonly negligent only if the totality of the circumstances involved warrants such a finding; for example, if the actor knows that injury will likely result from his failure to take steps to correct a known danger on his property. See City of Boca Raton v. Mattef, 91 So.2d 644, 648 (Fla.1956); Banks v. Young Men’s Christian Ass’n of Greater Miami, 176 So.2d 570, 571 (D.C.A. 3), cert. denied, 183 So.2d 213 (Fla.1965). In City of Boca Raton the court, denying recovery for an alleged wrongful death of plaintiff’s husband, held that a property owner’s failure to act constitutes willful and wanton negligence only if the owner has knowledge of the danger or hazard, and knowledge that the plaintiff is about to be confronted with the danger. 91 So.2d at 648. Similarly, in Banks the defendant had failed to provide handrails or safety devices on stairs, allegedly in violation of a municipal ordinance, just as here the appellant violated the city swimming pool ordinance; the plaintiff, a licensee, was injured as a result of a fall on slippery stairs. The court held that defendant’s violation of the ordinance and its failure adequately to protect the plaintiff fell short of willful and wanton negligence. 176 So.2d at 571. See also Britz v. LeBase, 258 So.2d 811, 813-814 (Fla.1972).

It is clear to us from the authorities cited that the appellant’s conduct in the instant case similarly falls short of willful and wanton negligence. We reach this conclusion by noting that the facts presented fall into the “failure to act” or “failure to protect” category of eases — plaintiff’s injury resulted from a condition on defendant’s premises, and not from an overt or affirmative act by defendant. Although defendant might have been held liable for negligence in failing to provide adequate lighting, in failing to fence in and lock its pool (in violation of the ordinance), and in failing to give adequate warning that the pool was dry and thus hazardous during the cleaning operation, we do not perceive here the “reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights” necessary under Florida law for a finding of willful and wanton negligence. In summary, the facts will not support a conclusion that defendant had a design, purpose, or intent to cause the injury here incurred or that there was a knowing and intentional failure on defendant’s part to perform such acts as might have prevented the injury. We hold that it was error for the court below to submit the issue of willful and wanton negligence to the jury when the evidence, as a matter of law, did not support a finding of that degree of negligence.

While the tragedy inherent in the facts presented evokes the sympathy of this Court, the case should have been submitted to the jury with instructions based upon those principles of negligence law applicable to the evidence adduced. We have noted the other points raised by appellant and we are of the opinion that their resolution should properly be reserved for retrial below. The judgment appealed from is, therefore, reversed, and the cause is remanded for a new trial not inconsistent with the conclusions we have reached.

JOHN R. BROWN, Chief Judge

(concurring) :

I concur fully in the Court’s decision and Judge Moore’s opinion for us. As this case points up a procedural problem of great importance and in which I have taken a special interest, I offer this concurrence in which my Brothers also join. I add this only to point out once again the remarkable utility of the general charge with special interrogatories under F.R.Civ.P. 49(a). See, Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 44 F.R.D. 338.

What sets this case apart is that the trial judge — probably from an unfamiliarity with this device born out of a local traditional submission on a general charge, general verdict structure — went both too far and not far enough. The result is that the case must now be remanded for a wholly unnecessary retrial and probably a second and likewise unnecessary appeal. Added to this deficiency, which springs from the way the special interrogatories were structured when used with a general verdict, it was (albeit unknowingly) transformed from a 49(a) to a 49(b) verdict with all the shortcomings of that ancient and now discredited method.

The resourceful trial judge was certainly on the right track in using interrogatories. But where he did not go far enough was in structuring the question on contributory negligence (Int. No. 5) to a “no” answer to wanton or willful (Int. No. 4). For since we have now held that there is sufficient evidence to sustain the finding of simple negligence (Int. No. 2) with proximate cause (Int. No. 3) we would be able to put this case to rest once and for all had the jury been allowed to answer contributory negligence (Int. No. 5) independent of the answer to wanton/willful (Int. No. 4).

Had there been no conditional submission to Int. No. 5 a “yes” answer, in view of our legal holding on insufficiency of wanton/willful, would now result in a complete reversal and rendition. On the other hand, a “no” answer would permit us to affirm the judgment on the basis of simple negligence.

Conditional submission is sometimes appropriate and occasionally required. But where there is a possibility both factually and on legal theories of synthesizing a valid verdict for or against a particular party conditional submission should be carefully avoided.

That was the case here. For it was foreseeable that (i) upholding a wanton/ willful verdict would be a formidable (and now unsuccessful) task, (ii) the jury, independent of what it did on wanton/willful or what might happen to the finding on J.N.O.V. or appeal, could (and did) find simple negligence, and (iii) at the same time find no contributory negligence. The legal theories on wanton/willful and simple negligence/ contributory negligence were distinctly separate. What the Judge needed was answers on the critical facts of each theory. He could then enter a judgment corresponding to those fact-findings and we, on appeal, could affirm, modify or reverse the judgment according to whatever disposition the law would require if one or more of the distinctive findings were set aside as a matter of law. ■

In this day and time of explosive docket increases it is unfortunate that one of the busiest trial courts in the Fifth Circuit must now re-try the whole case on simple negligence and damages with a prospect of a second appeal to this court whose docket has exponentially increased over 400% since I960.

But as with life generally this squandering of precious judicial resources may turn out to be a blessing. This and other recent cases point up sharply the oft-times simple structural changes which would make the 49(a) special interrogatory verdict complete for whatever adjustments the law demands.

Finally, the use of special interrogatories and a general verdict is not only fraught with hazards while all the while depriving the court of the flexibility of 49(a), its use is wholly unnecessary. For if, as is likely, the Judge cast it in this form as a means of having the jury fix the amount, if any, of damages, that could more readily be done by adding as Int. No. 7 a simple inquiry to state the answers in dollars.

The 49(a) verdict is indeed the doubt eliminator. Marvelous as it is with an elasticity which allows the Court to deal with nearly every contingency it is both a blessing and a burden. For the travail of anticipating all of the likely contingencies and then constructing the verdict in a way which will permit the jury intelligently and purposefully to supply the answers rests squarely on the trial court. See, Rorem v. Halliburton Oil Well Cementing Co., 5 Cir., 1957, 246 F.2d 427, 432; R. B. Company v. Aetna Insurance Company, 5 Cir., 1962, 299 F. 2d 753, 759 and Barrios v. Louisiana Construction Materials Company, 5 Cir., 1972, 465 F.2d 1157 [1972].

That is the lesson of this case. That is why progress comes even from unintended unseen mistakes.

ON PETITION FOR REHEARING AND/OR CLARIFICATION

PER CURIAM:

It is ordered that appellee’s petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied; and it is

Further ordered, that appellee’s request for certification to the Florida Supreme Court is denied.

As to the request for clarification, the request is granted to the extent that the trial on remand is to cover the issues of defendant’s negligence and proximate cause; contributory negligence, if any, of the deceased; and damages.

      . The Special Interrogatories submitted to the jury, and the jury’s responses thereto, were as follows:
      1. What was the status of the Plaintiff at the time of his going upon the premises of the Defendant? (Check one)
      (a) Invitee V
      (b) Licensee
      (c) Trespasser
      2. With respect to the status of Jonathan Boyce as you find it in Interrogatory No. 1 and the duty owed to him under that status, do you find from the greater weight of the evidence that the defendant was negligent? Answer “yes” or “no”.
      Answer Yes
      3. If your answer to Interrogatory No. 2 is “yes”, do you find from the greater weight of the evidence that the defendant’s negligence was a legal cause of plaintiff’s injuries? Answer “yes” or “no”.
      Answer Yes

        4. If your answer to Interrogatory No. 3 is “yes”, do you find from the greater weight of the evidence that the defendant’s conduct was wanton or willful? Answer “yes” or “no”.
      Answer Yes
      5. If your answer to Interrogatory No. 4 is “no”, was plaintiff himself negligent? Answer “yes” or “no”.
      Answer [not answered]
      6. If your answer to Interrogatory No. 5 is “yes”, was plaintiff’s negligence a contributing legal cause of the injury complained of? Answer “yes” or “no”.
      Answer [not answered]
      (Trial Record, pp. 576-77.) Under Florida law, contributory negligence is not a defense to willful and wanton misconduct. Johnson v. Rinesmith, 238 So.2d 659, 660 (Fla.D.C.A. 3, 1970), Horne v. Georgia Southern & Florida Ry., 421 F.2d 975, 980 (5th Cir. 1970), Florida Southern Ry. v. Hirst, 30 Fla. 1, 11 So. 506, 513 (1892).

      . Neither the plaintiff nor the witness Bowen could testify as to the precise manner by which entry into the pool was made.

      . The plaintiff expired on January 14, 1972, approximately three months after judgment was entered below. Counsel for appellee indicated that death was not caused by any injuries involved in this litigation. (Appellee’s Br. at p. 11 n. 4).

      . Testimony from various witnesses at trial supported the finding that plaintiff was an invitee. In exchange for invitations to the parties of other fraternities or sororities, the Pike House some time in the past had issued a “standing invitation” to members of other fraternities and sororities to use the pool, and it was common practice for such members to use the pool both on “special” and other occasions. (Tr. at 128-30) The plaintiff also testified to having received a personal invitation to use the pool “any time” from an officer of the Pike House.
      Although the question of plaintiff’s “status” was properly submitted to the jury, and the evidence supported the ’ finding that he was an “invitee”, this issue may now be academic under Florida law, by virtue of Camp v. Gulf Counties Gas Co., 265 So.2d 730 (Fla.D.C.A. 2, 1972). This case appears to abolish in Florida the distinctions which previously have been drawn regarding the duties owed to invitees, licensees, and trespassers, and to substitute therefor a single duty of reasonable care under the circumstances existing. See 265 So.2d at 731, where the court states:
      We extrapolate, from a recent decision of our Supreme Court [Post v. Lunney, 261 So.2d 146 (Fla.1972)] a trend toward the sound view that there is not, as Lord Dunedin once suggested, “an absolutely rigid- line” separating invitees, licensees and trespassers. [citation omitted] It now seems clear that our court has come to the view that “The duty is not to invitees as a class, but to the very person himself who is lawfully there. What is reasonable care in regard to him depends on all the circumstances of the case.”

        See also Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97 (D.C.Cir. 1972).

      . Section 9.09 of the Ordinances of the City of Coral Gables, enacted in 1961, requires that
      (e) * * * Unless the pool is entirely screened in, it must be surrounded by a protective wall or fence four feet (4') in height * * *.
      (f) Gates in the protective fence and/or wall required by the Zoning Code shall be the spring lock type, so that they shall automatically be in a closed and fastened position at all times. Gates shall also be equipped with a safe lock and shall be locked when the swimming pool is not in use.
      It was conceded by the appellant that the pool violated this ordinance, and that under Florida law violation of an ordinance constitutes negligence; but appel-. lant argued that either standing by itself, or as part of the total circumstances involved in this case, violation of this ordinance does not give rise to willful and wanton negligence.

      . At trial defendant-appellant attempted to establish that the plaintiff had been intoxicated when he dived into the pool. At page 13 of its Brief on appeal, however, appellant concedes that “ * * * there was no direct testimony that Boyce was intoxicated when he went into the pool. Some witnesses testified that Boyce did not seem intoxicated (Tr. 54, 171, 217, 271), though one police officer could smell alcohol when rendering aid. (Tr. 65).” Careful reading of the Transcript shows that every witness testifying indicated the opinion that Boyce did not appear intoxicated, that he spoke distinctly with no slurring, and that he was “sharp” and “lucid” immediately prior to and after the accident. The witnesses so testifying included the campus security officer (Tr. 84), the rescue personnel (Tr. 79-80), the attending physician at the hospital (Tr. 399), as well as the plaintiff’s companions that evening. Even the police officer alluded to supra by the defendant indicated that the alcoholic fumes he smelled while rendering aid to the plaintiff appeared to emanate from one other than the plaintiff. (Tr. 69-70).

      . At trial there was conflicting testimony as to whether there existed any lighting by which plaintiff could have seen that the pool was empty. There were outside lights around the pool area, regulated by an automatic timer, but these were not turned on. Testimony did not establish why the timer did not operate properly on the night of July 20, 1970. The trio of Parker, Lindberg and “Dennis”, arriving at the pool minutes after Boyce had suffered his injury, also had great difficulty in determining whether there was water in the pool. Parker and Lindberg testified that the trio approached the pool and that Parker and “Dennis” -were about to throw Miss Lindberg into it, and in fact began to do so, only to pull her back upon hearing Boyce holler that the pool was empty. Lindberg was caught in mid-flight by a leg, hitting her head on the side wall of the pool as a consequence. (Tr. 214-15, 268, 286-87)

      . See Carraway v. Revell, 116 So.2d 16 (Fla.1959); Glaab v. Caudill, 236 So.2d 180 (Fla.D.C.A. 2, 1970).

      . See note 1, supra, to the Court’s opinion.

      . In addition to the answers to the interrogatories the jury was supplied and filled out this form of general verdict:
      “WE, the Jury, find in favor of the plaintiff, Jonathan Boyce, and against the defendant Pi Kappa Alpha Holding Corporation, and assess damages in the sum of $850,000.
      SO SAY WE ALL. . . .
      /s/ W. Burdette Hunton
      Foreman”
      In the formal judgment the trial court quoted this general verdict and without any reference to the interrogatories entered final judgment for Boyce for $850,000.

      . See my recent concurrence in Wolfe v. Virusky, 5 Cir., 1972, 470 F.2d 831 in which I point out the dangers of a witting or unwitting lapse into 49(b).

      . For example, negligence (Int. No. 2) and proximate cause (Int. No. 3) compels it lest the jury either be confused by answering proximate cause with no negligence or risk returning an inconsistent verdict.

      . Though the figures are now out of date see, Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I; NLRB v. Amalgamated Clothing Workers of America, 430 F.2d 966 (5 Cir., 1970).

      . See, In re Double D Dredging Co., Inc., 5 Cir., 1972, 467 F.2d 468 [1972]; see also Burns v. Anchor-Wate Co., 5 Cir., 1972, 469 F.2d 730 [1972].

      . I have previously discussed the trial Judge’s burden at some length.
      “Pitfalls there are, to be sure. But these abound in the law, indeed in any process of thoughtful deliberation looking toward resolution. And nearly all can be avoided by the sort of forethought which ought to characterize the solemn, awesome jury submission which is the climax, or near climax of the whole trial. More than that, to attain the great utility of the 49(a) Special Verdict the Judge is forced to think, and think hard. That is a virtue in itself.
      ‘The fact is that one of the sometimes unexpected, but wholesome results of special interrogatories jury submission is to emphasize the absolute necessity that there be first a clear understanding of the precise legal issues for jury resolution and then a translation of them into articulate questions which may be authoritatively answered by a simple categorical. In a general way this is to say that not only is it the jury’s imprecision which is hidden by the traditional general charge and verdict. Many juridical errors of omission and commission by court and counsel are likewise perpetually concealed.’
      R. B. Co. v. Aetna Ins. Co., 5 Cir., 1962, 299 F.2d 753, 756-757.
      The thinking has to begin with the construction of the charge itself and particularly the climatic questions to be propounded and the types of alternative answers to be employed. This involves a bit of dreaming by the Judge with counsel by anticipating all of the likely, probable answers and then testing these several likely results against the possible existence of conflict or the type or types of judgments which could be rendered under them. With the celebrated vagaries of jury reaction, the Judge and counsel have hardly done their ‘homework’ unless they have constructed a submission which will reasonably meet these contingencies.” Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 44 F.R.D. 338 at 351.


source: Caselaw Access Project

author: FEINBERG, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. George NATHAN et al., Appellants.
    Nos. 493, 495, 503, 504, Dockets 72-1895, 72-1905, 72-1999, 72-2038.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 26, 1973.
    Decided March 16, 1973.

      Ronald E. DePetris, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., on the brief), for appellee.
    Jesse Berman, New York City (Lawrence Stern, New York City, on the brief), for appellant Nathan.
    Joseph Stone, New York City, for appellants Brown, Boulier and Nash.
    Before MOORE, HAYS and FEINBERG, Circuit Judges.
   FEINBERG, Circuit Judge:

In August 1970, a one-count indictment was filed in the United States District Court for the Eastern District of New York, charging 21 defendants with conspiracy to violate the narcotics laws. 21 U.S.C. §§ 173, 174 (now 21 U.S.C. §§ 952, 960). The indictment also identified five co-conspirators who were not listed as defendants. Eleven of those charged in the indictment were tried in 1971. Ten were found guilty, and this court affirmed their convictions. United States v. Vega, 458 F.2d 1234 (2d Cir. 1972). In June 1972, the four defendants involved in this appeal — George Nathan, Robert Brown, Clarence Nash, and Rene Boulier — were brought to trial on the same indictment before Chief Judge Jacob Mishler and a jury.

The Government’s case rested principally on the testimony of two co-conspirators. The jury could properly have found that the four appellants had worked for or dealt with a group headed by one Jesus Torrado, one of the 21 indicted and now a fugitive, who was based in New York City. Heroin and cocaine were imported into the country through Miami, and purchased there by Torrado’s men. They then brought the drugs to New York City and made sales to buyers in the city and elsewhere. Three of the four appellants were identified by Government witnesses as having purchased substantial quantities of narcotics from Torrado, apparently on a fairly regular basis. The fourth appellant — Rene Boulier — was described as a member of Torrado’s organization, performing such tasks as preparation and delivery of heroin and cocaine. All four appellants were convicted, and they now appeal on divers grounds.

I. Double Jeopardy and a Prosecutorial Promise

The most substantial argument raised on appeal is based upon legal proceedings that took place in the United States District Court for the Southern District of Florida. Appellant Boulier was indicted there with 12 others on October 14, 1969 for his role in a drug importation and distribution conspiracy. Seven or eight of the 36 participants named in the Florida indictment were also identified as co-conspirators in the instant indictment in New York, which was filed ten months later. On December 20, 1971, a superseding information was filed in the Florida court, charging that Boulier, together with three named individuals (two of whom had also been named in the New York indictment), and others unknown, had conspired to violate 26 U.S.C. § 4704(a) by purchasing and selling heroin not in or from the original stamped package. Boulier pleaded guilty to the information, and the original Florida indictment was dismissed.

Boulier asserts that his guilty plea to the federal information in Florida precluded his conviction under the New York indictment by operation of the Double Jeopardy Clause. Judge Mishler rejected this claim, concluding that the conspiracy alleged in the information was separate from and not merely one component of the conspiracy described in the New York indictment.

We need not decide whether the two conspiracies charged were identical in fact. It is sufficient to observe that the two convictions were based upon different statutory violations; the second, unlike the first, required a showing of defendant’s knowledge of illegal importation. That a defendant may be punished for multiple violations of the narcotics laws arising from a single transaction is well settled, see Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1957); and we are not aware of any constitutional requirement that all such violations must be tried together. See, e. g., United States v. Jones, 334 F.2d 809, 811 (7th Cir. 1964), cert. denied, 379 U.S. 993, 85 S.Ct. 707, 13 L.Ed.2d 613 (1965).

Boulier advances another argument based upon the Florida proceedings. The supersession of the original indictment by the information and Boulier’s guilty plea were the outgrowth of an agreement between the federal prosecutor in the Southern District of Florida and Boulier’s attorney. Under this agreement, Boulier was to provide federal authorities with information concerning the sale and distribution of narcotics in the United States and Latin America. In exchange, the indictment would be dismissed, Boulier would plead guilty to the lesser charge in the information, and would receive probation. In addition, the United States Attorney in that district apparently assured Boulier that the Government would agree to the dismissal of the indictment pending in the Eastern District of New York. Based upon the latter promise, which was obviously never carried out, Boulier urges that the Government should be estopped from prosecuting him in this proceeding. We put to one side such questions as the authority of one United States Attorney to bind another or the proper remedy for a defendant who has been deceived by such a promise. The record indicates that Boulier failed to carry out his part of the bargain by refusing to disclose the promised information and hence is in no position to invoke the agreement now.

II. Evidence of Later Crimes

All four appellants challenge the introduction of evidence of a series 'of post-conspiracy transactions and, in the case of George Nathan, two arrests for possession of cocaine. As to the former argument, evidence of a conspirator’s post-conspiracy activity is admissible if probative of the existence of a conspiracy or the participation of the alleged conspirator. Lutwak v. United States, 344 U.S. 604, 617-619, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Bennett, 409 F.2d 888, 893 (2d Cir.), cert. denied, 396 U.S. 852, 90 S.Ct. 113, 117, 24 L.Ed.2d 101 (1969). Hence the prosecution could properly introduce evidence that appellants had, on a number of occasions after August 1968, engaged in drug transactions and other activities that usually accompany such criminal conduct.

Appellant George Nathan specifically complains about the Government’s use of rebuttal testimony by two police officers, who described the circumstances of Nathan’s two post-conspiracy arrests on drug charges. Neither arrest led to a conviction, and Nathan asserts that they should not have been used against him by means of extrinsic proof. However, appellant opened the door to such an inquiry through his own testimony. On direct examination he declared that he did not use cocaine or heroin and had never engaged in the transportation or distribution of any narcotic drug; on cross-examination, while admitting the two arrests, he denied that he had possessed narcotics at the time of his second arrest or that he had known of the presence of drugs in his apartment at his first arrest. The testimony of the officers suggested the strong likelihood that Nathan had in fact been knowingly in possession of cocaine on both occasions, and the trial judge could therefore, in his discretion, admit such testimony to disprove Nathan’s assertions. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L. Ed. 503 (1954); United States v. Keilly, 445 F.2d 1285, 1289 (2d Cir. 1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2064, 32 L.Ed.2d 350 (1972) (limiting United States v. Glasser, 443 F.2d 994 (2d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971)).

III. Brown’s Business Card and His 1945 Arrest

At trial, the Government introduced into evidence a business card of appellant Robert Brown, who owned a record store. Brown challenges the admission of the card as unwarrantedly prejudicial. The card in question had been taken from Jesus Torrado’s apartment when he was arrested. The relevance of the card is that it served as circumstantial evidence of Brown’s involvement with Torrado and the conspiracy. Used for this purpose, introduction of the card was proper. See United States v. Canieso, 470 F.2d 1224, 1232 (2d Cir. 1972); United States v. Armone, 363 F. 2d 385, 403-404 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 398, 17 L.Ed.2d 303 (1966).

Brown called three character witnesses to vouch for his reputation for veracity. On cross-examination, two of them were asked whether they were aware that Brown had been arrested in 1945 for possession of a knife and a revolver and in 1968 for possession of a dangerous weapon. Brown claims that the reference to the earlier arrest was improper because of its remoteness and its tenuous relationship to his veracity. We doubt whether knowledge of such an ancient event of this nature is a prerequisite for a reliable accounting of a defendant’s reputation for honesty in the community. Cf. United States v. Puco, 453 F.2d 539, 543 (2d Cir. 1971) (impeachment of defendant on cross-examination by 21-year old conviction held improper). However, at trial Brown did not specify the grounds now asserted to exclude evidence of the 1945 arrest. See United States v. Silverman, 430 F.2d 106, 125-126 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L. Ed.2d 123 (1971). In addition, he did not object to the much more damaging reference to the 1968 arrest. In view of these circumstances and the trial court’s very broad discretion as to the permissible scope of cross-examination of character witnesses to test the basis for their statements, see Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L. Ed. 168 (1948), Brown has not made a “clear showing of prejudicial abuse of discretion.” Id. at 480, 69 S.Ct. at 221.

IV. Speedy Trial and Sufficiency Claims

Appellant Brown was arrested in June 1970 and indicted in New York two months later. He was not tried until June 1972 and urges that the indictment should have been dismissed, as he requested below, because this delay deprived him of his right to a speedy trial. We disagree.

Although the gap between arrest and trial was two years, there' apparently was no purposeful delay and both sides were partly responsible for the slow pace of the proceedings. See Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Most significantly, Brown had been scheduled to go to trial in June 1971 with the first group of alleged conspirators, but he requested a severance, which, when granted, led to a substantial delay. Moreover, he demonstrates no constitutionally cognizable prejudice. See id. at 532, 92 S.Ct. 2182. Finally, we note that since the Government was ready for trial in June 1971, there was no violation of this circuit’s Rules Regarding Prompt Disposition of Criminal Cases, which went into effect shortly thereafter.

Appellants Brown and Nash argue that the Government failed to establish — as it must under section 174, see United States v. Agueci, supra note 5 — that they knew that the drugs in question had been illegally imported. This argument ignores the evidence that both appellants were at various times in possession of quantities of heroin. As Judge Mishler charged, this is sufficient to justify an inference that they were aware that it had been illegally imported. See, e. g., Turner v. United States, 396 U.S. 398, 408-418, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

V. Miscellaneous Contentions

Finally, appellants offer a number of additional reasons for reversal, including the prosecutor’s assertedly prejudicial summation, allegedly improper venue in the Eastern District, and the discovery of “new” evidence with regard to appellant Nash. On the first point, we find that the challenged prosecutorial remarks, when placed in context, are for the most part unobjectionable and that such error as may have occurred was of minor significance. As to venue, the use by the conspirators of John F. Kennedy International Airport for flights to Miami and Detroit to obtain or sell narcotics was a sufficient basis for venue to lie in the Eastern District. With regard to the third point, the evidence in question — hospital and doctor’s records showing that Nash had been hospitalized for a few days in late July 1969 — would have been of little or no help to appellant’s case and, in any event, could have been sought during the pendency of the trial. We have considered the other points raised by appellants, but none warrants further discussion.

Affirmed.

      . Two of these co-conspirators testified for the prosecution in this case. The other three have been convicted in the United States District Court for the Southern District of Florida of violating 21 U.S.C. § 174.

      . Of the remaining six defendants, five are fugitives and one has pleaded guilty to a separate charge.

      . Appellant George Nathan was sentenced to 15 years in prison and a $20,000 fine. The other three appellants each received a prison term of ten years and a fine of $10,000.

      . Based upon the facts presented to us, this would appear to be a close question. See United States v. Wilshire Oil Co., 427 F.2d 969, 976 n. 12 (10th Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59 (1970) (defendant must establish such identity by a preponderance of the evidence). It is true that the two conspiracies overlap in time (the Florida information alleged a conspiracy lasting from April 15, 1968 to October 23, 1969; the New York indictment charged a conspiracy that continued from January through August 1968), that two of Boulier’s three co-conspirators named in the Florida information also were identified as participants in the eonspiracy at issue here, and that the criminal activity in both conspiracies involved distribution of narcotics. But these common elements in themselves do not necessarily establish a double jeopardy violation. See United States v. Barzie, 433 F.2d 984 (2d Cir. 1970) (per curiam), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324 (1971). More serious, however, is the Government’s admission that one of the two overt acts alleged in the information — apparently the more serious one — “may well be the same as” one of the acts listed in the New York indictment. Moreover, and perhaps most significantly, the testimony of the government agent offered at the Florida hearing to test the basis for Boulier’s guilty plea described the conspiracy there charged in terms that at least suggest that it may be the same as the conspiracy here in question.

      . Such knowledge is required under 21 U.S.C. § 174, see United States v. Agueci, 310 F.2d 817, 824-826 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963), although in certain situations it can be established by inference based upon possession. See part IV infra.

      . The Court in Gore decided this question on both constitutional and legislative grounds.

      . This situation is to be distinguished from the one dealt with in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), cited by appellant. In that case, six men had been robbed while participating in a poker game. Ashe was tried for robbing one of the victims and was acquitted. He was then tried for robbing another of the players and was convicted. The Supreme Court reversed on the ground that the first jury had determined that Ashe had not participated in the robbery, a necessary element in the conviction by the second jury. In a concurring opinion in Ashe, id. at 448, 90 S.Ct. 1189, as well as in a separate opinion in Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), Justice Brennan urged the Court to decide that all violations growing out of a single transaction must be tried together. While this may frequently be the preferable practice, see United States v. Jones, supra, 334 F.2d at 812, it has not been held to be required by the Double Jeopardy Clause so long as the proscription of Ashe is not transgressed. See, e. g., United States v. DeMarrias, 441 F.2d 1304 (8th Cir. 1971). See generally Comment, Ashe v. Swenson: Collateral Estoppel, Double Jeopardy, and Inconsistent Verdicts, 71 Colum.D.Rev. 321 (1971).

      . The original indictment charged a conspiracy to violate former 21 U.S.C. § 174, punishable by a minimum sentence of five years in prison. The information charged a conspiracy under 18 U.S. C. § 371 to violate 26 U.S.C. § 4704(a), which did not preclude the possibility of probation.

      . Following Boulier’s failure to provide the information, the Florida prosecutor recommended a three-year sentence on his guilty plea, and Judge Joe Eaton sentenced him to two years in prison.

      . Judge MisMer carefully, instructed the jury as to the limited purpose for which such evidence could be used.

      . The related activities consisted of exchanging or transferring large sums of cash.
      In a separate argument appellants urge that there was a fatal variance between the indictment and the proof. In substance, however, this point is merely a variation of their argument against the introduction of evidence of post-conspiracy conduct, and it has no merit.

      . He also argues that the card should have been excluded because the Government did not establish a chain of custody. This claim is without merit since the agent who had seized the card had written an identifying number on it, which he recognized at trial.

      . Brown claims only that the delay permitted the Government to call an additional witness. He does not allege that his own preparation was hampered. Moreover, he was free on bail during the two-year period.

      . The effective date of the Rules was July 5, 1971.

      . With respect to the cocaine, Judge Mishler charged that an inference of knowledge may be drawn from the proven possession of at least one kilo of the substance during the pendency of the conspiracy. See United States v. Gonzalez, 442 F.2d 698, 705, 709 (2d Cir.) (en banc), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971).

      . Two such flights were listed in the indictment and proved as overt acts in furtherance of the conspiracy.

      . A Government witness, Stanton Garland, testified that in “[t]he latter part of July 1989” he saw Nash hand $17,000 to Nash’s father (named in the indictment as a co-conspirator), who in turn gave the money to Jesus Torrado, presumably in payment for narcotics. The fact that Nash was in the hospital for a few days in late July scarcely amounts to a refutation of the testimony in question.

      . A recess of five days was called after Garland had testified. Thus, Nash had ample opportunity to obtain the records when he was already aware of tlieir arguable relevance to the Government’s case against him.


author: MOORE, Circuit Judge: HAYS, Circuit Judge

text:
    Audrey S. HARTEL, Plaintiff-Appellant, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellee.
    No. 104, Docket 72-1452.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 25, 1972.
    Decided March 28, 1973.

      Arnold B. Elkind, New York City, for plaintiff-appellant.
    George M. Onken, Jamaica, N. Y. (Jay E. Gerber, and Paul C. Saunders, New York City, of counsel), for defendant-appellee.
    Before MOORE, HAYS and MULLIGAN, Circuit Judges.
   MOORE, Circuit Judge:

Some time between 6:30 and 7:00 A. M. on Sunday, February 18, 1968, John Hartel, a ticket agent for the Long Island Rail Road Company (LIRR) arrived at the Mineóla, Long Island, railroad station to open the ticket office. He entered the waiting room to open the steel shutter covering the ticket window. While so doing, one of three men with a gun stepped up behind him and announced a hold-up. When Hartel attempted to flee, he was shot in the back and killed.

Plaintiff-appellant in this action, Hartel’s widow, sought to recover damages from her husband’s employer in her own right and as administratrix of her husband’s estate under the Federal Employers’ Liability Act (FELA) 45 U.S.C. § 51 et seq. The trial court found that plaintiff had “introduced no evidence showing that defendant should have reasonably foreseen the possibility of a holdup at the Mineóla Station” and granted defendant’s motion for a directed verdict. From the judgment dismissing the complaint, plaintiff appeals. In addition to charging error in directing a verdict in favor of the defendant, plaintiff asserts that four proffered items of evidence were improperly excluded.

An essential ingredient in plaintiff’s case was that she establish that the LIRR should have foreseen that a criminal attack (robbery and murder) might be made upon its ticket agent at the Mineóla station.

In reviewing this directed verdict this Court must view the evidence and all inferences therefrom in the light most favorable to the plaintiff. O’Connor v. Pennsylvania R. R., 308 F. 2d 911 (2d Cir. 1962). We have done this, and affirm the decision of the court below.

The FELA provides:

Every common carrier by railroad * * * shall be liable in damages to any person * * * or, in ease of the death of such employee, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *. 45 U.S.C. § 51.

To establish her case plaintiff had to show that the danger to her husband from armed criminals was, or should have been foreseen by the defendant. Once this was shown, a further showing that defendant was negligent in whole or in part in failing to minimize this danger would have been required.

In attempting to demonstrate the foreseeability of the criminal assault which caused her husband’s death, plaintiff offered to prove that in the preceding four years there had been ten robberies or attempted robberies at defendant’s stations located between 4.7 and 29.8 miles from the Mineóla station. Two of these had occurred in the month immediately preceding the Mineóla holdup. Judge Levet refused to permit this proof. Plaintiff here argues that evidence of prior holdups should have been admitted to show that the LIRR did have knowledge of the dangers ticket agents faced. In each of the cases cited by plaintiff to support this position, however, the courts have specifically limited evidence of prior incidents to those occurring at the exact locus of the incident giving rise to the litigation. In addition, they have required that the circumstances under which such incidents occurred must have been substantially the same as those in the action brought. Thus, in Cahill v. New York, N. H. & H. R. R., 236 F.2d 410, 411 (2d Cir. 1956), the case most heavily relied upon by plaintiff, a listing of the collisions which had occurred at a particular intersection was admitted to show the railroad’s knowledge of the danger of such incidents at that place. In the instant case no prior robbery had occurred at the Mineóla station. Therefore, Judge Levet was correct in excluding the evidence of prior robberies. See also Plough v. Baltimore & O. R. R., 164 F.2d 254, 256 (2d Cir. 1947).

Plaintiff also sought to introduce testimony concerning a conversation between herself and a staff attorney of the LIRR named Donnelly. Just before Hartel’s funeral Donnelly, who had been Hartel’s friend, told plaintiff that her husband had once mentioned to him that he was afraid of working at the Mineóla station. Direct testimony by Donnelly was not offered. In addition, it was not shown that Donnelly was authorized to receive notice of dangerous working conditions or that, by this conversation, Hartel had intended to give the LIRR such notice. Under these circumstances it was not error for Judge Levet to exclude such hearsay testimony. Schilling v. Delaware & H. R. R., 114 F. 2d 69, 71 (2d Cir. 1940).

By attempting to introduce correspondence and testimony as to conversations between the ticket agents’ union and the LIRR, which related to requests for increased protection for ticket clerks from the dangers of armed robbery, plaintiff sought to demonstrate defendant’s awareness of the risks its employees faced. When it was determined that neither this correspondence nor the union leader’s conversations with railroad management made specific reference to the Mineóla station, this evidence was excluded.

Plaintiff made no offer of evidence which would have shown that there was any unusual danger at the Mineóla station. To be admissible to show the foreseeability of a criminal assault upon an employee for which an employer could be held liable under the FELA, we think that the evidence must be such that it did in fact call, or should have called, to the employer’s attention the special dangers found at a particular location.

In this regard the case of Inman v. Baltimore & O. R.R., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959) is instructive. There an intoxicated motorist was violating five traffic statutes when he ran down a train flagman. The Supreme Court affirmed the decision of the Ohio Court of Appeals reversing a jury verdict for plaintiff. In his concurring opinion Justice Whittaker emphasized the complete failure of the evidence to show that the negligence of the railroad had contributed in any way to the flagman’s injury.

Reduced to substance, the simple facts are that petitioner, a crossing flagman, while standing in a well-lighted intersection alongside a passing train in the nighttime and swinging a lighted red lantern in each hand, was struck, knocked down and run over by a drunken driver. What, I ask, did respondent do or omit that caused or contributed to cause that casualty? How could it have prevented the casualty? Petitioner says that respondent failed to provide him with “enough protection”. About the only way, as I perceive, that respondent could protect its crossing flagmen against injury from such lawless conduct by third persons would be to provide them with military tanks and make sure they stay in them while within or moving about crossing-intersections in the performance of their duties — and I am not even sure that this method, though ironclad, would be certain protection to a flagman against lawless injury by third persons, for someone might shoot him, an act not very different, it seems to me, from the drunken driver’s conduct which injured petitioner in this case, and for which injuries he insists, and four members of this Court agree, a jury should be permitted to require respondent to pay damages. How this can be thought to square with any known concept of “negligence” is beyond me.
361 U.S. at 142, 80 S.Ct. at 244.

Plaintiff’s final point is that a confession of one of the perpetrators of the felony murder of Hartel should have been admitted into evidence to show the circumstances under which the robbery occurred. In this case it was not error to refuse to admit any evidence detailing the circumstances of the robbery when the foreseeability of the crime was not established.

Although absent foreseeability, plaintiff’s case was deficient as a matter of law, the Trial Court also said: “[0]n judicial appraisal, I find that negligence on the part of the defendant railroad could have played no part in the death of plaintiff’s intestate.” We agree. Even if the LIRR had installed, as plaintiff now suggests, either a steel shutter opening from the inside or a peep-hole which might have enabled the agent to observe persons in the waiting room, these measures would not have protected him from assault and murder.

The judgment below, dismissing the complaint, is affirmed.

HAYS, Circuit Judge

(dissenting): I dissent.

There was enought evidence to present a jury question on whether the railroad exercised due care to make the employee’s place of employment reasonably safe. As the Supreme Court has pointed out, Congress expressed a strong preference for jury determination of actions arising under the FELA. See, Rogers v. Missouri Pacific Railroad Co., 352 U. S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). This is especially true when the issue involved is the negligence of the railroad.

“The Congress when adopting the law [FELA] was particularly concerned that the issues whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair minded men could reach those conclusions on the evidence.” 352 U.S. at 508, 77 S. Ct. at 449.

In the instant case, when the evidence is viewed, as we must view it, in the light most favorable to the appellant, it is clear that a jury could properly find that the employer’s failure to install a peephole in a situation where the danger was great and the corrective action required only a small effort, was negligence and that this negligence played some part in the employee’s death.

The trial court also erred in excluding evidence which tended to establish the defendant’s knowledge of the hazards to which the ticket agent was exposed. The testimony of the union official concerning his conversations with railroad officials tended to establish that the defendant was aware that the steel doors with no peephole presented a safety problem.

“I requested that the steel doors be removed from this station [Mineóla], as well as other stations, and also that a peephole be put in there and a silent alarm to protect the employees, including protection when they open these offices at six and six thirty in the morning.”

The exclusion of evidence of prior holdups at defendant’s ticket offices was also error. In FELA cases, where foreseeability has been an issue as in the instant case, proof of prior accidents has been held admissible. See, Cahill v. New York, New Haven & Hartford R. Co., 236 F.2d 410 (2d Cir. 1956); Plough v. Baltimore & Ohio R. R. Co., 164 F.2d 254 (2d Cir.), cert. denied, 333 U.S. 861, 68 S.Ct. 740, 92 L.Ed. 1140 (1947). The majority holds that these cases do not require admission of the evidence of prior holdups in the instant case, because the holdups did not occur “at the exact locus of the incident giving rise to the litigation.” I do not read these cases so narrowly. I would allow the evidence to be admitted since it tended to establish defendant’s knowledge of the hazards to which the ticket agent was exposed.

      . Hartel v. Long Island Rail Road Co., 356 F.Supp. 1192 (S.D.N.Y. filed Mar. 3, 1972).

      . Id.

      . There had been one robbery in 1964, four in 1966, three in 1967, and two in January, 1968, just prior to the crime in question here. During two of these completed or attempted crimes, the ticket agent had been assaulted.

      . Several questions concerning the admissibility of this confession were briefed by the parties. The confession, rather than direct testimony, was offered because the perpetrator, serving a lengthy sentence for this crime, had refused to discuss it without first talking to a lawyer. Since no evidence concerning how the crime was committed could have been admitted until it was shown to have been foreseeable, we express no view on the other possible grounds for excluding this confession.

      . See note 1, supra.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    Arthur Ben LEWIS, Jr., Petitioner-Appellee, v. Harold J. CARDWELL, Warden, Respondent-Appellant.
    No. 72-1679.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 8, 1972.
    Decided April 5, 1973.
    Jeffrey L. MeClellant, Asst. Atty. Gen., for respondent-appellant; William J. Brown, Atty. Gen. of Ohio, on brief.
    Bruce A. Campbell (Court-appointed), Campbell, Boyland & Schwarzwalder, Columbus, Ohio, for petitioner-appellee.
    Before PHILLIPS, Chief Judge, and WEICK and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This appeal is before the Court for review of a judgment and order of the district court conditionally granting a writ of habeas corpus pursuant to the power vested in that court by 28 U.S.C. § 2241. The case arises from a brutal shotgun slaying for which the appellee, Arthur Ben Lewis, Jr., was indicted, tried and subsequently found guilty of first degree murder by a state trial court jury. It is well to remember that this Court’s sole duty in this case, as in all similar eases, is to determine whether the petitioner’s constitutional rights were violated, regardless of the evidence pointing to the guilt of the accused.

The single issue presented for resolution is the correctness of the District Court’s holding that the appellee’s fourth and fourteenth amendment rights were violated by the admission at his trial of evidence obtained from a warrantless seizure and subsequent search of his automobile. The District Court’s exhaustive and comprehensive opinion is reported in 354 F.Supp. 26 (S.D.Ohio 1972). Since we are in full agreement with the opinion, we find it unnecessary to do more than to emphasize and further clarify several points made below. Only the skeletal facts relevant to the single search and seizure question need be summarized here.

During the course of investigating this July 19, 1967, slaying, the law enforcement officers focused their attention on the appellee. On July 24, 1967, Delaware County Deputy Sheriff Lavery, one of the officers assigned to the case, talked with the appellee at his place of business and at that time viewed his 1966 Pontiac automobile. From other information gathered in the investigation Lavery believed that the appellee’s car had been used to push the murder victim’s automobile over a river embankment at the scene of the crime. On September 28, 1967, Deputy Lavery and an official from the State Attorney General’s office again interviewed the appellee and on October 9, 1967, the appellee was contacted by telephone and requested to appear the next day at the offices of the Division of Criminal Activities in Columbus, Ohio, for further questioning. Early the next morning, October 10, 1967, Deputy Lavery obtained a warrant for the appellee’s arrest but did not attempt to procure a warrant for the search of his car.

The appellee arrived at the offices of the State Attorney General shortly after 10:00 A.M. October 10, 1967, where several staff members of the Division of Criminal Activities and Deputy Lavery questioned the appellee for a substantial part of the day. The arrest warrant was not served on the appellee until approximately 5:00 P.M. that afternoon, an event which occurred shortly after the arrival of his attorneys. Around the time of appellee’s arrest the law enforcement officials obtained the keys and the claim check for the appellee’s car which was parked in a pay parking facility about a half block from the state offices. One of the state officials then called a wrecker to seize the automobile. The seizure was effected in this manner, with the result that none of the investigators personally viewed the vehicle or ascertained whether the car was in fact parked in the lot. The seizure was made without obtaining a warrant.

A lab technician viewed the car in the impounding lot on‘October 11, 1967, and searched the trunk of the car. He also removed paint samples from the exterior surface of the appellee’s automobile, consisting of the outer coat of paint and the two primer coats underneath. At the appellee’s trial this technician testified that he found no difference in the color, texture or the order of layering of paint of these samples as compared with foreign paint marks found on the victim’s car.

The respondent raises three grounds in attempting to support the warrantless seizure and subsequent search of the appellee’s automobile: first, that the search of the automobile was with the consent of the appellee; second, that the search was incident to a valid arrest; and third, that the vehicle itself was an instrumentality of the crime in plain view which the officers had probable cause to believe was used in the commission of a felony. As a corollary to the third contention, the respondent claims that no search was in fact conducted since no items were seized from the interior of the car but rather that the paint scrapings were removed from the exterior surface of the vehicle as a result of a scientific examination of an instrumentality of the crime.

The district court’s finding, which we deem to be correct, that the first two contentions were without merit is so fully discussed in its opinion that nothing further need be said with respect to these issues. We confine ourselves to some additional observations concerning respondent’s third contention.

Initially, what may be termed a point of semantics needs clarification. The respondent’s use of the term “instrumentality of the crime” is an attempt to raise the ghost of an outmoded concept which was laid to rest by the Supreme Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), where the Court dispensed with the “mere evidence” distinction which had worked its way into the law of search and seizure. Mr. Justice Brennan’s words deserve repetition:

Nothing in the language of the Fourth Amendment supports the distinction between “mere evidence” and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the “right of the people to be secure in their persons, houses, papers, and effects . . .,” without regard to the use to which any of these things are applied. This “right of the people” is certainly unrelated to the “mere evidence” limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality ; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same “papers and effects” may be “mere evidence” in one case and “instrumentality” in another. 387 U.S. at 301-302, 87 S. Ct. at 1647.

Mr. Justice Stewart also reiterated the demise of the “instrumentality of a crime” and “mere evidence” distinction in Coolidge v. New Hampshire, 403 U.S. 443, 464, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The respondent’s third contention is thus premised on an unwarranted assumption. As aptly stated by the district court: “The instrumentality theory assumes that any object used in the commission of a crime may be seized at any time without a warrant as long as the officers have probable cause to believe that the object was used in the commission of a crime and the officers are lawfully in a position to view the object.” 354 F.Supp. at 41. We fully approve the district court’s answer to this premise: “The police cannot seize an automobile on the theory that it is an instrumentality of a crime which is in plain view in calculated disregard for the Fourth Amendment requirement that application be made to a judicial officer for a search warrant absent exigent circumstances.” 354 F.Supp. at 41. Since no exigent circumstances existed in this case the respondent’s instrumentality theory must fail.

The district court indicates that for purposes of deciding the case it is “assuming” that the officers were in a position legally to apply the plain view exception to the warrant requirement. However, the facts of this ease clearly establish that even though the officers had probable cause to seize appellee’s automobile they in fact never observed the vehicle at all but rather merely dispatched a wrecker to the site where they believed the car was parked. Stated in its simplest form there can be no “plain view” when there is no “view” at all. To attach such an extension to the plain view exception to the warrant requirement would undercut the very, foundations of fourth amendment protections and consequently such a proposition is untenable. It is for this very reason that Mr. Justice Stewart, in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), emphasized the importance of inadvertence in discovering the evidence when applying the plain view doctrine. We are in accord with this reasoning. Hence, when law enforcement officers have prior knowledge amounting to probable cause establishing the nexus between the article sought and the place of seizure a warrant must be obtained in order to protect the fourth amendment principle that warrantless seizures are per se unreasonable in the absence of exigent circumstances.

The respondent’s contention that no search was in fact conducted of the vehicle because the paint scrapings were removed from the exterior surfaces of the car during a scientific examination of evidence of the crime is also untenable. This reasoning is unsound because it is based on the premise that the car was properly seized without a warrant —a contention which we have held to be incorrect under any of the theories advanced by the respondent. Also we cannot agree that standing alone, the police actions involving the vehicle were not a search. As correctly stated by the district court in footnote 10 of its opinion:

Respondent also apparently argues that there was no search and seizure because the only thing seized — paint —was from the exterior of the car. No cases are cited supporting this novel proposition. Admittedly, testimony .describing the exterior color of the car would not run afoul the Fourth Amendment if the witness had lawfully been in a position to observe its color. However, the intrusion herein was not limited to an observation of the exterior of the automobile. A search was conducted of the layers of paint beneath the visible surface of the vehicle. 354 F.Supp. at 35.

In our view the action of the police lab technician in lifting the layers of paint from the exterior car body was as much a search as his opening the trunk of the vehicle.

The judgment of the district court is affirmed.

      . The district court opinion states :
      Accordingly, it is ordered that the writ of habeas corpus issue ninety days after the filing of this Opinion and Order, and that petitioner be released - from custody, unless within such ninety day period State officials initiate action for a new trial of petitioner. If State officials initiate action for a new trial, it is ordered that no writ of habeas corpus shall issue. Lewis v. Cardwell, 354 F.Supp. 26 (S.D.Ohio (1972).

      . The district court found that the keys were actually obtained from the appellee’s attorney who relinquished them to the state officials under protest to avoid a physical confrontation. The full details of this incident are recounted in the lower court’s opinion. What is important for our purposes is that the court found that the appellee did not consent to the seizure and search of his automobile. This finding is not clearly erroneous.

      . The district court spells out the lack of exigent circumstances at several points in its opinion. Of particular significance is the fact that the police had planned for several weeks to seize the vehicle but made no effort to obtain a warrant.

      . The Court is cognizant of the fact that Part II 0 of Mr. Justice Stewart’s opinion was only concurred in by three other justices. However, another justice, Mr. Justice Harlan did concur in the judgment in that case and consequently the evidence seized from the Coolidge automobile was suppressed. Further, Mr. Justice Harlan concurred in Part II D of Mr. Justice Stewart’s opinion, a section specifically designed to counter the arguments “that can be made against our interpretation of the ‘automobile’ and ‘plain view’ exceptions to the warrant requirement.” Coolidge v. New Hampshire, 403 U.S. 443, 473, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1971).
      This Court has accepted the full reasoning of Mr. Justice Stewart’s opinion concerning the plain view and automobile exceptions just last year in Cook v. Johnson, 459 F.2d 473 (6th Cir. 1972). We reaffirm the correctness of that position. See Annot., 29 L.Ed.2d 1067, 1073-1078 (1972).

      . This same error appears in the Ohio Supreme Court’s opinion on the appellee’s appeal, State v. Lewis, 22 Ohio St.2d 125, 258 N.E.2d 445 (1970). There the court, relying on People v. Teale, 70 Cal.2d 497, 75 Cal.Rptr. 172, 450 P.2d 564 (1969), upheld the search as proper since the car was an instrumentality of the crime. However, the Ohio Supreme Court failed to note that in Teale the initial seizure of the automobile was justified as being incidental to the defendant’s arrest.
      Respondent’s reliance upon Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) is misplaced since the underlying premise of the Supreme Court’s holding in that case was that the initial seizure of the vehicle was properly made pursuant to the California Narcotics statute, providing for seizure and forfeiture proceedings. Therefore, the seizure was not constitutionally infirm.

      . On this appeal the respondent cites two cases which he considers analogous to the police actions here. Both cases involve the police obtaining a vehicle’s serial number by opening the door of a car already properly in police custody. In both cases the police acted without a warrant.
      In United States v. Graham, 391 F.2d 439, 442 (6th Cir. 1968), this Court stated :
      Where police obtain an article for safekeeping from a suspect taken into custody pursuant to a lawful arrest, we find no authority which requires them to get a search warrant before examining the article for the purpose of finding a serial number by which the article might be accurately identified. [Emphasis added].
      This Court went on to hold:
      It is here concluded and held that an examination of an automobile properly in police custody is not a search thereof, and that evidence of the serial number of such car is not excludable from evidence because it was obtained in the course of such an examination. 391 F.2d at 443 [Emphasis added].
      This Court relied on Cotton v. United States, 371 F.2d 385 (9th Cir. 1967), in Graham, supra. In Cotton the Ninth Circuit stated:
      They [the police] also had a duty to keep a record of the property that they had impounded so that it could be returned to the suspect or to its owner in due course. For reasons stated below, we do not think that the mere opening of the door of the car for the purpose of making such a record was, under the circumstances, a search, but if it was, the circumstances under which it was done make that search an entirely reasonable one. 371 F.2d at 392.
      The court in Cotton, supra, also specifically limited its holding, stating:
      When Cotton acquired the car, the serial number and motor number came with it. And we would limit the right to check [the identification number] to those cases in which there is a legitimate reason to do so. 371 F.2d at 393.

        See also, United States v. Pearson, 448 F.2d 1207 (5th Cir. 1971); United States v. Johnson, 431 F.2d 441 (5th Cir. 1970).
      We would note that other courts have held that obtaining vehicle serial numbers by opening a car door under similar circumstances is an illegal search. See, e. g., Simpson v. United States, 346 F.2d 291 (10th Cir. 1965).
      The Graham and Cotton cases are clearly distinguishable from the instant case. In both cases the vehicles were already properly in police custody — -a situation different from the facts before us. Also both Graham and Cotton were Dyer Act cases and are limited to the situation where the police obtained the serial number of cars for identification purposes.