text:
    Rhelda KULL et al., Plaintiffs-Appellants, v. MID-AMERICA PIPELINE CO., and Chevron Oil Co., et al., Defendants-Appellees.
    No. 72-2672.
    United States Court of Appeals, Fifth Circuit.
    March 29, 1973.
    Bob Hoblit, Odessa, Tex., for plaintiffs-appellants.
    John E. Gunter, Midland, Tex., (rep. Mid-America) Perry Davis, Jr., Odessa, Tex., for defendants-appellees.
    Before BELL, INGRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

In this Texas diversity case, two employees of the independent contractor hired by Chevron Oil Co. to excavate for a new pipeline were killed when the digging machine operated by them struck and exploded an underground pipeline carrying flammable gas. Their widows brought this survival action against Chevron, among others, alleging that Chevron had failed to provide the men a safe place to work, had failed to provide their employer with information about existing pipelines buried along the right-of-way of the proposed line, and had failed to make a proper investigation to determine the location of existing lines. The District Court granted summary judgment for Chevron and sanctioned this appeal by making the requisite certification under Rule 54(b), F.R.Civ.P.

We agree with the District Court that, on the uncontradicted facts, Chevron is not liable for the injuries to these two workers employed by its independent contractor.

As to the status of the independent contractor, the Contract, designating Chevron as “Company” and the independent contractor as “Contractor,” provides:

202. Contractor’s Status — Contractor shall perform the work as an independent contractor (controlling all ways and means incident to the proper performance and completion of the work) and not as an employee of the Company (ivhich shall have no right to control the methods of operation). (Emphasis added)

As to existing lines along the proposed right-of-way, the Contract provides:

503. Existing Lines — Contractor shall locate and stake the position of the existing lines at such intervals as circumstances may require and to the satisfaction of Company to insure that proper care is exercised so that no damage is incurred to the existing line. Contractor shall not operate equipment over existing pipelines when ground is soft and wet or otherwise incapable of supporting equipment without damaging the pipeline. The existing lines on the surface shall be lowered and cov-ered with sufficient soil that equipment may pass over them without damaging the pipe. In case Contractor damages or breaks any of the existing pipelines or facilities, Contractor shall be liable for all damages or losses, including product losses, and shall fully indemnify and hold Company harmless from any attendant personal injury or property damage claims. Although Company shall provide Contractor with such information as Company has available as to location of existing pipelines and facilities not otherwise apparent, nevertheless, Contractor shall be solely responsible for locating them before ditching or doing other ivork, notwithstanding the fact that Company furnishes or fails to furnish such information accurately. (Emphasis added)

The uncontradicted testimony of the foreman of the independent contractor showed that it undertook sole responsibility to locate underground pipelines. He testified that he knew of a sign in the area indicating the pipeline struck by the digging machine. There is no evidence that Chevron withheld any information in its possession.

Contrary to appellants’ argument, under Texas law Chevron owed no duty to the contractor’s employees to locate existing pipelines, having no actual control of the operation and having reserved no right of control more than that deemed necessary to secure satisfactory completion of the work. Texaco, Inc. v. Roscoe, 290 F.2d 389 (5th Cir. 1961); Hurst v. Gulf Oil Corp., 251 F.2d 836 (5th Cir.), cert. denied, 358 U.S. 827, 79 S.Ct. 44, 3 L.Ed.2d 66 (1958); Sword v. Gulf Oil Corp., 251 F.2d 829 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 41, 3 L.Ed.2d 65 (1958).

Affirmed.


source: Caselaw Access Project

author: DONALD RUSSELL, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Carl Turner MOCK et al., Appellants. UNITED STATES of America, Appellant, v. 1,472.0 ACRES OF LAND, etc., et al., Appellees.
    Nos. 72-2068, 72-2069.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1973.
    Decided April 5, 1973.

      Prof. Eugene F. Mooney, University of Ky. School of Law, Lexington, Ky., for appellants in No. 72-2068 and for apin No. 72-2069.
    Robert L. Klarquist, Atty., U. S. Dept, of Justice (Kent Frizzell,. Asst. Atty. Gen., Leigh B. Hanes, Jr., U. S. Atty., Birg E. Sergent, Asst. U. S. Atty., and George R. Hyde, Atty., U. S. Dept, of Justice, on brief), for appellee in No. 72-2068 and for appellant in No. 72-2069.
    Before RUSSELL and FIELD, Circuit Judges, and BRYAN, District Judge.
   DONALD RUSSELL, Circuit Judge:

On July 23, 1969, the United States filed a Declaration of Taking for, and paid into the District Court the estimated value of, certain lands in Washington County, Virginia, which were being acquired as a part of the Mount Rogers National Recreation Area. At the time of the taking, Eunice B. Mock and Annette B. Mock each owned an undivided one-half interest in the land being taken. On August 29, 1969, Annette B. Mock executed deeds to a portion of her share of the lands in favor of the appellees. The appellees were then permitted by the District Court, over the objection of the Government, to intervene in the condemnation proceedings. It was the position of the appellees in their petition to intervene that the Declaration of Taking was ineffective and title in the property did not pass to the Government until it took actual possession, which was subsequent to the time Annette B. Mock had executed her deeds to the appellees. The appellees accordingly asserted that as owners of an interest in the land at the time the Government acquired title by possession, they were entitled to receive fair value for their interest in the property being taken. The District Court sustained their right to compensation for their interest and referred to Commissioners under the terms of Rule 71A, Federal Rules of Civil Procedure, 28 U.S.C., the fixing of fair compensation for the appellees. The District Court, however, reduced on subsequent hearing the compensation found due the appellees as the fair value of their interests as fixed by the Commissioners, and gave judgment for the amount determined by it to be fair value in favor of the appellees. Both the Government and the appellees-intervenors have appealed. The Government appeals from the order allowing the appellees to intervene and the order granting them judgment in the proceedings; the appellees assail the District Court’s reduction in the award as made them by the Commissioners.

We reverse.

The vital issue in the appeal is the validity of the Declaration of Taking. It is well settled — and the appellees do not seriously argue otherwise — that, if the Declaration was valid under the provisions of Section 258a, 40 U.S.C., title to the property in question passed to the Government on July 23, 1969 (Travis v. United States, Ct.Cls.1961, 287 F.2d 916, 919, 152 Ct.Cl. 739, cert. denied 368 U.S. 824, 82 S.Ct. 42, 7 L.Ed.2d 28; United States v. 12 Tracts of Land, Comprising 50.07 Acres, D.C.N.C.1967, 268 F. Supp. 125, 143), and the deeds thereafter executed by Annette B. Mock to the appellees were ineffective either as conveyances (since the grantor no longer was the owner) or as a partial assignment of the claim of Annette B. Mock to compensation, because in violation of the Assignment of Claims Act (United States v. Dow, 1958, 357 U.S. 17, 20-21, 78 S.Ct. 1039, 2 L.Ed.2d 1109). The ground on which the appellees predicate their attack on the Declaration is that it does not comply with the requirement, as stated in Section 258a, that the Declaration shall contain “a statement of the authority under which and the public use for which said lands are taken.” Specifically, they contend the lands were taken for inclusion in the Mount Rogers National Park, and that, though they concede the Government had the statutory power to condemn for inclusion in such Park, the Declaration did not identify the Act creating the Park as its authority for the taking. On the other hand, the Declaration did identify as its authority both the Appropriations Act providing the funds for the acquisition of property for inclusion in the Park, and other Acts related to but not directly identified with the Park.

We are of the opinion that the attack on the Declaration is without merit. It has been uniformly held that “the statutory authorization to procure real estate may be evidenced by the making of an appropriation as well as by a specific authorization to acquire.” Poison Logging Co. v. United States (9th Cir. 1947) 160 F.2d 712, 714. See also, United States v. Kennedy (9th Cir. 1960) 278 F.2d 121, 122. Moreover, the fact that the Declaration, though based on the correct legislative appropriation authority, referred to inaccurate substantive enabling legislative authorization would be unimportant, if there was in fact valid substantive enabling statutory authority for the taking. United States v. Certain Lands in the County of Fairfax (1953) 345 U.S. 344, 348, 73 S.Ct. 693, 97 L.Ed. 1061; United States v. Catlin (7th Cir. 1953) 204 F.2d 661, 663, aff’d. 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911. As we have already observed, the appellees concede there is valid enabling legislative authority in the Government to acquire land for the purpose intended here.

Since the Declaration of Taking was valid, the District Court was in error in allowing intervention by the appellees and in making any award in their favor. The order allowing intervention and the judgment awarded the appellees should be vacated.

Reversed and x-emanded with instructions.

      . See United States v. Dow (1958), 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1100.

      . 31 U.S.C. § 203.

      . Mount Rogers National Recreation Area Act of 1966, Public Law 89-438, 80 Stat. 180, 16 U.S.C. §§ 460r to 460r5.


author: SEITZ, Chief Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 42, INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, Respondent.
    No. 72-1145.
    United States Court of Appeals, Third Circuit.
    Feb. 21, 1973.
   OPINION SUR PETITION FOR REHEARING IN BANC

Before SEITZ, Chief Judge, and HASTIE, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN and HUNTER, Circuit Judges.

SEITZ, Chief Judge.

The petition for rehearing, filed by respondent Local No. 42, asserts several grounds for rehearing in banc; but we need address ourselves only to the attack on the validity of our Local Rule 12(6) which provides in pertinent part that: “Ox’al argument may be dispensed with, or shortened, by an unanimous order of the panel to which the case has been assigned.”

The petitioner first contends that the panel’s denial of oral argument pursuant to the local rule violates Rule 34 of the Federal Rules of Appellate Procedure. Rule 34(b) seems most pertinent to petitioner’s contention:

(b) Time Allowed for Argument. Unless otherwise provided by rule for all cases or for classes of cases, each side will be allowed 30 minutes for argument. If counsel is of the opinion that additional time is necessary for the adequate presentation of his argument, he may request such additional time as he deems necessary. Requests may be made by letter addressed to the clerk reasonably in advance of the date fixed for the argument and shall be liberally granted if cause therefor is shown. A party is not obliged to use all of the time allowed, and the court may terminate the argument whenever in its judgment further argument is unnecessary.

In our view, the quoted language of Rule 34(b) neither explicitly nor by implication mandates oral argument. Nor does the Advisory Committee’s Note on Rule 34 speak to our precise issue. Against this background, we reject petitioner’s contention and refuse to construe Rule 34 to require oral argument in every case. Such a rigid requirement would be incompatible with the need of the judiciary to husband its time by limiting argument to those cases in which the court believes it will aid in the quality of the decision-making process. Rather, we hold the rule merely establishes certain procedures in the event oral argument is granted.

Our construction of Rule 34 renders it unnecessary to decide whether the “[ujnless otherwise provided by rule for all cases or for classes of cases” language of Rule 34(b) authorizes our Local Rule 12(6). See In re Amendment of Rule 3, 440 F.2d 847, 849 (9th Cir. 1970).

The petitioner next argues that the denial of oral argument pursuant to Local Rule 12(6) violated the Due Process Clause of the Fifth Amendment. It will be recalled that Local Rule 12(6) permits dispensation with oral argument only when the panel which is to decide the case unanimously agrees. Thus, any one member of the panel may require oral argument. Furthermore, the vote as to whether to have oral argument comes only after the panel has received the briefs and appendix in the case. Thus, each member of the panel which is to decide the case is in a particularly knowledgeable position to determine whether he thinks oral argument may be helpful to him in reaching his decision.

Given the manner in which our rule operates, we are unwilling to say that a denial of oral argument pursuant to our local rule constitutes a violation of the Fifth Amendment. In an administrative law context, the Supreme Court said in FCC v. WJR, The Goodwill Station, 337 U.S. 265, 276, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353 (1949): “Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised.” We see no reason why the same principle does not apply to judicial proceedings. See Huth v. Southern Pacific Co., 417 F.2d 526 (5th Cir. 1969).

The petition for rehearing in banc will be denied.

HASTIE, J., concurs in the result.


author: SETH, Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Ben F. BOONE, Appellee.
    No. 72-1484.
    United States Court of Appeals, Tenth Circuit.
    April 9, 1973.

      Dirk D. Snel, Atty., Dept, of Justice (Kent Frizzell, Asst. Atty. Gen., James L. Treece, U. S. Atty., Charles W. Johnson, Asst. U. S. Atty., George R. Hyde and Jacques B. Gelin, Attys., Dept, of Justice, with him on the brief), for appellant.
    Robert W. Hansen, Denver, Colo., for appellee.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   SETH, Circuit Judge.

The United States brought this damage action against Ben F. Boone to recover the cost incurred in suppressing a forest fire which spread from the defendant’s land, where he was burning brush, to a National Forest. The suit was tried to a jury which found for the defendant, and the United States has taken this appeal.

The issue on appeal centers on the dismissal of one of the two causes of action in the complaint. The first cause asserted negligence in setting on fire a pile of brush by defendant on his property. The cause went to the jury. The second cause of action, which was dismissed by the trial judge before submission to the jury, was based on a Colorado statute which the Government asserts creates an absolute liability and is applicable. This statute (C.R.S.1963 § 41-2-5) reads in part:

“If any person shall set on fire any woods or prairie, so as to damage any other person, such person shall make satisfaction for the damage to the party injured, to be recovered in an action before any court of competent jurisdiction.”

The facts are not in dispute. The record shows that the defendant Boone and an employee of the United States Soil Conservation Service were on Boone’s ranch to survey and stake out a damsite for a livestock pond. There was a pile of brush on the proposed site, and Boone struck a match and set it on fire. A few minutes later a sudden wind came up, the fire burned out of control and spread on to the lands of the San Juan National Forest which adjoined Boone’s property. The fire burned approximately 315 acres of national forest land, and thereafter the United States brought suit to recover the monies expended by it in suppressing the fire, in restoring the watershed, and for timber and other resource damage in the amount of $31,475.11.

The United States on this appeal asserts that the District Court committed error in holding that state law was not available to the United States as a ground for recovery, and that the second cause based on C.R.S.1963 § 41-2-5 should not have been dismissed.

Appellee Boone urges us to hold that even if C.R.S.1963 § 41-2-5 is applicable, which it is not, it sets forth no basis for liability other than negligence which was submitted to the jury and resolved in his favor.

The trial court apparently dismissed the second cause of action of the complaint on the ground that damages to the forest were governed exclusively by federal law.

There appears to be little authority that is helpful on the application of a state statutory standard of liability or remedy for damages to the national forest under these circumstances.

The damage asserted was to the plaintiff’s lands in Colorado. These lands were part of the San Juan National Forest created by proclamation in 1905 out of lands formerly public domain. The statutory authority for the forest is in 16 U.S.C. §§ 471 and 480. These provide generally for the preservation of state civil and criminal jurisdiction within the forest. There is no other statutory provision putting the area within any special category of federal jurisdiction, and there is no authority demonstrating why this tract should be treated differently than any other land in Colorado for these purposes. Colorado statutes on other subjects govern the actions of individuals in this forest, and no reason appears why the United States as a landowner should not avail itself of Colorado statutory provisions which are available to other landowners under like circumstances. See Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663, 90 L.Ed. 793; Texas Oil & Gas Corp. v. Phillips Petroleum Co., 406 F.2d 1303 (10th Cir.); Allen v. Bailey, 91 Colo. 260, 14 P.2d 1087. The Fifth Circuit in United States v. Williams, 441 F.2d 637 (5th Cir.), considered a boundary dispute which presents some different aspects, but it held that suits by the United States to protect its proprietary interest are local in nature. The same rationale is applicable here.

Thus we hold that the trial court was in error in dismissing the second cause of action in the absence of any contravening federal statute or policy.

Whether a violation of C.R.S.1963 § 41-2-5 subjects Boone to absolute liability or would merit an instruction on negligence per se, whether it refers to deliberate attempt to damage, or whether it sets forth merely a negligence theory on which the jury has already considered the first count, we express no opinion as this is a matter for the trial judge on remand. The Colorado courts have apparently not construed the statute.

The appellee raises an issue on appeal concerning contributory negligence arising from the presence of a Government employee, but we find no merit in this issue.

Reversed and remanded for further proceedings.


author: PER CURIAM:

text:
    Harry L. WASHBURN, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-3670
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 12, 1973.

      James E. Maggard, Jr., Staff Counsel for Inmates, TDC, Ramsey Unit # 1, Rosharon, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BELL, COLEMAN and GODBOLD, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

Appellant, a Texas state prisoner serving life for murder with malice aforethought (killing by attaching dynamite to the automobile of the victim) complains of the denial to him of federal habeas relief.

The original conviction was appealed and reversed. Washburn v. Texas, 164 Tex.Cr.R. 448, 299 S.W.2d 706 (1957). His subsequent conviction was affirmed. Washburn v. Texas, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958), cert. denied, 359 U.S. 965, 79 S.Ct. 876, 3 L.Ed.2d 834. He was then denied state habeas relief and that denial was affirmed. Ex parte Washburn, 383 S.W.2d 592 (Tex.Cr.App. 1965). Federal habeas relief involving the same contentions of error was then denied by the United States District Court for the Southern District of Texas, and later by the United States District Court for the Northern District of Texas. Additional grounds had been included in the habeas petition in the latter court, and the decision of the court was partially on the ground of failure to exhaust available state remedies.

Appellant then repaired to the state habeas court with new grounds, relief was denied, and that judgment was affirmed without written order. Washburn v. Beto, May 10, 1971. Appellant thereupon returned to the federal forum on the same grounds, relief was denied, and this appeal followed.

We are presented with two assignments of error by appellant through his counsel, the many other claims asserted in past litigation having apparently been abandoned. The first of these assignments is that the jury was exposed to the sight of a jar containing the flesh of the deceased, although the trial court ruled it inadmissible. There is no support whatever in the record that this exhibit was called to the attention of the jury. The record shows no more than that it was on the table of counsel at some point in the trial. This matter was thoroughly considered in the Texas Court of Criminal Appeals on the direct appeal. 318 S.W.2d at 635, 638. It is a recurring point in the subsequent habeas proceedings. As the Court of Criminal Appeals pointed out, p. 635, supra, there was a basis for the evidence even though the trial court ruled it inadmissible. We have carefully considered this claimed error and conclude that it is not a “federally reversible” error if error at all. Moore v. State of Illinois, 1972, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706.

The other assignment of error is that there was an illegal search of appellant’s garage through which prejudicial evidence was uncovered. The product of this search was wire of the type used to wire the automobile in question. We are unable to find any basis in the record for this claim. Appellant raised this same claim in habeas corpus proceedings in the state court. He was given a full and fair opportunity to present evidence in support of it there, and he presented none. He proffers none here. That is the end of the matter.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marta RODRIGUEZ and Raul Jesus Alverez, Defendants-Appellants.
    No. 72-1909
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 9, 1973.
    Rehearings Denied May 17, 1973.
    Lewis Williams, Eugene J. Howard, Miami, Fla., for Rodriguez.
    Donald I. Bierman, Miami, Fla., for Alverez.
    Robert W. Rust, U. S. Atty., Barbara E. Vicevich, Asst. U. S. Atty., Miami, Fla., for United States.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Marta Rodriguez was convicted by a jury of distribution of heroin and cocaine, of possession of those narcotics with intent to distribute them, and of conspiracy to commit the foregoing offenses. Appellant Raul Alverez was convicted after a separate jury trial of conspiracy to possess and distribute the narcotics.

Alverez contends that the evidence was insufficient to support his conviction. The record shows that Alverez was to obtain narcotics, destined for Chicago, from an anonymous “connection,” and was to give the narcotics to an alleged co-conspirator, Rene Vandenades, in Miami, Florida. The Government, through the testimony of a paid informant, proved that Alverez met Vandenades and/or the informant in Miami on three occasions. At the first meeting, Alverez said that his “connection” was reluctant to deal with Vandenades because Vandenades was “hot”; but he told Vandenades to go to the beach that afternoon. The first meeting was abruptly terminated when a companion of Alverez told the group that he suspected that they were under surveillance. Later that day, Alverez met the informant for a second time. Alverez again said that the connection was afraid that Vandenades’ involvement might result in the loss of “four or five kilos,” worth a considerable sum, but told the informant to rent a car and be prepared to leave for Chicago the following morning. Alverez did not appear at the appointed time the next morning, but during his third meeting with the informant that night he explained that he had been unable to appear because he was trying (unsuccessfully) to get “something” from the connection. At this third meeting, Alverez asked Vandenades to accompany him the next day to negotiate with the connection.

This was the sum of the Government’s direct evidence against Alverez. The remainder of the testimony showed that Vandenades abandoned the scheme of sending narcotics to Chicago and decided to send them instead to New York. The informant, accompanied by Marta Rodriguez, drove Vandenades to a service station where he took the narcotics from the trunk of his car; the informant and Rodriguez then drove around Miami while Vandenades made up smaller packages of narcotics in the back seat of the informant’s car.

The Government’s case against Alverez was hardly conclusive, but viewing the evidence in the light most favorable to the Government we believe there was sufficient evidence upon which the jury could base a finding of guilt beyond a reasonable doubt. In none of Alverez’s meetings with Vandenades or the informant were the words “narcotics,” “heroin,” or “cocaine” used; but a special agent of the Bureau of Narcotics and Dangerous Drugs testified that when Alverez said “kilos” he was using the common reference to a quantity of narcotics. Moreover, we cannot accept the contention that Alverez did nothing in furtherance of the conspiracy, because the record clearly demonstrates that Alverez was negotiating with the connection for the narcotics, and enlisted Vandenades’ aid when the connection appeared ready to abandon the deal. Finally, even considering Vandenades’ change of plans with regard to the destination of the narcotics, we are not prepared to say that the jury could not reasonably conclude that Alverez’s negotiations with the connection enabled Vandenades to ultimately obtain the narcotics. Therefore, we reject Alverez’s claim that there was insufficient evidence to warrant his conviction.

We have considered the other contentions of both appellants, and find them to be without merit.

Affirmed.


author: KENT, Circuit Judge.

text:
    James A. McCRAVY, Petitioner-Appellee, v. Robert MOORE, Warden, Tennessee State Penitentiary, Respondent-Appellant.
    No. 72-1863.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 7, 1973.
    Decided April 3, 1973.

      R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., for respondent-appellant; David M. Pack, Atty. Gen., State of Tennessee, of counsel.
    Eric D. Christiansen (court appointed), Burkhard & Christiansen, Green-ville, Tenn., for petitioner-appellee.
    Before MILLER, KENT and LIVELY, Circuit Judges.
   KENT, Circuit Judge.

This is an appeal by the State of Tennessee from the District Court’s order granting the petitioner-appellee’s application for a writ of habeas corpus, filed under the provisions of 28 U.S.C. § 2254. Appellee was convicted in the State Courts of Tennessee of the forcible rape of his wife’s 14-year old sister. The offense was alleged to have occurred while the appellee’s wife was at work. Within a very short time appellee was apprehended by the police. The police went to his home where the offense was alleged to have occurred, and when his wife returned the police informed her of the arrest and asked permission to search the house for evidence. The record shows that the wife consented and immediately departed for the hospital to see her sister. The police entered the house and found in the bedroom towels, sheets and a bedspread, all of which were covered with blood. These articles were introduced at the trial, Appellee’s conviction was appealed and affirmed when the Supreme Court of Tennessee refused to review the conviction.

The District Court granted the petition for writ of habeas corpus on the theory that the search of the Appellee’s home was illegal under Tennessee law despite the consent to the search given by the wife. In affirming the dismissal of the State post-conviction petition the Tennessee Court of Appeals, East Section, had this to say:

“Specifically the petitioner complains that the rules of law relied on in the opinion of-this Court (Eastern Section at Knoxville, 1969) holding that his wife ‘had the right and did waive the right the defendant had to rely upon the Constitutional prohibitions against unreasonable searches and seizures’ as set out in Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, is not the same rule of law followed in other jurisdictions.” McCravy v. State, No. 30 (Tenn.Crim.App. Jan. 4, 1971).

It appears obvious to this Court that the Tennessee Court of Appeals made a ruling upon the legality of the search under Tennessee law with which we find no fault.

Thus, the only issue presented here and the only issue with which the District Court should have been concerned was whether the search was made in violation of the Constitution, or Laws, or Treaties of the United States. The rule has been clearly stated in Frias v. Wilson, 373 F.2d 61, 62 (9th Cir. 1967):

“ * * * the issue in a federal court remains whether judged by federal standards a petitioner was accorded the minimum guarantees afforded by the United States Constitution.”

In the instant case it appears that while the Appellee and his wife had had some difficulties because of his claimed excessive drinking and association with other women, nevertheless, it is clear that they had equal right to possession and occupancy of the home which was searched. The ability of such a joint occupant of premises to consent to a search has been before the United States Courts on numerous occasions. Most of the Courts, including this Court, in United States v. Alloway, 397 F.2d 105 (6th Cir. 1968), have held that a joint occupant may authorize a search. See also United States v. Hughes, 441 F.2d 12 (5th Cir. 1971), cert. denied 404 U.S. 849, 92 S.Ct. 156, 30 L.Ed.2d 88 (1971); United States v. Wilson, 447 F.2d 1 (9th Cir. 1971), cert. denied 404 U.S. 1053, 92 S.Ct. 723, 30 L.Ed.2d 742 (1972); White v. United States, 444 F.2d 724 (10th Cir. 1971); United States v. Cataldo, 433 F.2d 38 (2nd Cir. 1970), cert. denied 401 U.S. 977, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971); United States v. Bamberger, 456 F.2d 1119 (3rd Cir. 1972), cert. denied 406 U.S. 969, 92 S.Ct. 2424, 32 L.Ed.2d 668 (1972).

In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the United States Supreme Court held that the seizure of incriminating clothing found in a duffle bag used by defendant and his cousin, the search of which was consented to by the cousin, was legal, saying at page 740, 89 S.Ct. at page 1425:

“Since Rawls was a joint user of the bag, he clearly had authority to consent to its search.”

Appellee’s argument in regard to difficulties and animosity toward a husband affected by a search to which the wife had consented was considered and rejected in United States v. Lawless, 465 F.2d 422 (4th Cir. 1972), and in Stein v. United States, 166 F.2d 851 (9th Cir. 1948), cert. denied 334 U.S. 844, 68 S. Ct. 1512, 92 L.Ed. 1768 (1948).

We are forced to the conclusion that the Appellee’s wife, having an equal right to access and occupancy of the premises, had the right to consent to the search. Thus the search did not violate any Constitutional right of the Appellee within the meaning of Title 28 U.S.C. § 2254, and the District Court was in error in granting a writ of habeas corpus.

The case will be reversed and remanded to the District Court for dismissal of the petition.

      . § 2254. (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.


text:
    Miss Thais HARRIS, Plaintiff-Appellant, v. CITY OF HOUSTON, TEXAS, Defendant-Appellee.
    No. 72-3279
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 28, 1973.
    Rehearing Denied April 27, 1973.

      Thais Harris, pro se.
    Joseph G. Rollins, Sr. Asst. City Atty., Houston, Tex., for defendant-appellee.
    Before BELL, GODBOLD and INGRAHAM, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

In 1970, appellant filed a petition removing two Houston municipal ordinance violation charges to the federal district court under the authority of 28 U.S.C.A. § 1443. The charges arose out of appellant having more than three dogs on her premises, and also in failing to have a kennel license. As background, she contended and now contends that the charges were filed as part of a conspiracy against her by her neighbors and city officials because of her half Greek ancestry and because her neighbors are of German and British descent. The district court denied removal in 1970.

This appeal is from the denial of the motion of appellant, filed in 1972, praying that the district court order dismissal of the ordinance violation charges.

We construe the denial in 1970 as tantamount to remanding the ordinance violation cases and thus there was no jurisdiction in the district court to consider appellant’s motion, filed in 1972, to dismiss the same charges which were still pending in the Municipal Court of the City of Houston.

Out of an abundance of caution, however, we consider the 1972 proceedings as an additional removal petition. See 28 U.S.C.A. § 1446(c). So considered, remand was again due for the reason that, as in the 1970 removal, there was no showing whatever of the violation of a right which rests on a federal law providing for equal civil rights stated in terms of racial or national origin equality. Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).

Appellant has proceeded pro se and we add the additional statement for clarity: She is not entitled under any known authority to remove the municipal charges in question to the federal court.

Affirmed.


text:
    Lonnie Keith LEE, Plaintiff-Appellant, v. WASHINGTON PARISH, STATE OF LOUISIANA, Defendant-Appellee.
    No. 72-3740.
    United States Court of Appeals, Fifth Circuit.
    April 9, 1973.
    Lonnie Keith Lee, pro se.
    William Guste, Atty. Gen., Baton Rouge, La., Woodrow W. Erwin, Dist. Atty., Franklinton, La., John N. Gallaspy, Asst. Dist. Atty., Bogalusa, La., for defendant-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
   PER CURIAM:

The appellant, who is a prisoner of the State of Louisiana, filed a federal habeas corpus petition in the district court challenging the validity of his conviction for attempted murder. In his petition the appellant conceded that he had not exhausted his remedies within the Louisiana courts, but argued that his attempts to comply with 28 U.S.C. § 2254 had been thwarted. The district court dismissed the action finding that he had an adequate remedy in the form of his direct criminal appeal pending in the Louisiana Supreme Court. The appellant filed a timely notice of appeal from the district court’s dismissal order and the case was docketed in this Court. We dismiss the appeal for want of jurisdiction.

Despite his notice of appeal from the district court’s adverse ruling, the appellant neither requested nor obtained a certificate of probable cause. Section 2253 of Title 28 of the United States Code unequivocally states that an appeal from the denial of a state prisoner’s habeas petition may not be taken unless a certificate of probable cause is granted either by the district court or by this court. See also Rule 22(b), F.R.App.P.; Hooks v. Fourth District Court of Appeal, 5th Cir. 1971, 442 F.2d 1042; Hines v. Pitcher, 5th Cir. 1971, 440 F.2d 792; McFrederick v. Florida, 5th Cir. 1958, 261 F.2d 52.

It would be improper for this Court to make the initial determination of whether a certificate of probable cause should be granted or denied. Stewart v. Beto, 5th Cir. 1971, 454 F.2d 268. This Court has advised the appellant that he should apply for a certificate of probable cause in the district court, but he has failed to follow our instructions. The lack of a certificate of probable cause is jurisdictionally fatal. This appeal is

Dismissed.

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.


text:
    UNITED STATES of America, Appellee, v. Jose Luis GARCIA, Appellant.
    No. 72-3179.
    United States Court of Appeals, Ninth Circuit.
    April 5, 1973.
    James M. Gattey, Gregorich, Gattey & Hunt, San Diego, Cal., for appellant.
    Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., Chief, Grim. Div.; James W. Meyers, Asst. U. S. Atty., San Diego, Cal., for appellee.
    Before BROWNING and ELY, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, United States District Judge, Portland, Oregon, sitting by designation.

   OPINION

PER CURIAM:

Garcia was convicted of two drug offenses proscribed by 21 U.S.C. § 174. His offenses were committed, and he was indicted, before May 1, 1971, the date when the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1236, 21 U.S.C. § 801 et seq., became effective. That Act repealed the provisions of 26 U.S.C. § 7237(d), which had provided for mandatory sentences for offenses such as those committed by Garcia and had further provided that the provisions of 18 U.S.C. § 4202, permitting parole, should not be applicable to such cases.

On this appeal, Garcia makes only one contention, i. e., that he was entitled, contrary to the District Court’s interpretation, to the application of the mSre lenient provisions of the 1970 Act. He bases his contention on the fact that his conviction and sentence occurred after the effective date of the Act. Very recently, a similar contention was rejected by the Supreme Court of the United States. Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). Accordingly, the judgment of the District Court is affirmed.


text:
    Travis Lloyd BALL, Plaintiff-Appellee, v. DELTA MARINE DRILLING COMPANY et al., Defendants-Appellants.
    No. 72-2655.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1973.
    Lawrence J. Ernst, New Orleans, La., for Delta Marine and Fidelity & Cas. Co.
    Patrick E. Jones, Metairie, La., for plaintiff-appellee.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   PER CURIAM:

We have carefully considered the grounds for appeal and with a single exception find them to be without merit. We conclude that the verdict and judgment as to liability for Ball’s injury must be sustained.

The one error which we find occurred relates to the refusal of the trial court to instruct the jury that any award made for future loss of earnings should be discounted to present values where the defendant specifically requested such a change.

Travelers Insurance Company v. Garfield Hurst, 343 F.2d 160 (5th Cir., 1965) clearly implies that such a charge, if requested, should be given. The court there stated:

“We note that no instruction was requested on this point and that no objection was made upon failure to give such an instruction. On oral argument, counsel for the appellant stated, in effect, that he made a tactical decision not to object after the jury had been retired because of his fear of overemphasizing the quantum of damages. In the circumstances of this case and in light of the damages which were awarded, we do not feel that the absence of such a charge constitutes plain error.” 343 F.2d at 161.

See also United States v. Varner, 400 F. 2d 369, 373 (5th Cir., 1968).

Here the request was duly made, and on failure of the court to give it, the court stated: “Mr. Reporter, put in the record . . . give the defendant an exception to all written charges . . . requested by the defendant which were refused.” This obviated the necessity for counsel to renew his objection at the close of the charge.

We conclude that the error was substantial and prejudicial to the defendant and conclude that therefore the verdict for damages cannot stand.

The case is remanded to the trial court for the purpose of submitting only the question of damages to the jury under proper instructions.

The judgment is vacated and remanded to the trial court for further proceedings not inconsistent with this opinion.

Vacated and remanded.


text:
    Robert Earl BRECKENRIDGE, Plaintiff-Appellant, v. Governor Preston SMITH, et al., Defendants-Appellees.
    No. 72-3825
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 3, 1973.
    Robert Earl Breckenridge, pro se.
    Crawford Martin, Atty. Gen., Austin, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This appeal is taken from an order of the district court denying the petition of a Texas state prisoner for a “declaratory judgment” and for the writ of habeas corpus. We affirm.

Appellant was convicted upon trial by jury of possession of marijuana, a narcotic drug, puruant to Article 725b, Vernon’s Ann.Texas Penal Code. He was sentenced to 18 years imprisonment. In his petition filed below, appellant requested the impanelling of a three-judge court to consider the constitutionality of Article 725b. He urged that the law is constitutionally unsound in that it erroneously classifies marijuana as a narcotic drug and sought to have the crime reduced to misdemeanor status and the penalty reduced in addition to his immediate release.

This Court has previously found Article 725b to be constitutionally sound, rejecting the same arguments which appellant offers. Rener v. Beto, 5th Cir. 1971, 447 F.2d 20. Appellant is not entitled to relief. The judgment below is affirmed.


author: LAY, Circuit Judge.

text:
    Donald E. MORAN, Appellant, v. FORD MOTOR COMPANY, a Corporation, Appellee.
    No. 72-1417.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 12, 1973.
    Decided April 20, 1973.
    Martin A. Cannon, Omaha, Neb., for appellant.
    John B. Henley, Omaha, Neb., for appellee.

      Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Sitting by designation.

   LAY, Circuit Judge.

The plaintiff, Donald E. Moran, appeals from the judgment dismissing his claim for personal injury damages allegedly arising from the defendant Ford Motor Company’s breach of warranty and negligence. Plaintiff’s injuries were incurred in an automobile accident on July 9, 1967, near Millard, Nebraska, when his car swerved off the road and overturned. Plaintiff claims that Ford Motor Company breached its duty to furnish a ear reasonably fit for the purposes intended and was negligent, inter alia, in the design and assembly of the wheel suspension system. After plaintiff presented his case before a jury the district court granted defendant’s motion for a directed verdict holding that plaintiff had failed to make a submissible case for the jury.

On appeal plaintiff raises three grounds of error:

1. Whether the trial court erred in directing a verdict for the defendant for the reason that plaintiff failed to offer sufficient evidence to sustain a prima facie case;
2. Whether the trial court erred in simultaneously refusing a continuance and forbidding the testimony of Herbert Egerer, an engineer and metallurgist, because his name was not promptly communicated to the defendant in compliance with pretrial orders; and
3. Whether the court properly excluded the expert opinion testimony of Robert Stungis, an automobile repairman.

We find it unnecessary to respond to plaintiff’s contentions 1 and 2 because of our reversal based on plaintiff’s last contention, i. e., the exclusion of the expert testimony of the witness Robert Stungis.

The accident occurred on July 9, 1967, while Moran was driving his 1966 Ford Mustang on a dry, paved highway. He testified that the ear began to “shimmy,” then suddenly it veered left across the road and rolled over. Following the accident it was discovered that the right front upper ball joint of the car’s suspension system was separated. Plaintiff contends that said upper ball joint of the suspension system was defective prior to the accident. Thus he presented considerable evidence at trial to show that although the right side of the front fender collapsed against the right wall of the engine compartment upon impact, the right front wheel and tire were not damaged. Plaintiff’s theory is that the wheel had become detached prior to impact because otherwise the wheel would have been within the wheel well at the time of impact and the tire and wheel would have been damaged.

Plaintiff called as an expert witness Robert Stungis, an owner and operator of a body and fender shop. Stungis had been in the .auto repair business for eighteen years and had frequently examined wrecked cars. In doing so he had on many occasions inspected suspension systems to discover what parts were broken or worn, what had caused the damages and what pressures were exerted that might cause damage. He stated that he was familiar with the function and operation of a ball joint and that from his experience in the auto repair business he was able to recognize visible wear patterns on most automobile metal parts. Although the trial court allowed Stungis to point out wear that was readily observable, the trial judge did not permit him to testify whether the lower ball joint post was worn, whether the ball was set in the socket straight, whether the wear patterns were uniform, whether he could distinguish between a wear produced condition and one that was produced by an accident, or whether he had an opinion on how the wear oceurred. The trial judge believed Stungis was “unquestionably qualified to do repair work” but he was not “qualified metallurgically-wise, or to demonstrate cause.”

A witness may be qualified as an expert based upon his knowledge, skill, experience, training or education. See generally Hill v. Gonzalez, 454 F.2d 1201 (8 Cir. 1972); Harris v. Smith, 372 F.2d 806 (8 Cir. 1967); Skyway Aviation Corp. v. Minneapolis, Northfield & Southern Railway Co., 326 F.2d 701 (8 Cir. 1964); cf. United States v. Atkins, 473 F.2d 308 (8 Cir. 1973); Rules of Evidence for United States Courts and Magistrates, Rule 702, 56 F.R.D. 183, 282 (1972). The test is whether the witness’ training and experience demonstrate a knowledge of the subject matter. Hill v. Gonzalez, supra, 454 F.2d at 1203. And practical experience as well as academic training and credentials may be the basis of qualification. Grain Dealers Mut. Ins. Co. v. Farmers Union Coop. Elevator & Shipping Ass’n., 377 F.2d 672, 679 (10 Cir. 1967); cf. United States v. Atkins, supra. See also Mathine v. Kansas-Nebraska Natural Gas Co., Inc., 189 Neb. 247, 202 N.W.2d 191 (1972).

Whether a witness is qualified to testify as an expert is normally within the discretion of the trial court. See, e. g., Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); United States v. Atkins, supra; White v. United States, 399 F.2d 813 (8 Cir. 1968); Rhynard v. Filori, 315 F.2d 176 (8 Cir. 1963). However, as this court observed in Twin City Plaza, Inc. v. Central Surety & Insurance Corp., 409 F.2d 1195, 1203 (8 Cir. 1969):

“If the witness, based upon his background skill, possesses extraordinary training to aid laymen in determining facts and if he bases his answer upon what he believes to be reasonable scientific or engineering certainty, generally the evidence should be admitted, subject, of course, to the cross-examination of the adversary. The weaker the scientific opinion or the less qualified the expert, the more vigorous will be the cross-examining attack and undoubtedly the less persuasive will be the opinion to the trier of fact.”

In the instant case we believe Stungis possessed sufficient knowledge and practical experience to make him well qualified as an expert witness. The failure to permit his testimony resulted in prejudicial damage to plaintiff’s attempt to prove causation. We refuse to speculate, as defendant urges, as to whether plaintiff could have proved a submissible case with Stungis’ testimony. To answer this question requires resolution of a hypothetical record not before us. This we have no power to do.

We reverse and remand for a new trial.

      . The suit was originally filed in February 1968. It was subsequently dismissed without prejudice after the same suit was refiled on June 3, 1971.


text:
    BERTIE’S APPLE VALLEY FARMS, an Idaho corporation, et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 72-2741.
    United States Court of Appeals, Ninth Circuit.
    March 29, 1973.

      Lloyd J. Webb, Webb, Pike, Burton & Carlson, Twin Falls, Idaho, for plaintiffs-appellants.
    Sidney E. Smith, U. S. Atty., Thomas C. Frost, Asst. U. S. Atty., Boise, Idaho; Dale Kent Frizzell, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before MERRILL, ELY and WRIGHT, Circuit Judges.
   PER CURIAM:

Plaintiffs sued in state court to quiet title to real and personal property. The government successfully petitioned under 28 U.S.C. § 1444 to remove to the district court where the action was dismissed.

The district court dismissed this action as one against the United States to which it had not consented. The United States is immune from suit except where it consents. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Plaintiff contends that Congress has given its consent to suit in this case in 28 U.S.C. § 2410, which provides in relevant part:

“ . . . the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter (1) to quiet title to . real or personal property on which the United States has or claims a mortgage or other lien.”

The United States does not claim a mortgage or other lien interest in the property involved herein. Rather, the United States claims title to the property, pursuant to an order of the Referee in Bankruptcy for the District of Idaho, who confirmed a sale by the trustee to the Small Business Administration. Congress in § 2410 did not consent to suits against the United States where the United States claims a title interest as distinguished from a lien interest. See Wells v. Long, 68 F.Supp. 671 (D.Idaho 1946) aff’d on other grounds, 162 F.2d 842 (9th Cir. 1947).

The order of the district court is affirmed.


author: LEWIS, Chief Judge.

text:
    Benjamin F. DAUGHTERY, Appellant, v. Warden HARRIS, U. S. Leavenworth Prison, Appellee. Thomas J. PIPER, Jr., Appellant, v. C. E. HARRIS, Warden, Leavenworth Penitentiary, Individually and in his Official capacity, Appellee.
    Nos. 72-1363 (L-2035), 72-1620 (L-2132).
    United States Court of Appeals, Tenth Circuit.
    April 10, 1973.
    Rehearing Denied in No. 72-1363 May 9, 1973.

      Donald E. Cordova, Denver, Colo., for appellants.
    Bruce E. Miller, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Topeka, Kan., with him on the brief), for appellee.
    Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and CHRISTENSEN, District Judge.
   LEWIS, Chief Judge.

Appellants appeal from separate judgments of the United States District Court for the District of Kansas denying injunctive and declaratory relief from rectal searches conducted by officials of the United States Penitentiary at Leavenworth, Kansas. The proceedings in both cases were in forma pauperis. Because the basic facts and issues are identical the appeals were consolidated for argument before this court.

Appellants are inmates at the United States Penitentiary, Leavenworth, Kansas. Appellant Daughtery was subjected to two rectal searches by a physician’s assistant preparatory to being transferred to the custody of the United States Marshal’s Office for transportation to a court appearance. Appellant Piper was also given a rectal examination prior to the United States Marshal’s transporting him to testify in court. The purpose of these searches is to locate any concealed contraband which could be used to threaten the security of a marshal or the court.

The authority to undertake rectal searches stems from a grant of power to the Bureau of Prisons, 18 U.S.C. §§ 4041, 4042, to manage and regulate all federal penal and correctional institutions. The Director of the Bureau of Prisons is empowered to formulate policies and procedures for commitment, control and treatment of inmates in federal institutions. 28 C.F.R. §§ 0.95, 0.96, 0.97. Prison officials at local institutions are also authorized to promulgate procedures consistent with their peculiar needs and problems. Pursuant to this authority the Bureau of Prisons and officials at the United States Penitentiary, Leavenworth, Kansas established procedures concerning the discharge of inmates to the United States Marshal’s Office.

Policy Statement No. 7300.53 of the Bureau of Prisons requires a United States Marshal to exercise every precaution when transferring prisoners, including conducting thorough searches of the person. Due to specific problems which have arisen with the transfer of prisoners in the District of Kansas, prison officials at Leavenworth developed local procedures concerning contraband and searches before releasing prisoners to the United States Marshal’s Office. This directive states:

Effective immediately, dress-out procedures for all inmates to be released to the custody of the U. S. Marshals or U. S. Deputy Marshals will be conducted in the basement of the Administration Building. The Receiving and Discharge Officer will carry the dress-out clothing and escort the inmate to the release room at the time the Marshal arrives to assume custody. The inmate will be given a “strip shake-down” removing all institutional clothing and a rectal examination given by the M.T.A., and dressed in release clothing which will be thoroughly shaken down in the presence of the Marshal or his Deputy. (Director of the United States Penitentiary, Leavenworth, Kansas, October 18, 1971.)

It is the validity of this “strip shakedown” and rectal examination procedure which is brought into question on appeal by appellants’ contention that such procedures violate constitutional guarantees of privacy and prohibitions against unreasonable searches and seizures.

Appellants’ assertions must be examined in light of the basic rule that control and management of federal penal institutions lies within the sound discretion of the responsible administrative agency. Judicial relief will only be granted upon a showing that prison officials have exercised their discretionary powers in such a manner as to constitute clear abuse or caprice. Perez v. Turner, 10 Cir., 462 F.2d 1056, 1057; Evans v. Moseley, 10 Cir., 455 F.2d 1084, 1086. The district court, based upon the pleadings and after taking judicial notice of facts contained in other files and records of the court and facts subject to judicial knowledge, summarily denied relief. We affirm, rejecting appellants’ contentions that the searches are a basic violation of their right to privacy unless special cause is shown in justification and that, in any event, the searches must be conducted by medical doctors and in complete privacy.

Leavenworth is a maximum security institution containing many dangerous inmates and any consideration of the penitentiary’s security regulations must be realistic. There are many known incidents of concealed contraband being carried by prison inmates in the rectal cavity. Several serious episodes, including the wounding of a court officer, were attributable to the ability of inmates to smuggle weapons out of prison. Given these circumstances coupled with an increasing need to assure the safety of our law enforcement and court officials, this policy of allowing rectal searches must be considered reasonable unless contradicted by a showing of wanton conduct. Graham v. Willingham, 10 Cir., 384 F.2d 367, 368. To hold that known cause comparable to that required for a search warrant in private life must precede such a search would be completely unrealistic. It is usually the totally unexpected that disrupts prison security.

Of course, any search should be conducted by prison officials under judicious circumstances. Cf. Bethea v. Crouse, 10 Cir., 417 F.2d 504, 506. Rectal examinations are not medically dangerous as such and while such an examination when done for diagnostic purposes requires professional expertise a search for contraband does not. The searches were here conducted according to the directives issued by the Bureau of Prisons and the Leavenworth administration and the examinations were carried out by trained paraprofessional medical assistants in a designated area and under sanitary conditions. Also, there was no attempt on the part of officials or medical personnel to humiliate or degrade the appellants. The conclusion, therefore, to be drawn from a survey of the facts is that the rectal searches in question were, and are, a necessary and reasonable concomitance of appellants’ imprisonment.

The judgments of the district court are severally affirmed.

      . The Chief Correctional Supervisor at the United States Penitentiary, Leavenworth, Kansas has stated that a typical but incomplete list of contraband items would include the following:
      Weapons of any type, sawblades, narcotics, intoxicants, barbituates, money, pornography, single edge razor blades, or any item which might be used to effect an escape, or any unauthorized books, magazines, newspapers, clothing, medicines, tools, foodstuffs, etc. (Directive of the Chief Correctional Supervisor, United States Penitentiary, Leavenworth, Kansas.)


author: SKOPIL, District Judge:

text:
    UNITED STATES of America, Appellee, v. Michael Francis O’NEILL, Appellant.
    No. 72-1995.
    United States Court of Appeals, Ninth Circuit.
    April 2, 1973.

      Martha Goldin, Atty. (argued), Alan Saltzman, Saltzman & Goldin, Hollywood, Cal., for appellant.
    D. Henry Thayer, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and SKOPIL, District Judge.

       Honorable Otto R. Skopil, Jr., United States District Judge, District of Oregon, sitting by designation.

   SKOPIL, District Judge:

Michael Francis O’Neill appeals from a conviction for refusal to submit to induction in violation of 50 U.S.C. App. § 462(a).

Appellant registered with Local Board No. 82 in 1967, and the board classified him 1-A in 1969. He was ordered to report for induction on August 4, 1969, but was found unacceptable because of pending criminal charges.

In September, 1970, he was ordered to report for an induction physical and, when he failed to report, became available for induction pursuant to Local Board Memorandum No. 106. On March 11, 1971, the board mailed appellant a Notice to Report for Induction on March 24, 1971. He failed to report on that date.

Appellant’s father died on January 23, 1971. On March 22, 1971, appellant informed Vera Fleck, the local board’s executive secretary of the death of his father. He said that his imminent induction would result in a hardship for his mother. Appellant was given a Dependency Questionnaire.

On March 23, the complete questionnaire was filed, together with a statement from appellant’s mother, a letter from a doctor, and a letter from an attorney. Vera Fleck prepared a summary of the appellant’s hardship claim on a “call sheet.” She read the summary over the telephone to three members of the local board. The board njembers were telephoned individually. Each decided the registrant’s classification should not be reopened nor his induction postponed. Appellant was informed of this determination by telephone and letter. He was advised to report for induction as ordered.

A registrant, to be granted a reopening of his classification after an induction order is issued, must make two ;prima facie factual showings. First, he must show that there has been a change in his status resulting from circumstances beyond his control. 32 C.F.R. § 1625.2 prohibits reopening without a specific finding by the local board of such a change. Second, he must present facts which would justify a different classification. United States v. Stacey, 441 F. 2d 508, 510 (9th Cir. 1971); United States ex rel. Brown v. Resor, 429 F.2d 1340, 1343 (10th Cir. 1970). Appellant states he satisfied both conditions.

Appellant contends the procedure used was unauthorized and does not meet the requirements of 32 C.F.R. § 1625.2. He makes three arguments:

1) 32 C.F.R. § 1625.2 requires the local board to “specifically” find the newly sought classification resulted from a change in circumstances over which the registrant had no control. The converse is also true. Where the classification is not reopened, the board must specifically find that the claim is either factually insufficient or matured before he received the induction order. United States ex rel. Brown v. Resor, 429 F.2d at 1343.

2) The board’s discretion to reopen must be based on a review of all the information available to it, not on selective information furnished by the executive secretary. United States v. Miller, 455 F.2d 358, 360-361 (9th Cir. 1972); United States v. Ford, 431 F.2d 1310 (1st Cir. 1970).

3) The board’s procedure in permitting the executive secretary to give some of the board members a summary of the new information received over the telephone and making a brief notation in the minutes of action does not satisfy the requirements of either (1) or (2). The members of the board did not consider, discuss, or vote as a board on appellant’s claim. This failure to act as a board violates the reopening procedure. United States v. Walsh, 279 F.Supp. 115, 120-121 (D.Mass.1968).

The procedure by which a local board must determine whether a registrant meets both of his prima facie burdens presents difficult problems. Here, the determination was made by separate telephone calls between the'clerk and three of the board members.

A similar procedure was held invalid in United States v. Walsh, supra. There a registrant was declared delinquent after refusing to submit to a physical examination required by his 1-A-O classification. He sought to have the board reopen and reconsider his case. If he submitted new facts which made out a prima facie case for a different classification, the local board was required to reopen his case. The court found it was unnecessary to decide “whether the additional facts presented by the defendant required the local board as a matter of law to reopen and consider anew the defendant’s classification. The defendant, however, was entitled under 32 C.F.R. § 1625.4 to have such additional facts considered by the local board.” Id. at 120-121. The court found the failure to meet to consider, discuss, and vote as a board violated the implicit requirements of 32 C.F.R. § 1604.52(d).

In order to properly perform their classification function, the local board members must receive and consider all relevant communications from or concerning registrants. 32 C.F.R. § 1622.1(c); United States v. Kelly, 473 F.2d 1225 (9th Cir., 1973). Mulloy v. United States, supra, also emphasized the importance of the classification reopening procedure and held a local board may not arbitrarily refuse to reopen a registrant’s classification.

Appellant’s board did not act arbitrarily. It attempted to accommodate his last-minute request. We cannot say that his claim was so lacking in merit that there was no reasonable basis to reopen his case. When a registrant presents a non-frivolous claim for a classification change after receipt of his induction order, the local board members must consider all of the new information in order to determine whether the dual prima facie burden has been met. United States v. Kelly, supra. The presentation of selective information by the clerk-in separate telephone conversations with only three members of the board does not fulfill the requirements. This failure violated § 1604.56 and was prejudicial.

Since we reverse on reopening requirement grounds, we need not reach the question of whether appellant met his dual prima facie burden.

Reversed.

      . Accord, Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970).

      . Now 32 C.F.R. § 1604.56, which provides in pertinent part:
      “A majority of the members of the local board shall constitute a quorum for the transaction of business. A majority of the members present at any meeting at which a quorum is present shall decide any question of classification. Every member present, unless disqualified, shall vote on every question or classification.”

      . § 1622.1(c) in effect at the time herein, and is now 32 C.F.R. § 1622.1(a).

      . The Selective Service System is not precluded from establishing timeliness rules, but no such rules existed in this case.


text:
    Thomas R. PRINCE, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 72-3610
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 26, 1973.
    Robert R. Bryan, Birmingham, Ala., for petitioner-appellant.
    William J. Baxley, Atty. Gen., Don C. Dickert, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

This is another appeal by Thomas R. Prince from the district court’s denial of a habeas corpus petition. As in his former petition filed in November 1971, Prince alleges that he has been denied his constitutional right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments. This court affirmed the dismissal of his previous petition on the jurisdictional ground that at the time of filing Prince was not in custody pursuant to a judgment of a state court as required for relief under 28 U.S.C. § 2254(a). Prince v. Bailey, 464 F.2d 544 (5th Cir. 1972).

While Prince has now been convicted and sentenced to serve a term of 20 years on the robbery charges which were the subject of his former habeas proceedings, this second petition for relief is still premature. His conviction is on direct appeal in the state court system of Alabama. 28 U.S.C. § 2254(b) and (c) make it crystal clear that courts of the United States are bound to refrain from exercising their power under § 2254 so long as a petitioner has any effective right to obtain relief from constitutional errors under remedies provided by the courts of the state ordering his custody.

The district court lacked jurisdiction to grant relief and, therefore, the denial of the writ is

Affirmed.

      . An appeal from his conviction was docketed April 20, 1972, in the Alabama Court of Criminal Appeals, from whence no decision has yet issued.


text:
    Joseph GREMILLION, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, RespondentAppellee.
    No. 72-3404
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 12, 1973.
    Joseph Gremillion, pro se.
    William J. Guste, Jr., U. S. Atty., S. J. Dileo, Jr., Sp. Counsel, Baton Rouge, La., for respondent-appellee.
    Before BELL, GODBOLD and INGRAHAM, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

Appellant, a Louisiana state prisoner serving a sentence for armed robbery, was denied federal habeas relief without an evidentiary hearing and now appeals. There was a full evidentiary hearing in the state habeas court and the district court ruled on the basis of the state record. We affirm on that basis and the appertaining law.

The only assignment of error here which requires discussion is the contention that the bill of information on which appellant pled guilty was invalid due to an alteration. The bill also charged a co-defendant. It appeared that after appellant’s plea, the bill was in fact altered in connection with the plea of the co-defendant so as to charge a different and lesser crime as to the co-defendant. The result was that the bill no longer charged the appellant with a crime. The charge against him had, however, been recorded in the minutes of the court at the time of his plea. We hold that this alteration of the original bill does not rise to the level of a substantial federal question.

Affirmed.

      . The other assignments of error found to be without merit by the district court on the basis of the state record are:
      1. Appellant’s attorney waived formal arraignment without the knowledge or approval of the applicant;
      2. his plea of guilty was entered by counsel, rather than by appellant personally ;
      3. his guilty plea was not knowingly or voluntarily entered because he did not personally enter the plea. Also he was not advised of the charges against him and of the consequences of the plea;
      4. counsel did not represent the applicant’s best interests because he offered the applicant $5,000 to plead guilty and clear his co-defendant; and
      5. that his counsel was incompetent.


author: DYER, Circuit Judge:

text:
    Leonard LAMAR and John Miller, Plaintiffs-Appellees-Cross Appellants, v. ADMIRAL SHIPPING CORPORATION, Defendant-Third-Party Plaintiff-Appellant-Cross Appellee, v. SHAW COMPANY, Third-Party Defendant-Appellee.
    No. 72-2097
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 22, 1973.
    Rehearing Denied April 26, 1973.

      John H. Schulte, Miami, Fla., for appellant.
    Arthur Roth, Miami, Fla., for Leonard Lamar and John Miller.
    Richard F. Ralph, Miami, Fla., for Shaw Co.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc., v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   DYER, Circuit Judge:

We are called upon once again to determine whether a shipowner, having paid damages for personal injuries suffered by a longshoreman on board its vessel, may recover indemnity from the longshoreman’s stevedore employer on the theory that the stevedore breached its WWLP. The district coui't dismissed the third party complaint on the merits. We reverse.

Plaintiffs Lamar and Miller cross-appeal from the district court’s refusal to apportion their attorneys’ fees so that they would be borne by the plaintiffs and the compensation carrier for whose benefit the fund was created. We affirm.

Lamar and Miller were employed by Shaw as longshoremen to discharge cargo from the M/V NICA, owned by Admiral. The vessel was equipped with an aluminum accommodation ladder or gangway approximately thirty feet long and thirty inches wide with thirty steps. It was affixed to a turntable at the top with a through bolt, and the turntable was held in place with through bolts and plate. The base rested level on the cement apron of the dock on a roller. The steps were level.

In the early morning a Boarding Clerk, Immigration Officer, Customs Officer, Public Health Officer, and Department of Agriculture Officers used the gangway without incident. O’Brian, the stevedore superintendent for the discharging of cargo, inspected the gangway and found it to be bowed from top to bottom, eight to twelve inches out of alignment almost midway its length. At 0800 hours two gangs of longshoremen totaling twenty-two men proceeded single file up the ladder. Eight or nine men were on the gangway when it tipped over injuring the plaintiffs.

O’Brian told the chief officer that the gangway had tipped over because of the bow in it together with the weight of the longshoremen and ordered a safety line installed to prevent the gangway from tipping over again. A sign was posted limiting the use of the gangway to one person at a time.

The district court found that the ship’s gangway was slightly bowed and that it tipped while plaintiffs were on it; that the vessel was unseaworthy by reason of the condition of the gangway; and that the plaintiffs were injured as a proximate result of the unseaworthiness. These findings are not attacked on appeal.

With respect to the indemnity question the district court found:

The stevedore’s superintendent saw the slight bow in the gangway even before he, his company’s boarding clerk, and the government boarding officials used it to both board and leave the vessel. The gangway appeared to him to be in good repair and safe because it was affixed at the top to the vessel, it rested evenly on the level concrete block, and its steps were even.
In my view, there was an adequate basis for the superintendent’s conclusion, and his failure to take steps to secure the gangway with lines or to limit the number of persons using it at one time did not amount to a breach of the stevedore’s warranty of workmanlike performance.

We are of the opinion that the district court improperly dismissed the action over against the stevedore. The legal principles to be applied in determining the question of liability for indemnity for the breach of the WWLP are now so well settled that we forego a discussion of them at length. It is enough to say that in the factual context of this case even though the vessel’s equipment is unseaworthy, “if the stevedore brings this condition into play, he is liable to indemnify the owner for any damages which may be sustained because of the breach of warranty.” Crumady v. “The Joachim Hendrik Fisser,” 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L. Ed.2d 413. But the stevedore is chargeable only with knowledge of defects discernible by a reasonable, but cursory, inspection and is not responsible for latent defects. Vaccaro v. Alcoa Steamship Co., 2 Cir. 1968, 405 F.2d 1133. See Delaneuville v. Simonsen, 5 Cir. 1971, 437 F.2d 597. “There is a related rule that defects which are in fact observed cannot be overlooked. If the stevedore has knowledge of a defect it should correct it or require it to be corrected by the ship’s officers.” T. Smith & Son, Inc. v. Skibs A/S Hassel, 5 Cir. 1966, 362 F.2d 745.

It is undisputed that the gangway was bowed almost midway from eight to twelve inches. It was not a latent defect but was observed by the stevedore superintendent who thought it was “slightly unusual.” He had never seen a bow in a gangway before.

The stevedores, through the superintendent, “rendered a substandard performance which led to foreseeable liability” of the vessel. Their standard of performance has been succinctly defined —“to do the job properly and safely.” Ryan, swpra. This standard is not met when the stevedore’s superintendent is placed on notice that a gangway, which is to be used by longshoremen to board the vessel, is obviously bowed out of alignment in an unusual manner so that it would likely be unstable. Even the stevedores’ marine surveyor could do no better than opine that he could see nothing drastically wrong with the condition of the gangway and that it was not excessively dangerous. But drastic and excessive conditions are not the measure of performance under the WWLP. When both experts’ testimony is considered, with only a cursory glance at the photographs of the gangway, the conclusion is inescapable that the superintendent should have taken steps to properly discharge his duty to further inspect. The fact that the gangway is secured at the top to the vessel and is riding evenly on the ground surface does not indicate that it is safe and stable when it is obviously bowed in the middle. “In short, he must not assume that a safe condition exists when he has notice that such may not be the case; and his judgment is not vindicated by the fact that three men used the ladder without incident before the accident.” Smith v. Jugosalvenska Linijska Plovidea, 4 Cir. 1960, 278 F.2d 176, 181.

It follows that the judgments dismissing the third party action on the merits must be reversed.

We now turn to the cross-appeal of plaintiffs Lamar and Miller. They concede that Liberty Mutual Insurance Company, insurers of Shaw Company, is entitled to a lien for the full amounts expended by it for compensation and medical benefits under the Longshoremen’s Act, but they cross-appeal contending that the Florida Compensation Act, § 440.39 F.S.A., should be applied so that the insurance company will bear its equitable share of the legal fees and expenses of litigation. Alternatively, relying on Cleveland Chouest v. A & P Boat Rentals, 5 Cir. 1973, 472 F.2d 1026, the cross-appellants argue that since their attorney created the fund for the benefit of Liberty Mutual, and since its counsel contested, on behalf of the third party defendant, the damages sought by the cross-appellants, their attorney is entitled to reasonable fees to be paid out of the fund. We think neither position is sound.

It is plain from the record that the payments for compensation and medical benefits were made to the cross-appellants under the Longshoremen’s Act. The Florida Workmen’s Compensation Act is wholly inapplicable. Thus, its provision for an equitable apportionment of legal fees and expenses is of no moment.

Chouest is inapposite here for two reasons. First, Lamar and Miller stipulated that from their recoveries the medical and compensation payments received by them would be repaid to Liberty Mutual, free of any claim for attorneys’ fees. Second, Miller was awarded $3,021.65 for medical expenses, lost wages, and general damages with the proviso that Liberty Mutual had a lien of $1,640.65 to be deducted from the award. Lamar was awarded $15,272.60 for medical expenses, lost wages, and general damages, with the proviso that Liberty Mutual had a lien of $5,792.39 to be deducted from the award. Chouest does not stand for the broad proposition posited by cross-appellants. The reallocation principles it established “need be undertaken only in very limited circumstances”. 472 F.2d at 1037. Chouest was concerned with

the proper allocation between longshoreman and employer-intervenor (compensation carrier) of the proceeds of the longshoreman’s recovery against a negligent shipowner, in a situation where the proceeds were insufficient to provide both full reimbursement for the employer’s compensation payments and the attorney’s fee of the longshoreman’s lawyer.

472 F.2d at 1030.

In the instant case, the question of reallocation does not arise because it is clear “the amount of the recovery is sufficient both to reimburse, the intervenor and pay the plaintiff’s attorney.” 472 F.2d at 1037.

The judgment of the district court dismissing the third party actions on the merits is reversed with directions to enter judgment for Admiral against Shaw. The judgment of the district court denying an allocation of plaintiffs’ attorneys’ fees between plaintiffs and Liberty Mutual is affirmed.

Affirmed in part and reversed in part.

      . Warranty of Workmanlike Performance. Ryan Stevedoring Co. v. Pan Atlantic S. S. Corp., 1952, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. The problems of indemnity and attorney fee allocations spawned by Rijan are now largely put to rest by the 1972 Amendments to the Longshoremen’s and Harbor Worker’s Compensation Act, 33 U.S.C.A. § 901 et seq.


author: DYER, Circuit Judge.

text:
    Eloy Pedro GARCIA, Plaintiff-Appellant, v. MURPHY PACIFIC MARINE SALVAGING COMPANY, Defendant-Appellee.
    No. 72-3516
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 9, 1973.

      Bruce C. Waltzer, George F. Riess, New Orleans, La., for plaintiff-appellant.
    L. J. Lautenschlaeger, Jr., New Orleans, La., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc., v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   DYER, Circuit Judge.

Garcia, a crew member of the M/V Cable, sued the owner, Murphy Pacific, for personal injury damages under the Jones Act, 46 U.S.C.A. § 688, and under the Doctrine of Seaworthiness of the general maritime law. The jury returned a verdict for Murphy Pacific. The district court denied Garcia’s motion for new trial and judgment N.O.V. We affirm.

For about a week Garcia had been assisting Fuquay, another crew member, in splicing cable, an ordinary function aboard the vessel while it was in port. The splicing was accomplished by cleaning the ends of the cable with diesel oil and a brush to remove the protective grease coating. Some of the oil and grease necessarily fell to and accumulated on the steel deck. To prevent the crew members engaged in the splicing operation from slipping on the deck, canvas, burlap bags, and sawdust were spread over the area.

At the time of the accident Fuquay was handling the Marlin spike and Garcia was pulling the strands of wire through the splice. Garcia’s feet suddenly slipped out from under him, and in turning to the right in order to catch himself with his hands and arms while falling, he experienced pain in his lower back.

Garcia specifies two errors on appeal: the jury was manifestly in error in its failure to find that the Cable was unseaworthy and its crew negligent; and Garcia was denied his day in court,, as the result of the inattentiveness or dozing of one of the members of the jury.

Garcia argues that the jury must not have understood the rather complex principles involved in a determination of liability under the general maritime law and under the Jones Act and that it was manifestly in error in incorrectly applying the legal principles involved. We disagree.

A careful review of the record convinces us that the issues tried were properly submitted to the jury and that its findings should stand. There was evidence to show that oil was on the deck; that safety measures were taken by spreading burlap sacks, canvas, and sawdust on the decks; that the cleaning and splicing was a normal function when the vessel was in port; that diesel oil is customarily used in connection with the splicing; and that there was nothing unusual in the way in which the operation was conducted. There was also evidence with respect to the experience of Garcia in connection with the splicing operation and the supervision, or lack of it, of Garcia.

In Lieberman v. Matson Navigation Company, 9 Cir. 1962, 300 F.2d 661, the court succinctly stated the principles here involved saying:

While it is true that the requirement to furnish a seaman a seaworthy vessel is absolute, it is untrue that this duty is limitless. “The standard is not perfection, but reasonable fitness.” Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941. The owner is not an insurer. Neterer v. United States, D.C.Md.1960, 183 F.Supp. 893.
“In other words, a seaman is not absolutely entitled to a deck that is not slippery. He is absolutely entitled fo a deck that is not unreasonably slippery.” Colon v. Trinidad Corp., D.C.N.Y.1960, 188 F. Supp. 97 at 100.
“The temporary presence of water upon the deck does not constitute unseaworthiness — to hold otherwise would make the shipowner an insurer.” Garrison v. United States, N.D.Cal.1954, 121 F.Supp. 617.
Whether unseaworthiness or negligence are a proximate cause of the accident are questions of fact. Borgen v. Richfield Oil Corp., 9 Cir. 1958, 257 F.2d 505. The burden of proving either is on appellant. Selby v. United States, 2 Cir. 1959, 264 F.2d 632; Lipscomb v. Groves, 3 Cir. 1951, 187 F.2d 40.

From the evidence presented, the jury could have found that the Cable’s owner had acted as a reasonably prudent person would have under the circumstances, hence there was no negligence; and that there was no unseaworthiness because the Cable was reasonably suited for its intended purpose and the work area was reasonably safe. On the other hand, the jury could have determined that there was negligence in the way the work was performed, or that because of the oil the area was unsafe and thus the vessel was unseaworthy. Under these circumstances we are not at liberty to redetermine facts found by the jury. Under the rule of Lavender v. Kurn, 1946, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916,

whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.

Finally, we are unpersuaded that Rogers v. United States, 5 Cir. 1972, 452 F.2d 1149, upon which Garcia heavily relies, dictates a different result. In Rogers the plaintiff was required to stand and work in oil and water in the bilge for several hours and subsequently slipped and was injured. Nothing had been done to avoid or minimize the danger of slipping, except an occasional unsuccessful attempt to pump the bilges. In the case sub judice, however, it was necessary to utilize diesel oil in the splicing operation with its consequent drippings but canvas, burlap, and sawdust were used for the very purpose of avoiding or minimizing the danger of slipping.

While we might agree with Garcia’s contentions had the question of fact been left to us, we can no more redetermine facts found by the jury than the district court can predetermine them. “For the Seventh Amendment says that ‘no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.’ ” Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 1962, 369 U.S. 355, 359, 82 S.Ct. 780, 783, 7 L.Ed.2d 798, Aguirre v. Citizens Casualty Company of New York, 5 Cir. 1971, 441 F.2d 141, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58.

By post trial motion for a new trial Garcia contended that he was denied his day in court because one of the jurors was allegedly inattentive or periodically dozing during the trial. The district court denied the motion and we think its ruling was proper.

It appears that the juror was curled up in her chair from time to time and kept her eyes closed frequently during the trial. The trial judge noticed this but also noted that the juror gave evidence that she was listening. There was no evidence offered that the juror was in fact asleep or inattentive.

Because the context in which alleged juror misconduct arises is different in every case, whether a new trial should be granted must be decided on an ad hoe basis. In this case we cannot say that the evidence supported a finding of juror misconduct.

The judgment of the district court is Affirmed.

      . The trial judge found :
      I am not satisfied that (she) was ever asleep at any time during the trial.
      I am not satisfied in this case that the interest of justice would be served by my granting a new trial on the hypothesis that this juror was inattentive.

      . Xo objection was made by Garcia’s counsel during the trial and no affidavits were submitted by either Garcia or his counsel in support of the motion for new trial because they were unaware of the situation. Of course, a party, with knowledge of a juror’s misconduct, must make a timely objection and is not permitted to take his chances on a favorable verdict and if unfavorable get a second bite of the apple.